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Cornell University Library 
 KF 8935.Z9R46 1890 
 
 The theory of the law of evidence as est 
 
 3 1924 020 135 640 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31 9240201 35640 
 
THE THEOET 
 
 or THE 
 
 LAW OF EVIDEIsTCE 
 
 AS 
 
 ESTABLISHED IN THE UNITED STATES, 
 
 AND OF THE 
 
 CONDUCT OF THE EXAMINATION OP WITNESSEa 
 
 BT 
 
 WILLIAM REYNOLDS, 
 
 OF THE BALTlSOBB BAB. 
 
 SECOnSTD EDITIOir. 
 
 "As tte rules which guide all legal questions are comparatively few, and 
 the instances which depend on them are mmiberless, and only by chance 
 will any future instance be hke any one which has gone before, he [the 
 successful lawyer] learned the rules and how to apply them, and let the 
 tQstances take care of themselves." — Joel P. Bishop. 
 
 CHICAGO, ILL. : 
 
 CALLAGHAN AND COMPANY, 
 1890. 
 
^^/^^3 
 
 Entered eiccoraing to act of Congress in the year eighteen hundred and 
 
 eighty-three, 
 
 Bt WILLIAM REYNOLDS, 
 
 in the offloe of the Librarian of Congress, at Washington, D. 0. 
 
 Entered according to act of Congress in the year eighteen hundred and 
 ninety, 
 By WELLIAM REYNOLDS, 
 in the office of the Librarian of Congress, at Washington, D. C. 
 
 STATE JOtJENAL PRINTING COMPANY, 
 Printers and Stereotypbbs, 
 
 MADISON, wis. 
 
PEEFAOE TO FIRST EDITION". 
 
 The object of this little work is to provide for 
 members of the bar and students an additional 
 facility for aaqjairing"' such an "-accurate general 
 knowledge of the rules of evidence,-smd of the 
 theory upon which they have been adopted, as every 
 lawyer must carry in his head in order to be able 
 to try cases with justice to his' clients. Most of the 
 standard treatises are entirely too voluminous for 
 this purpose, being overloaded with many decisions 
 of particular points, which, although making them 
 valuable as works of reference, renders them ill- 
 adapted for conveying a comprehensive knowledge 
 of general principles. I imagine that the number of 
 persons who have read through Starkie, Greenleaf, 
 Taylor or Wharton more than once, is compara- 
 tively small. The admirable Digest of the Law of 
 Evidence by Mr. Justice Stephen is certainly not 
 liable to the objection of being too diffuse ; but as 
 it claims to be a digest in the form of a statute, it 
 merely states the rules of evidence, with illustrations 
 of the manner in which they are applied, and alto- 
 gether omits to give the reasoning upon which they 
 are founded and the purposes for which they were 
 
iv PREFACE. 
 
 adopted. Like other codes and digests, it is exceed- 
 ingly useful, if not indispensable, to practitioners 
 who already possess a general knowledge of its sub- 
 ject ; but experience has shown that a work in this 
 form does not furnish the best means of gaining 
 that general knowledge in the first instance. This 
 is demonstrated by the fact that Avhile it has had 
 perhaps a larger sale than any other law book ever 
 written in the English language, it has been adopted 
 as a text-book in comparatively few of our law 
 schools. 
 
 In this work I have endeavored, in the form of 
 a brief treatise, to present the law of evidence as 
 a complete scientific and rational system consisting 
 of a series of rules, each one adopted for special 
 reasons founded upon practical experience, but all 
 directed to the common purpose of providing the 
 best attainable means of getting at the truth in re- 
 gard to controverted questions of fact, with the 
 highest degree of certainty compatible with the 
 nature of judicial investigation. In attempting this, 
 I have endeavored to state in as accurate terras as 
 possible the principal rules of evidence, arranging 
 them in what seems to me their natural logical 
 order, following very closely that adopted b}"- Mr. 
 Justice Stephen, because, in its main features, I do 
 not think that arrangement is capable of being im- 
 proved upon. For the same reason I have also, iu 
 many instances, given the rules of evidence in lan- 
 guage almost identical with that which he uses for 
 
PREFACE. V 
 
 the same purpose. But, in addition to giving the 
 rules themselves, I have also added the reasoning 
 upon which they are founded, as affording a method 
 of explaining the manner of their application, better 
 adapted to my purpose than that of citing several 
 instances by Way of illustration ; because it is much 
 easier to remember one reason which commends, 
 itself to the intelligence, than to recall to mind the 
 decisions of such particular oases as bear more or 
 less analogy to the question under consideration. It 
 has been the result of my observation, that for per- 
 sons possessing the maturity of mind required for 
 the study of a profession, there can be no better 
 way of learning to apply a rule correctly than by 
 constantly looking to the reasons for its adoption 
 and the purposes which it was designed to accom- 
 plish, as the best aids to its interpretation. 
 
 I have, for several reasons, confined my citations; 
 of authorities almost entirely to text-books. In the 
 first place, this book is designed to be a statement 
 of established rules and not a collection of decisions, 
 and general rules are usually more accurately stated 
 in the text-books than in the decisions of reported 
 cases. In the latter the rule is stated with special 
 reference to its application to the point which is be- 
 fore the court for adjudication, while in the text-book 
 it is considered with reference to its application to 
 every conceivable case which may be embraced 
 within its terms. Again, as all the principal rules of 
 
Vi PREFACE. 
 
 evidence are now well settled, the important question 
 is what they are, and this is better answered by the 
 text-books than by the original decisions upon which 
 they are founded. This is fully recognized by the 
 Supreme Court of the United States and the highest 
 courts of the several states, which, in their decisions 
 upon questions of evidence, cite Greenleaf and Taylor 
 as authorities to sustain their rulings much oftener 
 than they do reported cases. Finally, as each re- 
 ported opinion is an authority only so far as it relates 
 to the precise question actually decided by the court, 
 it follows that ordinarily it requires a series of decis- 
 ions to establish any general rule ; and therefore the 
 citation in a work of this kind of all the cases 
 by which all the general rules here given were orig- 
 inally established, avouM involve an amount of labor 
 and occupy an amount of space greatly dispropor- 
 tioned to the advantages to be derived therefrom. 
 In one or other of the standard text-books to which' 
 I have given references in support of every one of 
 the propositions advanced, the reader will generally 
 find the whole subject fully discussed and most of 
 the authorities collated. 
 
 In addition to the theory of the law of evidence- 
 proper, I have also devoted a few pages to the dis- 
 cussion of the theory of the conduct of the exam- 
 ination of witnesses, which I trust may not be 
 without value to the younger members of the pro- 
 fession. The principal authorities to which I am 
 
PREFACE. 
 
 Vll 
 
 indebted for ttie views expressed upon this subject 
 are The Advocate, by Cox, a considerable part of 
 which is printed as an appendix to Earn on Facts ; 
 Harris' Hints on Advocacy, and Sergeant Ballan- ' 
 tine's Experiences, supplemented by my own per- 
 sonal observation. 
 
 Wm. Eetijolds. 
 1 St. Paul St., Baltimore, 
 April 17, 1883 
 
PEEFAOE TO SEOOIS'D EDITIOK 
 
 The principal changes made in this edition are by 
 transferring to the list of disputable presumptions 
 of law, several of which the first edition, following 
 the majority of standard text-book writers, classed 
 as conclusive, but which in modern practice are not 
 so regarded, by rewriting the section on judicial no- 
 tice and adding a new one upon the effect of altera- 
 tion or spohation of documents. 
 
 W. E. 
 
 Baltimoke, Oct 8, 1890. 
 
OOI^TEIvrTS. 
 
 INTRODUCTORY, 
 Seo. Page. 
 
 1. Definitions 3 
 
 8, General division of the subject 4 
 
 PART I.— RELEVANCY. 
 
 Chapter I. — Rules op Admission. 
 Sec Page.. 
 
 3. What are facts in issue 5 
 
 4. Direct and indirect evidence 6 
 
 5. Facts not directly in issue, but relevant thereto 6 
 
 6. Rules to determine the relevancy of certain classes of 
 
 facts not directly in issue 7 
 
 7. Res gest^, or facts forming part of the same trans- 
 
 action; statements accompanying an act; conspiracy 8 
 
 8. Facts showing probable cause for existence or non- 
 
 existence of fact in issue 10 
 
 9. Ordinary course of business H 
 
 10. Natural effects likely to have been produced by exist- 
 
 ence or non-existence of facts in issue; complaints; 
 facts showing animus; similar occurrences showing 
 intention 11 
 
 11. Facts explantory of relevant facts 12 
 
 Chapter IL— Rules of Exclusion. 
 
 13. Res inter alios; facts not directly in issue, nor rele- 
 vant thereto as above stated, are inadmissible 14 
 
 13. Not all facts connected with another by way of cause 
 
 and efEeot necessarily relevant thereto 15 
 
X CONTENTS. 
 
 Sea. Page 
 
 14. Character, hearsay and opinion generally irrelevant 15 
 
 15. Character irrelevant excepting in favor of a person 
 
 indicted criminally, or when directly in issue 13 
 
 16. Hearsay excluded except in certain cases 17 
 
 17. Eeasons for the rule excluding hearsay 18 
 
 IS. Two classes of exceptions to the rule 19 
 
 19. First class of exceptions — Admissions 21 
 
 30. How admissions may be made 23 
 
 21. The whole of a statement made at the time must be 
 
 considered 33 
 
 23. Party bound by the admissions of — faj his privies; 
 (bj those whose interests he represents; ('cj those 
 jointly interested with him; fdj those whom he has 
 authorized to make admissions, or to whom he has 
 referred a party for information 23 
 
 23. Offer of compromise not an admission 26 
 
 24. A dmissions made under duress, excluded 27 
 
 25. Confessions not made voluntarily, excluded — "What 
 
 deemed involuntary 27 
 
 26. But a fact first discovei-ed by means of an involun- 
 
 tary confession may be proved by other evidence. . 38 
 37. Sworn confessions made by an accused person while 
 under examination before a magistrate, excluded as 
 involuntary 29 
 
 28. How far modified by statutes permitting accused to 
 
 testify, qvmre 30 
 
 29. Confessions made under promise of secrecy or ob- 
 
 tained by deception, not involuntary 31 
 
 30. Recitals of public facts in statutes or proclamations, 
 
 and entries of facts made in ofiicial registers, admis- 
 sible in evidence 31 
 
 31. Grounds of admissibility 33 
 
 33. Matters of general public history in accredited works 
 
 by deceased or foreign authors — Almanacs — Maps 33 
 33. Entries in books of corporation admissible in certain 
 
 cases 3.^ 
 
CONTENTS. Xi 
 
 See. Page. 
 
 34. Records of judicial proceedings conclusive proof of 
 
 the substantive facts recited 34 
 
 35. But not of the correctness of the decision rendered, 
 
 except in certain cases , 86 
 
 86. Rules regulating the admissibility and conclusiveness 
 of the judicial portions of records: 
 
 (a) Adniissible and conclusive as between the par- 
 ties and their privies; 
 
 (&) Inadmissible in all other cases, except — 
 
 1st. That judgments declaratory of the status of 
 a person or thing are admissible, and generally con- 
 clusive pi-oof of such status; and 
 
 2d. That adjudications upon questions involving 
 custom and pedigree are admissible in certain cases 
 as between others than parties or privies 37 
 
 37. Why judgments declaratory of the status of a person 
 
 or thing are always admissible to prove it 40 
 
 38. Who are parties to a judgment 40 
 
 39. Admissibility of record dependent upon whether court 
 
 had jurisdiction, which may always be inquired 
 into ... 41 
 
 40. Same doctrine applicable to foreign as weU as domes- 
 
 tic judgments 43 
 
 41. General reputation sometimes admissible in evidence. 43 
 
 43. Second class of exceptions to rule excluding hearsay — 
 
 Statements made under certain circumstances by 
 persons since deceased, insane or permanently be- 
 yond the reach of process 45 
 
 48. Evidence given in former proceeding, or at earlier 
 
 stage of same action 46 
 
 44. Dying declarations 47 
 
 45. Declarations made in the ordinary course of business, 47 
 
 46. Declarations made against the interest of the declar- 
 
 ant 49 
 
 47. Declarations of testator as to contents of his will 53 
 
 48. Declarations as to any public or general right or cus- 
 
 tom 53 
 
Xii CONTENTS. 
 
 Sea. Page. 
 
 49. Declarations as to matters of pedigree 54 
 
 50. Opinion excluded except in a few cases 57 
 
 51 . Opinions formed from personal observation admissible 
 
 when the best evidence that the nature of the case 
 admits of 57 
 
 53. Opinions of experts on matters requiring study or 
 
 experience, admissible 60 
 
 53. Opinion as to handwriting 61 
 
 PART II.— ON PROOF. 
 
 Chapter I. — All Facts Must be Proven Unless Judi- 
 cially Noticed or Admitted. 
 Seo. Page. 
 
 54. Facts must be proven by the best kind of evidence 
 
 attainable 64 
 
 55. Courts disregard all facts not proven in the cause on 
 
 trial, except in two cases 65 
 
 56. Facts judicially noticed 66 
 
 57. Facts expressly admitted by the parties, either by their 
 
 pleadings or at the hearing 73 
 
 Chapter II. — Oral Evidence. 
 
 68. All ultimate facts to be proven must be established 
 by direct oral testimony, except in four enumerated 
 cases . . . , 75 
 
 Chapter III. — When Oral Evidence Excluded. 
 
 59. Conclusive presumptions of law may not be contra- 
 
 dicted by oral evidence — Conclusive presumptions — 
 Estoppels , . 77 
 
 60. Oral testimony excluded as to matters of which the 
 
 law requires a fuU official record to be kept 83 
 
 61. The contents of a written iostrument can only be 
 
 proved by production of the document itself, except 
 in certain cases 83 
 
CONTENTS. Xiil 
 
 Sec Page. 
 63. Attested documents must be proved by at least one of 
 the subscribing witnesses, if any such is alive or can 
 be found 84 
 
 63. Kxceptions to rule requiring attesting witnesses to be 
 
 examined 86 
 
 64. The contents of public documents may be proved by 
 
 copies — Certified copies 88 
 
 65. Eule requiring primary evidence of the contents of 
 
 documents modified by statutes making certified cop- 
 ies admissible in evidence 91 
 
 66. Secondary evidence of doomnents received in certain 
 
 cases where party has shown his inabiUty to produce 
 the original in court — Notice to adverse party to 
 produce documents 92 
 
 67. Degrees of secondary evidence recognized in America, 
 
 but not in England 94 
 
 68. Secondary evidence may be given of the general result 
 
 of a collection of documents too nimierous to be con- 
 veniently examined in court. , 95 
 
 69. Oral testimony may not be given to vary the terms of 
 
 a viTitten contract 96 
 
 70. This rule only extends to writings intended by the par- 
 
 ties as a binding statement of their transactions. ... 98 
 
 71. And to controversies between the parties to the instru- 
 
 ment and those, claiming under them 101 
 
 72. How far the meaning of a writing may be explained 
 
 by oral testimony 103 
 
 PART ni.— ON THE PRODUCTION AND EFFECT OF 
 EVIDENCE. 
 
 Chapter I. — BuRDBJf or Proof. 
 Sec Page 
 ' 73. Burden of proof lies on the party substantially assert- 
 ing the affirmative of the issue 107 
 
 74 Except where a disputable presumption of law exists 
 
 in his favor 108 
 
Xiv CONTENTS. 
 
 Sec. Page. 
 
 75. Or the subject-matter of his allegation hes peculiarly 
 
 wit Viin the knowledge of the other party 113 
 
 Chapter IL — Right to Begest. 
 
 76. Party who begins must produce his entire case 115 
 
 77. PlaiutifiE has right to begin when the bm-den of any of 
 
 the issues is on him, or he seeks substantial unliqui- 
 dated damages 116 
 
 Chapter III. — Competency of Witness. 
 
 78. AH witnesses presumed competent unless objected to — 
 
 When objection must be made 118 
 
 79. What rendered a witness incompetent at common 
 
 law — Want of mental capacity — Want of reUgious 
 behef — Interest — Being husband or wife of party . . 119 
 
 80. Witnesses forbidden to testify as to certain matters and 
 
 privileged as to others 123 
 
 81. Confidential conamunications between husband and 
 
 wife 123 
 
 82. Judges may not be examined as to certain matters. . . . 124 
 
 83. Grand and petit jurors may not be examined as to. 
 
 their consultations 125 
 
 84. Communications made to pubhc ofiicers or grand ju- 
 
 rors, with a view to criminal prosecutions, may not 
 be disclosed 126 
 
 85. State secrets may not be disclosed 126 
 
 86. Communication to legal adviser may not be disclosed 
 
 hy him 127 
 
 87. Privilege of chent as to disclosing communication 
 
 made to legal adviser 128 
 
 88. Privilege as to facts tending to criminate witness 129 
 
 89. Privilege of government and state officials as to public 
 
 matters 130 
 
 90. Cases where corroborative evidence required 130 
 
 91. Prosecutions for treason -^30 
 
 92. Prosecutions for perjury , -y^^ 
 
CONTENTS. XV 
 
 Seo. Page. 
 
 93. To contradict answer in equity called for upon oath. . . 1-Sl 
 \ 94. Generally required to establish general usage or proof 
 
 of adultery 132 
 
 95. Testimony of an accomplice should genei-ally be cor- 
 
 roborated to warrant conviction 133 
 
 Chapter IV.— Examination of Witnesses. 
 
 96. AU witnesses must be examined upon oath or affirma- 
 
 tion 133 
 
 97. How oral evidence may be taken 133 
 
 98. "When and how objections to deposition may be made. . 135 
 
 99. Examination in chief — Leading questions 135 
 
 100. Refreshing memory 137 
 
 101. Cross-examination — Questions affecting credibility — 
 
 Leading questions 188 
 
 102. How far answers on cross-examination may be con- 
 
 tradicted 142 
 
 103. When proper foundation laid on cross-examination, 
 
 previous inconsistent statements maybe pi-oved 143 
 
 104. Previous inconsistent statements in vrriting may not be 
 
 proved unless writing first shown to witness or its 
 absence explained 144 
 
 105. Ke-examination — Restricted to explanation of state- 
 
 ments on cross-examination — Leading questions . . . 144 
 
 106. Lnpeacbing credit of witness, in what cases allow- 
 
 able 145 
 
 107. Proof of particular facts tending to show bias, or pre- 
 
 vious conviction of an infamous crime 148 
 
 108. Proof of general reputation for want of veracity 149 
 
 Chapter V. — Production of Documents. 
 
 109. How party to suit may compel his adversary to produce 
 
 documents 151 
 
 110. When an inspection of documents in the hands of op- 
 
 posite party will be aDowed at common law 152 
 
 111. Statutory enactments upon tliis subject 153 
 
xvi CONTENTS. 
 
 Sec. Page. 
 
 113. When production or inspection of documents may be 
 
 compelled in equity 154 
 
 113. Production of dociunents in hands of one not a party 
 
 may be compelled by subpoena duces tecum 156 
 
 114. How documentary evidence is introduced 157 
 
 115. Effect of alteration or spoliation of documents 160 
 
 FART IV.— ON THE CONDUCT OF THE EXAMINATION 
 OF WITNESSES. 
 
 CttAPTEE L— Examination in Chief. 
 Sec. Page. 
 
 116. Examination of witnesses, an art 164 
 
 117. Object of examination in chief, and how accomplished. 165 
 
 118. The ordinary witness 165 
 
 119. Questions should be simple, short and dehberately put. 167 
 
 120. The swift witness 167 
 
 121. The hostUe witness 168 
 
 132. Duties of opposing coimsel during examination in 
 
 chief 169 
 
 123. Leading questions — Frivolous objections 170 
 
 Chapter II. — Ceoss-Examination. 
 
 124. Sergeant Ballantine's theory of cross-examination 171 
 
 125. Never ask a question without a definite object 173 
 
 126. General character of cross-examination, how deter- 
 
 mined 173 
 
 127. Things to be avoided in cross-examination 174 
 
 128. Duties of opposing coimsel duriag cross-examination. . 176 
 
 Chapter HI. — Re-examination. 
 
 129. Purpose and scope of re-examination 178 
 
 ISO. Duties of opposing cormsel during re-examination 179 
 
THE THEORY 
 
 LAW OF EVIDENCE 
 
 •AS 
 
 ESTABLISHED m THE UNITED STATES, 
 
 AND OF THE 
 
 CONDUCT OF THE EXAMINATION OF WITNESSES. 
 
THE THEOET 
 
 OF THE 
 
 LAW OF EYIDENOE. 
 
 Il^TEODUOTOEY. 
 
 Sec. 1. Definitions. — As a judicial decision is 
 nothing more than the application of the established 
 principles of law to a given state of facts, it follows 
 that whenever any tribunal pronounces a judgment 
 it must necessarily assume the existence of certain 
 facts. Unless the facts so assumed by the tribunal 
 have taken place in its presence, it is obvious that it 
 can acquire knowledge of their existence or non- 
 existence only by means of information imparted to 
 it upon the subject ; and as it would be clearly im- 
 practicable to impose upon courts the labor of col- 
 lecting such information in regard to every case 
 brought before them, experience has shown that the 
 most convenient as well as efficacious method of 
 .administering justice is that courts, in determining 
 questions of fact, should always, except in some mat- 
 ters hereafter to be noticed, be governed in making 
 
4 INTRODUCTORY. 
 
 their decisions solely by such information as may 
 have been produced before them by the parties to 
 the proceeding in accordance with certain prescribed 
 rules of law. If they were allowed to decide on 
 impression or information acquired elsewhere, not 
 only would it be impossible for a superior tribunal, 
 the parties, or the public, to know on what ground 
 the decision proceeded, but it might be founded on 
 common rumor or something else equallj'^ untrust- 
 worthy, which the party to whose prejudice it oper- 
 ated would have had no opportunity of confuting.^ 
 The information thus imparted to the court upon 
 which to found its decision is called Evidence ; and 
 the rules regulating its admissibility, the method of 
 its production, and its effects, constitute the Law of 
 Evidence. 
 
 Sec. 2. General division of the subject. — These 
 rules of Evidence have been divided into three 
 classes,^ namely, those relating to 
 
 I. Eelbvanct — by which is determined what 
 facts may be received in evidence in any given case. 
 
 II. Peoof — by which are defined the means 
 whereby the existence or non-existence of relevant 
 facts may be made apparent to the court. 
 
 III. Peodtjction and effect of evidence. 
 These will now be considered in their order. 
 
 iBestEv., §§38, 88. 
 
 2 This classification, which has been adopted by Sir Jas. F. 
 Stephen in his India Evidence Act and his Digest of the Law 
 of Evidence, commends itself as more logical than that made 
 by any other vsrriter on the subject. 
 
PAETL 
 
 RELEVANCY. 
 
 CHAPTER I. 
 
 RULES OF ADMISSION. 
 
 Sec. 3. What are facts in issue. — Whatever 
 facts are necessarily involved in any question sub- 
 mitted to a court for its determination are said to be 
 " in issue," and evidence as to their existence or non- 
 existence is always relevant. Thus in the trial of an 
 indictment for murder, the facts that the deceased 
 came to his death by other than natural means, that 
 those means were put into operation by the accused, 
 and that he was actuated by malice in so doing, are 
 all facts in issue because they are all necessarily in- 
 volved in the charge of murder. So, also, in a suit 
 for damages for a tort, the commission of the wrong 
 by the defendant, as well as the extent of the in- 
 jury inflicted, and the loss occasioned to the plaintiff 
 thereby, are facts in issue. Whenever any material 
 fact is alleged in the pleadings of a cause by either 
 party and is denied by the other, that fact is " in 
 issue ; " but in order that a fact may be in issue it is 
 
6 RELEVANCY. [P^kt I. 
 
 not necessary that it be specifically alleged or denied 
 in the pleadings; it is sufficient that it constitutes 
 ■one of the component parts of a fact so alleged or 
 denied. 
 
 Sec. 4. Direct and indirect evidence. — Facts in 
 issue may be proved either by direct evidence, or by 
 indirect, otherwise called circumstantial evidence. 
 By direct evidence of a fact is meant the statements 
 of persons who have perceived its existence by means 
 of their senses, or the production of the thing itself 
 before the court, where the fact to be proved is its 
 present existence or condition. By indirect evi- 
 dence is meant the proof of some other fact or facts 
 from which, taken either singly or collectively, the 
 existence of the particular fact in question may be 
 inferred as a necessary or probable consequence. 
 Facts not directly in issue, but which may be proved 
 for the purpose of establishing the existence or non- 
 existence of any fact in issue, are called " facts relevant 
 to the issue." These facts relevant to the issue may 
 ■be proved either by direct or indirect evidence in the 
 same manner as a fact in issue, and so also may any 
 facts which are relevant to prove them. 
 
 Sec 5. Facts not directly in issue, hut relevant 
 tliereto. — Whenever any fact or series of facts would, 
 if true, conclusively establish the existence or non- 
 existence of any fact in issue, or of any fact rel- 
 evant thereto, such fact or series of facts is always 
 
 iSte. Dig., art. 4; Tay. Ev., § 298; Lucas v. Brooks, 18 
 WaU., 436, 454. 
 
Chap. I.] RULES OF ADMISSION. 7 
 
 relevant, and proof thereof may be given in evidence ; 
 but when the effect of proving a fact offered in evi- 
 dence Virould only be to render more or less probable 
 -the existence or non-existence of a fact in issue or 
 relevant thereto, then the question of its admissi- 
 bility becomes one of much more difficulty, and must 
 be determined by the sound discretion of the judge 
 under all the circumstances of the case, according to 
 the degree of light which it would throw upon the 
 matter in issue, subject, however, to certain estab- 
 lished rules by which some classes of facts are re- 
 quired to be always admitted as relevant while some 
 other classes are excluded as irrelevant. 
 
 Sec. 6. Hules to determine the relsva/ncy of cer- 
 tain classes of facts not directly in issue. — These 
 rules are to a certain extent arbitrary, and are mostly 
 founded upon the result of practical experience 
 rather than based upon any strict logical theory. 
 This is necessary from the fact that absolute certainty 
 as to any fact is unattainable by means of human 
 evidence, except perhaps in some cases where the 
 matter is apparent to our own senses. In every other 
 case the most that can be attained is moral certainty, 
 which has been defined as such a high degree of prob- 
 ability as would justify a prudent man in acting upon 
 it under the circumstances of the case as if it were 
 an absolute certainty. It therefore follows that 
 moral certainty is a question of prudence rather than 
 of calculation, and consequently the only practical 
 rules that can be formulated as to the relevancy of 
 
8 RELEVANCY. [Past I. 
 
 those facts from the existence of which a fact in issue 
 may be probably inferred, are mere enumerations, on 
 the one hand, of certain classes of facts which have 
 been ascertained by experience to be capable of sup- 
 porting an inference as to other facts sufiBciently prob- 
 able to be the foundation of a legal judgment, and 
 on the other hand, of certain other classes of facts 
 from which no inference could be drawn, carry- 
 ing with it such a high degree of probability as 
 would justify any court in making it the basis of its 
 decision. 
 
 Sec. 7. Res GESTiE, or fads forming part of tJu 
 same transaction; statements accompanying an act; 
 conspiracy. — We will first proceed to consider those 
 rules which define the classes of facts that are 
 considered relevant. As it is the general practice 
 of mankind to judge of the probability of an al- 
 leged event by considering the circumstances under 
 which it is said to have taken place, and as these at- 
 tending circumstances often afford the best interpre- 
 tation of the meaning, purpose and character of an 
 action, it has been laid down as a well settled rule, 
 that all facts so intimately connected with the facts in 
 issue as to form part of the same transact/ion or sub- 
 ject mMter must he deemed relevant to it} Such facts 
 are sometimes called res gestm, and whenever the fact 
 m issue is the doing of any act, they include all ac- 
 companying statements made by the actors in so far 
 as calculated to explain their own actions, "for 
 »Ste, Dig., art. 3. 
 
Chap. I.] RES GEST^. 9 
 
 these, when the nature and quahty of the act are in 
 question, are either to be regarded as part of the act 
 itself, or as the best and most proximate evidence of 
 \the nature and quality of the act." ^ It must be 
 (kept in mind, however, that this rule only extends 
 to statements made simultaneously with the doing 
 of the act which they are thus deemed relevant to 
 explain. So, also, whenever the bodily or mental 
 feelings of an individual are relevant to the issue, 
 the usual expressions of such feelings made at the 
 time are admissible in evidence. Thus the declara- 
 tions of a party himself are received to prove his 
 condition, ills, pains and symptoms, whether arising 
 from sickness or from an injury by accident or vio- 
 lence, but they must be confined strictly to such com- 
 plaints, expressions and exclamations as furnish 
 evidence of a present existing pain or malady. Any- 
 thing in the nature of narration must be excluded.^ 
 Under this rule admitting the res gestm in evidence, 
 whenever two or more persons are charged with con- 
 spiring together to commit any offense or actionable 
 wrong, after evidence sufficient in the opinion of the 
 court to establish prima facie the fact of conspiracy 
 
 11 Star. Ev., 87; 1 Gr. Ev., § 108; Ste. Dig., art. 8. 
 
 2 See Insurance Co. v. Mosley, 8 Wall., 397, where this whole 
 subject is f uUy discussed. By the ruling in this case, which 
 has been much criticised, the declarations of a party, since 
 deceased, that he had been injured by a fall down stairs, were 
 admitted in evidence, although not made until after his return 
 to his room subsequent to the alleged accident; the rule of 
 law laid down in the opinion corresponds, however, with that 
 in the text. 
 
10 
 
 RELEVANCY. [Pakt I. 
 
 between the parties has first been given, then every- 
 thing said, done or written in execution or further- 
 ance of the common purpose by any one of those 
 thus shown to have participated in such conspiracy, 
 is relevant in all proceedings against any or all of 
 the other conspirators as well as against himself, be- 
 cause it is considered under these circumstances to 
 form a part of the same transaction in which they 
 were all engaged and which is the subject matter of. 
 inquiry in all such proceedings. It must be borne 
 in mind, however, that this only applies to words 
 spoken while actually engaged in the execution or 
 furtherance of the objects of the conspiracy. Any- 
 thing in the way of a narrative of what had been 
 done or spoken while so engaged does not come 
 within the category of res gestae, and is therefore 
 only relevant as against the narrator and such others 
 of the conspirators as were present and within hear- 
 ing when he related it.^ 
 
 Sec. 8. Facts showing probable cause for exist- 
 ence or non^existenoe of fact in issue. — As experi- 
 ence has shown that 'all effects are the result of 
 some cause, and that like causes generally produce 
 similar effects, all facts which, if true, would afford a 
 probable cause for the existence or non-existence of 
 a fact in issue, or which would show that the person 
 alleged to have done any act, the doing of which- is 
 a fact in issue, had or had not any motive for or in- 
 tention of doing such act, or did or did not make 
 
 1 Ste. rWg., art 4; 1 Gr. Ev. § 111 ; Tay. Ev., § 537, etc. 
 
Chap. I.] PROBABLE EFFECTS. H 
 
 any preparation for so doing, are generally considered 
 relevant.' So, also, of any facts which would show 
 that an opportunity existed for the doing of any act 
 constituting a fact in issue or relevant thereto.^ 
 
 Seo. 9. Ordinary course of business. — Upon this 
 ground the existence of any regular course of busi- 
 ness according to which a particular act would na.tu- 
 rally have been done is relevant .to show thd'c such 
 act was done; thus, in order to show that a letter 
 was posted, it is relevant to prove that it was put 
 into a certain place, and that it was the ordinary 
 course of business for all letters put there to be car- 
 ried to the post.' 
 
 Sec. 10. Natural effects lihely to have been pro- 
 duced by existence or non-existence of facts in issue; 
 complaints; facts showing animus; similar occur- 
 rences showing intention. — So also proof of any 
 facts which would be the natural and probable effect 
 or result of the existence or non-existence of any 
 fact in issue is admissible in evidence as relevant 
 thereto.* Thus, where the question is whether a 
 certain act was done by A., any subsequent conduct 
 of A., apparently influenced by the doing of that 
 act, or anything done by him or by his authority in 
 consequence of it, is relevant.^ And in criminal 
 cases where an injury is alleged to have been done 
 
 iSte. Dig., art. 7; also App., note I. 
 
 2 Id., art. 9. 
 
 3Ste. Dig., 13; 1 Gr. Ev., §§ 38, 40. 
 
 * India Ev. Act, § 7. • 
 
 »Ste. Dig., art. 7. 
 
12 BELEVANCY. [Part L 
 
 to a person, his subsequent conduct, and in particular 
 the fact that he made complaint soon after the 
 offense to persorfs to whom he would naturally com- 
 plain, are relevant ; but the terms of the complaint 
 itself are generally considered to be irreleTant.^ So, 
 also, where the fact in issue is the existence in any 
 person of any state of mind such as intention, 
 knowledge, good faith, negligence, rashness, or ill 
 will or good will towards any particular person, any 
 facts which appear to be the natural and probable 
 manifestations of such a state of mind are relevant 
 as proof of its existence at the time when they hap- 
 pened.^ Thus, where the question is whether an act 
 done by A. was committed with a fraudulent intent, 
 his fraudulent conduct to third parties in similar 
 transactions about the same time is a relevant fact 
 to show his cmimus; ' and so, also, where there is a 
 question as to whether an act was accidental or in- 
 tentional, the fact that such an act formed part of a 
 series of similar occurrences, in each of which the 
 person doing the act was concerned, is a relevant fact 
 to show intention on his part.* 
 
 Seo. 11. JF'acts explanatory of relevant facts. — 
 Another ground of the relevancy of facts not di- 
 rectly in issue is their being necessary to be known 
 in order to explain or introduce facts in issue or rel- 
 
 iSte. Dig., art. 8. 
 
 2 India Ev. Act, seo. 14; Ste. Dig., art. 11; 1 Gr. Ev., § 53; 
 I Tay. Ev., §§ 317-323. 
 3 McAlee.r v. Horsey, 35 Md., 439, 461. 
 <Ste. Dig., ax-t. 12. 
 
Chap. I.] EXPLANATORY FACTS. 13 
 
 evant facts, or to support or rebut an inference sug- 
 gested by a fact in issue or relevant fact, or to 
 establish the identity of any thing or person whose 
 identity is relevant, or to fix the time or place at which 
 any fact in issue or relevant fact happened, or to 
 show the relation of parties by whom any such fact 
 was transacted ; and accordingly such facts are admis- 
 sible in evidence in so far as they are necessary for 
 these purposes.^ This class of evidence is admitted 
 for the same general reasons which apply to the res 
 gestce, but it includes a great variety of facts which, 
 on account of difference in time and place, and for 
 other reasons, could not be classed as parts of the 
 same transaction as the facts in issue to which they 
 relate, although equally necessary to explain and 
 render them intelligible, and which it would often 
 occasion a great failure of justice to exclude from 
 consideration in the determination of such facts in 
 issue. 
 
 1 India Ev. Act, sec. 9; Ste. Dig., art. 9. 
 
14 RELEVANCY. [Pabt I. 
 
 CHAPTER II. 
 RULES OF EXCLUSION. 
 
 Sec. 13. Kes Intee Alios; facts not directly in 
 issue, nor relevant thereto as above stated, are inad- 
 missible. — All facts not in issue themselves, and 
 not connected with some fact in issue, or relevant 
 thereto in some one of the above four ways, namely, 
 either as forming part of the same transaction or 
 subject matter; or as constituting a probable cause 
 for it; or as the natural effect of it; or as necessary 
 to explain or introduce it, are inadmissible in evi- 
 dence for the purpose of forming the ground of an 
 inference that such fact in issue or relevant fact prob- 
 ably did or did not exist,' and are frequently desig- 
 nated, somewhat loosely, by the term, res inter alios, 
 a phrase originally derived from the maxim res 
 inter alios acta alteri nocere non debet, but which is 
 often used by the bench and bar in the sense of irrel- 
 evant.^ This principle, that courts are not at liberty 
 to infer from one fact the probable existence or non- 
 existence of another fact merely because the two are 
 similar, unless they can be first shown to be part of 
 the same transaction, or to be connected together m 
 some way by the chain of cause and effect, is one of 
 the most distinguishing characteristics of the English 
 
 iSte. Eig., art. 10 and note YL 
 21Tay. Ev., § 298a. 
 
Chap. II.] RES INTER ALIOS. 15 
 
 law of evidence. It stands in marked contrast with 
 the practice which prevails among some of the con- 
 tinental nations of Europe, where in criminal cases it 
 is customary for the prosecution to collect and set 
 out before the tribunal before which the case is tried, 
 a detailed history of the entire previous life of the 
 accused, in order that it may judge therefrom of the 
 probability of his having been guilty of the offense 
 with which he is charged. 
 
 Sec. 13. JV^ot all facts connected with another hy 
 way of cause and effect necessarily relevant thereto. — 
 It must not be supposed, however, that every fact 
 which may joossibly be connected with another, 
 either in the way of cause or effect, is therefore 
 necessarily admissible in evidence as relevant to 
 prove or disprove it. To render it admissible for that 
 purpose it must appear as 2i,prohable cause or effect, 
 and the degree of probability which will entitle it to 
 the consideration of a judicial tribunal is a question 
 to be decided by the discretion of the judge in view 
 of all the circumstances of the particular case on 
 trial.i 
 
 Sec 14 Character, hearsay and opinion generally 
 irrelevant. — There are also three kinds of facts, 
 namely, character, hearsay, and opinions, which the 
 law expressly declares to be irrelevant, except in cer- 
 tain specified cases, as the grounds for inferring the 
 existence or non-existence of other facts ; although in 
 the common occurrences of life we often consider a 
 
 1 Sec. 5, ante. 
 
16 RELEVANCY. [Pakt I. 
 
 man's character as furnishing sufficient cause for an 
 inference that he did or did not do a certain thing 
 which is imputed to him, and we frequently think 
 that the facts of a truthful person having said a 
 thing, and of a cautious person having believed it, 
 are effects which could scarcely have been produced 
 by any other cause than the actual happening of the 
 thing so said or believed to have happened. 
 
 Sec. 15. Character irrelevant excepting in favor 
 of a person indicted criminally, or where directly in 
 issue. — The rule of law as to the relevancy of char- 
 acter is that the fact of a person having a good or 
 bad character (in the sense of reputation) is nr-t ad- 
 missible in evidence 'as the ground for an inference 
 that he did or did not do a certain thing, excepting 
 that in criminal cases the accused may show that he 
 has a good character as a fact from which the jury 
 may infer that he is not guilty of the crime or mis- 
 demeanor for which he is indicted. Of course when 
 this fact of character is put in evidence by the ac- 
 cused, it may be contradicted like any other fact, and 
 the prosecution may show that he had not a good 
 character by proof that he had a bad one.' The rea- 
 son for this rule and its exception may probably be 
 explained, partly, by the fact that while in our daily 
 experience it is no unusual thing to find men occa- 
 sionally acting in a manner very inconsistent with 
 their general character, it is extremely rare to find 
 that a person who has always maintained a good 
 iSte. Dig., art. 55; 1 Tay. Ev., g§ 325-398. 
 
Chap. II.] CHARACTER. 17 
 
 reputation in the community will be willing to for- 
 feit at once all claims to future respectability by the 
 commission of an offense that would subject him, if 
 discovered, to the danger and disgrace of a criminal 
 prosecution; and partly by that solicitude of the 
 common law to give the accused, in criminal cases, 
 the benefit of every reasonable doubt, which most 
 likely had its origin in that period of English his- 
 tory when almost every felony was punished with 
 death, and the counsel for the accused was not per- 
 mitted to argue in his defense before the jury. 
 "Whenever the question as to whether a person has a 
 good or bad character is itself a fact in issue,' as in 
 the case of an action for defamation where the de- 
 fendant justifies, or where it becomes relevant in 
 order to determine the amount of damages which 
 the plaintiff should recover,^ such person's character 
 may always be proved in evidence like any other 
 fact in issue or relevant fact. 
 
 Sec. 16. Hearsay excluded except in certain cases. 
 One of the most important of the rules of evidence 
 in regard to relevancy is that which is frequently 
 summarized by the maxim " Hearsay is no evidence," 
 but which may be more accurately given thus : The 
 fact that a statement has been made by a person not 
 called as a witness, or is contained in any book, docu- 
 ment or record whatever, proof of which is not ad- 
 missible on other grounds, is not relevant as a fact 
 
 JlTay. Ev., §329. 
 8 Id., § 330. 
 2 
 
18 RELEVANCY. [Part I. 
 
 from which the truth of the fact stated may be in- 
 ferred, except in certain cases hereinafter mentioned. 
 This rule is not applicable, as already intimated, to 
 the case, of words or exclamations accompanying an 
 act which are received in evidence as part of the 
 res gestae, or to such as are offered merely as indica- 
 tive of the actual state of mind or feeling of the 
 person using them at the time when they were 
 uttered, but refers solelj'' to narratives of past occur- 
 rences. 
 
 Sec. 17. Heasons for the rule excluding hearsay. — 
 The reasons for the rule excluding hearsay, or, as 
 Mr. Best more accurately terms it, " derivative evi- 
 dence," ' are not difficult to discover, for apart from 
 the circumstance that the probabilities of falsehood 
 and misrepresentation, either wilful or unintentional, 
 being introduced into a statement are greatly multi- 
 plied every time it is repeated, there remains the 
 further fact that the original statement, even if cor- 
 rectly reported, has scarcely ever been made under 
 the safeguards of the personal responsibility of the 
 author as to its truth, or the tests of a cross-examina- 
 tion as to its accuracy. It is indeed true, that, in the 
 ordinary affairs of life, men often act upon informa- 
 tion received at second hand, but this is seldom done 
 in matters of much importance, unless either they or 
 their informants possess sufficient personal knowl- 
 edge of the party from whom the statement origi- 
 nated to form an intelligent estimate of his general 
 
 iBest on Ev., §§ 39, 30, 51, 493, 494, 495. 
 
Chap. II.] HEAESAY. 19 
 
 disposition to speak the truth, the temptation he 
 ma}^ be under to deceive, and his probable means of 
 accurate information in regard to the subject matter 
 of his statement. Such personal linowledge the 
 courts can rarely possess, and therefore three tests 
 have been provided, to which, in general, all state- 
 ments must be subjected before being admitted as evi- 
 dence in judicial proceedings. These are : 1. That the 
 statement must be made under the moral obligation 
 of a solemn oath or affirmation, with the liability to 
 a criminal prosecution for perjury in case of false- 
 hood. 2. That the party against whom the testi- 
 mony is given shall have the opportunity of 
 cross-examining the witness, in order to elicit his 
 sources of information as well as any material facts 
 within his knowledge which he may not be disposed 
 to disclose voluntarily, and also to test the general 
 accuracy of his statements, and to show if he has any 
 bias in regard to the matter in dispute. 3. That 
 the witness should give his testimony in open court, 
 in order that the jury may observe his demeanor 
 while giving it. 
 
 Sec. 18. Two classes of exception to the rule. — 
 The exceptions to the rule excluding hearsay or de- 
 rivative evidence may be divided into two classes. 
 The first class (A) includes statements made under 
 circumstances which render the three tests above 
 mentioned superfluous, namely : 
 
 1. Admissions. 
 
 2. Statements in public documents. 
 
 3. Statements in judicial records. 
 
20 BELEVANCY. [PART I. 
 
 4. Statements showing the existence of a general 
 reputation in cases where the existence of such repu- 
 tation is a relevant fact. 
 
 The second class (B) includes statements to which 
 some one or more of the three tests cannot be 
 applied by reason of the death of the person who 
 made them, but which were made under certain con- 
 ditions affording suiScient proof of their truth to 
 justify their reception as evidence without being 
 subjected to such tests. Such statements are gen- 
 erally called declarations, and the person who made 
 them a declarant. They are as follows : 
 
 1. Evidence given in a proceeding between the 
 same parties or their privies. 
 
 2. Dying declarations as to cause of death. 
 
 3. Declarations made in the course of business or 
 professional duty. 
 
 4. Declarations against the interest of the de- 
 clarant. 
 
 5. Declarations of testator as to contents of his 
 will. 
 
 6. Declarations as to public or general rights. 
 
 7. Declarations as to matters of pedigree. 
 
 In the United States, insanity, and, in some cases, 
 even permanent absence from the state, have been 
 Jield to have the same effect as death in rendering 
 the declarations of such insane or absent person ad- 
 missible; but the decisions of the courts of different 
 states conflict as to the admissibility of declarations 
 made by persons absent from the state. 
 
 These several exceptions to the rule excluding 
 
Chap. II.] ADMISSIONS. 21 
 
 hearsay will now be considered seriatim in the order 
 above given. 
 
 Sec. 19. (A.) Fmt class of exceptions; admissions. 
 An admission' is a statement, oral, written, or by tacit 
 acquiescence,^ suggesting any inference as to any fact 
 in issue or relevant thereto, made by or on behalf of 
 any party to any proceeding, and is (subject to the 
 rules hereinafter stated) relevant as against the per- 
 son by or on whose behalf it was made, but not in 
 his favor unless admissible in evidence for some other 
 reason. That such admissions, when offered in evi- 
 dence against the party by whom they have been 
 made, should be received without being first sub- 
 jected to the three tests above mentioned, is almost 
 self-evident. For these tests, being designed merely 
 as safeguards to profect the parties to the suit from 
 the introduction of false testimony, cannot fairly 
 be invoked by the party who made the admission 
 for the purpose of proving his own falsehood, and 
 the other party by offering the admission expressly 
 waives all claim on his part to have the three tests, 
 or any of them, applied to it. The fact that such 
 admissions are against the interest of the party Avho 
 made them, always raises a very strong presumption 
 that they are true, and notwithstanding that it 
 sometimes happens that a party makes a false state- 
 nent, which he believes at the time to be for his 
 jwn advantage, although it afterwards turns out to 
 
 iSte. Dig., art. 15. 
 
 2Gr. Ev., § 197; Tay, Ev., § 733. 
 
22 RELEVANCY [Part I. 
 
 the contrary, yet even under such circumstances it is 
 no more than right that the fact of his having made 
 such a statement should be given in evidence, if for 
 no other purpose, at least to throw upon him the 
 burden of explaining it, and thereby showing his 
 disposition to depart from the truth when he consid- 
 ers that his interests will be subserved by such a 
 course. 
 
 Sec. 20. Sow admissions may ie made. — Such ad- 
 missions, as already stated, may be made not only by 
 the oral or written statements of the party himself, 
 but by his tacit acquiescence in the statements of 
 others made in his presence and hearing ; and it is 
 upon this ground that whatever is said by any ong 
 whomsoever in regard to the matter in controversy, 
 in the presence and hearing of a party to the suit, is 
 in general admissible in evidence to show his acqui- 
 escence therein, if offered by his adversary. In 
 order, however, for his silence in such cases to war- 
 rant the inference of acquiescence on his part, it 
 must not only appear that the language used was 
 fully understood by him, but also that the circum- 
 stances were such as afforded him an opportunity to 
 speak, and such as would properly and naturally call 
 for some reply from a person similarly situated.^ 
 
 Sec. 21. The whole of a statemetit made at the 
 
 time must he considered. — When the statement of a 
 
 party is offered in evidence as an admission, fairness 
 
 requires that everything he said at the time relating 
 
 iGr. Ev., § 197; Tay. Ev., § 733. 
 
Chap. II.] ADMISSIONS. 23 
 
 to the same subject matter should be received and 
 considered together, in order to understand his true 
 meaning, yet it does not follow that the whole state- 
 ment is equally worthy of credit ; and it is therefore 
 for the jury to consider, after hearing it all, how 
 much they are, under the circumstances, warranted 
 in accepting as true.' 
 
 Sec. 22. Party hound hj the admissions of — {a) 
 his privies; (b) those whose interests he represetits; (c) 
 those Jointly interested with him; {d) those whom he 
 has authorized to make admissions, or to whom, he has 
 referred a party for ii formation. — The same reason- 
 ing which renders a party's own admissions i-eoeivable 
 in evidence against him applies equally to those made 
 on his behalf by others, for whose acts, done at the 
 time such admissions were made and relating to the 
 same subject matter, he would be held responsible. 
 Such persons are: 
 
 («) Those under whom the party claims, as privies 
 in blood, privies in law, or privies in estate, as the 
 case may be.^ Thus, the admissions of an ancestor 
 in regard to the title of lands owned by him, are re- 
 ceived in evidence against his heir in an action con- 
 cerning the same property ; those of a vendor, made 
 while the owner of the thing sold, are admissible 
 against his vendee; those of a landlord, against his 
 tenant, and those of a testator or intestate, against 
 his executors or administrators. 
 
 II Gr. Ev., § 301; Tay. Ev., § 655. 
 
 21 Gr. Ev., §§ 189, 190; Tay. Ev., §§ 713, 713, 
 
24 RELEVANCY. [fART I. 
 
 {h) Those whose interest the party represerits, as a 
 principal for Avhose benefit the action has been 
 brought by an agent, the cestui que trust of a trustee, 
 or one to whose use a suit has been entered, or who 
 is in fact the real plaintiff or defendant, although his 
 name does not appear on the record. In this class 
 of cases the admissions are only receivable in evi- 
 dence when their effect would be confined to the 
 interest of the party who actually made them and 
 those who claim through him.' Thus in a case where 
 an action was brought by trustees representing the 
 interests of several eestuis que triost, the statements of 
 the person beneficially interested as tenant for life 
 were not received as evidence for the defendant so 
 as to prejudice the rights of the remainderman in 
 fee.^ And so, also, an admission made by a party to 
 the' suit who sues in a representative character 
 merely, must, in order to be received in evidence, be 
 made while he is clothed with that character.' 
 
 (c) Those who are jointly interested with a party 
 to the suit, as his partners or joint contractors with 
 him. But it by no means follows that, because two 
 persons have a common interest in the same subject 
 matter, they can therefore make admissions respect- 
 ing it against each other. To enable them to do 
 this, not only must their interest be joint, but the 
 
 11 Gr. Ev., § 180; Tay. Ev., g§ 686, 687. 
 
 2Tay. Ev., g 687; Doe v. Wainwright, 8 A. & E., 691, 699, 
 700. 
 
 3 Tay. Ev., § 685; Ste. Dig., art. 16; Mason v. Poulson, Adm'r, 
 40 Md., 355, 365. 
 
Chap. II.] ADMISSIONS. 25 
 
 admissions must be made during the continuance of 
 the joint interest.^ Thus, according to the weight of , 
 American authority,^ admissions made by a partner 
 after the dissolution of the partnership, relating to 
 matters done during its existence, are inadmissible 
 against the other partner ; and so, also, in cases in 
 which actions founded on a contract have been barred 
 by the statute of limitations, no joint contractor or 
 his personal representative loses the benefit of such 
 statute by reason only of any acknowledgment, or 
 promise, or payment of any principal, interest or 
 other money, by any other or others of them, made 
 after the period of limitation has expired.' 
 
 {d) Those whom the party has either expressly or 
 by his conduct authorized to make admissions on 
 his behalf. This class includes counsel and attorneys 
 of record while engaged in the actual management 
 of the cause, either in court or in correspondence 
 relating thereto, and agents of every kind ; but unless 
 the latter have been expressly authorized to make 
 them, their admissions are only receivable in evi- 
 dence when shown to have been made in reference 
 to business about which they were employed at the 
 time, and which was within the scope of their 
 authority.* This class also includes persons to whom 
 a party to the proceeding has expressly referred 
 
 iSte. Dig., art. 17; 1 Gr. Ev., §§ 174, 176; Tay. Ev., § 680. 
 
 23 Whar. Ev., § 1193 and note. 
 
 ^miieott V. Nichols, 7 Gill, 85, 96; Bell v. Morrison, 1 Pet., 
 
 35i, 367. 
 iSte. Dig., art. 17; Oliquot's Champagne, 3 Wall., 114, 140. 
 
26 RELEVANCY. [P^RT I. 
 
 another for information concerning a matter in 
 dispute, and whose statements are received as admis- 
 sions of the party who so referred to them, since by 
 such reference the party has, in effect, adopted their 
 statements as his own.^ But the admissions of a 
 principal are not receivable in evidence against his 
 surety, as to matters for v.diich the latter has given 
 security, unless made during the transaction of the 
 business for which the surety is bound, so as to 
 become part of the res gestm? Thus, if one becomes 
 surety on a bond conditioned for the faithful per- 
 formance of another as clerk or collector, and the 
 latter, being dismissed, makes statements as to sums 
 of money which he has received and not accounted 
 for, these statements are not relevant as admissions 
 against the surety, although with regard to entries 
 made by such clerk in the course of his duty, and 
 before his dismissal, it is otherwise.' 
 
 Skc. 23. Offer of compromise not an admission. — 
 No offer made by either party by way of compro- 
 mise, or to buy peace, can be given in evidence in any 
 civil action as an admission by him, if it was made 
 either upon the express condition that evidence of it 
 should not be given, or under circumstances from 
 
 1 1 G-r. Ev., § 183; Tay. Ev., § 689. 
 
 21 Gr. Ev., § 187; Tay. Ev., § 710; Ste. Dig., art. 17. 
 
 3 Ibid. But a judgment recovered in an action against the 
 principal is admissible, and in some oases conclusive evidencfe 
 of the amount for which his surety" is liable in an action 
 against the latter. Drummond v. Prestman, 13 Wheat., 519, 
 Stovall V. Banks, 10 Wall., 583; 3 Whar. Ev., §770. 
 
Chap. II.] ADMISSIONS. 27 
 
 which the judge infers that such was the understand- 
 ing between the parties.' This rule is grounded upon 
 public policy and convenience, for without it parties 
 would never be safe in taking any steps towards an 
 amicable adjustment of their differences; but it is 
 confined solely to offers of compromise as such, and, 
 therefore, when, during a treaty of compromise, 
 either party admits any independent fact merely 
 because he recognizes it to be true, such admission 
 may be afterwards received in evidence against him.^ 
 
 Seo. 24. Admissions made under duress excluded. — 
 Admissions made under duress or circumstances of 
 constraint are not admissible in evidence, but there 
 is a distinction taken betv/een civil and criminal 
 cases as to what constitutes duress. In the former 
 no amount of legal compulsion is held to be such 
 duress as will exclude admissions made by a party 
 to the proceeding; but no confessions, as admissions 
 are called in criminal cases, are admitted against the 
 accused unless made voluntarily as hereinafter ex- 
 plained.' 
 
 Sec. 25. Confessions not made voluntarily, ex- 
 cluded — What deemed involuntary. — No confession 
 is considered voluntary if made under inducements 
 of hope or fear held out to the accused by a person 
 in authority, and having reference to the charge 
 against the former, whether addressed directly to 
 
 iSte. Dig., art. 20; 1 Phil. Ev., 4th Am. ed., p. 147, note; 
 1 Gr. Ev., § 193. 
 
 2 Id., §193. 
 
 3 Id., §193, 
 
28 RELEVANCY. [Paet I. 
 
 him or brought indirectly to his knowledge, pro- 
 vided that in the opinion of the judge such induce- 
 ment gave the accused reasonable ground for 
 supposing that by making a confession he would 
 gain some advantage or avoid some evil in refer- 
 ence to the proceedings against' him. But a con- 
 fession is not considered involuntary because it 
 appears to have been caused by the exhortations of 
 a person in authority to make it as a matter of re- 
 ligious duty, or by an inducement collateral to the 
 proceeding, or by inducements held out by a person 
 not in authority. By a person in authority is meant 
 any one having authority over the prosecution, or 
 over the accused in connection with the prosecution, 
 as the prosecutor, officers of justice having him in 
 custody, magistrates, and others in similar positions ; 
 but the master or employer of the accused is not such 
 a person in authority unless the offense charged was 
 committed against him. The mere fact, however, 
 that a confession was made after such induce- 
 ments had been held out does not make it involun- 
 tary, if, in the opinion of the judge, the impression 
 produced by such inducements had been completely 
 removed before the confession was made, for in such 
 cases these inducements could not properly be said 
 to have caused the confession.^ 
 
 Sec. 26. JBut a fact first discovered iy means of 
 an involuntary confession may he proved- hy other evi- 
 dence. — When the knowledge of a fact is obtained 
 
 1 Ste. Dig., art. 22; 1 Gr. Ev., §g 217-239; Tay. Ev., §§ 796-810. 
 
Chap. II.] CONFESSIONS. kg) 
 
 by means of an involuntary confession of the ac- 
 cused, although, the confession itself is inadmissible, 
 it does not prevent the prosecutor from giving in 
 evidence the fact itself, and that it was discovered 
 through information derived from the accused. Thus 
 where stolen property, or the instrument of a crime, 
 or the body of a person murdered, has been discov- 
 ered by means of information unduly obtained from 
 the accused, it is competent to prove that he stated 
 the thing would be found by searching a certain 
 place, and that it was so found; but it would not be 
 competent to inquire whether he confessed that he 
 had put it there.^ 
 
 Sec. 27. Sworn confessions made hy an accused 
 -person while under examination before a magistrate, 
 excluded as involuntary. — Sworn confessions made 
 by a party when under examination before a magis- 
 trate, respecting a criminal offense with which he is 
 charged at the time of the examination, are not re- 
 ceived in evidence, upon the ground, according to 
 Prof. Greenleaf, that " if to the perplexities and em- 
 barrassments of the prisoner's situation are added 
 the danger of perjury and the dread of additional 
 penalties, the confession can scarcely be regarded as 
 voluntary." ^ It is somewhat difHcult to perceive the 
 force of this argument, or to discover why a confes- 
 sion otherwise admissible in evidence must be con- 
 
 1 Ste. Dig., art. 23; 1 Gr. Ev., §§ 231, 333; Tay. Ev., §§ 824, 
 835. 
 2 1 Gr. Ev., § 235. 
 
30 BELEVANOY. [Part 1. 
 
 clusively presumed to have been involuntary, and 
 therefore excluded, simply because it has been sworn 
 to by the party making it; but such is the rule as 
 now established by numerous decisions, both English 
 imd American. The rule is restricted, however, to 
 the sworn statements made by a party who is him- 
 self held under the charge of a criminal offense at 
 the time he makes them. Statements upon oath 
 amounting to a confession, if made by the prisoner 
 when examined as a witness in another proceeding, 
 are admissible in evidence against him, unless he can 
 prove that when questions tending to criminate him 
 Avere put, he had claimed tlie protection of the court 
 and had still been illegally compelled to answer.* 
 
 Sec. 28. How far modijied hy statutes permitting 
 accused to testify, qucere. — This rule, excluding state- 
 ments made by the accused under oath in a criminal 
 proceeding against himself, has been somewhat mod- 
 ified by the legislation now adopted in many of the 
 United States, whereby persons accused of criminal 
 offenses have been made competent witnesses in 
 their own behalf. Whenever a prisoner voluntarily 
 testifies as a witness on his own behalf under any of 
 these statutes, either before a magistrate upon a pre- 
 liminary examination, or in court, any statements 
 made by him under oath may afterwards be offered 
 in evidence against him in any subsequent trial, 
 whether under the same or a different indictment.^ 
 
 1 Id ; Ste. Dig., art 33 ; Tay. Ev., §§ 818-823. 
 
 2Whai-. Crim. Ev. §§ 463, 464, 669; People v. Kelly, 47 Cai, 
 
Chap. II.] C0NF£:SSI0NS. 31 
 
 Sec. 29. Confessions made under promise of se- 
 crecy or obtained iy deception, not involuntary. — As 
 the only test of the admissibility of a confession is 
 "whether or not it was made voluntarily, it follows 
 that it may not be excluded because made under a 
 promise of secrecy, or in consequence of a deception 
 practiced on the accused, or while he was drunk, or- 
 because it was made in answer to questions which he- 
 need not have answered, whatever may have been 
 the form of them. Although it is sometimes cus- 
 tomary to warn a prisoner when he is about to make 
 a confession, that he is not bound to do so, the omis- 
 sion of such warning does not thereby make his con- 
 fession inadmissible.' 
 
 Sec. 30. Recitals of public facts in statutes or 
 proclamations, and entries of facts made in official 
 registers, admissible in evidence. — The second excep- 
 tion to the rule excluding hearsay, which is made upon 
 the ground that in the class of cases (A) embraced 
 within it the application of the three tests to the 
 person making the original statement are superfluous,, 
 includes statements as to any act of state or other 
 matter of a public nature contained in the recital of 
 any public statute, or in any public proclamation, or 
 
 135; State v. Glass, 50 Wis., sfs? S. C, 36 Am. Rep., 845. But 
 this rule is strictly limited to cases where the testimony- admitted 
 was given voluntarily in the first instance. See People v. Sharp, 
 107 N. Y. 427; S. C, 1 Am. St Rep., 851. 
 1 Ste. Dig., art 24 ; Tay. Ev., § 804. 
 
32 RELEVANCY. [Pakt I. 
 
 any message of the executive to the legislature, oi 
 in any legislative resolutions, and statements as to 
 the acts of any foreign governments and function- 
 aries contained in statejjapers published by authority 
 of congress, and in diplomatic correspondence com- 
 municated by the president to congress. All these are 
 admissible evidence of the facts so stated, when such 
 facts are in issue or relevant thereto.' So, also, the 
 entries made in official registers, or books kept by 
 persons in public office, are competent evidence to 
 prove any relevant facts, which, having occurred in 
 the presence or within the personal knowledge of the 
 registering officer, it was his duty to have recorded 
 therein, and which he did so record within a short 
 thne after their occui'rence.^ To entitle a book to 
 the character of an official register it need not be re- 
 quired by an express statute to be kept, nor need the 
 nature of the office render it indispensable. It is 
 sufficient that it be directed hy the proper authority 
 to 1)6 Tcept, and that it be kept according to such 
 directions.' 
 
 Sec. 31. Grounds of admissibility. — The ground 
 upon which such extraordinary confidence is placed 
 in documents of the above character, that the state- 
 ments contained in them are accepted as evidence 
 
 1 1 Gr. Ev., § 491; Wathins y. Holman, 16 Peters, 35, 55, 56; 
 MadeliffY. United States, 7 Johnson, 38, 51; Tay. Ev., §§ 1473-4. 
 
 2 1 Gr. Ev., §§ 483-5, 493-5; Tay. Ev., g§ 1429-33; Ste. Dig., 
 art. 34; Evanston v. Chinn, 99 U. S., 660, 666; Blackburn v. 
 Crawford, 3 WaU., 175, 189, 191. 
 
 3 1 Gr. Ev., § 496. 
 
CHAP. II.] HISTORIES, MAPS, ETC 33 
 
 without being subjected to the three tests generally 
 applied to other statements, is principally that of the 
 publicity of their subject matter, and of the further 
 fact that they have been made in the course of duty 
 by the authorized and accredited agents of the public 
 appointed for that purpose.* 
 
 Sec. 32. Matters of general jpublio history in ac- 
 credited worlcs hy deceased or foreign authors — 
 Almanacs — Hops. — Upon the same priaciple, state- 
 ments as to matters of general public history, made 
 in accredited historical works by authors deceased 
 or out of reach of process of the court, have been 
 permitted to be read in evidence to prove the facts 
 so stated when relevant to the issue ; ^ and in the case 
 of Megina v. Orton, maps of Australia were given 
 in evidence to show the situation of various places at 
 which the defendant said he had lived. So, also, in a 
 recent case in Maryland,^ it was held that an alma- 
 nac was properly admitted in evidence to prove the 
 hour at which the moon rose on a certain night. It 
 may well be doubted, however, whether the true 
 ground upon which the historical works and almanac 
 above mentioned were permitted to be read in court 
 was not that the facts sought to be established by 
 them were facts of which it was the duty of the 
 court to take judicial notice without formal proof, 
 when called upon to do so, upon being satisfied as to 
 
 UGr. Ev., §483. 
 
 '22 Ste. Dig., art. 35; 1 Gr. Ev., §497; Morris v. Harmer, 
 7 Peters, 554. 
 iMunshower v. State, 55 Md., 11. 
 
 a 
 
S4 RELEVANCY. [Part I. 
 
 their truth, and that the books were therefore intro- 
 duced not technically as evidence, but for the pur- 
 pose of satisfying the judge that the facts sought to 
 be established were proper matters to be taken notice 
 of judicially. The maps used in the case of Regina y: 
 Orton may either have been admitted upon the same 
 ground, or may have been introduced for the purpose 
 of illustrating and showing the relation of facts 
 which the court took judicial notice of, or which 
 were admitted, or had been proved by witnesses. 
 
 Sec. 33. Entries in iooles of corporation admissible 
 in certain cases. — When the entries made in the 
 books of a corporation relate to acts of a public 
 character, and have been made by the proper ofHcer, 
 they are receivable in evidence, either for or against 
 the corporation, for the purpose of proving its organ- 
 ization and existence and the regularity and legality 
 of its corporate proceedings, such books being re- 
 garded in the light of quasi official registers for the 
 purpose of recording such proceedings; but when 
 such entries relate to the private transactions of the 
 company, they will be inadmissible, except, perhaps, 
 in actions between its own members. 
 
 Sec. 34. Records of judicial proceedings conclvr 
 
 sive proof of the substantive facts recited. — The third 
 
 exception to the rule excluding hearsay relates to the 
 
 ^records of judicial proceedings, which, because the 
 
 law always presumes that every court keeps a faith- 
 
 iTay. Ev., § 1581; Angell & Ames on Corp., §§ 679, 681^ 
 Owings v. Speed, 5 Wheat., 430. 
 
Chap. II.] JUDICIAL RECOBDS. 35 
 
 ful recoFd of its own proceedings, are not only com- 
 petent but conclusive evidence to prove that the 
 proceedings therein recorded actually took place 
 as therein recited, and that judgment was actu- 
 ally rendered as therein set forth.^ Without such 
 conclusive presumption of the correctness of judicial 
 records, no judgment could ever be practically en- 
 forced, for it would always be in the power of any 
 party interested to dispute its existence at any time, 
 and this would involve a new investigation and a 
 new trial which would be no more conclusive than 
 the first. Of course it would be absurd to apply 
 any tests to that which the law conclusively assumes 
 to be correct. As the record is conclusive evidence 
 of the rendition of the judgment, it follows as a 
 natural consequence that it is also conclusive evi- 
 dence of the existence of that result or state of 
 things which the judgment necessarily effects.^ Thus 
 the record of a suit wherein the plaintiff recovered 
 judgment for $10,000 damages is conclusive proof 
 that upon the rendition thereof the defendant was 
 debtor to the plaintiff in that amount ; the record of 
 a proceeding resulting in a decree of divorce a vin- 
 culo matrimonii is conclusive proof that the com- 
 plainant and defendant are no longer husband and 
 wife, and the record of a proceeding in bankruptcy 
 is conclusive proof that the person f herein stated to 
 have been adjudicated a bankrupt is a bankrupt. 
 
 I Ste. Dig., art. 40; 1 Gr. Ev., § 538; Tay. Ev., § 1480. 
 2Ste. Dig., art. 40; 1 Gr. Ev., § 538; Tay. Ev., § 1480. 
 
36 RELEVANCY [Part 1. 
 
 Sec. 35. But not of the correctness of the decision 
 rendered,, except in certain cases. — But although the 
 record is always conclusive proof of the rendition of 
 the judgment therein recited, and of the result ac- 
 complished by it, it by no means follows that it is in 
 all cases equally conclusive or even competent evi- 
 dence to establish the correctness of the verdict of 
 the jury^ or the finding of matters of fact by the 
 court upon' which such judgment was predicated ; for 
 as it often happens that a tribunal, either from not hav- 
 ing sufficient evidence before it, or from other causes, 
 may have arrived at a wrong decision as to the truth 
 of the matters of fact submitted to it, such verdict 
 can never amount to more than mere presumptive 
 evidence of the truth of such matters. Thus, in the 
 examples given in the preceding section, the record 
 mentioned would not furnish conclusive proof that 
 the defendant had actually committed the tort for 
 which judgment was rendered against him in the 
 first case, or that the defendant in the second had 
 been guilty of the misconduct which was the ground 
 on which the divorce was granted, or that the party 
 adjudicated a bankrupt in the third case had actually 
 done anything to bring him within the provisions of 
 the law ; for in each instance it is possible that the 
 jury or judge may have been induced by false or 
 imperfect testimony to have rendered a decision at 
 variance with the true facts of the case. Thus it 
 will be seen that every record of a court of justice 
 consists of two distinct parts, which have been re- 
 
Chap. II.] JUDICIAL RECORDS. 37 
 
 spectively denominated by Mr. Best ' the substantive 
 and judicial portions. In the former the court re- 
 cords or attests its own proceedings and acts, and to 
 this unerring verity is attributed by the law ; while 
 the latter or judicial portion, by which the court ex- 
 presses its judgment or opinion on the matter before 
 it, is only conclusive, or indeed competent, as evidence, 
 under certain circumstances which we shall now 
 consider. 
 
 Sec. 36. Rules regulating the admissibility and con- 
 clusiveness of the judicial pcn'tions of records: 
 
 {a) Ad^nissible and conclusive as between the parties 
 and their privies; 
 
 (5) Inadmissible in all other cases, except, 
 
 1st, That judgments declaratory of the status of a 
 person or thing are admissible and generally conclusive 
 proof of such status; and 
 
 'Bd, That adjudications upon questions involving 
 custom and pedigree are admissible in certain cases 
 as between others than parties or privies. — 
 
 The question as to how far this judicial portion of 
 a record is properly admissible as evidence of the 
 matters of fact which it determines, is made depend- 
 ent npon several considerations. While, upon the 
 one hand, public policy requires that some limit 
 should be opposed to the continuance of litigation 
 upon the same subject matter, after it has once been 
 decided by a competent tribunal, it is, on the other 
 hand, an elementary rule and principle of justice, 
 
 » Best on Ev., § 590. 
 
38 RELEVANCY. [Part 1 
 
 that no man should be bound by an act or admis- 
 sion of another to which he is a stranger. Conse- 
 quently no one ought to be concluded or affected, as 
 to a matter of private right, by a judgment or ver- 
 dict to which neither he nor any one through whom 
 he claims was a party, to which no defense could 
 have been made, and from which no appeal could 
 have been taken on his behalf; which may have 
 resulted from the negligence of another, or may even 
 have been obtained by means of fraud and collusion. 
 Neither would it be fair that a party should be con- 
 cluded by an adverse verdict under circumstances 
 in which he could not have availed himself of it as 
 a protection, if it had been rendered in his favor. 
 So, also, it would be unjust that the rights of a 
 plaintiff or defendant should be determined by the 
 result of a former proceeding, even between the 
 same parties, in cases where, from the nature of the 
 former proceeding, he was not entitled to support his 
 case by the same evidence which he might have 
 availed himself of in the second suit, for he would 
 thus be virtually deprived in the second suit of evi- 
 dence to the benefit of which he is by law entitled. 
 Therefore the following rules have been adopted in 
 regard to the admissibility and conclusiveness of the 
 jt(,dicial portions of records : 
 
 (a) Every judgment rendered by a court having 
 competent jurisdiction over the parties and the sub- 
 ject matter is, as between the parties thereto and 
 their privies fi. e., persons claiming through or under 
 
Chap. II.] JUDICIAL RECORDS. 39 
 
 parties by title derived subsequently to the rendition 
 of the judgment), conclusive proof of all facts actu- 
 ally decided by the court, and appearing from the 
 record itself to be the ground on which the judg- 
 ment was based, unless evidence was admitted in the 
 action in which judgment^ was delivered, which is 
 excluded in the action in which that judgment is in- 
 tended to be proved,^ or vice versa,} 
 
 (b) No record of any judgment is admissible in evi- 
 dence to prove or render probable the existence of 
 any matter of fact therein stated to have been de- 
 cided, or which might be inferred from the rendition 
 of such judgment, otherwise than as stated in the 
 preceding rule,. except that: 1. The records of all 
 judgments rendered by courts of competent jurisdic- 
 tion, which are declaratory of the status of a person 
 or thing, are always relevant to establish the exist- 
 ence of sucli status as declared therein; all such 
 records, when admissible, are conclusive, excepting 
 those of inquisitions of lunacy and inquests of office, 
 which for certain purposes and as against certain 
 persons are prima facie evidence only.^ 2. In all 
 cases where general reputation is competent evidence, 
 such as those involving questions of custom, pre- 
 scription and pedigree, the records of adjudications 
 relating thereto are admissible in evidence, not only 
 
 iSte. Dig., art. 41; 1 Gr. Ev., §§523, 533, 534; Tay. Ev., 
 §§ 1495-1533; Starkie Ev., p. *323, etc. 
 
 21 Gr. Ev., §§ 535, 550, 556; Starkie Ev., pp. *371-383; Tay. 
 Ev., § 1457. 
 
40) RELEVANCY. [Part L 
 
 as between parties and privies (where they would be 
 conclusive), but also as between all others, as being 
 of the same nature, but much stronger than mere 
 reputation.' 
 
 Sec. 37. Why judgments declaratory of the status 
 of a person or thing are always admissible to prove it. — 
 The reasons for the exceptions by which the records 
 of judgments declaratory of the status of persons or 
 things are admissible, and in most cases conclusive 
 evidence to prove such status as against those not 
 parties thereto, are that as regards those cases declar- 
 atory of the status of persons, it is upon grounds of 
 public policy deemed essential that the legal social 
 relations of ever}' member of the communitj^ should 
 not be left doubtful, but, haying been clearly defined 
 by one solemn adjudication, should thereafter be con- 
 clusively set at rest; and as regards those cases de- 
 claratory of the status of things, and especially in 
 questions as to propertj^ seized and proceeded against, 
 because generally every one who can possibly be 
 affected by the decision has a right to appear and 
 assert his own rights, by becoming an actual party 
 to the proceedings.^ 
 
 Sec. 38. Who are parties to a judgment. — The term 
 parties to a judgment, as used in this connection, is 
 in the United States generally understood to include 
 all persons who are directly interested in the subject 
 matter, and have a right to control the proceedings 
 
 1 1 Gr. Ev., 536; Tay. Ev., § 1496; Starkie Ev., p. *386. 
 2 1 Gr. Ev., § 535; Tay. Ev., § 1489. 
 
Chap. II.] JUDICIAL RECORDS. 41 
 
 and to appeal from the decision; as for example, a 
 plaintiff in attachment who has given an indemnity 
 bond to the sheriff for levying upon certain property, 
 and who would in this sense be considered a party to 
 any action of trespass brought against the latter for 
 making such levy.^ But although one or two of the 
 Enghsh cases appear to favor this liberal construction 
 of the rule, there is no direct authority in the courts 
 of that country for extending it beyond those who 
 are named in the record.^ The parties to the record 
 of a criminal proceeding, being the state and the ac- 
 cused, it follows from the preceding rules that such 
 a record, while admissible in civil causes to prove the 
 fact of the acquittal or conviction of the prisoner, is 
 not relevant to show that he did or did not commit 
 the act for which he was indicted.' 
 
 Sec. 39. Adwiissibility of record dependent upon 
 whether court had jurisdiction^ which may always l)e 
 inquired into. — As already stated, the admissibility 
 in evidence of every record is conditional upon the 
 fact of the court which rendered the judgment hav- 
 ing had competent jurisdiction over the parties and 
 the subject matter; and although such judgments 
 are, when admissible, generally speaking, conclusive 
 of the matters decided by them, the question as to 
 whether the courts which rendered them had compe- 
 
 1 1 Gr. Ev., g 523: Lovejoy v. Murray,tWail., 18; Robbins v. 
 Chicago, etc., 4 Wall., 657, 673. 
 iiTay. Ev., g§ 1499, 1500. 
 31Gr. Ev., §537. 
 
42 RELEVANCY. [Part I. 
 
 tent jurisdiction, is one which may always be in- 
 quired into ; and it is also open to thei party against 
 whom such a record is offered in evidence, to show 
 that the judgment has been reversed on appeal, or 
 (if be be not a party or privy) he may show that it 
 was obtained by fraud or collusion, provided that 
 neither he, nor any person to whom he is privy, was 
 a party thereto.^ 
 
 Sec. 40. Same doctrine applicable to foreign as 
 well as domestic judgments. — The foregoing remarks 
 apply to the records of all judgments rendered by 
 courts of the same state and of the United States, 
 and also to those rendered by the courts of sister 
 states of the Union, under the provision of the con- 
 stitution of the United States, requiring full faith 
 and credit to be given in each state to the public 
 acts, records and judicial proceedings of every other 
 state, and the laws of congress thereunder.^ They 
 may also be said to be equally applicable, practi- 
 cally, to records of foreign courts ; for, although the 
 American courts have until recently maintained the 
 general doctrine that foreign judgments, when rele- 
 vant, are primA facie evidence only, and impeach- 
 able, no modern case can be found in which such a 
 judgment has been permitted to be impeached, ex- 
 cept for want of jurisdiction or fraud; and some 
 
 1 Ste. Dig., art 46 ; 1 "Whar. Ev., § 795, etc. ; Thompson v. 
 Whitman, 18 WaU., 457; Christmas v. Russell, 5 id., 290, 804; 
 Ferguson v. Crawford, 70 N. Y., 253 ; S. C, 26 Am. R., 589. 
 
 2 Const U. S., art IV, § 1 ; Rev. Stat U. S., § 905, etc. ; Christ- 
 mas T. Russell, supra. 
 
Chap. II.] GENERAL BEPUTATION. 43 
 
 recent decisions have expressly held that they can be 
 impeached upon no other grounds, and are conclusive 
 upon the merits.^ 
 
 Sec. 41. General reputation sometimes admissible 
 in evidence. — The third exception to the rule ex- 
 cluding hearsay evidence comprises those statements 
 made by third parties out of court, by means of 
 which a witness has become aware of the existence 
 of any general reputation, the existence of which is 
 relevant to the issue. As general reputation is 
 merely the general opinion or conclusion concerning 
 a particular matter which has been arrived at by 
 society at large, or some indefinite part of it, through 
 the combined knowledge and experience of its indi- 
 vidual members, it becomes superfluous to apply the 
 three ordinary tests of truth to the statements of- 
 fered in evidence merelj'^ as the expressions of such 
 general opinion, since, in this case, the reliance is not 
 placed upon the credit due to the assertions of any 
 single individual, but rests upon the fact that indefi- 
 nite numbers concur in expressing the same belief. 
 Hence the true subject of inquiry is, not whether-the 
 several statements giving expression to this belief are 
 strictly true and accurate as a matter of fact, but 
 rather, whether or not they were very generally made 
 by persons of that class best situated for obtaining 
 information upon the subject. Besides those cases in 
 
 iSte. Dig., art. 47; Story, Confl. Laws, § 608; 2 Whar. Ev., 
 ^S 801-803. 
 
4i RELEVANCY. [Part I. 
 
 which the existence of a general reputation as to 
 certain matters becomes sometimes relevant, as afford- 
 ing a probable cause for or explanation of some act, 
 there are others involving a class of facts which, 
 being ordinarily imperceptible to the sanses, and 
 therefore incapable of proof by the usual methods, 
 must be established, if at all, by general reputation, 
 that being tlie best means of proof which the nature 
 of the case affords. Such fact^ are character, pedi- 
 gree or relationship, prescription, custom, boundaries, 
 and the like, the nature or existence of which can 
 frequently be proved only by general repute among 
 the particular class of persons most favorably situ- 
 ated for acquiring information in regard to them. 
 Thus, a man's character is shown by his gen- 
 eral repute among those who are acquainted with 
 him ; his relationship to any family by general repute 
 among the members of that familj'' ; and questions of 
 prescription, custom and boundaries, in so far as they 
 are matters of general interest to any considerable 
 portion of the community, may be proved by the 
 general reputation prevailing among the class so in- 
 terested in them.' So, also, where it is a question 
 whether two persons are husband and wife, the facts 
 that they cohabited together, and were generally re- 
 puted to be such among their acquaintances, are rele- 
 vant as competent evidence from which a valid 
 marriage between them may be inferred, excepting 
 
 11 Starkie Ev., pp. *43-47; 1 Gr. Ev., § 101; Tay. Ev., § 517. 
 
Chap. II.] DECLARATIONS. 45 
 
 iu criminal prosecutions for bigamy and adultery, 
 and civil suits for damages for seduction.' These 
 exceptions rest on the ground that such proceedings, 
 being of a penal nature, require the strictest proof, 
 since the accused has the presumption of innocence 
 in his favor, which is alone sufficient to overcome the 
 presumption of marriage ; and a further reason for 
 the exception in actions for seduction seems to be, to 
 prevent parties from setting up pretended marriages 
 for evil purposes.^ 
 
 Sec. 42. {B.) Second class of exceptions to rule exdud- 
 ing hearsay — Statements made under certain circum- 
 stances hy persons since deceased, insane or permanently 
 hey and the reach of process. — -We now come to the 
 second class of exceptions to the rule excluding hear- 
 say, being certain declarations or statements to which 
 some one or more of the three tests cannot be ap- 
 plied by reason of the death, insanity or permanent 
 absence from the state of the person who made them, 
 but which were made under conditions which the 
 law regards as furnishing a sufficient guarantee of 
 their truth to justify their reception as evidence 
 
 11 Gr. Ev., § 107; 3 id., § 463; Tay. Ev., § 517; Ste. Dig., 
 art. 53. In England, and also in some jurisdictions in this 
 country, an additional exception is made to the competency 
 of such evidence to prove marriage in the case of proceedings 
 for divorce, but there is great diversity in the practice prevail- 
 ing upon this point in different states. See 3 Bishop Mar. & 
 Div.,§§ 366-376. 
 
 2 Best Ev., § 349; Tay, Ev., § 140. 
 
46 [ RELEVANCY. [Paet L 
 
 without being subjected to such tests. These decla- 
 rations are : 
 
 Sec. 43. (1) Evidence given in former proceeding, 
 or at earlier stage of same action. — Testimony given 
 at an earlier stage of the same action, or in a previ- 
 ous one, between the same parties or their represent- 
 atives in interest, and involving substantially the 
 same question,by witnesses since deceased or insane, 
 is always admissible in evidence ; provided the per- 
 son against whom it is given, or some one through 
 whom he claims, had the right and opportunity to 
 cross-examine the declarant when he was examined 
 as a witness.' Such statements, if correctly reported, 
 would be entitled to almost the same consideration 
 as if made in open court, for they would have been 
 subjected to all the tests which could be applied in 
 the latter case, excepting that the demeanor of the 
 witness could not be seen and commented upon ; but 
 as this is the least important of the three tests, it is 
 found that much less injustice is done by waiving it, 
 in cases where it is impracticable to apply it, than 
 would result from such a rigid enforcement of the 
 rule requiring it, as would oftentimes exclude impor- 
 tant testimony which could not be supplied from 
 any other source.^ Courts are therefore disposed to 
 put a liberal construction upon this exception, and 
 to admit testimony of this kind whenever it appears 
 that the party offering it has used all reasonable 
 
 1 Sta Dig., art. 38. 
 
 2 Best Et., § 496. 
 
Chap. II.] DECLARATIONS. 47 
 
 efforts to secure the personal attendance of the wit- 
 ness, and has been unable to do so : as for example, 
 it has been extended to include cases where the wit- 
 ness was so ill that he would probably never be able 
 to travel ; where he was kept out of the way by the 
 adverse party ; and some cases where he could not 
 be found.' 
 
 Sec. 44. (2) Dying declarations. — Declarations 
 made by a person under a full apprehension of im- 
 pending death, and after having given up all hope 
 of recovery, are admitted in evidence in trials for 
 the homicide of the declarant, to prove the cause of 
 his death, or any of the circumstances of the trans- 
 action which resulted in it. This exception is made 
 because it is considered that, under such solemn cir- 
 cumstances, the declarant could have no adequate 
 temptation to falsehood ; and inasmuch as ordinarily 
 third persons are not present as eye-witnesses to a 
 murder, it would often happen that unless such dying 
 declarations were received, the murderer might es- 
 cape justice.^ 
 
 Sec. 45. (3) Deolarations made in the ordinary 
 course of business. — Declarations by persons having 
 no interest in stating an untruth, made in the ordi- 
 nary course of their business or in the discharge of 
 professional duty, and from their own personal 
 knowledge, at or near the time when the matter 
 stated occurred, are admitted to prove any facts nec- 
 
 1 Ste. Dig., art. 33; Tay. Ev., g§ 434-446; 1 Gr. Ev., §§ 163-166. 
 2Ste. Dig., 26; 1 Gr. Bv., §§ 156-163; Tay. Ev., §§ 644-653; 
 Best Ev., § 505. 
 
48 RELEVANCY. [Past I. 
 
 essary to the performance of a duty by the declarant. 
 This exception is made upon the ground that, in the 
 absence of all suspicion of sinister motives, a strong 
 presumption arises that statements made in the ordi- 
 nary routine of business are correct; and more 
 especially is this the case, when, as is most usual, 
 such declarations have been made in the form of 
 written entries in some book or record kept by the 
 declarant for his own private use, or that of an em- 
 ployer, and which it would therefore be plainly for 
 his own advantage for him to keep accurately. Un- 
 less statements of this kind were received in evidence, 
 it would be next to impossible to prove ordinary 
 store accounts for goods sold and delivered, in cases 
 where the persons who had delivered and charged 
 them had since died.' This rule has been extended 
 in some of the United States to apply to entries 
 made by the party himself in his own shop books. 
 The extent to which such entries are admitted in evi- 
 dence is regulated by local practice, which varies 
 greatly in the different states, many of which still * 
 adhere to the common law rule as above given, re- 
 stricting the admissibility of declarations made in 
 the course of business to those of declarants who 
 had no interest to falsify.^ 
 
 iSte. Dig., art. 37; Tay. Ev., §§ 630-643; 1 Gr. Ev., §§ 115- 
 119. 
 
 2 A full statement of the law upon this subject will be found 
 in the note of the American editors to the case of Price v. 
 Earl of Torrington, 1 Sm. Lead. Gas., 7th Am. ed., p. *407. 
 Previous to the adoption of the statutes rendering parties com- 
 
Chap. II.] DECLARATIONS. 49 
 
 Sec. 46. (4) Declarations made against the inter- 
 est of the declarant. — Declarations made by a per- 
 son who had. peculiar means of knowing the matter 
 stated, and who had no interest to misrepresent it, 
 are admitted in evidence when shown to have been 
 opposed to the pecuniary or proprietary interest of 
 
 petent witnesses in their own behalf, it was held in the states 
 of Massachusetts, New Hampshire, Maine, Pennsylvania, 
 South Carolina, Connecticut and Delaware, that entries made 
 by a party in his own books were admissible in evidence as 
 relevant facts, in proof of work done and goods delivered by 
 said party, when it appeai-ed to the judge from inspection of 
 said books that they were a register of the daily business of the 
 party, honestly and fairly kept, without erasures in a material 
 part, save such as were satisfactorily explained, and where 
 the pai-ty himself made oath in open court that they were the 
 books in which the accounts of his ordinary business transac- 
 tions were usually kept; that the articles therein charged were 
 actually delivered, and the labor and services therein charged 
 were actually performed; that the entries were made at or 
 about the time of the transactions, and were the original en- 
 tries thereof, and that the sums charged and claimed had not 
 been paid. The same rule prevailed also in the states of New 
 York, Illinois, New Jersey, Georgia and Ohio, except that in 
 ^ these latter the suppletory oath of the party himself was 
 neither required nor admitted. In the states of Maryland, 
 North Carolina, Tennessee, Alabama and Vermont, the entries 
 of a party in his own books are not admissible in evidence, 
 except where supported by his own oath, and then only for 
 small amounts, regulated by statute. In Indiana, Mississippi, 
 Virginia and Kentucky; the common law rule prevails. Of 
 course the statutes making parties competent witnesses enable 
 them to use their books to refresh their memory in testifying. 
 In all cases where the entries made in his own books by a per- 
 son, who has since died or become insane, would have been 
 evidence in his own behalf, if supplemented by his oath, as 
 above stated, they may also be offered in evidence in actions 
 4 
 
50 RELEVANCY. [Paet I. 
 
 the declarant.* The ground of this exception is 
 the extreme improbability of falsehood in declara- 
 tions made under such circumstances; for as men 
 usually have such regard for their own interests as 
 not to make any statements prejudicial to them about 
 matters within their own knowledge, unless they are 
 true, the fact that such statements are not admitted 
 in evidence until after the death of the declarant is 
 considered a sufficient guarantee that they were not 
 made for any fraudulent purpose. There is this dif- 
 ference between the declarations admitted under this 
 exception, and those admitted upon the ground of hav- 
 ing been made in the ordinary course of business : that 
 Avhile the latter, as we have seen, are admissible only 
 to prove facts which were necessary to the perform- 
 ance of some duty by the declarant, declarations 
 against the interest of the declarant are received in 
 evidence of all matters that form part of such decla- 
 rations, although some of them were not, in them- 
 selves, against his interest. Thus, where A., B. and C. 
 had made a joint and several promissory note for 
 
 brought by his executor, administrator or guardian, for work 
 done or goods delivered by said deceased or insane person, 
 upon such executor, administi'ator or guardian making 
 oath that such books came to his hands as the genuine and 
 only books of account of said deceased or insane person, and 
 that to the best of his knowledge and belief the entries are 
 original and contemporaneous with the fact, and the debt un- 
 paid, and also furnishing proof that such entries are in the 
 handwriting of said deceased or insane person. 
 
 iSte. Dig., art. 28; 1 Gr. Ev., §§ 147-155; Tay. Ev., §§603^ 
 629; Higham v. Ridgway, 2 Sm. Lead. Cas., 7 Am. Ed.,p. *330. 
 
Chap. II.] DECLARATIONS. 51 
 
 £300, and a partial payment had been made by A., 
 ■which was indorsed by the payee upon the note in 
 these terms : " Eeceived of A. the sum of £280, on 
 account of the within note, the £300 having leen 
 originally adva/iiced to C," the court held, in an ac- 
 tion brought by A. to recover contribution from B. 
 as a co-surety, that, the payee being dead, his indorse- 
 ment was admissible to prove the whole statement 
 contained in it, and was therefore evidence not only 
 of the payment of A., but also of the fact that C. 
 was the principal debtor.' But statements as to en- 
 tirely independent matters are not evidence simply 
 because made at ti:e same time and place with a dec- 
 laration against interest, unless connected with it hy 
 being referred to in it, or by being necessary to ex- 
 plain it; thus, in an account rendered by a steward, 
 since deceased, containing on one side entries charg- 
 ing himself with the receipt of moneys, and on the 
 other side items discharging him, by showing how the 
 moneys received had been disbursed, the discharging 
 entries will not be admissible in evidence, unless they 
 are necessary to explain the charging entries, or are 
 expressly referred to by them.^ The term declara- 
 tion, as applied to this exception, embraces all state- 
 ments, verbal or written, whether made at the time 
 of the fact declared, or on a subsequent day, pro- 
 vided that they were against the pecuniary or pro- 
 
 ijDauies v. Humphreys, 6 M. & W., 153, 166. 
 ^Doe\. Beviss, 7 C. B., 456. 
 
52 RELEVANCY. [Part I. 
 
 prietary interest of the declarant at the time ■when 
 made ; * hence the indorsement of a partial paj'ment 
 upon an instrument barred by the statute of limita- 
 tions does not come within the rule, unless shown to 
 have been made before the statutory period had 
 elapsed, since the receipt of money by the payee 
 after that time would then operate in favor of his 
 proprietary interest by removing the bar of the stat- 
 ute which had already attached.^ This exception is 
 most frequently exemplified by entries in books of 
 account, which either charge the party making them 
 with the receipt of money on account of a third per- 
 son, or acknowledge the payment of money due to 
 himself; and the weight of authority now seems to 
 support the proposition that entries of the latter 
 class are admissible, even in cases where they are the 
 only evidence of the charge of which they show the 
 subsequent liquidation.' 
 
 Sec. 47. (5) Declarations of testator as to contents 
 of the will. — Declarations made by a testator as to 
 the contents of his will, are, in the event of the loss 
 of such will, admissible in evidence to prove its con- 
 tents. This exception, like the preceding one, seems 
 to have been allowed upon the ground of the ex- 
 treme improbability of falsehood ; since the testator, 
 liaving an absolute right to change his will as often PS 
 
 'Tay. Ev., §607. 
 
 2 Id., §§ 636^629; 1 Gr. Ev., §§ 121, 133. 
 
 n Gr. Ev., § 151; Tay. Ev., §§ 609, 610. 
 
Chap. II.] DEGLABATIONS. 53 
 
 he pleased during his life-time, could hardly be sup- 
 posed to have any object in stating its contents to be 
 other than they actually were.^ 
 
 Sec. 48. (6) Declarations as to any piihliG or gen- 
 eral right or custom. — Declarations as to the exist- 
 ence of any public or general right or custom, or 
 matter of public or general interest, made by persons 
 who are shown to the satisfaction of the judge, or 
 appear from the circumstances of their statements, to 
 have had competent means of knowledge, are admis- 
 sible to prove the existence of such right, custom or 
 matter, provided they were made before any con- 
 troversy arose touching the matter to which they 
 relate.^ This exception is allowed upon the ground 
 of necessity, for without it there would ordinarily be 
 no method whatever of proving the existence of any 
 such public or general right or custom (such as a 
 highway or right of ferry, for example), at a period 
 anterior to the memory of living witnesses. Tlie re- 
 striction that the declarations must have been made 
 before any controversy arose upon the subject, is 
 imposed for the reason that such declarations are 
 only admitted at all upon the ground that they are 
 the natural effusions of a party who is presumed to 
 know the truth, and to speak it, upon an occasion 
 when his mind stands in an even position, without 
 
 1 Ste, Dig., art. 39 ; 1 Whar. Ev., g 139 ; Sugden v. St. Leonards, 
 L. R, 1 P. D. (G. A.), 154 ; Scliouler on Wills, § 403 ; Matter of 
 Page, 118 lU., 576 ; S. C, 59 Am. R., 895, and note. 
 
 2 Ste. Dig., art. 30 ; 1 Gr. Ev., g§ 127-140 ; Tay. Ev., §§ 543, 569. 
 
5i RELEVANCY. [Part 1. 
 
 any temptation to exceed or fall short of the truth. 
 But no man is presumed to be thus indifferent in re- 
 gard to matters in actual controversy ; for when the 
 contest has begun, people generally take part on one 
 side or the other, and, even when disposed to speak 
 the truth, they are very apt to see facts through a dis- 
 torting medium.^ If the right, custom or matter to 
 be proved be public, i. e., one which concerns every 
 member of the state, every person is presumed to 
 have had some knowledge as to whether it existed 
 during his "own life-time ; but if it be only general, 
 i. e., one in which only a portion or class of the com- 
 munity are interested, such knowledge will not bo 
 presumed unless the declarant is shown to have be- 
 longed to the portion or class of the community so 
 interested. 
 
 Sec. 49. (T) Declarations as to matters of jpedi- 
 yree. — Declarations relating to matters of pedigree, 
 which term embraces not only general questions of 
 descent and relationship, but also such particular 
 facts of family history as births, marriages and 
 deaths, the circumstances immediately connected 
 with their occurrence, the times, either definite or 
 relative, at which they happened, legitimacy and the 
 contrary, are admitted in evidence to prove such 
 matters, when such declarations were made before 
 the question in relation to which they are proved 
 had arisen, and by a declarant shown either to have 
 been himself legitimately related by blood, or to have 
 11 Gr. Ev., § 131. 
 
Chap. II.] FJSDIGREE. 55 
 
 been married to some one so related to the person 
 referred to by them. This exception, like the pre- 
 ceding one, has been recognized upon the ground of 
 necessity, since tradition is often the sole method by 
 which proof of matters of pedigree can be obtained, 
 while the limitations to which it is subjected give 
 an excellent illustration of the third great distin- 
 guishing principle of the English law of evidence 
 (the other two being the exclusion of res inter alios 
 and of hearsay), that all facts must be proved, if at 
 all, by the best kind of evidence of whi<^fcthey are 
 susceptible. As the members of a family are always 
 those most likely to be best acquainted with the 
 nature of the ties of relationship by which they are 
 united to each other, and to have the fullest informa- 
 tion in regard to such matters of family history, the 
 declarations admitted for the purpose of establishing 
 such facts are restricted to the statements of blood 
 relations, or persons who have become members of 
 the family by marriage with one so related to it.' 
 Upon the same principle, such declarations, to be com- 
 petent evidence, must have been made either from 
 the personal knowledge of the declarant, or from 
 information derived through other persons whose 
 declarations would, on account of the relationship in 
 which they stood towards the family, be equally ad- 
 missible with his own.^ In this case also, as with 
 declarations offered under the last preceding 
 
 iSte. Dig., art. 31; 1 Gr. Ev., §§ 103-106; /Lbb. Tr. Ev., pp. 
 90-96; Tay. Ev., §§ 571-593. 
 2 Davies v. Lowndes, 6 M. & G., 537 
 
56 RELEVANCY. [Paet I. 
 
 exception, relating to matters of public or general 
 interest, and for the same reason, the declarations 
 offered in evidence must be shown to have been made 
 before any controversy had actually arisen over the 
 matter to which they relate. All declarations made 
 after the controversy began are rigidly excluded, even 
 though the declarant did not know of such contro- 
 versy at the time he made them ; but the fact that 
 they may have been made for the purpose of pre- 
 venting such controversy from arising does not render 
 them ina(^issible. Such declarations may be either 
 verbal or written, and when made in the form of en- 
 tries in a Bible or Testament, shown to have been the 
 family Bible or Testament, they are admitted without 
 proof that they were made by a relative; for as this 
 book is the ordinary register of families, and usually 
 accessible to all its members, the presumption is that 
 the whole family have more or less adopted the en- 
 tries contained in it. So, also, an inscription on a 
 tombstone is admitted Avithout proof that it was 
 made by the direction of a relative, it being presumed 
 that the family would not permit an erroneous in- 
 scription to remain. But no other entries or inscrip- 
 tions are admitted in evidence without some proof 
 of their having been made by or under direction of 
 some deceased member of the family, or else of their 
 having been so preserved and treated in the family 
 as to give it the character of a declaration by the 
 family or some of its members.^ 
 
 ^Berkley Peerage Case, 4 Camp., 401-407. 
 2 Abb. Tr. Ev., p. 93; Tay. Ev., § 587. 
 
Chap. II.] OPINIONS. §7 
 
 Sec. 50. Opinion excluded except in a few cases. — 
 Similar to the rule excluding hearsay is that which 
 declares that the fact of any person being of opinion 
 that any fact in issue, or relevant thereto, does or 
 does not exist, is irrelevant to prove its existence or 
 the contrary, excepting in a few cases which will be 
 considered presently. The theory of this rule is, 
 that so far as such an opinion may be founded on no 
 evidence at all, or on illegal evidence, no weight 
 could be given to it whatever, without practically 
 nullifying the rules of law excluding irrelevant mat- 
 ters and derivative evidence, and that so far as it 
 may be founded on legal evidence, it is inferior in 
 character to the original evidence upon which it is 
 founded, which should itself be laid before the jury 
 (or court, as the case may be), whom the law pre- 
 sumes to be, under ordinary circumstances at least, 
 equally capable with the witnesses of drawing from 
 it any inferences that justice may require.^ The 
 exceptions to this rule will be found to consist of 
 those few cases where the law does not presume the 
 jury or court to be equally capable with the witness 
 of drawing correct inferences from the facts upon 
 which his opinion is founded.^ 
 
 Sec. 51. Opinions formed from personal observa- 
 tion admissible when the best evidence that the nature 
 of the case admits of. — The first exception embraces 
 all those cases in which the opinion of the witness has 
 
 iBest Ev., §511. 
 2BestEv., § 513. 
 
o8 RELEVANCY. [Part I. 
 
 been formed by personal observation of facts or phe- 
 nomena so numerous or so evanescent that they cannot 
 be stated or described in such language as will enable 
 persons not eye-witnesses to form an accurate jtidg- 
 ment in regard to them, and as to which, therefore, no 
 better evidence than such an opinion can be obtained.' 
 Hence witnesses have been allowed to testify as to 
 their opinion, upon questions of personal identity; as 
 to whether two persons were attached to each other; 
 as to whether a person was intoxicated ; as to whether 
 a person was of a certain age ; as to whether a person 
 was sane or insane, and many other questions of a 
 similar character. In all such cases, however, the 
 witness, before being allowed to express his opinion, 
 is required to state the circumstances under which he 
 observed the facts upon which his opinion has been 
 founded, and also to state, so far as possible, what 
 facts he thus observed ; and it is then for the judge to 
 decide from that statement, whether, under all the 
 circumstances of the case, an opinion formed upon 
 such observation is competent evidence under this 
 exception ; but the subscribing witnesses to a will 
 may state the opinions which they formed at the 
 time of its execution, as to the testator's mental 
 capacity, without first stating the facts upon which 
 that opinion was formed.'' This distinction, allowing 
 
 iBest Ev., § 517; 1 Whar. Ev., §§ 509-513; Hardy v. Merrill, 
 53 N. H., 227, 241; Sydleman v. Beckwith, 43 Conn., 9, 11; De 
 Witt V. Barley, 17 N. Y., 340; Com. v. Sturtevant, 117 Mass., 
 122, 133. 
 
 2 Abb. Tr. Ev., p. 116; 1 Redf. WUIs, pp. *139, 144. 
 
Chap. II.] OPINIONS. 59 
 
 the subscribing witnesses to a will a peculiar privilege, 
 in giving their mere naked opinion in relation to the 
 sanity of the testator at the time of its execution, 
 and denying that privilege to others, is considered by 
 Judge Redfield to be practically, and in principle 
 wholly groundless, and an absurd one in itself.^ He 
 considers it to be based upon the fact that, as the 
 statutes prescribing the method of executing wills 
 generally require that they should be attested by 
 credible or competent witnesses, it is not competent 
 for the courts to say, after the statute has defined 
 the requisites of a witness, that he is not to be re- 
 garded as competent to testify to every point directly 
 involved in the issue, whether the paper presented for 
 probate be the will of the alleged testator or not.^ 
 Indeed, it ought always to be assumed that the sub- 
 scribing witnesses to a will did regard the testator 
 as of sound mind at the time of executing the will, 
 or they would not have countenanced the act by 
 becoming witnesses, and tlierefore they can only say 
 that he appeared sane, as they noticed nothing to the 
 contrary ; so that the idea of requiring them to state 
 facts in confirmation of such a mere negative opinion 
 would be preposterous.^ Practically, however, this 
 distinction amounts to very little, for all the facts and 
 circumstances seen or known by the subscribing wit- 
 ness, at the time of the execution, may always be 
 
 1 1 Redf. on Wills, p. *139. 
 2Id.,p. *145, note 25. 
 3 Id., p. *144, note 23. 
 
60 RELEVANCY. [Paet I. 
 
 brought out either on direct or cross-examination, and 
 upon them will depend in a great measure whatever 
 weight is given to his opinion. 
 
 Sec. 52. Opinions of experts on matters requiring 
 special stu&y or ex])erience, admissible. — Whenever 
 there is a question as to any point of science or art, 
 or other matter requiring a course of special study 
 or experience in order to the attainment of that 
 degree of knowledge, without which persons are 
 unhkely to prove capable of forming a correct judg- 
 ment upon it, the opinions upon that point, of 
 witnesses specially skilled or learned in any such 
 matter, are admitted in evidence for the purpose of 
 aiding the jury (or court) to arrive at a correct con- 
 clusion from the facts established b}'- the testimony.' 
 Such witnesses are usually called experts, and when- 
 ever it is proposed to examine any witness as an 
 expert, the judge must first decide, as a preliminary 
 question, whether or not his skill or learning in the 
 matter upon which his opinion is to be asked is suffi- 
 cient to entitle him to be regarded as an expert.^ 
 Witnesses thus examined as experts are not permitted 
 to usurp the functions of the jury by giving their 
 opinions as to the general merits of the cause, but 
 are only allowed to state the conclusions which their 
 skill has enabled them to draw from the facts within 
 their own personal knowledge, after having first 
 
 iSte. Dig., art. 49; Best Ev., § 513; 1 Gi-. Ev.^ §§ MO, 440a; 
 Tay. Ev., §g 1274-1881; 1 Sm. Lead. Cas., Carter v. Boelim. 
 7th Am. ed., pp. *618, *638, *644. 
 
 2Ste. Dig., art. 49; Abb. Tr. Ev.. p. 369; Tay. Ev., §40. 
 
Chap. II.] OPINIONS. 61 
 
 stated what those facts are; or else to give their 
 opinion upon a hypothetical statement of facts, 
 based on evidence already given by other witnesses.' 
 Thus, when the question is whether the death of a 
 certain person was caused by poison, a physician ex- 
 amined as an expert may be asked as to what, in his 
 opinion, would be indicated by the presence of symp- 
 toms such as other witnesses have testified were ex- 
 hibited by the deceased ; or, if he saw the deceased 
 himself, he may, after detailing the symptoms he 
 observed, state his opinion as to the cause which pro- 
 duced them. So where the question is as to the 
 unwritten law of any foreign country, experts who 
 in their profession are acquainted with such law, may 
 state their opinion as to what the law of that country 
 would be upon a hypothetical state of facts, all of 
 which are sustained by evidence already offered in 
 the case ; but the written law must be proved by the 
 production of an authenticated copy of the statute 
 itself, if such copy can be obtained.^ When skilled 
 Avitnesses are called upon as experts to pronounce 
 their opinions on some scientific question, they may 
 refesh their memory by referring to professional 
 treatises." 
 
 Sec. 53. Opinion as to handwriting. — The sev- 
 eral rules regulating the admissibility of the opinions 
 
 J 1 Gr. Ev., § 440; Tay. Ev., § 1378; Abb. Tr. Ev., p. 117. 
 2 1 Gr. Ev., §488; Ennis v. Smith, 14 How., 400, 436; Tay. 
 Ev., § 1281. 
 STay. Ev., § 1379; IWhar. Ev., §§438, 666; Ste. Dig., art. 136. 
 
62 RELEVANCY, [Part X 
 
 of witnesses for the identification of handwriting, 
 being to some extent arbitrary, and by no means 
 uniform, will now be stated separately for conven- 
 ience, although in strictness they might, perhaps, all 
 be properly referred to one or other of the two pre- 
 ceding exceptions. Thus, under the first exception, 
 any witness acquainted with the handwriting of a 
 person may testify as to whether or not, in his 
 opinion, a writing produced in evidence was written 
 by such person. The acquaintance with a person's 
 handwriting which the witness must possess in order 
 to be competent to express such an opinion, is that he 
 must have actually seen such person write (though 
 only once), or else have received writings purport- 
 ing to be written by such person in answer to 
 others written by himself, or under his authority, 
 and addressed to such person; or else have writ- 
 ings purporting to have been written by that per- 
 son habitually submitted to him in the ordinary 
 course of business.' Where a paper admitted or 
 clearly proved to be genuine is already in evidence 
 for some other purpose in a cause, , and another 
 paper pertinent to the issue, and alleged to be in the 
 same handwriting, is offered in evidence, it is well 
 settled that the jury (or court) may compare the 
 latter with the former ; ^ but upon the question as to 
 whether papers not otherwise in the case may be 
 received and proved for the purpose of comparison, 
 
 iSte. Dig., art. 51; 1 Gr. Ev., § 577; Tay. Ev., §§ 1661-]e64. 
 21Gr. Ev., §578. 
 
Chap. II.] OPINIONS. 63 
 
 and whether, where such comparison is allowable by 
 the jury, the testimony of experts in regard to it is 
 admissible, there is much conflict in the decisions of 
 the courts of the different states of the Union ; but 
 the weight of American authority appears to be 
 against the admission of papers offered merely for 
 the purpose of comparison, and in favor of receiving 
 the opinion of experts upon the point as to whether 
 any two or more papers, properly in evidence, were 
 written by the same person.' But where a writing 
 to be proved is of such antiquity that living wit- 
 nesses cannot be had, and yet is not old enough to 
 prove itself, experts may always compare it with 
 other documents admitted to be genuine, or proved to 
 have been respected, treated and acted upon as such 
 by all parties, and may give their opinion concerning 
 the genuineness of the writing in question, such 
 opinions being the best evidence attainable under 
 the circumstances.^ 
 
 1 See 1 Gr. Ev., § 581 ; 1 Whar. Ev., § 713 ; and Tome v. Park- 
 ersbwrg Br. P. P. Co., 39 Md., 36, where the whole subject is 
 discvissed ; also Lawson on Expert and Opinion Evidence (1883), 
 pp. 375-488, which gives "the statute law and decisions in the 
 several states upon the subject veiy fully. In England, by stat- 
 ute (17 and 18 Vic, c. 125, § 37, and 28 Vic, c 18, § 8), it is per- 
 mitted to prove a disputed handwriting by comparison made by 
 witnesses with any other writing introduced into the case for 
 that purpose, which is first proved to the satisfaction of the 
 judge to be genuine ; and substantially the same rule has been 
 adopted by statute in the states of Georgia, Iowa, Maryland, 
 New Jersey and Texas. 
 
 2 1 Gr. Ev., § 578 ; Best on Ev., §§ 240-343. 
 
PAET II. 
 
 0^ PROOF. 
 
 CHAPTEE I. 
 
 ALL PACTS MUST BE PROVED UNLESS JUDICIALLY 
 NOTICED OE ADMITTED. 
 
 Sec. 54. Facts must he proven hy the hest Tcind of 
 evidence attainable. — Having considered the rules by 
 which the relevancy of facts is determined, we now 
 come to those prescribing the kinds of proof by 
 which the existence of such relevant facts may be 
 •established. These latter may all be said to be noth- 
 ing more than applications of that distinguishing 
 principle of the English law of evidence, already 
 mentioned, which requires that every fact necessary 
 to be proved shall be proved by the best kind of evi- 
 dence attainable. This rule relates to the quality of 
 evidence, and not to its quantity, and it operates to ex- 
 clude only that evidence which itself indicates the 
 existence of more original sources of information ; ' 
 the true meaning of the rule being, as stated by Lord 
 
 1 1 Gi^Ev., § 83; 1 Starkie Ev., p. 641; Best on Ev., §§ 87-90, 
 
Chap. I.] BEST EVIDENCE. 65 
 
 Chief Baron Grilbert, "that no such evidence shall 
 be brought which, ex natiord rei, supposes still a 
 greater evidence behind in the party's own posses- 
 sion and power." ^ Thus, the oifer to prove the con- 
 tents of a writing by means of a copy, or by mere 
 oral evidence, assumes the existence of a more 
 original source of information, to wit, the writing 
 itself, and therefore the inferior evidence is ex- 
 cluded, unless it be first shown that the writing itself 
 is not in existence or is unattainable; but where 
 there is no substitution of derivative for original 
 evidence, but merely a selection of weaker instead 
 of stronger proofs of the same degree, or an omis- 
 sion to supply all the proofs capable of being pro- 
 duced, the rule is not infringed.^ 
 
 Sec. 55. Courts disregard all facts not proven in the 
 cause on trial, except in Injoo cases. — As already stated, 
 it is the general rule that courts, in deciding issues 
 of fact, are to be governed solely by such evidence 
 as may have been produced before them by the re- 
 spective parties to the proceeding, and should en- 
 tirely disregard all facts not regularly proven in the 
 cause; but to this rule there are two exceptions, the 
 first being as to certain facts of which the courts 
 take judicial notice, or recognize as within their own 
 knowledge, without requiring any extrinsic proof 
 thereof ; and the second being as to such facts as are 
 admitted by both sides. 
 
 >Gilb. Ev^., 16, 4th ed. 
 n Gr. Ev., §83; Tay. Ev., §§ 363, 864. 
 5 
 
QQ ON PROOF. [Part II. 
 
 Sec. 56. Facts judicially noticed. — The courts 
 take judicial notice of certain facts upon one or other 
 of the two following grounds : either because the law 
 makes it the oj^^i^cial duty of the court to know them ; 
 or else for the reason that they are recognized to be 
 of such universal notoriety within the limits of its 
 jurisdiction as to leave no room for any dispute 
 about them. To require technical proof of such 
 facts would be wasting time to no purpose and sub- 
 jecting suitors to useless trouble and expense.' 
 
 I. The first class embraces : 
 
 [a) All public laws by which the particular court 
 is bound to be controlled in rendering its decisions; 
 for the court must be presumed to know these laws, 
 as otherwise it could not apply them to the case be- 
 fore it. They include the constitution, public stat- 
 utes and treaties of the United States and of the 
 particular state in which the court is sitting,^ the 
 law of nations,' the law merchant,^ the common law,' 
 and an old English and other statutes which are in 
 force in said states in so far as they constitute a part 
 of the law of the land within the jurisdiction of the 
 court." Inasmuch as the courts of the United States 
 
 1 See 1 Gr. Ev., §§ 4-6a; 1 Whar. Ev., §§ 376-340 ; Bliss on 
 Code PL, § 177. 
 2 1 Gr. Ev., § 4 
 
 3 The. Scotia, 14 "WaU., 170, 188. 
 
 4 Brown v. Piper, 91 U. S., 37, 43 ; Barnet v. Brandao, 6 M. & 
 G., 630, 665. 
 
 5 Owen V. Boyle, 15 Me., 147; S. C, 33 Am. Dec, 148; 1 Kent 
 Com., 473. 
 
 ' 1 Kent Com., 473 ; Chouteau v. Pierre, 9 Mo., 3, 
 
Chap. L] JUDICIAL NOTICE. 6T 
 
 were created by congress not for the purpose of ad- 
 ministering the local laws of a single state alone, but 
 to' administer the laAvs of all the states in the Union, 
 they take judicial notice of all such laws in cases to 
 which they respectively apply.' The courts, how- 
 ever, do not take judicial notice of the laws of a for- 
 eign country, nor do the courts of one of the United 
 States take judicial notice of the laws of another 
 state, for they are under no legal obligation to ad- 
 minister these laws ; and whenever they do adopt 
 them as rules of decision in particular cases arising 
 under them, they only do so from a spirit of comity.^ 
 ISTeither do the courts notice judicially private acts 
 of legislation such as legislative grants and charters,' 
 for these are regarded as nothing more than con- 
 tracts between the state in its sovereign capacity 
 and individuals or corporations,* and therefore must 
 be proved like any other contracts. 
 
 (5) Matters of public interest which, being recog- 
 nized, established ex determined by the law of the 
 land, must be considered to be within the knowledge 
 of aU persons, and especially those holding official 
 position under the government, and thereby consti- 
 
 1 Owings v. Hull, 9 Pet, 607, 625 ; R. B. Co. v. Bk. Ashland, 12 
 WaU., 226. 
 
 2 Canal Co. v. B. & O. R. B. Co., 4 G. & J., 1, 63 ; 1 Gr. Ev., 
 gi5 486, 489. 
 
 ^ First Nat. Bk. Clarion v. Qruber, 87 Pa. St., 468; S. C, 30 
 Am. Rep., 378. 
 
 * Trustees Dartmouth Coll. v. Woodward, 4 WHeat, 518, 643, 
 656. 
 
68 ON PROOF. [Part II. 
 
 tuting a part of it.' These have been held in the 
 United States to include : 
 
 (1) The existence and titles of aU the sovereign 
 powers in the civilized "world v?hich are recognized 
 by the government of the United States, their re- 
 spective flags and seals of state/ and also the pub- 
 lic acts and proclamations and public authorized 
 agents of such powers done, made and appointed 
 to carry into effect their treaties with the United 
 States.' 
 
 (2) Foreign admiralty and maritime courts,* nota- 
 ries ", and their respective seals, for these are recog- 
 nized by the law merchant. 
 
 (3) The sittings of congress and also of the legis- 
 lature of the state or territory where the court is 
 held, their established and usual course of proced- 
 ure, the privileges of the members, and, in some cases, 
 the transactions on the journals.^ 
 
 (4) The accession of the chief executive of the na- 
 tion and of the state or territory in which the court 
 is held ; his power and privileges, and the genuine- 
 tiess of his signature ; ' the heads of departments and 
 
 1 Bliss, Code PL, § 192. 
 
 2 U. S. V. Palmer, 7 Wheat, 610, 634; Church v. Hubbard, 3 
 Gr., 187, 238 ; 1 Gr. Ev., g 4. 
 
 - U. S. V. Eeynes, 9 How., 127, 147. 
 '* Croudson v. Leonard, 4 Cr., 434. 
 ■5 Nicholls Y. Webb, 8 Wheat, 336, 333. 
 « 1 Gr. Ev., g 6 ; Bhss, Code PL, g 194. 
 
 '7 Hizer v. ^tate, 13 Ljd., 30 ; Lindsay v, Atty.-Genl, 33 Miss., 
 508 ; Jones v. Gale's Ex'r, 4 Mai-tia, 635. 
 
Chap. I.] JUDICIAL NOTICE. 69 
 
 principal officers of state;' the public seals ;^ tlie 
 election or resignation of a senator of the United 
 States ; the appointment of a cabinet or foreign min- 
 ister;^ the existence of aU courts of the United 
 States and aU courts of general jurisdiction in the 
 state or territory where the court is held, and the 
 extent of their jurisdiction;^ also the existence, ju- 
 risdiction and practice of inferior courts of said state 
 or territory in so far as established by its law ; ' the 
 judges and seals of all such courts and their terms 
 so far as the same are regulated by public law,'^ but 
 not their rules of court ; ' the United States' mar- 
 shals, sheriffs. United States and state district at- 
 torneys and clerks of court holding office in said 
 state or territory, and the genuineness of theu' re- 
 spective signatures, but not of those of their deputies.* 
 (5) PubUc proclamations of war and peace ' and of 
 
 1 York, etc., R. R. Co. v. Williams, 17 How., 30, 41 ; Bennett v. 
 Temiessee, Mart & Yerg., 133. 
 
 " Delafield v. Hand, 3_ Johns., 310, 314; Den v. Vreelandt, 2 
 Halst., 553, 555. 
 
 3 Walden v. Canfleld, 2 Rob. La. R., 446, 469 ; Brovm v. Piper, 
 91 U. a, 37, 43. 
 
 « Dozier v. Joyce, 8 Port (Ala.), 803. 
 
 5 Bliss on Code PL, §196. 
 
 6 Gilland v. Sellers, 2 Ohio St, 223, 226 ; Lindsay v. Williams, 
 17 Ala., 229, 231 ; Newell v. Newton, 10 Pick., 470, 472 ; Tucker v. 
 State, 11 Md., 322, 329. 
 
 7 Cherry v. Baker, 17 Md., 75. 
 
 9 Ingraham v. State, 27 Ala., 17, 20 ; Major v. State, 2 Sneed 
 (Tenn.), 11 ; Ward v. Henry, 19 Wis., 76 ; S. C, 88 Am. Dec, 673. 
 
 9 Armstrong v. U. S., 13 Wall., 154, 156 ; Dunning v. New Al- 
 bany db Salem E. Co., 3 Ind., 437. 
 
70 ON PROOF. [Paet H 
 
 days of special public fasts and thanksgiving ; and 
 stated days of general political elections ; ' the legal 
 coinage, weights and measures of the country ; ^ the 
 territorial extent of the jurisdiction and sovereignty 
 exercised de facto by the United States and the state 
 in which the court sits,' and the local pohtical divis- 
 ions of said state into counties, cities, townships, 
 school districts, and the like,* and their relative po- 
 sitions, but not their precise boundaries further than 
 described in pubhc statutes ; the public surveys and 
 legal subdivisions under the public law ; ' and the 
 courts of the United States take special notice of 
 the ports and waters of the United States where the 
 tide ebbs and flows, and of the boundaries of the 
 several states and judicial districts." 
 
 ((?) Matters peculiarly within the knowledge of 
 the particular court, as its records, its ofiicers and 
 their deputies,' its attorneys,^ and the signatures of 
 such officers, deputies and attorneys in all their offi- 
 cial or professional acts ; ' and county courts gener- 
 
 1 State V. Minnick, 15 Iowa, 133. 
 
 ^Hpokin V. Cooke, 4 T. R, 314; United States v. Burns, 5 Mo- 
 Lean, 23, 30 ; Daily v. State, 10 lud., 536. 
 
 3 Gilbert v. Moline, 19 Iowa, 319. 
 
 4 Winnepiseogee Lake Co. v. Young, 40 N. H., 420, 439 ; Ooor'- 
 win X. Appleton, 33 Me., 453, 459 ; State v. Powers, 25 Conn., 48. 
 
 5 Vanderwerker v. People, 5 Wend., 530 ; Ham v. Ham, 39 Me., 
 363, 366. 
 
 ''Brown v. Piper, 91 U. S., 37, 43. 
 ■ Nowell V. McHenry, 1 Mich., 337. 
 8 1 Chitty's PI., 220. 
 
 'J State V. Postlewait, 14 Iowa, 446; Masterson v. Le Claire, 4 
 Minn., 168. 
 
Chap. L] JUDICIAL NOTICE. 11 
 
 ally take judicial notice of the justices of the peace 
 holding office in the counties over which such courts 
 respectively have jurisdiction and of the genuineness 
 of their official signatures.' 
 
 {d) Matters which the courts are directed by stat- 
 ute to notice judicially. 
 
 {e) Matters which take place in the actual pres- 
 ence of the court. 
 
 II. The second class of facts judicially noticed em- 
 braces all matters so notorious that they may be 
 fairly considered as within the common knowledge 
 or experience of all persons of ordinary intelligence 
 and education within the jurisdiction of the court, 
 and therefore not open to controversy. This class 
 has been held to include : 
 
 (1) The general geographical features of the 
 country, state and judicial district where the court 
 is held, as to the existence and location of its princi- 
 pal mountains, rivers and cities,^ and also the geo- 
 graphical position and distances of foreign countries 
 and cities in so far as the same are matters of uni- 
 versal notoriety.' 
 
 (2) Any matters of public history affecting the 
 whole people, and also public matters affecting the 
 
 1 Chambers v. People, 5 lU. (4 Soam.), 351. 
 
 ^Mossman y. Forrest, 21 Ind., 333, 336; Winnepiseogee Lake 
 Co. V. Young, 40 N. H., 420, 429. 
 
 3 WJiitney v. Gauche, 11 La. Aim., 432 ; Richardson v. Will- 
 iams, 2 Porter (Ala), 239, 243. 
 
72 ON PROOF. [Part, II. 
 
 national government or that of the state, district or 
 county where the court is held.^ 
 
 (3) All things which must have happened accord- 
 ing to the course of nature, as the ordinary limitation 
 of human hfe as to age, the course of time and of 
 the heavenly bodies, the mutations of the seasons 
 and their general relation to the maturity of crops/ 
 
 (4) The ordinary public feasts and festivals ; ' the 
 coincidence of days of the week with days of the 
 month.* 
 
 (5) The meaning of words in the vernacular lan- 
 guage, but not of catch-words, technical, local or 
 slang expressions.^ 
 
 (6) Such ordinary abbreviations as by common 
 use may be regarded as universally understood, as 
 abbreviations of Christian names, and the like," but 
 not those which are in any degree doubtful or diffi- 
 cult of interpretation.'' 
 
 (7) The character of the general circulating me- 
 
 ^Bank of Augusta v. Earle, 13 Peters, 490; Ohio lAfe Ins. & 
 Tr. Co. V. Debolt, 16 How., 416, 435 ; 1 Whar. Ev., § -338 ; Bliss, 
 Code PL, § 190. 
 
 ■Patterson v. McCausland, 3 Bland. Chy., 69 ; Floyd v. John- 
 son, 3 Litt (Ky.), 109, 113 ; S. C, 13 Am. Dec, 255 ; Bryan v. 
 Beckley, 6 id., 91, 95 ; Bowen v. Bead, 103 Mass., 46, 48. 
 
 3 Sasscer v. Farmers' Bank, 4 Md., 409, 430. 
 
 * Allman v. Owen, 31 Ala., 167, 171. 
 
 ^Commonwealth v. Kneeland, 20 Pick., 306, 316; Balto. v. 
 State, 15 Md., 376, 484. 
 
 ^Stephen v. State, 11 Geo., 335, 240 ; Mosely v. Hasten, 37 Ala, 
 216 ; Gordon v. Holliday, 1 Wash. C. C, 285, 289. 
 
 ''Ellis V. Park, 8 Texas, 205. 
 
Chap. II] FACTS ADMITTED, Id- 
 
 dium and tlie public language in reference to it,' but 
 not the current value of the notes of a bank at any 
 particular time.^ 
 
 If the judge's memory be at fault, or if he is un- 
 certain in reference to any fact which he is called 
 upon to notice judicially, he may refer to any person 
 or to any document or book of reference that he 
 deems worthy of confidence in order to satisfy him- 
 self in relation thereto ; or may refuse to take judi- 
 cial notice of such fact, unless and until the party 
 calling upon him to do so shall produce such docu- 
 ment or book of reference.^ This extends to such 
 matters of science as ara involved in the cases brought 
 before liim.* 
 
 Sec. 57. Facts expressly admitted hj the parties, 
 either ly their pleadings or at the Two/ring. — There 
 would obviously be no propriety in requiring evi- 
 dence to be given in proof of any fact which the 
 parties to the proceeding, or their agents, agree to 
 admit at the hearing, or which they have admitted 
 before the hearing and with reference thereto, or by 
 their pleadings ; for the object of introducing evi- 
 dence at all is to enable the court to decide the con- 
 troversy between the parties, and there can be no 
 controversy over facts thus admitted." But proof 
 
 1 Lampton v. Haggard, 3 Mon., 149. 
 
 '^Feemster r. Ringo, 5 Mon., 336 ; Modawell v. Holmes, 40 Aij)„ 
 391. 
 3Ste. Dig., art. 59; 1 Gr. Ev., g 6; Tay. Ev., § 30. 
 iBrovm v. Piper, 91 U. S., 37, 42. 
 5Ste. Dig., art. 60. 
 
74 ON PROOF. [Paet IL 
 
 of facts necessary to be proved by the prosecution 
 on an indictment for felony may not be dispensed 
 with, by any admissions, made by the counsel of the 
 accused, unless made at the trial, and consequently 
 in the presence of the accused.' This exception is 
 made probably upon the ground that, should the 
 latter suffer conviction and punishment through an 
 unauthorized admission of his counsel, he could not 
 afterwards obtain adequate redress from him for the 
 injury, as might be done by a person who had lost a 
 civil suit from the same cause. So, also, in prosecu- 
 tions for murder, courts wlU. not ordinarily permit 
 a conviction upon the mere confession of the pris- 
 oner, without some corroborative evidence, either 
 direct or circumstantial, of the actual commission of 
 the crime ; for it might happen that the prisoner, 
 having attempted the life of a person successfully, 
 as he supposed, might afterwards confess having 
 MUed him, when in fact the supposed mm'dered man 
 might have actually escaped.^ 
 
 1 Id ; 1 PML Ev., 4th Am. ed., p. 534 
 
 2 1 Bishop on Crim. Proc, gg 1056-6 ; United States v. Will- 
 iams, 1 Clif. C. C, 5. 
 
Chap. II.] ORAL EVIDENCE. 75 
 
 CHAPTEE II. 
 
 DEAL EVIDENCE 
 
 Sec. 58. All ultimaU facta to he proven must le 
 established iy direct oral testimony, except in four 
 enumerated cases. — Ordinarily the niDst natural and 
 satisfactory method of proving the existence or non- 
 existence of any fact, is by the direct oral testimony 
 of witnesses who have perceived its existence or 
 non-existence by the operation of their own senses or 
 consciousness, and therefore this is the means most 
 generally resorted to for that purpose; and it is per- 
 missible to employ it in all cases, excepting (1) where 
 the fact sought to be established or denied is in con- 
 tradiction of a conclusive presumption of law ; or 
 (2) unless it be a transaction of a public nature of 
 which the law requires an olBcial record to be kept ; 
 or (ijj unless the fact to be proved be the contents 
 of a document; or (4) the terms of some contract or 
 grant which the parties have reduced to writing, and 
 which is sought to be proved by a party thereto, or 
 his representative in interest, for the purpose of en- 
 forcing, varying or denying some right or liability 
 thereunder. Subject to these exceptions, which will 
 be considered particularly hereafter, all the ultimate 
 facts which form the ground of the decision of a 
 court or jury upon an issue of fact (excepting such 
 facts as are admitted or judicially noticed, and those 
 
76 ON PROOF. , [Pabt II. 
 
 which actually take place at the trial), are required to 
 be established by direct oral evidence.' By the terra 
 ultimate fact is meant any fact which a witness has 
 actually perceived by his senses, and which is not 
 merely inferred from the existence or non-existence of 
 some other fact or facts; but every fact from which 
 another fact is inferred must either be an ultimate 
 fact itself, or else have been established either medi- 
 ately or immediately by inference from other ulti- 
 mate facts. The term oral evidence, as used in this 
 connection, includes all testimony given by signs or 
 writing by witnesses unable to speak. 
 
 1 Although at first sight it would seem as if the production 
 in court, and submitting to the inspection of the jury, various 
 things other than documents, was an exception to the rule 
 laid down in the text, it will be observed that evidence of this 
 character (called by Best Real Evidence) is ordinarily intro- 
 duced for the purpose of either illustrating or confirming 
 direct oral evidence, without which it would be, in most cases, 
 unintelligible, and which it could therefore operate neither to 
 exclude nor to entirely dispense with, in the establishment of 
 the facts to sustain which such real evidence has been offered. 
 Take the case, for instance, of an action for damages for the in- 
 fringement of a patent, where the patented article and the thing 
 claimed to be an infringement of it are both brought into court. 
 The mere production of these articles does not of itself make 
 them evidence, inasmuch as they cannot be submitted for com- 
 parison by the court or jury until after testimony has been given 
 by witnesses to show that the one is the identical thing for which 
 the plaintiff holds liis patent, and that the defendant has either 
 actually made, used or sold the other. So that the testimony of 
 these witnesses here furnishes after all tlie ultimate fact upon 
 which the whole evidence depends. 
 
Chap. III.] WHEN OBAL EVIDENCE EXCLUDED. '^T 
 
 CHAPTEE III. 
 WHEN ORAL EVIDENCE EXCLUDED. 
 
 Sec. 59. Conclusive preswmjptionsvf law may not 
 he oontradioted iy oral evidence — Conclusive pre- 
 sum/ptions — Estoppels. — Conclusive presumptions of 
 law have been defined as rules determining the quan- 
 tity of evidence requisite for the support of any par- 
 ticular averment, which is not permitted to be 
 overcome by any proof that the fact is otherwise. 
 They consist chiefly of those cases in which the long 
 experienced connection between the facts presumed, 
 and those forming the ground of the presumption, has 
 been found so general and uniform as to render it 
 expedient for the common good that this connection 
 should be taken to be inseparable and universal. 
 They have been adopted by common consent, from 
 motives of public policy, for the sake of greater cer- 
 tainty and the promotion of peace and quiet in the 
 community, and therefore it is that all corroborating 
 evidence is dispensed with, and all opposing evidence 
 is forbidden.' Whenever, therefore, any fact in issue 
 is sought to be established by proof of other facts 
 from which it follows as a conclusive presumption of 
 law, the existence of such fact in issue cannot be 
 controverted by direct oral evidence, but only b}"- 
 proof contradicting the existence of the alleged 
 
 1 1 Gr. Ev., § 15. 
 
Y8 ON PROOF. [Paet IL 
 
 facts from which it would be presumed. These con- 
 clusive presumptions are sometimes expressly de- 
 clared by statute, as in certain statutes of limitation, 
 whereby if a debt has not been expressly recognized 
 within a certain number of years as a subsisting obli- 
 gation, it is conclusively presumed to have been sat- 
 isfied.' In other cases these conclusive presumptions 
 are declared by the courts as part of the common 
 law.2 The principal conclusive presumptions at com- 
 mon law are as follows : 
 
 Where the possession and enjoyment of property 
 has been uninterrupted, exclusive and adverse to aU 
 others for a period of twenty years, the possessor is 
 conclusively presumed to have a good title thereto.' 
 
 Conclusive presumptions are also made in favor of 
 the correctness of the records of judicial proceedings, 
 and that a party to a record was interested, in the 
 suit ; and after verdict it will be presumed that those 
 facts, without proof of which the verdict could not 
 
 1 1 Gr. Ev., § 16. 
 
 2 Id., § 17. Several presumptions of law asserted by Besii 
 Greenleaf, Taylor and other writers to be conclusive are now 
 regarded by the courts as open to contradiction by evidence. 
 There is now a decided tendency to reduce the number and to 
 limit the scope of indisputable presumptions, which is probably 
 best explained by Dr. Wharton's remark (Whar. Ev., g 1234) that 
 '■ practical jurisprudence soon discovers that a presumption that 
 is irrebutable in an age of ignorance is rebuttable in an age of 
 civilization." 
 
 3 Id., § 18. 
 
Chap. III.] CONCLUSIVE PRESUMPTIONS W 
 
 have been found, were proved, although they are not 
 expressly alleged in the recovd, ^ovided it contains 
 terms sufficiently general to comprehend them in 
 fair and reasonable intendment. The presumption 
 will also be made, after twenty years, in favor of 
 every judicial tribunal acting within its jurisdiction, 
 that all persons concerned had due notice of its pro- 
 ceedings.i The extent to which judgments are held 
 to be conclusive proof of the matters thereby de- 
 termined has been already discussed in sections 
 36^0, ante. 
 
 A. bond or other instrument under seal is, as 
 between the parties thereto and their privies, con- 
 clusively presumed to have been made upon good- 
 consideration as long as the instrument remains un- 
 impeached.^ 
 
 Where authority has been given by law to do a cer- 
 tain act in a prescribed manner, the lapse of a suffi- 
 cient time (which is in most cases fixed at thirty 
 years) raises a conclusive presumption that all legal 
 formalities which are not required to be made matter 
 of record have been duly complied with ; for great 
 uncertainty of titles and other public mischiefs 
 would result, if strict proof were required of facts so 
 transitory in their nature, and the evidence of which 
 would generally be unattainable after so long a 
 time.' 
 
 ilGr. Ev., § 19. 
 
 2 Id. 
 
 slGr. Ev., §30. 
 
80 ON PROOF. [Pakt II. 
 
 Conohisive presumptions are made in respect to 
 infants ; as that one under seven years of age is in- 
 capable of committing a felony for want of discre- 
 tion ; that a girl under ten years old is incapable of 
 consenting to sexual intercourse, and that a boy 
 under fourteen is incapable of committing a rape.' 
 
 Any child whose mother had a husband living at 
 any time when it could, in the ordinary course of 
 nature, have been begotten, is conclusively presumed 
 to be the legitimate child of such husband unless the 
 mother is divorced from him a mensa et thoro, or 
 unless impotence or non-access of the husband be 
 proven; and neither the testimony of the husband 
 or the wife, nor any declarations made by either of 
 them, is admissible testimony for the purpose of 
 proving non-access.^ 
 
 1 While the common-law presumption that a boy under four- 
 teen is incapable of committing a rape is still recognized as con- 
 clusive in some of the United States, the present tendency of the 
 ■courts in this country is to regard it as a rebuttable presumption 
 only that may be overcome by proof that he has attained the age 
 of puberty and has physical capacity to consummate the crime. 
 See oases cited in note to Smith v. State, 80 Am . Dec, p. 363. 
 
 n Gr. Ev., S 28; Ste. Dig., art. 98; Tay. Ev., §S 92, 868; 1 
 Whar. Ev., g 608 ; 2 id., g 1298. All these text-books, as weU as 
 all the cases that I know of, lay down the law as above stated, 
 yet it is very questionable whether any com-t of last resort would 
 hold that a mulatto child must be conclusively presumed to be 
 the legitimate offspring of wliite parents. The exclusion of the 
 testimony of either husband or wife upon the question of non- 
 access is, according to Lord Mansfield, in Cfoodright v. 3foss, 3 
 Cowp., 594, "founded in decency, morality and public pphoy." 
 But while these considerations might well forbid them to testify 
 as to the fact of intercoui'se vel non, it is difficjilt to see why a 
 husband who has been continuously absent from the state for a 
 
Chap. III.] ESTOPPELS. 81 
 
 Estoppels may also be included in the list of con- 
 clusive presumptions. Whenever one person, by any- 
 thing which he does or says, or abstains from doing 
 or saying, intentionally cause's or permits another 
 person to believe a thing to be true, and to act upon 
 such belief otherwise than but for that belief he 
 would have acted, neither the person first mentioned, 
 nor his representative in interest, is allowed, in 
 any suit or proceeding between himself and such 
 other person, or his representative in interest, to deny 
 the truth of that thing.^ This is nothing more than 
 a practical application of the doctrine of natural 
 justice, which does not permit a man to take advan- 
 tage of his own wrongful act; audit has been ex- 
 tended to cases where one party, by a culpable want 
 of care, which it was his duty to have exercised 
 towards another, has caused the latter to be misled 
 by the fraud of a third party ; thus, where a cus- 
 tomer keeping an account at a bank, draws a check 
 so carelessly that the amount for which it is given is 
 fraudulently raised by the insertion of additional 
 words and figures before presentation, and the bank 
 pays it in good faith, such customer is not permitted 
 to deny, as against the bank, that such check was 
 originally drawn by him for the full amount paid by 
 it.^ Among the cases to which this doctrine of estop- 
 pel is most frequently applied, is that of the acceptor 
 
 year or more prior to the birth of his wife's child should be for- 
 bidden to testify as to that fact 
 
 1 Ste. Dig., art 103. 
 
 ^ Young v. Grote, 4 Bing., 253; Ste. Dig., art 103, illustra- 
 tiou (e), 6 
 
82 ON PROOF. [Part II. 
 
 of a bill of exchange, who is not permitted to deny 
 the signature of the drawer or his capacity to draw 
 or indorse the bill, nor, if it be drawn by procuration, 
 the authority of the agent to draw it ; ' and also 
 that of a person having possession of any prop- 
 erty, real or personal, either as tenant, licensee, 
 bailee, or agent of another, who is not permitted, 
 during the continuance of such possession, to deny 
 that his lessor, licensor, bailor or principal had a right 
 to the possession of such property at the time when 
 the same was so leased or entrusted to him.^ As a 
 general rule, also, the parties to a deed and their 
 privies are not permitted, as against each other, to 
 dispute any matter recited therein, nor may the 
 grantor deny that he had any title in the thing 
 granted.' 
 
 Sec. 60. Oral testimony excluded as to matters of 
 which the law requires a full official record to he Jcejpt. — 
 Direct oral evidence may not ordinarily be given of 
 any transaction of a public nature, of which a full 
 official record is required to be kept by law. Thus, 
 judicial proceedings must be proved from the records 
 of the court, and not by the oral testimony of per- 
 sons who were present at the trial.'' But any facts 
 connected with the trial, which were not proper to 
 be incorporated in the record and are not inconsist- 
 
 1 Ste. Dig., art. 104. 
 
 2Ste. Dig., arts. 103, 103. 
 
 3 1 Gr. Ev., §§ 33, 24; Tay. Ev., §§ 83, 84. 
 
 4 1 Whar. Ev., § 68. 
 
Chap. III.] OFFICIAL BECOBDS. 83 
 
 ent therewith, may, when relevant, be proved by 
 parol testimony ;i thus, when the record of a former 
 suit between the same parties is offered in evidence 
 to bar the plaintiff's right of action, and such record 
 does not clearly show that the matter in controversy 
 in the second suit was necessarily and directly de- 
 cided by the jury in the former action, parol evi- 
 dence, consistent with the record, may be received as 
 to what points were in controversy at the former 
 trial, what testimony was given, and what questions 
 were submitted to the jury for their consideration.^. 
 So, also, acts of the legislative or executive depart- 
 ments of the government, in so far as the law re- 
 quires that they shall be officially recorded, must b© 
 proved (unless judicially noticed) by such official 
 records.' This rule is founded upon the theory that 
 an official record, made at the time for the benefit of 
 the public, by its agents duly authorized and ap- 
 pointed for that purpose, is, so far as it goes, the best 
 attainable evidence of such matters, and therefore, to 
 that extent, always excludes oral evidence, as inferior 
 in quality. 
 
 Sec. 61. Tfie contents of a written instrument can 
 only ie proved hy production of the document itself, 
 except in certain cases. — Upon the same principle, 
 when the contents of any written Instrument are to 
 be proved, the best kind of evidence is by the pro- 
 duction of the document itself, which is called pri- 
 
 1 1 Whar. Bv., § 64. 
 
 •i Packet Co. v. Sickles, 5 Wall., 580, 593. 
 
 3 1 Gr. Ev. §§ 479, 480; 1 Whar. Ev., § 65. 
 
84 ON PROOF. . [Part II. 
 
 mary evidence. This excludes all other or secondary 
 evidence of its contents, excepting admissions made 
 by the opposite party or his representatives, unless 
 the document in question be a public one, or is the 
 subject of special statutorj'' provision, or its produc- 
 tion is out of the party's power, or when the originals 
 consist of numerous documents which cannot con- 
 veniently be examined in court, and the fact to be 
 proved is the general result of the whole collection, 
 in which cases secondary evidence of their contents 
 is admitted to the extent hereafter stated.' When- 
 ever a document is executed in several parts, each 
 part is primary evidence ; and when it is executed in 
 counterpart, each counterpart being executed by one 
 or more of the parties only, each counterpart is 
 primary evidence as against the parties who executed 
 it.^ "When a number of documents are all made by 
 printing, lithography or photography, or any other 
 process of such a nature as in itself to secure uni- 
 formity in the copies, each is primary evidence of the 
 ■contents of the rest ; but when they are all copies of 
 a common original, no one of them is primary evi- 
 dence of the contents of the original.^ 
 
 Seg. 62. Attested documents rmist Reproved lyy at 
 •least one of the subscribing witnesses, if any such is 
 ■alive or can be found. — Whenever any document to 
 be proved has been attested by one or more subscrib- 
 ing witnesses, it may not be used in evidence except 
 
 iSte. Dig., arts. 65, 71. 
 
 !Id., art. 64. 
 
 ^Id. 
 
CHAP. III.J ATTESTED DOCUMENTS. 85 
 
 as hereinafter mentioned, if there be an attesting 
 ■witness aUve, sane, and subject to the process of the 
 court, until at least one attesting witness has been 
 called for the purpose of proving its execution ; and 
 if no such attesting witness is alive or can be found, 
 the signatures of at least one of the attesting wit- 
 nesses and of the person or persons who executed the 
 instrument must be proved. This rule has been ex- 
 tended to cases where the document has been burnt 
 or canceled ; where the subscribing witness was blind ; 
 where the party who executed the document was 
 prepared to testify to his own execution of it ; and 
 where the party offering the document was prepared 
 to prove an admission of its execution by the person 
 who executed it.' The reason assigned for this rule 
 is that some fact may be known to the subscribing 
 witness not within the knowledge or recollection of 
 the person who executed the instrument, and that the 
 latter is entitled to avail himself of all the knowl- 
 edge pf the subscribing witness relative to the trans- 
 action;^ but when the adverse party to the cause 
 chooses deliberately to waive this privilege by ad- 
 mitting the execution of the instrument in reference 
 to the cause,' or where, having produced the instru- 
 ment pursuant to notice, he admits its validity by 
 claiming an interest under it in the subject matter of 
 the cause, and still subsisting at the time of trial/ 
 
 iSte. Dig., art. 66. 
 
 2 1Gi-. Ev., §569. 
 
 3Ste. Dig., art. 66; 1 Gr. Ev., § 572; Tay. Ev., § 1647. 
 
 4Ste. Dig., art. 67; 1 Gr. Ev., g 571; Tay. Ev., § 1646. 
 
86 ON PROOF. [Paet II. 
 
 this reason ceases to exist, and in such cases no 
 further proof of the execution than such admission 
 is required. But if, when the attesting witness is ex- 
 amined, he denies or does not recollect having seen 
 the document executed, the fact of its execution may 
 then be established by any other evidence, for it 
 would be manifestly unjust that a party should be 
 concluded by the testimony of a witness whom the 
 law compels him to call.' 
 
 Sec. 63. Exoeptions to rule requiring attesting 
 witnesses to he examined. — The exceptions to the rule 
 requiring attesting witnesses to be called to prove 
 the execution of documents are, (1) "Where the 
 instrument is thirty years old, and comes from the 
 proper custody ; in which case, as we have already 
 seen,^ it may be said to prove itself, it being pre- 
 sumed that the subscribing witnesses are all dead, 
 and that other proof of its execution is beyond the 
 reach of the party.' (2) "Where the instrument is 
 shown or appears to be in the possession or power 
 of the adverse party, who, after due notice, has 
 refused to produce it when called for ; in which case, 
 the latter, having by such refusal driven his oppo- 
 Hent to give secondary evidence of its contents, 
 cannot then change his mind, produce the original, 
 and object to its admissibility without the evidence 
 ol an attesting witness ; * for the law, by allow- 
 
 iSte. Dig., art. 68; 1 Gr. Ev., § 573. 
 
 2 Ante, § 59, p. 76. 
 
 n Gr. Ev., §570. 
 
 ^Ste.Dig., art. 67; Tay. Ev., §§ 1615, 1615. 
 
Chap. III.] ATTESTED DOCUMENTS. 8Y 
 
 ing this, would encourage the withholding of ma- 
 terial evidence. (3) Where the instrument is not 
 directly in issue, but comes incidentally in question 
 in the course of the trial ; * thus, where A. sues B. 
 upon an agreement to pay him for certain work 
 the same price which C. had contracted to give him 
 for similar services, the contract between A. and C. 
 may be proved by any competent testimony, with- 
 out calling the subscribing witnesses ; ^ for the ques- 
 tion as to whether or not it was validly executed is 
 not put in issue. (4) Where a different method of 
 proof is allowed by statute. Thus, in all cases 
 where the law provides that a certified copy of any 
 recorded instrument shall be receivable in evidence, 
 the original, when shown to have been duly regis- 
 tered, is admissible to the same extent, without 
 further proof by the subscribing witnesses; ' and so, 
 when the law declares that any instrument, acknowl- 
 edged as therein provided, shall be admissible in 
 evidence upon proof of such acknowledgment, this 
 dispenses with the necessity for calling the attesting 
 witnesses in all cases where the conditions required 
 by the statute as prerequisites of the acknowledgment 
 appear from the record to have been complied with.* 
 The general tendency of legislation in the United 
 States has been to abolish the rule requiring the 
 attesting witnesses to a document to be called before 
 
 1 1 Gr. Rv., § 5736. 
 
 2 Curtis V. Belknap, 6 Wash., 433. 
 
 iKnox V. Silloway, 1 Fairchild (Me.), 301, 216. 
 
 41 Whar. Ev., §740. 
 
88 ON PROOF. [Part II. 
 
 it can be offered in evidence, excepting that the sub- 
 scribing witnesses to a will must always be produced, 
 if practicable, before it will be admitted to probate, 
 the peculiar nature of such an instrument rendering 
 the adherence to this method of proof more im- 
 portant than in other cases. 
 
 Seo. 64. The contents of public documents maybe 
 proved by copies — Certified copies. — Public docu- 
 ments are permitted to be proven by copies^ because 
 of the great inconvenience which would result from 
 the frequent removal of the originals, if their pro- 
 duction were required every time it became necessary 
 to prove in court any matters therein contained, and 
 also because the originals are so accessible for in- 
 spection by all parties interested, as to render it an 
 easy matter to detect any material variations be- 
 tween them and the copies offered in evidence.^ It 
 is laid down as the law in England, that any public 
 document whatever may be proved by an examined 
 copy, that is, a copy proved by oral evidence to have 
 been examined with the original and to correspond 
 therewith,' with two exceptions, viz.: first, where 
 issue has been joined on a plea or replication of nul 
 ■tiel recordm some cause in the same court to which the 
 disputed record belongs ; and secondly, where a per- 
 son is indicted for perjury in any affidavit, deposition 
 or answer, or for forgery with respect to any record ; 
 
 iSte. Dig., art. 71. 
 
 2 Stark. Ev., p. *647; 1 Gr. Ev., § 91. 
 
 >Ste, Dig., art. 75. 
 
Ohap. III.] PUBLIC DOCUMENTS. 8& 
 
 in either of which cases the original document must 
 be produced, unless it be shown to have been lost or 
 destroyed, or that the prisoner has got possession of 
 it.i It is, however, extremely questionable as to how 
 far this rule would be recognized without qualiiica- 
 tion in most of the courts of this country.^ Araple 
 provision has been made both by federal ' and state 
 legislation for furnishing certified copies of all public 
 documents, duly authenticated under the hands or 
 official seals of the officers having the custody of the 
 originals, or in some other manner provided by law. 
 Such certified copies being generallj' declared by 
 statute to be evidence equally with the originals, are 
 thereby in effect made primary evidence, and there- 
 fore, when it is in the power of the party to procure 
 them, they exclude all secoudar}'' evidence, excepting, 
 perhaps, examined copies.* The fact that certified 
 copies are so easily obtained has caused them to be 
 used so universally as the means of proving the con- 
 tents of public documents, that the question as to 
 whether an examined copy, not certified, Would be 
 admissible in evidence in cases where such certified 
 copies were obtainable, seems never to have been di- 
 rectly passed upon by any court of final resort in the 
 United States ; but an examined copy, not certified, 
 
 ITay. Ev., §1379. 
 
 2 Cornett v. Williams, 20 Wall., 236, 246. 
 SRev. Stat. U. S., §§ 883-908. 
 nWhar. Ev., §90. 
 
90 ON PROOF. [Part II. 
 
 being only secondar}'' evidence, would seem upon 
 principle to be excluded in such cases by the rule re- 
 quiring the best attainable evidence to be produced.' 
 Public or private acts of congress, or of any state or 
 territorial legislature, may generally, throughout the 
 Union, be read in evidence from any book purporting 
 to have been printed by authority.^ Judicial pro- 
 ceedings are proved by copies of the record, certified 
 by the officer having the custody of the originals, and 
 authenticated by the seal of the court to which they 
 belong. Such copies are called exemplifications, and 
 in the same state are equivalent to the original record 
 for all purposes, excepting that the original record 
 should be used in the court where the proceedings 
 were had.' Exemplifications of the records of courts 
 of sister states of the Union, if certified under the 
 act of congress,* or in any other manner allowed by 
 the laws of the state in which they are offered as 
 evidence,' are entitled to the same faith and credit as 
 they have by law in the courts of the state from 
 which they are taken.* In all such cases, the seal of 
 the court being judicially noticed, no extraneous 
 
 1 The language of the Supreme Cour U. S. , in Cornett v. Will- 
 iams, 20 Wall., 346, strongly favors the view expressed in the 
 text; but see 1 Gr. Ev., § 91, and Abb. Tr. Ev., p. 536, -which 
 follow the English rule. 
 
 21Gr. Ev., §480. 
 
 3 Id., §§ 501, 503; Abb. Tr. Ev., pp. 535-6. 
 
 4 Rev. Stat. U. S., §905. 
 
 5 Abb. Tr. Ev., p. 541; 1 Gr. Ev., § 505. 
 61Gr. Ev., §504. 
 
Chap. III.J CERTIFIED COPIES. 91 
 
 proof of its genuineness is ever required.* The usual 
 mode of authenticating foreign laws and judgments 
 is either 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 compared it with the 
 original, or by the certificate of an officer properly 
 authorized by law to give a copy, which certificate 
 must itself be duly authenticated.^ 
 
 Sec. 65. Hule requiring primary evidence of the 
 contents of documents modified hy statutes inaking 
 certified copies admissible in evidence. — Whenever 
 special provision has been made by statute for proof 
 of the contents of any document in any other manner 
 than by primary evidence, the rule excluding sec- 
 ondary evidence is of course so far modified as to 
 render it admissible under the circumstances and to 
 the extent so authorized by the statute. Thus, the 
 laws of all the states authorize certain deeds and 
 other instruments to be recorded, and certified copi.es 
 made from tlie register to be used in evidence for 
 purposes and under certain circumstances as set forth 
 in such laws. As the terms of these laws vary in 
 the difl'erent States, the admissibility in evidence of 
 a certified copy of any instrument made from the 
 register can only be determined in any particular 
 case by a reference to the statute under which it has 
 been recorded. 
 
 1 1 Gr. Ev., g 503. 
 
 2 Id., §§ 488, 514; Church v. Hubbard, 2 Cranch, 237. 
 
92 ON PROOF. [Part U. 
 
 Sec. 66. Secondary evidence of documents received 
 in certain cases where party has shown his inability to 
 produce the original in court — Notice to adverse pa/rty 
 to produce documents. — Secondary evidence of the 
 contents of documents is received also in certain 
 other cases where the party offering it has first 
 shown his inability to produce the original in court, 
 by proof (1) that the original is of such a nature as 
 not to be easily movable ; as in the case of a libel vfrit- 
 ten on a wall, or an inscription upon a tombstone ; ' or 
 (2) that it is in the possession of a person living beyond 
 the jurisdiction of the court ;^ or (3) that it has been 
 destroj'ed;' or (4) that it has been lost, and proper 
 search has been made for it ; ^ or (5) that it is in the 
 possession or power of a stranger to the cause, not 
 legally bound to produce it, and who, after having 
 been served with a subpoena duces tecum., or having 
 been sworn as a witness, and having admitted it to be 
 in court, refuses to produce it ; ^ or (6) that it is in the 
 possession or control of the adverse party, who refuses 
 to produce it, after having been given such notice to 
 do so as the court regards reasonably sufficient to 
 enable it to be procured.^ The notice required in the 
 latter case may be given either verbally or in writ- 
 
 1 Ste. Dig., art. 71; Tay. Ev., § 408; Whar. Ev., § 83. 
 •i Burton v. Driggs, 30 WaU., 135, 134. 
 
 3 Ste. Dig., art. 71; 1 Gr. Ev., § 558. 
 
 4 Id. 
 
 5 Id. 
 
 «Ste. Dig., art. 71; 1 Gr. Ev., §560. 
 
Chap. III.] NOTICE TO PRODUCE. 93 
 
 ing, and if in writing, may be served either upon the 
 party himself or his attorney.' The object of giv- 
 ing the notice is to enable the party who has the 
 document to produce it, if he likes, at the trial, and 
 thus to secure the best evidence of its contents; and 
 therefore formal notice is unnecessary whenever such 
 party has the document in court,^ or when the action 
 is founded upon the assumption that it is in his pos- 
 session or power, and requires its production ; as, for 
 example, in trover for a bill of exchange.' Nor is any 
 notice required to be given w^hen the document to be 
 proved is itself a notice.* This exception appears to 
 have been originally adopted in regard to notices to 
 produce, for the obvious reason that, if a notice to 
 produce such papers were necessary, the series of no- 
 tices would become infinite; but why it was subse- 
 quently extended by the judges to notices of other 
 kinds is not by any means so clear.^ The effect of a 
 refusal to produce a document after due notice is not 
 only to enable the other party to prove its contents 
 (if otherwise relevant) by secondary evidence, but it 
 debars the party so refusing from afterwards putting 
 the original in evidence without the consent of his 
 adversary ; " for were this permitted, he might hold 
 
 back the document until he saw whether the sec- 
 
 u 
 
 iTay. Ev., §413. 
 
 nd., §426. 
 
 3Ste. Dig., art. 73; 1 Gr. Ev., § 561; Tay. Ev., § 423. 
 
 4 Ste. Dig., art. 73. 
 
 5 Tay. Ev.,§420. 
 
 6 Ste. Dig., art. 139; Tay. Ev. §1615, 
 
94 ON PROOF. [Part II. 
 
 ondary proof would be favorable or unfavora,ble to 
 him, and thus obtain an unfair advantage over his 
 opponent.* On the other hand, when a document has 
 been produced upon notice, this fact prima facie ob- 
 viates the necessity of any proof of its genuineness by 
 the opposite party ; ^ and when the latter has inspected 
 it so as to become acquainted with its contents, he is 
 bound, if it be relevant, to give it as evidence, if the 
 party producing it require him to do so ; ' for it would 
 be unjust to allow a party to pry into the affairs of his 
 adversary without at the same time subjecting him 
 to the risk of making whatever he inspects evidence 
 for both sides.'' 
 
 Sec 67. Degrees of secondary evidence recognized 
 in America, tut not in England. — According to the 
 English decisions, when secondary proof of the con- 
 tents of a document becomes admissible in any of 
 the cases mentioned in the precedifng section, it may 
 be made either by a copy proved to be correct, or by 
 the oral testimony of a witness who has himself seen 
 it,^ no degrees in secondary evidence being recog- 
 nized ; but many of the courts in the United States 
 have not gone this length ; ° and the American doc- 
 trine, as deduced from the various authorities, seems 
 to be, that if, from the nature of the case, it is mani- 
 
 iWhar. Ev., §157. 
 
 2 Id., §156. 
 
 3Ste. Dig., art. 138. 
 
 4Tay. Ev., §1614. 
 
 sste. Dig., art. 71. 
 
 ^Cornett v. Williams, 20 Wall., 336, 246. 
 
Chap. III.] SECONDARY EVIDENCE. 95 
 
 fest that a more satisfactory kind of evidence exists, 
 the party will be required to produce it; but whero 
 the nature of the case does not of itself disclose the 
 existence of such better evidence, the objector must 
 not only prove its existence, but also show that it 
 was known to the other party in season to have been 
 produced at the trial.^ 
 
 Sec. 68. Secondary evidence may he given of the 
 general result of a collection of documents too numer- 
 ous to he conveniently examined in court. — The only 
 remaining case in which secondary evidence can be 
 given of the contents of documents, is where the fact 
 to be proved is the general result of voluminous ac- 
 counts or of a greater number of documents than 
 can be conveniently examined in court; as that bills 
 of exchange have been, by certain parties, invariably 
 drawn in the same way ; or that an examination of a 
 merchant's books and securities showed him to be 
 solvent or insolvent at a particular time. In such 
 cases, when the general result sought to be proved is 
 one capable of being ascertained by calculation, it 
 may be testified to without the production of the 
 documents, by any person who has examined them, 
 and who is skilled in making such examinations.^ 
 This exception, which is allowed simply as a matter 
 of convenience, and to save the time of the court 
 from being needlessly taken up by tedious investigar 
 tions, which can be better and more satisfactorily 
 
 1 1 Gr. Ev., § 84, note; 1 Whar. Ev., § 90. 
 
 aSte. Dig., art. 71; 1 Gr. Ev., § 93; Tay. Ev., § 433. 
 
■96 ON PROOF. [Paet II. 
 
 inade by one or two individuals out of court, only ap- 
 plies to cases where the general result to be ascer- 
 tained is a mere matter of calculation, and does not 
 extend to cases where it is a matter of judgment 
 about which persons equally honest might arrive at 
 different conclusions. 
 
 Sec. 69. Oral testimony may not he given to vary 
 the terms of a written contract. — Whenever the 
 terms of any contract or grant which the parties 
 have put in writing are sought to be proved by a 
 party thereto, or his representative in interest, for the 
 purpose of enforcing, varying or denying any civil 
 right or liability thereunder, such terms may not be 
 proved otherwise than by the writing itself, or by 
 secondary proof of its contents in those cases where 
 such secondary evidence would be admissible under 
 the rules already given.^ This very important rule 
 of evidence is nothing more than another application 
 of the principle requiring all facts to be proved by 
 the best kind of evidence attainable, the law very 
 sensibl}'' assuming that whenever the parties to a 
 contract have deliberately put it in writing, such 
 writing is, as between them, better evidence of what 
 they mutually agreed to, than the mere recollections 
 of any person who was present when such agree- 
 ment was made, whether a party to it or not.^ And 
 the same reasoning which excludes oral evidence as 
 a. substitute for the written statement of the terms 
 
 iSte. Dig., arts. 90, 93. 
 
 n Gr. Ev., § 87; Tay. Ev., § 1085; 3 Whar. Ev., § 1014. 
 
Chap. III.] CONTRACTS IN WRITING. 97 
 
 of an agreement, equally excludes it when sought to 
 be introduced for the purpose of contradicting, alter- 
 ing, adding to or varying the terms so reduced to 
 writing ; for this would be to practically supersede the 
 written by oral evidence.^ But the rule making 
 the written contract the exclusive evidence of what 
 the parties agreed to when thej^ executed it, does not 
 by any means prevent them from showing such 
 agreement to have been procured by fraud or in- 
 timidation, or that by reason of illegality, failure or 
 want of consideration, want of due execution, want 
 of capacity on the part of any of the contract- 
 ing parties, mistake in fact or law, or any other mat- 
 ter, it is invalid; for the purpose and effect of such 
 evidence is not to contradict or vary the terms of the 
 writing, but to disprove its legal existence or rebut 
 its operation.^ And so, also, it may be shown by 
 oral evidence that there was a separate oral agree- 
 ment between the same parties, constituting a condi- 
 tion precedent to the attaching of any obligation 
 under any written contract, grant or disposition of 
 property which may be in question, and that such 
 condition precedent was not performed ; for this is in 
 effect not to vary, or give inferior evidence of the 
 terms of the writing, but to defeat it altogether, by 
 showing that the parties never intended its terms to 
 be operative at all under the existing state of facts ; ' 
 
 11 Gr. Ev., § 875; Tay. Ev., S 1035; 2 Whar. Ev., § 1014. 
 2Ste. Dig., art. 90; 1 Gr. Ev., § 284; 1 Starkie Ev., p. »671. 
 sSte. Dig., art. 90; 2 Whar. Ev., § 927; Tay. Ev., g 1038. 
 
 7 
 
98 ON PROOF. [Paet II. 
 
 thus, where A. contracted in writing to assign to B. 
 the lease of a farm which the former held as tenant 
 of C, it being verbally agreed between them that 
 this contract was conditional upon the assent of the 
 landlord thereto, and B. sued A. for not assigning the 
 lease in pursuance of such contract, A. was allowed 
 to prove the condition as to C.'s consent, and the fact 
 that C. did not consent.^ Neither does this rule ex. 
 elude oral evidence of the fact that a deed or contract 
 has been wrongly dated ; for the date is ordinarily 
 no part of the terms agreed on, but a mere state- 
 ment of the time when they went into effect, which, 
 although generally presumed to be prima facie cor- 
 rect, may, like other recitals of formal matter which 
 do not involve a contract, be contradicted by ex- 
 trinsic parol evidence.* 
 
 Sec. 70. This rule only extends to loritings in- 
 tended iy the parties as a hinding statement of their 
 transactions. — This rule only extends to such writ- 
 ings as appear to have been intended by the parties 
 as a formal and binding statement of tlie transac- 
 tion between them, and which have been so accepted 
 by both sides; and hence oral evidence of the terms 
 of a verbal contract is not excluded by the fact that 
 a memorandum of it was made in writing at the 
 time, unless such memorandum was intended to have 
 legal effect as a contract or other disposition of 
 
 1 Wallis V. Uttell, 11 C. B. (N. S.), 369. 
 
 2Ste. Dig., art. 90; 3 Whar. Ev., §§ 976-979, 1039; Tay. Ev., 
 § 1053. 
 
Chap, in.] CONTJRACTS IN WRITING. 99 
 
 property ; * thus, if A. sells a horse to B. with a verbal 
 warranty of his soundness, and gives him a paper in 
 these words, " Bought of A. a horse for 11. 2s. 6d 
 A.," this does not prevent B. from afterwards prov- 
 ing the verbal warranty;^ for a simple receipt is 
 ordinarily not intended as a statement of the terms 
 of a contract, but is merely an acknowledgment of 
 payment or delivery, which, like other admissions, 
 though prima facie evidence of the fact, may gen- 
 erally be contradicted by oral testimony ; but where 
 the receipt also contains a contract to do something 
 in relation to the thing delivered, then it becomes 
 the best evidence of the contract between the parties, 
 and, standing upon the footing of other contracts in 
 writing, cannot be contradicted or varied by parol.' 
 And even in those cases where the parties have 
 made a formal agreement in writing with the inten- 
 tion of being bound by its terms, if, from the cir- 
 cumstances of the case, the court infers that they did 
 not intend the writing to be a complete and final 
 statement of the whole transaction between them, 
 evidence may be given of any separate agreement 
 as to any matter on which such writing is silent and 
 which is not inconsistent with its terms ; * for this is 
 neither contradicting nor varying the terms of the 
 writing, but only proving a contemporaneous parol 
 
 1 Ste. Dig., art. 90; Tay. Ev., § 1036. 
 
 2 Allen V. Prinh, 4 M. & W., 140. 
 
 3 1 Gr. Ev., § 305; Tay. Ev., § 1037; 3 Whar. Ev., § 1064 
 4 Ste. Dig., 00; Tay. Ev., § 1038; Abb. Tr. Ev., p. 295. 
 
100 ON PROOF. [Part 11. 
 
 asreemont collateral to and not inconsistent with it. 
 And upon the same principle, evidence may be given 
 of any usage or custom affecting the parties to any 
 Avritten contract, by which incidents not expressly 
 mentioned in it are annexed to all contracts of that 
 description as implied therein; unless the annexing 
 of such incident would be repugnant to or inconsist- 
 ent with the express terms or legal effect of the 
 writing itself.^ Thus to a shipping contract it is ad- 
 missible to annex as an incident, by proof of usage, 
 the customary method of engaging and paying 
 crews ; ^ and though a promissory note is silent as to 
 any A&j& of grace, parol evidence of the known and 
 established usage of the country or place where it is 
 payable, is admissible to show on what day the grace 
 expired.' Such evidence is admitted upon the " pre- 
 sumption that the parties did not intend to express 
 in writing the whole of the contract by which they 
 intended to be bound, but to contract with reference 
 to those known usages," * which differ from the parol 
 contemporaneous agreements as to collateral matters 
 which we have just been considering, only in that 
 they attach by implication instead of by express 
 stipulation.^ But such usage must be consistent with 
 the rules of law, for otherwise the parties will not 
 
 1 Ste. Dig., art. 90; 1 Gr. Ev., § 294; Tay. Ev., §§ 1067, 1068. 
 
 2 Eldredge v. Smith, 13 Allen, 140. 
 ^Senner v. Bark, 9 Wheat., 581. 
 
 * Hutton V. Warren, 1 M. & W., 466, per Parke, B., p. 475. 
 6 2Whar. Ev., §969. 
 
Chap. III.] CONTRACTS IN WRITIN&. 101 
 
 be presumed to have contracted with reference to it ; 
 and it must also be consistent with the terms of the 
 written contract, for it is always optional to the par- 
 ties to exclude the usage, if they think fit, and to 
 frame their contract so as to be repugnant to its op- 
 eration.^ Nor does the rule under consideration 
 exclude proof of any distinct subsequent oral agree- 
 ment to rescind or modify any such written contract, 
 grant or disposition of property, provided that such 
 agreement is not invalid under the statute of frauds 
 or otherwise.^ For this, it will be observed, is not 
 to substitute parol proof for the written evidence of 
 'the terms of the original contract, but to show that 
 the parties have since modified those terms, it being 
 a well recognized principle of common law, that any 
 obligation by writing which is not under seal may, 
 in the absence of statutory interference, be either to- 
 tally or partially dissolved or modified before breach 
 by a subsequent oral agreement.' In cases where by 
 reason of the original contract being under seal, or 
 on account of the provisions of the statute of frauds 
 or other express legislation, such subsequent oral 
 agreement would be invalid at law, it could not, of 
 course, be proved in evidence. 
 
 Sec. 71. And to controversies between the parties 
 to the instrument and those claiming under them. — It 
 must be observed that this rule only applies to con- 
 
 1 Anson on Contracts, 238. 
 
 2Ste. Dig., art. 90. 
 
 STay. Ev., 1044; Whar. Ev., §§ 1017,, 1018. 
 
102 ON PROOF. [Part II. 
 
 troversies between the parties to the written instru- 
 ment and those claiming under them ; ' for the rule 
 being founded upon the theory that because the par- 
 ties have made such writing the authentic memorial 
 of their contract, it must therefore be taken as be- 
 tween them to speak the truth, and the whole truth, 
 in relation to its subject matter, there is no reason 
 why strangers who have not come into the agree- 
 ment should be bound by it, and consequently, when 
 their rights are concerned, they are at liberty to 
 show that the written instrument does not disclose 
 the very truth of the matter. And if they be thus 
 at liberty when contending with a party to the 
 transaction, he must be equally free when contending 
 with them. Both must be bound by this conven- 
 tional law, or neither.^ Thus, the existence and terms 
 of a partnership, though formed by a written con- 
 tract, may be proved by parol evidence, excepting in 
 controversies between the alleged partners and their 
 representatives ; ^ and so, also, the fact of an agency 
 having been created. by a written authority, does not 
 prevent third parties from proving it by parol, ex- 
 cepting in cases, where a writing is essential to its 
 validity. And even in cases where the controversy 
 is between the parties to the written contract or 
 their representatives, the rule is only applicable 
 
 1 Ste. Dig., art. 92; 1 Gr. Ev., § 279; Tay. Ev., § 1051; Wiar. 
 Ev., §923. 
 '^ Reynolds Y. Magness, 3 Ired., 36, 30 
 3 Abb. Tr. Ev., p. 304, etc. 
 
Chap. III.] INTERPRETATION OF WRITINGS. 103 
 
 where some civil right or liability dependent upon 
 its terms is in question ; for the binding effect of a 
 contract only extends to the civil rights and liabilities 
 of the parties thereto, and of those claiming through 
 them.' Hence, when A. prosecutes B. criminally for 
 obtaining money from him under false pretenses as 
 a premium for entering into partnership with him, 
 A. is not prevented from testifying that he was in- 
 duced to pay 200^. and enter the partnership by the 
 false representation of B. that he had obtained an 
 appointment as emigration agent at a salary of 600^ 
 per annum, notwithstanding the fact that the deed 
 of partnership executed by A. and B., which was 
 offered in evidence, recited the 200i!. as the considera- 
 tion for the partnership, and made no mention what- 
 ever of the emigration agency.^ 
 
 Sec. 72. Sow far the meaning of a writing may 
 he explained hy oral testhnony. — Although, as we have 
 already seen, parol evidence is inadmissible, as between 
 the parties, to contradict, add to or vary the terms 
 of any agreement or grant which they have reduced 
 to writing, yet, within certain limits, parol and 
 other extrinsic evidence is admissible to explain the 
 meanvng which the parties intended to express by 
 the terms employed, and to identify the persons and 
 things thereby referred to.^ These limits are, first, 
 that where the words used have a plain legal mean- 
 
 iSte. Dig,, art. 93. 
 
 2 Reg V. Adamson, 3 Moody, 286, 
 
 3Tay. Ev., §1058. 
 
104 ON PROOF. [Paet II. 
 
 ing, it is not permissible to introduce evidence tliat 
 they were intended to be used in a peculiar sense, 
 unless the context or the circumstances under which 
 they were used clearly show that the parties did not 
 mean them to be understood in their ordinary legal 
 acceptation ;^ since persons must be presumed to have 
 intended the natural and proper meaning of the words 
 used by them, unless the contrary plainly appear ; and 
 secondly, if the words of a document are so ambig- 
 uous as to be unmeaning in themselves, no evidence 
 can be given to show what its author intended to say ; '^ 
 for this would be adding to the terms of the doc- 
 ument instead of explaining them. "Within these 
 limits, however, oral evidence may be given of the 
 meaning of illegible or not commonly intelligible 
 characters, of foreign, obsolete, technical and provin- 
 cial expressions, of abbreviations and of common 
 words, which from the context appear to have been 
 used in a peculiar sense ; ^ for this neither adds to nor 
 varies the terms actually used, but merely enables the 
 court to discover the meaning intended to be con- 
 veyed by them.^ And so, also, in order to ascertain 
 the relation of the words of a document to facts, 
 every fact may be proved to which it refers, or may 
 probably have been intended to refer, or which iden- 
 tifies any person or thing mentioned in it ; ^ for to 
 
 1 Tay. Ev., § 1064 ; Ste. Dig., art. 91 (2), (5) ; 1 Gr. Ev., § 295 ; 2 
 Whar. Ev., §§ 924, 940. 
 ^ Ste. Dig., art. 91 (3). 
 3 Id., ai-t 91 (2) ; Tay. Ev., g§ 1059-1066. 
 < Id., § 1058. 
 •6St&Dig., ai-t 91(4). 
 
Chap. III.] INTERPRETATION OF WRITINGS. 105 
 
 enable the judge to discover the inteation of the 
 writer as evidenced by the words he has used, he 
 must, as far as possible, put himself in the writer's 
 place, and then see how the terms of the instrument 
 affect the subject matter.' So that whenever, in a 
 written instrument, the description of the person or 
 thing intended is applicable with legal certainty to 
 each of several objects, not only such extrinsic facts, 
 but even proof of the declarations of the author be- 
 come admissible to establish which of such subjects he 
 meant to refer to ; ^ but in cases where, by reason of 
 inaccuracy in the description of a person or thing, it 
 is partly applicable and partly inapplicable to each of 
 several subjects, although such extrinsic facts may be 
 proved to show which of them was meant, evidence 
 of the author's declaration of intention is not ad- 
 missible for this purpose. So, also, the same rule as 
 to extrinsic facts applies in cases where, the descrip- 
 tion being partly correct and partly incorrect, the 
 correct part is sufficient to identify the subject in- 
 tended, while the incorrect part is inapplicaMe to any 
 subject, in which cases the instrument will be ren- 
 dered operative by rejecting the erroneous statement.' 
 And finally, in cases where courts of equity raise a 
 presumption against the apparent intention of a 
 written instrument, such presumption may be re- 
 pelled by extrinsic evidence, whether of declarations 
 
 iTay. Ev., §1082. 
 
 2Tay. Ev., § 1109; Wigr., Wills, 160; Ste. Dig., art. 91 (8). 
 
 3Tay. Ev., § 1109; Ste. Dig., art. 91 (7). 
 
106 ON PROOF. I. 
 
 or of collateral facts, showing the in e 
 
 otherwise;* for this is not to contradict the language 
 used by the parties, but simply to do away with an 
 artificial presumption of law with regard to it. 
 
 iTay. Ev., § 1110; Ste. Dig., art. 91 (9). 
 
PAET III. 
 
 ON THE PRODUCTION AND EFFECT OF EVIDENCE. 
 
 CHAPTEE I. 
 
 BURDEN OF PROOF. 
 
 Sec. T3. Burden of proof lies on the party sub- 
 stantially assertiiig the affirmative of the issue. — Hav- 
 ing considered the rules by which are determined the 
 relevancy of facts and the kind of proof by which 
 they may be established, we now come to those reg- 
 ulating the parties by whom such proof must be pro- 
 duced, the methods of its production, and its legal 
 effect when produced. And first, as to the parties, it 
 may be laid down as the general rule, that the hurden 
 of proof lies on the party who substantially asserts the 
 affirmative of the issue,'- upon the principle that it is 
 but reasonable and just that the suitor who relies upon 
 the existence of a fact should be called upon to prove 
 his own case.^ In determining the question as to 
 which party asserts the affirmative, regard is had to 
 
 11 Gr. Ev., § 74; Tay. Ev., § 337. 
 2Tay. Ev., §337. 
 
108 PRODUCTION OF EVIDENCE. [Part III. 
 
 the substance and effect of the issue, and not merely 
 to its form.' In other words, the question is which 
 ]party makes the averment, even though it be a negative 
 one, as a part of his case. An allegation in the nega- 
 tive must not be confounded vi^ith the mere denial or 
 traverse of an affirmative allegation ; ^ as for instance, 
 where, in an action upon a covenant by the defend- 
 ant to put certain repairs upon a messuage which he 
 held as tenant, the plaintiff alleged that the defend- 
 ant did oiot repair, and the defendant traversed by 
 alleging that he did repair, the burden of proof was 
 held to be upon the plaintiff, notwithstanding that 
 his averment was negative in form.^ The best tests 
 for ascertaining on whom the burden of proof lies 
 are, first, to consider who would succeed if no evi- 
 dence were given on either side ; and secondly, to ex- 
 amine what would be the effect of striking out of the 
 record the allegation to be proved, bearing in mind 
 that the onus must lie on whichever party would fail 
 if either of these steps were pursued.* 
 
 Sec. 74. Except where a disputable presumption 
 of law exists in his favor. — To this rule, throwing 
 the burden of proof upon the party who substan- 
 tially asserts the affirmative, there are two excep- 
 tions. The first is in cases where a disputable pre- 
 sumption of law exists in favor of the party alleging 
 
 ■ 1 Gr. Ev., § 74; Tay. Ev., § 337. 
 
 2 Best on Ev., §371. 
 
 3Id., § 272; Soward v. Leggatt, 7 C. & P., 613 
 
 <Tay. Ev., § 338. 
 
Chap. I.] DISPUTABLE PRESUMPTIONS. 109 
 
 the aflHrmative ; for here, if no evidence were given on 
 either side, the latter must succeed by virtue of this 
 presumption, and consequently the burden of proof is 
 shifted from him to his opponent.' These presump- 
 tions are very numerous, and most of them so closely 
 connected with the various branches of substantive 
 law to which they relate as to be almost unintelligi- 
 ble except in connection with them. For this reason 
 any attempt to enumerate them would be entirely 
 out of place in the present work, and therefore 
 only a few of those that are of more general appli- 
 cation, as well as of frequent occurrence, will be here 
 noticed. The first of these is the presumption of 
 innocence, by which the burden of proof is always 
 (unless there be some express statutory provision to 
 the contrary) thrown upon the party who either 
 directly or indirectly avers that any other person 
 has been guilty of any crime or wrongful act, even 
 though such guilt can only be established by prov- 
 ing a negative.^ To convict the accused in a criminal 
 proceeding, his guilt must be proved aifirmatively 
 beyond reasonable doubt; but when the question 
 whether or not a person has committed a crime 
 arises collaterally in a civil cause, the same strictness 
 of proof is not required, and it is to be determined 
 by the preponderance of evidence, although even in 
 such cases the burden of proving the guilt affirm- 
 atively is still imposed upon the party who alleges 
 
 iTay. Ev.,§§ 339-343. 
 
 21 Gr. Ev., § 35; Tay. Ev., § 98, 
 
110 PRODUCTION OF EVIDENCE. [Paet III. 
 
 it.i A wife who acts in company with her husband 
 in the commission of a felony other than treason 
 or homicide is presumed to act under his coercion, 
 and consequently without guilty intent.^ Every 
 sane man is presumed to contemplate the natural 
 and probable consequences of his own intentional 
 acts until the contrary plainly appears ; that the in- 
 tent to murder is to be presumed _pr^»^a/ac^V from 
 the deliberate use of a deadly weapon ; and the de- 
 liberate publication of calumny which the publisher 
 has no reason to believe to be true raises the pre- 
 sumption of malice.' It is another general presump- 
 tion, that things once proved to have existed in a 
 particular state continue to exist in that state until 
 the contrarj'' be established by evidence either direct 
 or presumptive.'' And; therefore, where a person is 
 once shown to have been living, the law, in absence 
 of proof that he has not been heard of within the 
 last seven years, will, in general, presume that he is 
 still ahve, unless such a period had elapsed as would 
 make his age considerably exceed the ordinary dura- 
 tion of human life.' But when a person is shown 
 not to have been heard of for seven years by those 
 
 iWhar. Ev., gg 124^1246 ; Abb. Ti-. Ev., p. 495. But see Tay. 
 Ev., § 97a, and Ste. Dig., art. 94. 
 
 2 1 Gr. Ev., § 28; 3 id., § 7; 1 Tay. Ev., g 153; 2 Wliar. Ev., 
 § 1256. 
 
 3 1 Gr. Ev., §§ 18, 34; 1 Tay Ev., §§ 68-71; 3 Whar. Ev., 
 g§ 1358, 1261. 
 
 ■1 Best on Ev., § 405 ; Whar. Ev., g 1284 ; 1 Gr. Ev., § 41 ; Tay. 
 Ev., g 155. 
 
 s Tay. Ev., § 156 ; Whar. Ev., g 1374 
 
Chap. I.] DISPUTABLE PRESUMPTIONS. HI 
 
 (if any) who, if he had been alive, would naturally 
 have heard of him, he is presumed to be dead, unless 
 the circumstances of the case are such as to account 
 for his not being heard of without assuming his 
 death.^ Every man is presumed to be sane in the 
 absence of evidence to the contrary.^ And where a 
 party sued upon a written contract pleads infancy, he 
 will be presumed to be of full age, in the absence of 
 proof to support his plea affirmatively.' Whenever 
 any judicial or official act is shown to have been 
 done in a manner substantially regular, it is pre- 
 sumed that formal requisites for its validity were 
 complied with.* There are also certain general dis- 
 putable presumptions as to documents ; as that any 
 document which has been duly proved, and bears a 
 date, was executed on that date ; and where several 
 documents so proved bear date on the same day, 
 that they were executed in the order necessary to 
 effect the object for which they were executed, un- 
 less the circumstances are such that collusion as to 
 the date might be practiced, and would, if practiced, 
 injure any person, or defeat the object 6f any law.* 
 Any document purporting to be a deed, which ap- 
 pears to have been duly signed and attested, is 
 
 1 Ste. Dig., art. 99 ; Tay. Ev., § 157 ; 1 Gr. Ev., § 41 ; Whar. 
 Ev., t; 1376. 
 
 2 Tay. Ev., § 342 ; 1 Gr. Ev., § 43 ; Whar. Ev., § 1352. 
 
 3 Tay. Ev., g 343 ; 1 Gr. Ev., § 81 ; Abb. Ti-. Ev., p. 796. 
 
 i Ste. Dig., art 101 ; Tay. Ev., g 124 ; 1 Gr. Ev., § 20 ; 2 Whar. 
 Ev., g§ 1302-9. 
 5 Ste. Dig., art. 87 ; 3 Whar. Ev., § 1813. 
 
112 PRODUCTION OF EVIDENCE. [Paet IIL . 
 
 presumed to have been duly sealed and delivered, 
 although, no impression of a seal appears thereon.' 
 So, also, all documents purporting or proved to be 
 thirty years old, when, unblemished by alterations 
 and produced from such custody as the judge con- 
 siders natural or proper under the circumstances, are 
 presumed to be genuine, and to have been executed 
 and attested by the persons by whom they purport to 
 have been executed.^ Alterations and interlineations 
 appearing on the face of a document will, generally 
 speaking, be presumed to have been made contempo- 
 raneously with the execution of the instrument ; but 
 any ground of suspicion upon the face of the instru- 
 ment, or arising from the circumstances of the case, 
 is sufficient to rebut this presumption, and throws 
 upon the party offering the document in evidence 
 the burden of showing how, when, by whom, and 
 with what intent, such alteration was made.' There 
 is also a disputable presumption that any person 
 who is shown to have acted in an official capacity 
 was duly appointed and qualified to do so at that 
 time ; and this applies also to officers of corporations.* 
 Sec. 75. Or the subject matte)' of his allegation lies 
 peculiarly within the knowledge of the other party. — 
 The second exception to the rule throwing the burden 
 
 1 Ste. Dig., art. 87 ; 3 Whar. Ev., g 1314. 
 
 2 1 Gr. Ev., §S 31, 143, 143, 144 ; 1 Tay. Ev., g§ 593-601 ; 1 Whar. 
 Ev., §S 194, 703, 733; 3 id., g 1359. 
 
 3 1 Gr. Ev., §g 564-568; 1 Wliar. Ev., § 639; Abb. Ti-. Ev., 
 pp. 133, 406, 696. 
 
 4 Ste. Dig., art. 90 ; Tay. Ev., § 139 ; 3 Whar. Ev., § 1315. 
 
Chap. I.] BURDEN OF PROOF. 113 
 
 of proof upon the party ■who substantially asserts the 
 affirmative is, that in cases where the subject matter 
 of the allegation lies peculiarly within the knowl- 
 edge of one of the parties, that party must prove it, 
 whether it be of an affirmative or negative charac- 
 ter.' Thus in proceedings, whether civil or criminal, 
 instituted against persons for doing acts which they - 
 are not permitted to do without a special license or 
 authority, as for selling liquors, exercising a trade or 
 profession, or the Uke, the onus of proving such 
 license or authority lies upon the defendant.^ Al- 
 though this rule is laid down generally in most of 
 the text books, and has frequently been recognized 
 in opinions delivered from the bench, yet the author- 
 ities are by no means agreed a,s to the extent to 
 which it is to be carried.' Alderson, B., held * that 
 the rule only applies to the weight of the evidence, 
 and that there should always be some evidence to 
 start it, in order to cast the onus on the other side, 
 and such also appears to have been the view taken 
 by Chief Justice Shaw of Massachusetts ; ' but some 
 of the cases in the books seem to go further. In 
 many of them, hoVever, the burden of proof is more 
 or less affected by express statutory provisions ; and 
 perhaps the most accurate statement of the rule, as 
 far as estabUshed by adjudicated cases at common 
 
 1 Tay. Ev., § 347 ; 1 Whar. Ev., g 367. 
 
 2 Tay. Ev., § 348 ; 1 Gr. Ev., § 79 ; 1 Whai-. Ev., g 368. 
 3BestEv., g§374, 375. 
 
 4 ElHn v. Janson, 18 M. & W., 655, 663. 
 s Comm. V. Thurlow, 24 Pick, 374 
 8 
 
114 PRODUCTION OF EVIDENCE. [Part ni 
 
 law, is to be found in Starkie,' who says that, upon 
 general principles, a party is relieved " from proof of 
 the negative of any matter where the existence of 
 the affirmative is essential to exempt or discharge the 
 adversary from some duty or liability proved upon 
 him." 2 
 
 ilStai-kieEv., p. *589. 
 
 2 This rule being founded upon considerations of public con- 
 venience and common sense, there is no good reason why it 
 should not be made by statute to apply to cases where the 
 plaintiff is obliged, as in foreign attachments, to aver and prove 
 that his adversary is a non-resident of the stata This might be 
 done by declaring that in such cases the testimony of the plaint- 
 iff that he had made diligent inquiry as to the residence of the 
 defendant from the persons most likely to know about it, and 
 that from the best and most reUable information so obtained he 
 verily beUeved him to be a non-resident of the state, should be 
 competent evidence from which such non-residence might 
 be inf eiTed, in the absence of any proof to the contrary. The 
 absence of some such provision oftentimes renders it impossible 
 for a plaintiff to prove by legal evidence the non-residence of 
 his debtor, because he does not know the precise place where he 
 lives, although there may be abundant hearsay evidence which 
 establishes to a moral certainty the fact that he has left the 
 state. Under such circumstances, throwing upon the defendant 
 the burden of proving his residence would certainly tend to 
 promote the ends of justice. 
 
Chap. IL] BIGHT TO BEGIN. 115 
 
 CHAPTEE IL 
 
 EIGHT TO BEGIN. 
 
 Seo. 76. Party who begins must produce Ms entwe 
 case. — The right to begin in the production of evi- 
 dence is mainly determined by the burden of proof, 
 and is often of much importance; for in cases where 
 there is but a single issue of fact to be tried, the 
 party who begins must exhaust his evidence in the 
 first instance, and may not first rely upon a jprimd 
 facie case, and, after that has been shaken by his 
 adversary's proof, call other evidence to confirm it.' 
 After the adversary has concluded his evidence, the 
 party who began can only adduce further evidence 
 for the purpose of contradicting the affirmative facts 
 introduced into the case by the other side, and may 
 not attempt to disprove them by testimony which 
 merely goes to confirm the allegations originally 
 made by his own pleadings, which are inconsistent 
 with hjs adversary's case. Thus, in an action by 
 the indorser of a bill against the acceptor, where 
 issue was raised on a plea denying the indorsement, 
 the plaintiff was not allowed to rest his case at first 
 on proof of the indorser's handwriting, and, after 
 evidence for the defense had been given that he was 
 himself too poor to have discounted the bill, and 
 
 >Tay. Ev., §358. 
 
116 PRODUCTION OF EVIDENCE. [Paet IH 
 
 had disclaimed all knowledge of it, to prove that in 
 fact he had discounted the instrument.^ 
 
 Sec. 77. Plaintiff has right to leyin when the hur- 
 den of any of the issues is on him, or he seeTcs svh- 
 stantial unliquidated damages. — The general rule on 
 this subject is, that the party on whom the burden of 
 proof lies, as developed on the record, must begin, 
 unless his adversary will at the trial admit the whole 
 friTna facie case of such party, and could not by 
 his pleading have made this admission at an earlier 
 period.^ But when the record contains several issues, 
 and the burden of proving any one of them lies on 
 the plaintiff, he is entitled to begin, provided he will 
 undertake to give evidence upon it ; ' and therefore 
 the plaintiff is always entitled to begin, whenever 
 he seeks substantial unliquidated damages, though 
 the general issue be not pleaded, and the affirmative 
 lies upon the defendant; for in such cases the burden 
 of proving the amount of the damage actually 
 sustained is always upon the plaintiff.* In cases 
 where several issues are joined, some of which 
 lie on either party, it is optional with the plaint- 
 iff either to go into his whole case, in the first 
 instance, or merely to adduce evidence in support of 
 those issues which he is bound to prove, reserving 
 the right of rebutting the defendant's proofs in the 
 
 : 1 Tay. Ev., g 358 ; Jaaobs v. Tarleton, 11 Q. B., 431. 
 ' 2Tay. Ev., §350. 
 
 3 Tay. Ev., § 356; Abb. Tr. Bf., p. 30; 1 Thomp. Trials, § 238. 
 
 *Tay. Ev., § 353; Abb. Ti-. Bf., p. 33; 1 Thomp. Trials, §380. 
 
Chap. II.] BIGHT TO BEGIN. 117 
 
 event of the latter establishing a prima facie case 
 with respect to the issues which lie upon him. If the 
 latter course be pursued, the defendant may have a 
 special reply on the plaintiff's fresh evidence, while 
 the plaintiff will be entitled to the general reply on 
 the whole case. But if the plaintiff, at the outset, 
 elects to go into his whole case by calling any evi- 
 dence to repel the case of the defendant, he will not 
 be permitted to give any evidence in reply; for, if 
 such a privilege were allowed to the plaintiff, the 
 defendant, in common justice, might claim the same, 
 and the proceedings might be extended to a very in- 
 convenient length.' As already stated, in cases 
 where there is but a single issue, the party upon 
 whom the burden of proof lies must put forth all 
 his evidence in the first instance.- All questions of 
 the mere order of proof are left largely to the dis- 
 cretion of the judge, who has a right (in the ab- 
 sence of any positive rule of court to the contrary) 
 to relax the strict rules by receiving any competent 
 evidence from either party, at any stage of the trial 
 before the case is given to the jury, if in his opinion 
 the ends of justice require it. In practice, however, 
 this discretion is seldom exercised except to let in, 
 out of its regular order, the proof of some merely 
 technical or formal matter, which had evidently 
 been omitted through inadvertence.^ 
 
 iTay. Ev., §357. 
 
 'Ante, §75. 
 
 ^Phila. & Trenton R. E. v. Stimpson, 14 Pet., 448, 463; Ban- 
 non V. Warfield, 42 Md., 32, 39; 1 Gr. Ev., §§ 76, 469a; Tay.. 
 Ev., § 860. 
 
(118 1 PRODUCTION OF EVIDENCE. [Paet III 
 
 CHAPTEE III. 
 
 COMPETENCY OF WITNESSES 
 
 Seo. Y8. All witnesses presumed competent miless 
 objected to — When objection must he made. — Having 
 determined by which side and in what order the 
 testimony is to be produced, the next question 
 to be considered is, what persons are competent 
 to testify. The rule upon this subject is that 
 all persons offered as witnesses are presumed to be 
 competent until the contrary is affirmatively shown 
 to the satisfaction of the presiding judge or judges, 
 by whom all questions of competency are to be d^ 
 termined, and who, for the purpose, may examine 
 the witness himself, or hear any other legal testi- 
 mony which may be produced upon the subject.' 
 Objection to the competency of a witness shoul(j|be 
 made before his examination in chief, if the disquali- 
 fication be then known to the party objecting, or, if 
 it be not then known, it must be made as soon as the 
 disqualification appears ; for a party who, knowing of 
 objections to the competency of a witness, holds them 
 back until after the witness has been examined, will 
 ordinarily be held to have waived such objection.^ 
 
 1 Best Ev., § 133; Ste. Dig., art. 106; 1 Whar. Ev., §§ 891, 393; 
 Tay. Ev., § 1257. 
 2Ta7. Ev., § 1356; 1 Whar. Ev., § 398. 
 
Chap. HI] COMPETENCY OF WITNESSES. 119 
 
 Sec. Y9. What rendered a witness inoomjpeient at 
 common law — Want of mental capacity — Want of 
 religious 'belief — Interest -^ Being husland or wife of 
 party. — At common law a witness was totally dis- 
 qualified from testifying by reason of any of the 
 following disabilities, viz. : 
 
 (a) "Want of mental capacity to recollect the mat- 
 ter on which he was to testify, or to understand the 
 questions put to him, or to give rational answers to 
 them, or to know that he ought to speak the truth. 
 Such mental incapacity may arise from extreme 
 youth, disease of any kind, intoxication, or any other 
 cause whatsoever.^ 
 
 (b) Want of belief in the existence of a God who 
 dispenses retribution either in this world or the next ; 
 for without such belief the solemnity of an oath 
 could evoke no religious sense of accountability 
 whatever. "Want of religious belief is never pre- 
 sumed, but must be proved afiirmatively by the party 
 alleging it ; the ordinary method being evidence of 
 the declarations of the witness previously made to 
 others.^ According to the weight of modern au- 
 thorities, it is not allowable to question a witness as 
 to his religious belief for the purpose of showing him 
 to be incompetent ; ^ but it does not seem to have been 
 decided whether he can be interrogated as to his re- 
 
 iSte. Dig., art. 107; 1 Gr. Ev., §§ 365-7; Tay. Ev., §§ 1240-3. 
 2 1 Gr. Ev., §Si 368-70; Tay. Ev., § 1250. 
 3 1 Gr. Ev., § 370 and note; 1 Whar. Ev., § 396. Contra, Tay. 
 Ev., § 1250. 
 
120 PRODUCTION OF EVIDENCE. [Paet HI. 
 
 ligious belief for the purpose of contradicting the 
 testimony of third persons, alleging hira to be incom- 
 petent because of such belief. This rule has been 
 modified by statute or constitutional provisions in 
 several of the United States.^ 
 
 11 Whar. Ev., § 395. Although as the law now stands in 
 those states where it has not been changed by legislation, want 
 of religious belief operates as a positive disqualification to tlie 
 extent stated in the text, it is not by any means in a satisfactory 
 state upon this point. While, on the one hand, there is no 
 doubt but that the rule requiring all testimony in judicial 
 proceedings to be given under the sanction of an oath gives, 
 in the great majority of cases, a very important security for its 
 truthfulness, for the reason, as has been said, that the gener- 
 ality of mankind are "neither so virtuous as to be safely 
 trusted in cases of importance upon their bare word, nor yet 
 so abandoned as to violate a more solemn engagement," and 
 while it is also undeniable that a man who recognizes himself 
 to be under no moral accountability to a superior being is 
 altogether lacking in the strongest motive for veracity, yet 
 it would be going altogether too far to say that the testi- 
 mony of such a person must necessarily be so entirely un- 
 trustworthy as to justify its being altogether excluded from 
 consideration in judicial proceedings. Such a view is directly 
 at variance with the whole' tendency of modern legislation, 
 both in this country and in England, upon the subject of evi- 
 dence, which is towards removing the common law restrictions 
 upon the competency of witnesses, such as having an interest 
 in the result of the trial, or having been previously convicted of 
 an infamous crime, but allowing the fact which formerly 
 formed the ground of such disqualification to be given in evi- 
 dence to affect the witness' credibility. Upon this principle, the 
 true rule would seem to be, that want of religious belief on the 
 part of a witness should not exclude his testimony, but ought 
 always to be allowed to be given in evidence to affect its credi- 
 bility, and for this purpose it should be permitted to cross- 
 examine witnesses upon the point. Propriety obviously 
 
Chap. III.] COMPETENCY OF PARTIES. 121 
 
 (c) Conviction of any crime rendering him infa- 
 mous, viz. : treason, felony or the crimen falsi^ which 
 incapacitates the witness from testifying in the courts 
 of the state or country in which he was convicted 
 until the disability has been removed by a reversal 
 of the judgment or a pardon.^ In most of the states 
 the disqualification of infamy has been removed by 
 constitutional provisions or by statute, but a convic- 
 tion may be proved for the purpose of affecting the 
 credibility of the witness.' 
 
 id) Being a party to the record, or having any di- 
 rect pecuniary interest in the result of the suit.* 
 This disqualification has been almost entirely abol- 
 ished in the courts of the United States by section 858 
 of the Eevised Statutes, which provides that in those 
 courts no witness shall be excluded " in any civil action 
 because he is a party to or interested in the issue 
 tried ; provided, that in actions by or against execu- 
 
 requires that an oath should not be administered to a persort 
 insensible to its obligations, for in such a case the repetition of 
 the words would be a blasphemous mockery; and therefore 
 atheists should be required, as in England under the statute 33 
 and 33 Vic, c. 68, § 4, to testify upon a solemn promise and 
 declaration which would render them liable to indictment for 
 perjury in case of wilfully and corruptly giving false evidence. 
 
 iThe crimen falsi, as defined by Prof. Greenleaf (1 Gr. Ev., 
 § 873), is an offense which " not only involves the charge of 
 falsehood, but also is one which may injuriously affect the ad- 
 ministration of justice by the introduction- of falsehood and 
 fraud." 
 
 21Gr. Ev., §§376-378. 
 
 3 1 Whar. Ev., § 397. 
 
 n Gr. Ev., §§ 339, 386 et seq. 
 
122 PRODUCTION OF EVIDENCE. [Part UL 
 
 tors, administrators or guardians, in which judgments 
 may be rendered for or against them, neither party 
 ihall be allowed to testify against the other as to any 
 transaction with or statement by the testator, intes- 
 tate or ward, unless called to testify thereto by the 
 opposite party, or required to testify thereto by the 
 court." The result of this statute is to cut up by 
 the roots all disqualification on account of interest,' 
 and in civil cases to put the parties (except those 
 named in the proviso) upon a footing of equality 
 with other witnesses, making all admissible to testify 
 for themselves and compellable to testify for the 
 others.^ Statutes to the same general efifectj although 
 differing somewhat in their terms, have been passed 
 in all the states of the Union and the Territories, 
 and in several of them the accused, in criminal cases, 
 is made a competent witness in his own behalf, but 
 is not compellable to testify.^ 
 
 {e) Being the husband or wife of a party to the rec- 
 ord, excepting that in criminal proceedings instituted 
 against a person for any bodily injury or violence in- 
 flicted upon his or her wife or husband, such wife or 
 husband is competent to testify/ This exclusion of 
 husband and wife from testifying for or against each 
 other is founded upon reasons of public policy, and 
 therefore those statutes which abolish the disqualifica- 
 tion arising from interest do not remove the common 
 
 1 Lucas V. Brooks, 18 Wall, 436, 453. 
 
 2 Texas v. Chiles, 21 WaU., 488. 
 
 3 So also in Federal Courts, see 20 U. S. Stats., 30 ; Eev. Stats. 
 TJ. S., § 858 A (Act Maroli 16, 1878, oh. 37). 
 
 ■iSte. Dig., art 108; 1 Gr. Ev., § 343; Tay. Ev., § 1236; 1 
 Whar. Ev., § 422. 
 
Chap. Ill] HUSBAND AND WIFE. 123 
 
 law incompetency of husbands and wives to testify 
 for or against each other.^ The exception to the 
 rule above stated is made upon the ground of 
 necessity, for otherwise it would be ordinarily prac- 
 tically impossible to secure convictioijs in such cases.^ 
 In many of the states, however, the incompetency of 
 husbands and wives to testify for or against each 
 other has been to a greater or less degree removed 
 by statute ; and although these statutes vary in their 
 provisions, the general tendency of such legislation 
 is to put them upon the same footing with other wit- 
 nesses in civil cases (excepting as to confidential 
 communications to each other), and in criminal cases 
 to make them competent, but not compellable to tes- 
 tify for or against each other. 
 
 Sec. 80. Witnesses forbidden to testify as to cer- 
 tain matters and privileged as toothers. — In addition 
 to the general disqualifications above enumerated, wit- 
 nesses are, for reasons of public policy, forbidden by 
 law from testifying as to certain matters affecting 
 other persons towards whom they stand in special rela- 
 tions, or affecting the public administration of jus- 
 tice; and they are also privileged from answering 
 certain questions, the answers to which might be in- 
 jurious to the public or to the witness himself. These 
 matters will now be considered separately. 
 
 Sec. 81. Confidential communications between hus- 
 band and wife. — No husband is permitted to dis- 
 close any confidential communication made to him 
 
 liMcas V. Brooks, 18 Wall., 436. 453; 1 Whar. Ev., § 430. 
 21Gr. Ev., §343. 
 
124 PRODUCTION OF EVIDENCE. [Paet IIL 
 
 by his wife, nor is any wife permitted to disclose 
 any confidential communication made to her by her 
 husband, during the marriage. This prohibition 
 having been made for the purpose of preserving in- 
 tact the confidence and security of the marriage 
 state, is not removed by the death of one of the 
 parties or by a dissolution of the marriage. It is 
 personal to the parties, and does not extend to com- 
 munications made in the presence or hearing of third 
 persons capable of .understanding them.' 
 
 Sec. 82. Judges may not he examined as to certain 
 matters. — A judge may not be sworn as a witness 
 in any case while presiding at the trial, for in such a 
 case he could hardly be deemed capable of impartially 
 deciding on the admissibility of his own testimony, 
 or of Aveighing it against that of other witnesses.^ 
 "Where there are several judges sitting together, any 
 one or more of them may be sworn and testify as 
 witnesses; but as soon as they become witnesses 
 they should leave the bench and take no further 
 judicial part in the trial.^ JN'either may judges or 
 justices of. the peace be asl^ed to disclose anything 
 that took place at their consultations, for the law 
 holds these to be inviolable upon grounds of public 
 policy ; but they may be examined as to foreign and 
 collateral matters which happened in their presence 
 while the trial was pending or after it was ended,* 
 
 1 1 Gr. Ev., §§ 254, 336-338; 1 Whar. Ev., § 437. 
 2 1 Gr. Ev., § 364 ; Tay. Ev., § 1244 ; 1 Whar. Ev., § 600. 
 n Gr. Ev., § 364; Tay. Ev., § 1343; People v. Dorhing, 59 
 N. Y., 374. 
 
 n Gr. Ev., § 864; Tay. Ev., § 859; 1 Whar. Ev., § 600. 
 
Chap. IIL] PRIVILEGED COMMUNICATIONS. 125 
 
 and also as to anything which, took place before 
 them on ti'ial, not forming part of the record, and 
 which may be necessary in order to identify the case 
 or prove the testimony of a witness.^ 
 
 Sec. 83. Grand and petty jurors may not he ea>- 
 amined as to their consultations. — For the same rea- 
 son that the consultations of judges are held inviola- 
 ble, petty jurors may not give evidence of what 
 passed between them in the discharge of their duties ; ^ 
 but they are competent to testify as to the issues 
 actually passed on by the jury of which they were 
 members, when such question is material on a subse- 
 quent trial.' There has been some conflict of opin- 
 ion as to how far this rule of inviolability extends 
 to the proceedings of grand jurors ; but it appears 
 to be now generally held in this country, that while 
 a grand juror may not give evidence to impeach the 
 finding of his fellows, or even to show what was the 
 vote on the findings, he can be required to give evi- 
 dence as to what was the issue before the grand 
 jury, or what was the testimony of particular wit- 
 nesses, whenever such matters are material; and 
 also as to whether twelve of them actually concurred 
 in the finding of a bill.* A petty juror may be 
 sworn and examined as a witness in a case which he 
 has been impaneled to try, and under such circum- 
 
 ilWhar. Ev., §600. 
 
 21 Whar. Ev., § 601; 1 Gr. Ev., § 253ffl; Tay. Ev., § 864. 
 
 3 1 Whar. Ev.,§601. 
 
 4 Id.; 1 Gr. Ev., § 253; Tay. Ev., § 863; Ste. Dig., art. 114. 
 
126 PRODUCTION OF EVIDENCE. [Pabt IIL 
 
 Stances he need not leave the box or decUne to inter- 
 fere with the verdict, for he does not decide upon 
 the admissibility of his own testimony, and there are 
 eleven others besides himself to vfeigh its credibility.' 
 
 Sec. 84. Communications made to public officers 
 or grand jurors, with a view to criminal prosecutions, 
 may not he disclosed. — So, also, upon grounds of pub- 
 lic policy, all communications made to public officers 
 and to grand jurors, with a view to the prosecution 
 or detection of suspected offenders, are privileged, 
 and no witness is permitted to divulge any such 
 communications, or the name of the person who made 
 them, without the consent of such person.^ 
 
 Sec. 85. State secrets may not he disclosed. — No 
 witness will be permitted to be examined relating to 
 any state secret, or to communications with public 
 officers about matters pertaining to their official 
 duties, in so far as such examination would, in the 
 opinion of the court, make disclosures injurious to 
 the public interests. And in all cases where the law 
 is restrained by public policy from enforcing the 
 production of papers, no secondary evidence of the 
 contents of such papers maj'^ be given.' 
 
 Sec. 86. Commn/unication to legal adviser may not 
 he disclosed hy liim. — Upon principles of public policy, 
 
 1 Tay. Ev., § 1244; Best Ev., § 187; 1 Whar. Ev., § 603. 
 
 2 1 Gr. Ev., § 250; Tay. Ev., §g 860-863; Ste. Dig., art. 113; 
 1 Whar. Ev., §§ 603, 604. 
 
 3 Ste. Dig., art. 112; 1 Gr. Ev,, §251; 1 Whar. Ev., §604. 
 See, also, § 88, j^ost. 
 
Chap. III.] PRIVILEGED COMMUNICATIONS. 127 
 
 no lawj^er is permitted, unless with his client's ex- 
 press consent, to testify as to any communication, 
 oral or documentary, made to him by or on behalf 
 of his client during the course and for the purpose 
 of his emploj'^ment ; ' for otherwise no man would dare 
 to consult a professional adviser with a view to his 
 defense or to the enforcement of his rights, and no 
 man could safely come into court either to obtain 
 redress or to defend himself.^ This rule being re- 
 stricted to information given in the course and for 
 the purpose of professional employment, does not 
 apply to any fact which a legal adviser became ac- 
 quainted with otherwise than in his character as 
 such;' nor to any communication made to him in 
 furtherance of any criminal purpose,* or to any fact 
 observed by him in the course of his employment, 
 showing that any crime or fraud has been committed 
 since the commencement of his employment; for it 
 is no part of a lawyer's duty to be an accessorj'^ to 
 his client's crime or a participant in his fraud. ^ This- 
 rule is restricted to communications made to counsel, 
 solicitors or attorneys who are acting for the tim& 
 being in the character of legal advisers, and to such 
 other persons as are the necessary organs of commu- 
 
 iSte. Dig., art. 115; 1 Gr. Ev., §§ 337-243; Tay. Ev., §§ 833- 
 887; 1 Whar. Ev., §§ 576-581. 
 
 2 1 Gr. Ev., § 238; Tay. Ev., § 885. 
 
 3Ste. Dig., art. 115; 1 Gr. Ev., § 244; Tay. Ev., § 853. 
 
 iSte. Dig., art. 115; Tay. Ev., § 858. 
 
 5Ste. Dig., art. 115; 1 Gr. Ev., § 343; Tay. Ev., § 853, note; 
 1 Wliar. Ev., § 590. 
 
128 PRODUCTION OF EVIDENCE. [Paet m 
 
 nication between them and their clients, such as 
 their clerks and interpreters.^ It does not, at common 
 law, apply to communications made to clergymen or 
 medical men in their professional capacity ; ^ but in 
 some of the United States such communications are 
 privileged by statute. 
 
 Sec. 87. Privilege of client as to disclosing com- 
 munication made to legal adviser. — Besides these mat- 
 ters as to which certain witnesses are forbidden to 
 testify, there are others which they are privileged to 
 refuse to be interrogated about, if they choose to avail 
 themselves of such privilege, upon the ground that 
 disclosures in regard to such matters might be injuri- 
 ous to the interests of the witness or of the public. 
 Among these may be classed all communications 
 made by a client to his legal adviser, which such legal 
 adviser would not be allowed to disclose without the 
 client's permission, although they may have been 
 made before any dispute arose as to the matter re- 
 ferred to.^ 
 
 1 Ste. Dig., art. 115; 1 Gr. Ev., g 239; Tay. Ev., § 841; 1 Whar. 
 Ev., § 583. 
 
 ' Ste. Dig. , art. 117; 1 Gr. Ev., § 347; Tay. Ev., § 837; 1 Whai-. 
 Ev., §§596, 606. 
 
 3 Ste. Dig., art. 116; 1 Gr. Ev., § 339a; Tay. Ev., § 845; 1 Whar. 
 Ev., § 583. In Massachusetts it has been held that when the 
 •client, being a party to the cause, has testified as a witness on 
 his own offer, he thereby waives the privilege, and may be 
 compelled to disclose, on cross-examination, any communica- 
 tions made by him to his legal adviser. Inhabitants of Wobum 
 V. Henshaw, 101 Mass., 193, 300. But the contrary has been held 
 ill other states. Hemenway v. Smith, 38 Vt., 700, 707; Bigler 
 V. Beyher, 43 Ind., 113. 
 
Chap. III.] PRIVILEGES OF WITNESSES. 129 
 
 Sec. 88. Privilege as to facts tending to criminate 
 witness. — In accordance with the common law prin- 
 ciple which has been incorporated in the federal con- 
 stitution,^ and also made a part of the fundamental 
 law of the several states of the Union, that no person 
 shall be compelled in any criminal case to be a wit- 
 ness against himself, every witness is privileged to de- 
 cline answering any question, if the answer thereto 
 might, in the opinion of the judge, have a tendency 
 to expose such witness (or his wife or her husband) to 
 any criminal charge, or to any penalty or forfeiture, 
 which the judge regards as reasonably hkely to be 
 preferred or sued for ; but this privilege does not ex- 
 cuse a witness from answering any question material 
 to the issue, merely because the answer may establish 
 that he owes a debt, or is otherwise liable to any civil 
 suit, either at the instance of the state or of any other 
 person,^ or because the answer thereto may have a 
 tendency to disgrace or degrade him, without ren- 
 dering him liable to any criminal prosecution.' This 
 privilege, however, may be waived by the witness if 
 he voluntary testifies to any matter which might ex- 
 pose him to a criminal prosecution ; for in such case 
 he is bound to give all the details of the transaction, 
 if required. Parties to the cause who testify on their 
 own offer are considered as thereby waiving the priv- 
 ilege as to the subject matter of their testimony in 
 
 1 Const. U. S., Amend. V. 
 
 2Ste. Dig., art. 130; 1 Gr. Ev., § 451; Tay. Ev., §§ 1308-1317; 
 IWhar. Ev., §§533-541. 
 '1 Gr. Ev., § 454; Tay. Ev., §§ 1313, 1314; 1 Whar. Ev., § 543. 
 9 
 
130 PBODUCTION OF EVIDENCE. [Part IIL 
 
 chief, and must submit to a full cross-examination 
 thereon, however much the answers may tend to 
 criminate them.i 
 
 y EC. 89. Privilege of government aiid state officials 
 /IS to public matters. — The executive of the natiou or 
 of a state and the heads of departments of the govern- 
 ment are privileged, in the exercise of their discre- 
 tion, to determine how far they will produce papers 
 or answer questions as to public affairs in a judicial 
 mquiry ; this privilege, however, is restricted to these 
 officers, and cannot be claimed b}^ a subordinate.^ 
 
 Sec. 90. Cases where corroborative evidence re- 
 quired. — Besides the above cases in which certain 
 witnesses are either disqualified or privileged from 
 testifying, there are other cases in which the testi- 
 mony of a witness, although admissible, is not suffi- 
 cient to form the basis of a verdict unless supported 
 by other corroborative evidence. These will now be 
 briefly considered. 
 
 Sec. 91. Prosecutions for t/reason. — The first case 
 is that of prosecutions for treason, in which the testi- 
 mony of two witnesses is always required. The fed- 
 eral constitution provides ' that no person shall be 
 convicted of treason against the United States unless 
 on the testimony of two witnesses to the same overt 
 act, or on confession in open court. But a person 
 
 11 Gr. Ev., §451a; IWhar. Ev., §539; State v. Oher, 53 N. H., 
 i59 ; Com. v. Mullen, 97 Mass., 545 ; 1 Thomp. Tr., § 307. 
 2 1 Gr. Ev., § 351 ; 1 Whar. Ev., § 604. 
 'Const XJ. a, ai-t III, sec. 3. 
 
Chap. HI.] TO CONTRADICT ANSWER. 131 
 
 may be convicted of treason against a state (where 
 there is no express law to the contrary) by the testi- 
 mony of two witnesses, one of them to one, and an- 
 other to another overt act of the same treason, or 
 both of them to a voluntary confession out of court.* 
 
 Sec. 92. Prosecutions for perjury. — If, upon a 
 trial for perjury, the only evidence against the de- 
 fendant is the oath of one witness contradicting the 
 oath on which perjury is assigned, and no circum- 
 stances are proved which corroborate such witness, 
 the defendant is entitled to be acquitted,^ for the rear 
 son that the oath of a single witness is not deemed 
 sufficient to counterbalance the oath of the prisoner 
 and the legal presumption of his innocence by which 
 it is supported. 
 
 Seo. 93. To contradict answer in equity called for 
 upon oath. — So, also, the general rule in equity is, 
 that where the complainant, by calling on a defend- 
 ant to answer under oath an allegation which he 
 makes, thereby admits the answer to be evidence, and 
 the defendant in express terms negatives that allega- 
 tion, either the testimony of two witnesses, or of one 
 witness with corroborative circumstances, will be re- 
 quired to outweigh such an answer. Cases, however, 
 sometimes occur when the evidence arising from cir- 
 cumstances is of itself strong enough for this pur- 
 pose.' 
 
 1 1 Gr. Ev., § 255; 3 id., § 246; 7 and 8 WUl, III, c. 3, §§ 2, 4. 
 2Ste. Dig., art. 133; 1 Gr. Ev., §257. 
 31 Gr. Ev., § 260; Tay. Ev., § 883. 
 
132 PRODUCTION OF EVIDENCE. [Paut in. 
 
 Sec. 94. Generally required to establish general 
 usage or proof of adultery. — The testimony of more 
 than one witness is usually required to estabhsh any 
 usage of trade of which all dealers in that particular 
 line are bound to take notice and presumed to be 
 informed.! And courts will not ordinarily grant di- 
 vorces upon the evidence of the parties alone Avithout 
 some corroborative proof, upon the ground that 
 whenever other testimony can be had, it is neither 
 safe nor fit to rely upon that of the party alone.' 
 These, however, are only general rules of practice, 
 without the binding authority of law, and may be 
 departed from by the courts at any time in their 
 discretion. 
 
 Sec. 95. Testimony of an accomplice should gen- 
 erally he corroborated to warrant conviction.^- When 
 the only proof against a person charged with a 
 criminal offense is the evidence of an accomplice, 
 uncorroborated in any material particular, it is the 
 duty of the judge to warn the jury that it is unsafe 
 to convict any person upon such evidence, though 
 they have a legal right to do so ; and the failure of 
 the judge to so warn the jury is sufficient ground 
 for granting a new trial.' 
 
 1 1 Gr. Ev., § 260a; 3 Whar. Ev., § 964 ; Boardman y. Spooner, 
 13 AUen, 359 ; Robinson -v. U. S., 13 WaU., 366. 
 
 ■^Robins v. Robins, 100 Mass., 150 ; 1 Wliar. Ev., § 483. 
 • 3 ste. Dig., art. 131 ; 1 Gr. Et., § 380 ; Tay. Ev., §§ 887-891. 
 
Chap. IV.] EXAIIINATION OF WITNESSES. 133 
 
 CHAPTEE lY. 
 
 EXAMINATION OF WITNESSES. 
 
 Sec. 96. All witnesses mustie examined upon oath 
 or affirmation. — All oral evidence must be given upon 
 oath, unless the witness objects to being sworn from 
 alleged conscientious scruples, in which case he will 
 be allowed to make a solemn religious affirmati«n, 
 involving a like appeal to God, for the truth of his 
 testimony, in any mode which he shall declare to be 
 binding upon his conscience; and any person who, 
 having made such aiBrmation, wilfully and coiTuptly 
 gives false evidence, is punishable as for perjury. All 
 witnesses are to be sworn according to the peculiar 
 ceremonies of their own religion, or in such manner 
 as they may deem binding on their own consciences ; 
 and if the witness be not of the Christian religion, 
 the court will inquire as to the form in which an oath 
 is administered in his own country or among those of 
 his own faith, and will impose it in that form. In as- 
 certaining what form of oath is binding upon the con- 
 science of the witness, the court may inquire of the 
 witness himself, and the proper time for making this 
 inquiry is before he is sworn.' 
 
 Sec. 97. How oral evidence ma/y ie taken. — Oral 
 evidence must' be taken either in open cpurt, or out 
 
 1 1 Gr. Ev., § 371 ; 1 Whar. Ev., § 387 ; Omichund v. Barker, 1 
 Sm. Lead. Gas., 7th Am. ed., pp. *585, *545 ; 1 Thomp. Tr., § 365. 
 
131 PRODUCTION OF EVIDENCE. [Part IIL 
 
 of court for fature use in court, under a commission, 
 or by deposition before some officer of the court oi 
 other person or persons appointed for that purpose, 
 either by agreement of the parties or under the pro- 
 visions of any statute or rule of court governing the 
 tribunal in which said evidence is to be used. If 
 taken under a commission, it must be done in the 
 manner prescribed by its terms, or by the rules of 
 court or statute regulating the mode of executing 
 it ; and if taken by deposition, it must be only in the 
 manner and under the circumstances prescribed, and 
 can be used only for the purposes and upon the con- 
 tingencies expressly provided by the terms of such 
 agreement, statute or rule of court. The testimony 
 of witnesses who are beyond the reach of the process 
 of the court, or who, from sickness or any other 
 reason, are physically unable to attend court,' and 
 (unless otherwise provided by statute) all testimony 
 in chancery proceedings,^ may be taken either under a 
 commission or by deposition, according to the practice 
 of the court before which the case is tried. All 
 other testimony must be given orally in open court, 
 except in cases otherwise specially provided for by 
 statute or rule of court or agreement of parties. In 
 civil cases, when witnesses are about to leave the 
 jurisdiction of the court, or, by reason of feeble 
 health or advanced age, are not likely to be alive and 
 capable of testifying at the time of trial, their testi- 
 
 1 1 Gr. Ev., § 321. 
 ■2 3 id., §§251, 259. 
 
Chap. IV.] EXAMINATION IN CHIEF. 135 
 
 mony may be taken by deposition for future use de 
 dene esse in the event of it being impossible for 
 them to give their evidence in court at the hearing ; 
 provided the party taking such depositions shall have 
 first given such notice as may be required by statute 
 or rule of court to the party against whom such dep- 
 ositions are to be used.^ 
 
 Seo. 98. . When and how objections to deposition 
 may he made. — When a deposition or the return of 
 a commission is used in court as evidence, the party 
 against whom it is read may object to the reading of 
 anything therein, on any ground upon which he 
 could have objected to its being stated by a witness 
 examined in open court; ^ but no one can object to 
 the reading of the answer of any question asked by 
 his own representative, unless upon the ground of its 
 being irresponsive to such question ; ' and no question 
 may be objected to for matter of form merely, unless 
 exception was taken thereto before it was answered, 
 in cases where the party objecting or his representa- 
 tive had the opportunity of so excepting.* 
 
 Sec. 99. Examination in chief — Leading ques- 
 tions. — "When a witness has been duly sworn, he 
 must be first examined in chief by questions pro- 
 pounded on behalf of the party who called him. 
 This examination must relate to facts in issue or 
 relevant thereto; and all leading questions, i. e., such 
 
 1 1 Gr. Ev., §§ 331-325. See Rev. Stats. U. S., § 863, etc. 
 2Ste. Dig., art. 135 ; Soaggs v. B. <& W. R S., 10 Md., 368, 381. 
 ^MayfleU v. Kilgour, 31 Md., 240, 243. 
 iStrickler v. Todd, 10 S. & R., 63, 73 ; 1 Thomp. Tr., § 701. 
 
136 PRODUCTION OF EVIDENCE. [Paet IIL 
 
 as suggest the answer which the person putting 
 them wishes or expects to receive, or suggest dis- 
 puted facts as to which the witness is to testify, 
 must not be asked if objected to by the adverse 
 party, except with the permission of the court. This 
 should always be given when the witness is evi- 
 dently hostile to the party calling him, or reluctant 
 to give evidence, or when omissions in his testimony 
 are plainly caused by want of recollection which a 
 suggestion may assist.^ A witness under examina- 
 tion will not be permitted to obtrude irrelevant mat- 
 ter in answer to a question not relating to it, and if 
 he should attempt to do so, such answer may, upon 
 application of either party, be excluded from the 
 evidence; for otherwise an adverse witness might 
 seriously injure the case of the party who called him, 
 or a too friendly one might introduce matters foreign 
 to the question and unfavorable to the other side. 
 If, howeVer, the examining party fails to have such 
 irresponsive answer excluded as irrelevant, his ad- 
 versary has the option of either doing so himself, or 
 treating it as evidence and cross-examining upon it. 
 This rule applies also to irrelevant answers to ques- 
 tions put on cross-examination, which, unless the per- 
 son cross-examining applies to have them stricken 
 out, may be made the subject of re-examination by 
 the other side.''* 
 
 1 Ste. Dig., art 188 ; 1 Gr. Ev., § 435; Tay. Ev., §§ 1262, 1263. 
 2 1 Starkie Ev., p. *316 ; 1 Gr. Ev., § 468 ; Tay. Ev., § 1329 • 1 
 Thomp. Tr., § 718 ; Abb. Tr. Bf., p. 62. 
 
Chap. IV.] REFRESHING MEMORY. 137 
 
 Sec. 100. Refreshing memory. — A witness, while 
 under examination, may refresh his memor}^ by refer- 
 ring to any writing made by himself at the time of 
 the transaction about which he is testifying, or so soon 
 afterwards that the judge considers it to have been 
 then fresh in his memory, or by any writing made 
 by any other person which he examined within the 
 time aforesaid and then knew to be correct.' If the 
 witness can testify positively to its accuracy, such 
 writing may itself be put in evidence.^ A witness 
 may not use for this purpose a copy of such writing, 
 unless, after he has refreshed his memory by looking 
 at it, he can swear to a distinct recollection of the 
 matters contained in it, independently of the paper.' 
 The reason for this distinction is, that whenever the 
 witness' testimony is in any degree dependent upon 
 the contents of a writing, the existence and genu- 
 ineness of such writing become important factors in 
 estimating the weight to be given to his testimony, 
 and must therefore be established by the best evidence, 
 which is the production of the original paper; but of 
 course this is not applicable to cases where the matters, 
 after having been recalled to mind, are recollected per- 
 fectly, and without reference to the means by which 
 they were so recalled. It appears to be somewhat 
 
 1 Ste. Dig., art. 136 ; Tay. Ev., §§ 1264, 1267 ; 1 Gr. Ev., g§ 436- 
 438; IThomp. Tr., §-398retc. \ ^ 
 
 2 1 Gr. Ev., § 437, note 8 ; Ing. Co.-Tr^eides, 9 Wall., 677-80 ; 
 S. C, 14 WaU., 375-80 ; Ruch t. Rock Island, 97 U. S., 693-95. 
 
 3 1 Gr. Ev., §§ 436, 437 ; Tay. Ev., §§ 1265, 1266. 
 
138 PRODUCTION OF EVIDENCE. [Part HL 
 
 upon this principle that expert witnesses are permitted 
 to refresh their memory by referring to professional 
 treatises.! "Whenever a witness uses any document to 
 refresh his memory, the adverse party has a right to 
 inspect it, and cross-examine him upon it; not only 
 that he may test its genuineness and admissibility for 
 the purpose intended, but also that he may have the 
 benej&t of the witness refreshing his memory by 
 every part of it. When, however, a paper which has 
 been shown to a witness for the purpose of refreshing 
 his memory does not have that effect, the adverse 
 party has no such right to inspect it, for there would 
 be no object to be gained by his so doing.' 
 
 Sec. 101. Gross-examination — Questions affect- 
 ing credibility — Leading questions. — Whenever a 
 witness has been examined, the opposite party al- 
 ways has a right to cross-examine him ; and in case 
 a witness dies, or becomes incapable of being further 
 examined before an opportunity for his cross-exami- 
 nation has been afforded to the party against whom 
 his evidence is to be used, the testimony already 
 given must be excluded.' The cross-examination 
 must be confined to the facts and circumstances con- 
 nected with the matters stated by the witness in his 
 direct examination, and to questions tending to test 
 his accuracy, veracity or credibility, or to shake his 
 
 iTay. Ev., § 1279; Ste. Dig., art. 136. 
 
 i! Tay. Ev., § 1270 ; 1 Gr. Ey., §§ 437, note 3, 466 ; Ste. Dig., art 
 137 ; 1 Wliar. Ev., § 525 ; Rose. Ev. N. P., p. 185. 
 
 3 1 Gr. Ev., § 445, note 2 ; Kissam v. Forrest, 25 Weud., 651 ; 
 People v. Cole, 43 N. Y., 508. 
 
Chap. IV.] CROSS-EXAMINATION. 139 
 
 credit by injuring his ctiaracter.^ The witness may 
 be compelled to answer any such question, however 
 irrelevant it may be to the facts in issue, and however 
 disgraceful the answer may be to himself, if, in the 
 opinion of the judge, such question be material to 
 affect the credibility of his testimony, and unless it 
 be such that the answer might have a tendency to 
 render the witness liable to some criminal prosecu- 
 tion, penalty or forfeiture, as explained in sec. 87, 
 ante} 
 
 1 1 Gr. Ev., § 445 ; 1 Whar. Ev., § 529. But this limitation is 
 not applied, ia several of the states, as Massachusetts, New York, 
 Ohio, Alabama, Mississippi, Missouri and Michigan. 
 
 ■■iSte. Dig., art 129; 1 Gr. Ev., §§ 457-460 ; 1 Whar. Ev.,§§529- 
 548. There has been considerable conflict of authority in this 
 coimtry [see 1 Gr. Ev., § 457 ; Newcomb v. Qriswold, 24 N. Y., 
 298 ; ccmtra, State v. March, 1 Jones' (N. C.) L., 526 ; and Stale 
 V. Garrett, Bash. (N. C.) L., 327], as to whether, if objection be 
 made, a witness can be asked if he has been previously con- 
 victed of any crime or misdemeanor, inasmuch as the record of 
 the judgment is the best evidence of such conviction ; but this 
 technioaUty does not necessarily stand in the way of his being 
 asked whether he has ever been in jaU or the penitentiary, and 
 if so, how long he has been there. Beal v. People, 43 N. Y., 270- 
 280 ; 1 Whar. Ev., § 541, note. The modern tendency, however, 
 is to allow such questions and to requu-e an answer to them 
 when they appear to be put for the purpose of honestly discred- 
 iting the witness. Whar. Grim. Ev., § 474 ; State v. Bacon, 13 
 Greg., 143; S. C, 57 Am. Eep., p. 8, and cases cited in note p. 16. 
 In England it has been provided by statute (28 and 29 Vic, c. 18, 
 § 6) that a witness may be questioned as to whether he has been 
 convicted of any felony or misdemeanor; and upon being so ques- 
 tioned, if he either denies or does not admit the fact, or refuses 
 to answer, the cross-examimng party may prove such convic- 
 tion by a certificate of the clerk of the court where he was con- 
 victed. Tay. Ev., § 1294. 
 
14:0 PRODUCTION OF EVIDENCE. [Part IIL 
 
 Subject to this exception, the party cross-examin- 
 ing has a right to ask and require an answer to any 
 question concerning the situation of the witness with 
 respect to the parties and to the subject of litigation, 
 his interest, his motives, his inclination and preju- 
 dices, 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, and 
 his powers of discernment, memory and description ; 
 for it is the purpose of cross-examination to investi- 
 gate, ascertain and submit all such matters to the 
 consideration of the jury before whom the witness 
 has testified, in order that they may have an oppor- 
 tunity of observing his demeanor and determining 
 the just weight and value of his testimony.' 
 
 The extent to which a witness may be cross-ex- 
 amined as to matters that are only relevant in so far 
 as they may shake his credit by injuring his character 
 is a matter confided to the discretion of the judge who 
 presides at the trial ; ^ and as the exercise of this dis- 
 cretion is never subject to review on appeal, except 
 in cases of plain abuse and injustice,' he should never 
 compel a witness to answer, or even allow him to 
 be asked, vexatious or degrading questions, unless, 
 under the peculiar circumstances of the case, the ends 
 of justice appear to require it."* In criminal cases 
 
 1 1 Stark. Ev., p. *195; 1 Gr. Ev., § 446 ; Tay. Ev., § 1335; 1 
 Whar. Ev., § 545. 
 
 2 Or. Western Turnpike Co. v. Loomis, 33 N. Y., 137, 133 ; ' 
 Storms v. V. States, 94 U. S., 76, 85. 
 
 3 Johnston v. Jones, 1 Bk. (U. S.), 210, 226. 
 
 1 Probably the best rule for the exercise of this discretion is 
 
Chap. IV.] CROSS-EXAMINATION. 141 
 
 when the accused is a witness and the judge per- 
 mits questions to be put to him on cross-examination 
 which have no bearing upon the charge on which he 
 is being tried, and do not legitimately tend to im- 
 peach his credibility, but may prejudice the mind of 
 the jury against him, a judgment of conviction will 
 be reversed on appeal.^ Leading questions are 
 generally permitted on cross-examination, upon the 
 theory that the witness is presumably favorably in- 
 clined towards the party who called him ; ^ but as 
 the judge may permit them in the direct examina- 
 tion when the witness is evidently hostile to the 
 party who called him, so he may prohibit them on 
 cross-examination when the witness shows a strong 
 interest or bias in favor of the cross-examining party.' 
 Especially is this the case when a party to the suit 
 is examined as a witness by his adversary, where the 
 
 that given in sec. 14.8 of the Indian Evidence Act of 1872, which 
 provides : 
 
 (1) Such questions are proper if they are of such a nature 
 that the truth of the imputation conveyed by them would 
 seriously affect the opinion of the court as to the credibility of 
 the witness on the matter to which he testifies. 
 
 (2) Such questions are improper if the imputation which they 
 convey relates to matters so remote in time, or of such a char- 
 acter, that the truth of the imputation would not affect, or 
 would affect in a slight degree, the opinion of the court as to 
 the credibility of the witness on the matter to which he testifies. 
 
 (3) Such questions are improper if there is a great dispropor- 
 tion between the importance of the imputation made against 
 the witness character and the importance of his evidence. See 
 Ste. Dig., note XLVI. 
 
 ^People V. Crapo, 76 N. Y., 288; S. C, 33 Am. Eep., p. 303. 
 
 2 1 Gr. Ev., § 447 ; 1 Whar. Ev., § 537. 
 
 3 Tay. Ev., § 1288 ; Moody v. Howell, 17 Pick., 49& 
 
14:2) PRODUCTION OF EVIDENCE. [Pakt HL 
 
 examination, in chief should be governed by the rules 
 applicable to a cross-examination, and the cross-ex- 
 amination should be conducted as a re-examination. 
 This would seem to be the correct rule upon princi- 
 ple, although there does not appear to be any re- 
 ported decision directly bearing upon the point. 
 
 Sec. 102. How far cmswers on cross-examination 
 may be contradicted. — When a witness under cross- 
 examination has been asked, and has answered, any 
 question which is relevant to the inquiry only in so 
 far as it tends to shake his credit by injuring his 
 character, no evidence can be afterwards given to 
 contradict his answer.' This rule is founded on two 
 reasons : first, that a witness cannot be expected to 
 come prepared to defend all the actions of his hf e ; and 
 next, that to admit contradictory evidence on such 
 points would of necessity lead to inextricable confu- 
 sion, by raising an almost endless series of collateral 
 issues. As neither of these reasons apply, to questions 
 relating to relevant facts, the best test of whether 
 the denial of a fact on cross-examination may be con- 
 tradicted is this : " "Would the cross-examining party 
 be entitled to prove such fact as part of his case if it 
 had not been alluded to in the cross-examination? " 
 Hence, when a witness denies, on cross-examination, 
 any fact tending to show that he is not impartial, such 
 fact may be proved by other testimony, notwith- 
 standing his denial ; for the other party would have 
 had the right to give evidence of that fact without 
 having interrogated the witness in regard to it at aU.^ 
 iSte.Dig.,art.l30. 2Tay. Ev., §§ 1395-1299 ; 1 Whar. Ev.,§559. 
 
Chap. IV.] CROSS-EXAMINATION. I43 
 
 Seo. 103. When projper foundation laid on cross- 
 examination, previous inconsistent statements raxi/y he 
 proved. — But a witness may always be asked on 
 cross-examination whether he has not made any 
 former statement as to some fact relative to the sub- 
 ject matter of the action, and inconsistent with his 
 present testimony ; and if the circumstances of such 
 supposed statement are referred to with sufficient 
 particularity to clearly designate the occasion, and he 
 does not distinctly admit having made such a state- 
 ment, proof may be afterwards given that he did in 
 fact make it.' Such proof is admitted upon the 
 ground that the fact of the witness having previously 
 made conflicting statements would materialy dunin- 
 ish the confidence Avhich might otherwise be placed 
 in his present testimony ; but the general rule is, that 
 a proper foundation must be laid for it by first ask- 
 ing the witness whether he has not made such prior 
 contradictory statements, m order to enable him to 
 recall the incidents, and explain, if he can, the appar- 
 ent inconsistencies.^ Such a restriction would seem to 
 be no more than simple justice to the witness whose 
 credibility is thus attacked, but in several of the 
 states of the Union it is either not imposed at aU,* 
 or else left discretionary with the court.* 
 
 iSte. Dig., art. 131; Tay. Ev., § 1300; 1 Gr. Ev., § 449; 1 
 Whar. Ev., § 551. 
 2 1 Gr. Ev., § 462 ; 1 Whar. Ev., § 555. 
 
 3 la Maine, New Hampshire, Vermont, Massachusetts and Con- 
 necticut. See cases cited, 1 Whar. Ev., § 556. 
 
 4 Pennsylvania and Minnesota. See 1 Whar. Ev., § 556, 
 
144 PRODUCTION OF EVIDENCE. [Pakt IH 
 
 Seo. 104. Previous inconsistent statements in writ- 
 ing may not le proved unless writing first shown to 
 witness or its absence explained. — Where tlie previous 
 inconsistent statement referred to in the preceding 
 section has been made in writing, the witness may 
 not be cross-examined in reference to it, untU the 
 paper has first been shown to him, and he has ad- 
 mitted that he wrote it. If he admits having written 
 it, the paper must itself be put in evidence as the 
 best proof of its contents, but if he denies having 
 written it, he cannot be further interrogated in re- 
 gard to it, nor has the opposing party a right to in- 
 spect it until it has been proved by other evidence to 
 be in the handwriting of the witness ; for until this 
 is done, it is not admissible in evidence at aU, and its 
 contents can have no relevancy to the case.^ If it be 
 shown that the paper has been lost or destroyed, or 
 that it is not in the power of the cross-examining 
 party to obtain it, the regular course would be to 
 first prove its contents by secondary evidence, and 
 then ask the witness if he wrote such a paper ; but it 
 is always discretionary with the judge to depart 
 from this order of proceeding whenever it seems 
 likely to occasion inconvenience by disturbing the 
 regular progress of the trial.^ 
 
 Sec. 105. He-examination restricted to e^lanation 
 of statements on cross-examination — Leading ques- 
 tions. — After the cross-examination is concluded, the 
 party who caUed the witness has a right to re-exam- 
 ine him for the purpose of obtaining an explanation 
 1 1 Gr. Ev., § 463. 2 1 Gr. Ev., §§ 464, 465 ; Tay. Ev., § 1303. 
 
Chap. IV.] CROSS-EXAMINATION. 145 
 
 of the matters referred to in cross-examination. He 
 may ask him all questions proper to draw forth an 
 explanation of the sense and meaning of the expres- 
 sions used by the witness on cross-examination, if 
 they be in themselves doubtful, and also of the mo- 
 tives which moved him to use such expressions; 
 but he cannot 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.^ 
 A witness may be re-examined upon every matter 
 stated by him on his cross-examination, whether the 
 facts so stated by him were properly admissible in 
 evidence or not, unless such statement was expressly 
 excluded from the evidence at the time it was made, 
 as irresponsive to the question or otherwise irrele- 
 vant.^ The rule restricting the putting of leading 
 questions on examination in chief applies equally to 
 putting them on re-examination.' Whenever, by per- 
 mission of the court or consent of the other side, a 
 party elicts from his witness on re-examination mat- 
 ters which should properly have been given in evi- 
 dence upon the examination of the witness in chief, 
 his adversary has a right to cross-examine the witness 
 upon such new matters ; and the party who called the 
 witness may re-examine him again, but only upon 
 the subject of such second cross-examination.* 
 
 Sec. 106. Impeaching credit of witness, in what 
 cases allowaMe. — After the examination of a witness 
 
 1 1 Stark Ev., p. *231 ; 1 Gr. Ev., § 407 ; Tay. Ev., § 1328. 
 2 1 Gr. Ev., § 468 ; Tay. Ev., § 1329 ; ante, § 99. 
 sste. Dig., art. 128. ■ *Id., art. 126. 
 
146 ■ PRODUCTION OF EVIDENOE. [Part HI. 
 
 has been concluded, his credit may be impeached in 
 four ways : 1. Bj disproving, by the testimony of 
 other witnesses, any facts stated by him which are 
 material to the issues on trial.' 2. By proof of his 
 having made statements out of court inconsistent 
 with his testimony, in cases where the necessary foun- 
 dation has been first laid by interrogating the witness 
 about such contradictory statements, as already ex- 
 plained.^ 3. By proof of any facts showing a bias or 
 prejudice on the part of the witness in favor of the 
 party by whom he was called or against the opposite 
 party, as relationship, sympathy, or interest in the 
 matter in controversy or in the event of the suit ; ' or 
 proof of the witness having been convicted of any in- 
 famous crime, in cases where such conviction would 
 not render him incompetent to testify.* 4. By general 
 evidence affecting his character for veracity.' A 
 party may not thus impeach the credit of his own 
 witness further than by contradicting his testimony 
 as to any particular facts by the testimony of other 
 competent witnesses. The reason for this rule is, 
 that a party who, by calling a witness, represents 
 him to the court as worthy of credit, or at least not 
 so infamous as to be wholly unworthy of it, should 
 not to be permitted to impugn that witness' general 
 reputation for truth, or to impugn his credibility by 
 
 I Ante, §102. 
 
 '^Ante, § 103. 
 
 31 Whar. Ev., § 5C6. 
 
 nWhar. Ev., §567. 
 
 6 1 Gr. Ev., § 461; 1 Whar. Ev., § 563. 
 
Chap. IV.] IMPEACHING CREDIBILITY. 147 
 
 general evidence tending to show him unworthy of 
 belief; for this would "enable him to destroy the 
 witness if he spoke against him, and to make him a 
 good witness if he spoke for him, with the means in 
 his hands of destroying his credit if he spoke against 
 him." ' As this reasoning is not applicable where the 
 witness is not one of the party's own selection, as 
 the subscribing witness to a will or deed, a party is 
 generally allowed to impeach the veracity of any 
 witness whom the law obliges him to call ; ^ and as 
 it often happens that a witness who intends to speak 
 the truth may, either from misapprehension or 
 imperfect knowledge or recollection, state a particu- 
 lar fact incorrectly, there is no reason why, when 
 one of a party's witnesses has misstated a fact, such 
 party should be precluded from showing what 
 actually did take place by any other competent tes- 
 ^ timony.' A party who has been taken by surprise 
 by the testimony of his own witness is generally 
 permitted to cross-examine him as to what he had 
 stated in regard to the matter on former occasions, 
 either in court or otherwise, for the purpose of 
 refreshing the memory of the witness and giving 
 him full opportunity to set the matter right, as well 
 as for the purpose of explaining the attitude of the 
 party calling the witness. But such questions can- 
 not be put for the mere purpose of discrediting the 
 
 iBuU. N. P., 297; 1 Gr. Ev., § 443; 1 Whar. Ev., § 549. 
 
 nGr. Ev., §443. 
 
 -» 1 Gr. Ev., § 443; 1 Stark. Kv.,t>. *344; 1 Whar. Ev., § 549. 
 
148 PRODUCTION OF EVIDENCE. [Part IIL 
 
 witness, nor can his contradictory statements upon 
 other occasions be proved by other witnesses.' 
 
 Sec. 107. Proof of particular facts tending to 
 show Mas, or previous conviction of an infamous 
 crime. — Of the four methods above enumerated by 
 which the credit of a witness may be impeached by 
 the adverse party, the first and second need no 
 further explanation in addition to what has been al- 
 ready stated concerning them.^ The third method, 
 which is by proof of particular facts tending to show 
 that the witness is subject to some bias, or has been 
 convicted of an infamous crime, derives its origin 
 mainly from the effect of the statutes removing the 
 former disqualification of witnesses upon the ground 
 of interest or of infamy. To that extent it is an in- 
 novation upon the common law, which requires 
 all objections going to the competency of a witness 
 to be made before he is sworn, or if subsequently 
 discovered, as soon as they come to the knowledge 
 of the objecting party, and to be sustained by proof 
 to the court, and, unless this is done, considers them 
 waived.^ In actual practice it is usual to first inter- 
 rogate a witness upon cross-examination as to the 
 existence of any facts showing that he is subject to 
 some bias, or has an interest in the event of the suit, 
 and only to introduce other evidence of such facts 
 in case he deniies or does not admit them; yet, 
 
 1 1 Gr. Ev., § 444a; 1 Whar. Kv., § 549 ; Cox v. Eayres, 55 Vt, 
 ai; 8. a, 45 Am. Rep., p. 583. 
 ^Ante, §§ 108, 103. 
 ^1 Stark. Ev., pp. »115, *144; 1 Gr. Ev., §§ 421-35. 
 
Chap. IV.] IMPEACHINa CREDIBILITY. 149 
 
 although this course is to be commended both on 
 account of its fairness and as calculated to save time, 
 there seems to be no reason why a party who omits 
 to lay such a foundation should therefore be pre- 
 cluded from afterwards introducing independent evi- 
 dence upon these points.' In the absence of any 
 statutory provision upon the subject, the proof that 
 a witness has been convicted of any infamous crime 
 must alwaj's be by production of a copy of the record 
 of the judgment of his conviction.^ 
 
 Sec. 108. Proof of general reputation for want 
 of veracity. — The fourth method of impeaching the 
 credit of a witness is by the testimony of other wit- 
 nesses to the effect that they know his general repu- 
 tation for truth and veracity in the community in 
 which he has lived, and that such general reputation 
 is bad. Such evidence must be confined to his general 
 reputation, and no testimony as to particular facts is 
 permitted; for every man is supposed to be capable 
 of supporting the one, but it is not liljely that he 
 would be prepared to answer the other without 
 notice.' After the impeaching witnesses have testi- 
 
 1 See ante, % 103. The only reported case which I have found 
 that excluded this kind of evidence because the witness had not 
 been previously interrogated on the subject is Edwards v. Sul- 
 livan, 8 Ired. L., 303. But see contra, Martin v. Barnes, 7 Wis., 
 339, which seems the better law. Also Wyeth v. Walzl 48 Md., 
 426 ; Chilton V. State, 45 Md., 564. 
 
 'See ante, § 101, note. 
 
 ■n Gr. Ev., § 461; 1 Whar. Ev., §§ 563-5; conf. Tay. Ev., 
 §§ 1334-5 ; Ste. Dig., art. 133 ; and see Teese v. Huntingdon, 33 
 How., 3, 11. 
 
150 PRODUCTION OF EVIDENCE. [Paet UL 
 
 fied that they know the general character for truth 
 and veracity of the witness sought to be impeached, 
 and that it is bad, they may be further asked whether 
 they would believe him on oath ; > but it is not held 
 essential, in order to throw discredit upon his testi- 
 mony, that they should state that they would not 
 believe him on his oath.^ Although the testimony 
 in chief of the impeaching witnesses must be strictly 
 confined to general reputation, they may be asked on 
 cross-examination to name the persons whom they 
 have heard speak against the character of the witness 
 impeached.' "When the character of a witness has 
 been thus impeached, the party who called him may 
 give evidence in reply to show that he is worthy of 
 credit, by either contradicting the testimony or at- 
 tacking the credibility of the impeaching witnesses/ 
 In the courts of the United States and of most of 
 the states when a witness is impeached in this man- 
 ner, the inquiry is restricted to his general reputa- 
 tion for truth and veracity, but the English rule 
 which extends it to his general moral character is 
 followed in the states of Kentucky, Missouri, New 
 York, N'orth Carolina, South Carolina and Ten- 
 nessee.' 
 
 1 1 Whar. Ev., § 565 ; see 1 Gr. Ev., § 461 ; Tay. Ev., § 1334 
 2 1 Whar. Ev., § 565 ; 1 Gr. Ev., § 461. 
 3 1 Whar. Ev., g 565 ; 1 Gr. Ev., §§ 461-3. 
 * 1 Whar. Ev., § 568. 
 
 5 Teese v. Huntingdon, 20 How., 3 ; Blue v. Kibhy, 1 T. B. Mon., 
 105 ; S. C, 15 Am. Dec, 9o, and note ; 1 Whar. Ev., §§ 563, 563. 
 
Chap, V.] INSPECTION OF DOCUMENTS. 151 
 
 CHAPTER V. 
 
 PEODUCTION OF DOCUMENTS. 
 
 Sec. 109. iTow party to suit may compel Ms ad- 
 versary to produce documents. — The common law 
 provides no means of compelling any party to a suit 
 to produce any document in his possession or power, 
 in order that it may be used in evidence by his ad- 
 versary,^ excepting that the courts may, under certain 
 circumstances, as hereafter explained, make duO., order 
 for the inspection, of writings in the possession of one 
 party to a suit in favor of another ; ^ and that when- 
 ever, as we have already seen,' due notice has been 
 given to any party to produce at the trial any doc- 
 ument in his possession or power, his faiLure to do 
 so gives the adverse party a right to prove the con- 
 tents of such document. This omission to provide 
 means for compelling a party to the suit to pro- 
 duce any documentary evidence in his possession or 
 power, was but carrying out the old common law 
 rule that parties to the record could not be com- 
 pelled, in trials by jury, to give evidence for the 
 opposite party against themselves, either in civil or 
 criminal cases.* Although by statutory enactments, 
 both in this country and in England, this rule has 
 been so far abrogated as to make a party compel- 
 lable to testify at the summons of his adversary in 
 civil cases, yet as very few, if any at ah,- of these stat- 
 
 llGr. Ev., §560. 
 
 2 1 Gr. Ev., § 559 ; 1 Whar. Ev., §§ 742-755. BsBposi, g 110. 
 
 3 § 66 (6), ante. * 1 Gr. Ev., § 330. 
 
152 PRODUCTION OF EVIDENCE. [Part HL 
 
 utes contain express provisions for compelling parties 
 to produce any documents in their possession or 
 power, it has been denied by some courts that the 
 common law rule in this particular has been at aU 
 affected by them ; * but it may be considered as now 
 well established by the weight of authority that 
 under these statutes an adversary may be compelled 
 by a subpoena duces teawm the same as any other wit- 
 ness to produce books and papers in his possession.^ 
 Sec. 110. When am, inspection of documents in the 
 hands of opposite party will ie allowed at common 
 law. — The cases in which common law courts will 
 order an inspaction of documents in the possession or 
 power of one party to be allowed to his adversary 
 independently of any statutory provisions upon the 
 subject, are : (1) When the document of which inspec- 
 tion is desired has been set forth and rehed upon by 
 either party in his pleadings.' (2) When the plaintiff 
 is desirous of bringing an action upon an instrument 
 executed by himself or in which he is otherwise in- 
 terested, and which, being in the hands of his op- 
 ponent, he cannot safely declare upon without first 
 inspecting it.* (3) Where an instrument to which 
 
 1 See Trotter v. Latson, 7 How. Pr., S61 ; Duke v. Brown, 18 
 Ind., Ill ; Cross & Co. v. Johnson, 30 Ark, 396. 
 
 ^Bonesteel v. Lynde, 8 How. Pr., 336; People v. Dychman, 34 
 id., 333 ; MitchelTs Case, 13 Abb. Pr., 349 ; conf. Teocas v. Chiles, 
 81 WaU. 488; U. 8. v. Tilden, 10 Ben., 566; Merchants' Nat. BJc. 
 ■V. State Nat. Bk, 3 Cliff., 301. See note in Fed. Rep., voL 15, 
 p. 733, by J no. D. Lawson, to case of Wertheimer v. Continental 
 Ky & Trust Co., p. 716, Circt Ct. S. Dist. N. Y., Feb'y 17, 1888; 
 Bischoff's Heirs v. Brown, 39 Fed. Rep., 341, 343. 
 
 3 Tay. Ev., § 1588. < Tay. Ev., g 1589 ; 1 Whar. Ev., § 743. 
 
Chap, v.] INSPECTIQN OF DOCUMENTS. 153 
 
 the applicant is either a party or a privy, or in which 
 he has a legal interest, has been deposited in the 
 hands of another party to the suit, either as trustee 
 for the applicant only, or at least for the applicant 
 jointly with himself.^ (4) "Where it appears that a 
 party has some legitimate control over a document, 
 which, if in his possession, he would be required to 
 allow his adversary to inspect, the order for inspec- 
 tion wiU be passed, although such document be act- 
 ually held by a third person, if he hold it as the 
 agent of such party, or subject to his authority.^ In 
 all such cases the method of obtaining an inspection 
 is for the party seeking it to make an apphcation to 
 the court or to a judge at chambers, supported by 
 an affidavit setting forth the facts, and stating that 
 he possesses no copy of such document, and that na 
 counterpart thereof was ever executed.' 
 
 Sbo. 111. Statutory enact/ments ujpon this subject. 
 These common law powers of the courts have, how- 
 ever, in modern times, been greatly enlarged by stat- 
 ute. The courts of the United States are empowered 
 by act of congress,* upon motion being made, after 
 due notice thereof, by either of the parties to any 
 action or legal proceeding pending before them, to- 
 require the opposite party to produce books or writ- 
 ings in his possession or power, which contain evi- 
 dence pertinent to the issues, in cases and under cir- 
 
 1 Tay. Ev., § 1590 ; 1 Whar. Ev., § 743. 
 2Tay. Ev., § 1591 ; 1 Wliar. Ev., § 743. 
 3 Tay. Ev., § 1593 ; 1 Whar. Ev., § 743. 
 4Eev. Stats. U.S., §734. 
 
154: PRODUCTION OF EVIDENCE. [Part III. 
 
 cumstances where such, party may be compelled to 
 produce the same under the ordinary rules of pro- 
 ceedings in chancery, and if said party fails to com- 
 ply with such requirement, to enter up Judgment of 
 non-suit or by default against him. Similar proYisions 
 have been enacted m most of the states of the Union. 
 
 Sec. 112. When jproduction or inspection of docu- 
 ments may ie compelled in equity. — The cases and 
 circumstances under which the production or inspec- 
 tion of documents may be compelled in equity, are 
 briefly as follows : The complainant or party desir- 
 ing such production or inspection must first allege in 
 his bill (in efllect) that his adversary has in his pos- 
 session or power documents relating to the matters 
 mentioned in the bill, and that by the contents of 
 said documents, if the same were produced, the truth 
 of such complainant's case would appear. The de- 
 fendant is then required to admit or deny the truth 
 of these allegations ; if he denies having possession 
 or power over the documents described, that ends 
 the matter ; but if he admits having possession or 
 power over them, he is bound to describe them in his 
 answer, and will be required to produce them for 
 the inspection of the complainant,' if it appears to the 
 court, from the answer of the defendant, that the 
 documents so admitted by him to be in his possession 
 or power ^ are relevant to the case of the complain- 
 ant, either as affording affirmative evidence of some 
 right or title belonging to him, or as tending to dis- 
 prove the title or case of his opponent by showing 
 
 1 Wigi-am on Discoveiy, § 385. 2 Id., g 294. 
 
Chap. V.] INSPECTION OF DOCUMENTS. 155 
 
 some specific defect therein,^ unless it also appears 
 that such documents might subject the defendant 
 to a criminal prosecution or forfeiture, or would vio- 
 late the rules which relate to professional privilege.^ 
 Such production of documents will be compelled in 
 aid of cwil rights only, and never to aid either in 
 the prosecution of or the defense to an indictment 
 or information.' Nor has a party any right what- 
 ever to the discovery of the evidence, or an inspec- 
 tion of writings, which either relate exclusively to 
 his adversary's case, or are not material to the issues 
 about to be tried at law,^ excej)t that whenever the 
 defendant, having admitted such documents to be in 
 his possession, so incorporates them by general or 
 special reference with his answer as to make them 
 form a substantial part of it, the complainant will 
 in such case be entitled to their production, whether 
 they constitute his title or the exclusive title of the 
 defendant ; becaiise the latter, by thus dealing Avith 
 the documents, will be held to have waived all ob- 
 jection to their production.^ In all cases the onus is 
 upon the party seeking the discovery of the contents 
 of documents to prove his right thereto, and the 
 only evidence upon which he can rely is the admis- 
 sions of his adversary.^ 
 
 1 Wigr. Disc, S 295 ; Tay. Ev., g§ 1604r-5 ; 1 Wliar. Ev., § 754. 
 2Tay. Ev., § 1603; 1 Whar. Ev., § 754; Wigr. Disc, g§ 127- 
 147, 442. 
 
 3 Wigr. Disc, § 10; Tay. Ev., § 1603. 
 
 4 Tay. Ev., § 1603; Wigr. Disc, §g 224-237. 
 
 5 Tay. Ev., § 1606 ; 1 Whar. Ev., § 755. 
 
 6 Tay. Ev., § 1605; 1 Whar. Ev., § 755. 
 
156 PRODUCTION OF EVIDENCE. [Paet HL 
 
 Sec. 113. Production of documents in hands of 
 one not a pa/rty may he compelled ly subpcBna duces 
 tecum. — But whenever any documents which can 
 furnish evidence material to the issues on trial are in 
 the hands of a person other than a party to the suit, 
 such person may be compelled to produce aU such 
 documents in his possession, unless he have a lawful 
 or reasonable excuse to the contrary ; upon the same 
 principle that every man, in furtherance of justice, is 
 bound to disclose aU. the facts within his knowledge 
 which do not tend to his own crimination.^ The 
 method by which such production is compelled is by 
 a subpmna duces tecum, which is issued upon applica- 
 tion of the party who desires to offer the documents 
 in evidence, and must specify them with reasonable 
 distinctness.^ "When a witness has been served with 
 a subpmna duces tecum, he is bound to attend with 
 the documents demanded, if he has them in his pos- 
 session, and he must leave the question of their 
 actual production to the court, which wiU decide 
 upon the validity of any excuse that may be offered 
 for withholding them.^ The witness will not be 
 compelled to produce any document which might 
 tend to criminate him or expose him to any penalty 
 or forfeiture,* or which does not appear to be in some 
 manner relevant to the issues on trial. Nor wiU an 
 attorney be required to produce any document which 
 he holds confidentially for his client, and which his 
 client has the right to keep back ; but he may be re- 
 
 1 1 Starkie Ev., p. *110. 2 Tay. Ev., § 1121 ; 1 Whar. Ev., § 377. 
 3 1 Stai-kie Ev., p. *110 ; Tay. Ev., § 1221 ; 1 Whar. Ev., § 377. 
 4Ste. Dig., ai-t 118; Tay. Ev., § 1318. 
 
Chap. V.] INTRODUCTION IN EVIDENCE. 157 
 
 quired to testify as to the existence of such docu- 
 ments, and whether they are in his possession, so as 
 to enable the other party to give secondary proof of 
 their contents.' This is upon the theory that docu- 
 ments so held by an attorney for his client are in 
 contemplation of law in the possession of the client 
 himself. 
 
 Seo. 114. Mow documentary evidence is intro- 
 duced. — Excepting those documents which, being 
 authenticated by some official seal or signature of 
 which the court takes judicial notice, may be said to 
 prove themselves, no document is received as evi- 
 dence until the party desiring to offer it has first 
 established its genuineness, to the satisfaction of the 
 judge, by the oral testimony of one or more wit- 
 nesses to the handwriting, or to the place or custody 
 from which it was obtained. Before the document 
 can be read, the judge must decide, as a preliminary 
 question, whether such introductory testimony is 
 sufficient, assuming it to be true, to render the docu- 
 ment prima facie competent as evidence. Its credi- 
 bility must be left for the jury to pass upon in 
 making up their final verdict.^ And therefore, al- 
 though the party against whom it is proposed to 
 ofifer the document is not permitted at this stage of 
 the trial to call other witnesses to contradict this 
 preliminary testimony, he may cross-examine the 
 
 iTay. Ev., §§ 427, 438; Ste. Dig., art. 119; 1 Gr. Ev., § 246; 
 1 Whar. Ev., § 585. 
 aiGr. Ev., §49. 
 
158 PRODUCTION OF DOCUMENTS. [Paet III. 
 
 witnesses by whom it was given, in order to show its 
 insufiBciency, and thus exclude it as incompetent.' 
 After thus producing competent testimony as to the 
 genuineness of the document, the party by whom it 
 is offered must next submit it to the inspection of 
 the opposing counsel, in order that he may then 
 state his objections, if any, to its admissibility. Al- 
 though it is by no means unusual in practice to per- 
 mit the opposing counsel to examine documents 
 before the preliminary proof of their genuineness 
 has been given, yet they are not entitled to do so, as 
 a matter of right, until afterwards ; for until its gen- 
 uineness. has been thus established ^r^'wa /acie, no 
 document can be considered as properly before the 
 court for any purpose.^ If, upon inspection of the 
 document, any objection to its admissibility is appar- 
 ent, it must be stated before the paper is read, as 
 otherwise it will be considered to have been waived. 
 After a document has once been read in evidence, no 
 new objections can be raised to its admissibilitj', ex- 
 cepting such as the party objecting had no opportu- 
 nity to make sooner, or unless the document was ex- 
 pressly admitted subject to exception. In general, 
 all questions as to the admissibility of documents are 
 decided by the judge before they are allowed to be 
 read, unless the objection be founded upon some ex- 
 trinsic fact alleged by the party objecting. If such 
 
 ^ Jones V. Fort, M. & M., 196; Rose. N. P., p. 271; II Phil. 
 Ev., 4th Am. ed., C, H. & E.'s note, p. 503. 
 2Tay. Ev., § I'ZIA ; Rose. N. P., p. 185, 
 
Chap. V.] INTRODUCTION IN EVIDENCE. 15& 
 
 extrinsic fact would constitute a valid cause for ex- 
 cluding the document, and the party objecting can 
 establish it by cross-examination of the witness who 
 proved the document, or by other proof not open to 
 contradiction by his opponent, he may do so at once, 
 and so exclude the paper altogether; but if the fact 
 so alleged be one which is disputed by the party 
 offering the document, then the paper must be read 
 in evidence to the jury, who should be instructed to 
 exclude it from their consideration, if they find the 
 facts which render it inadmissible. Thus in an 
 action for libel, where the plaintiff offered in evi- 
 dence the alleged libelous paper, after proving by a 
 third party that he had received it from the defend- 
 ant, and the latter objected upon the ground of its 
 being a privileged communication, he was permitted 
 to cross-examine the witness in order to show its 
 privileged character, and, having established this to 
 the satisfaction of the court, the paper was not al- 
 lowed to be read.^ And so, also, in a case where the 
 alleged libel was an indorsement made by the de- 
 fendant, a naval officer, upon a resignation sent by 
 the plaintiff, through him, to the I^avy Department, 
 the defendant was allowed not only to cross-exam- 
 ine the witness who proved the indorsement, but also 
 to put in evidence, before the paper was read, a copy 
 of the Kegulations of the Navy, for the purpose of 
 showing that it was his duty to make such indorse- 
 1 Trussell v. Scarlett, 18 Fed. Rep., p. 214 
 
160 PRODUCTION OF EVIDENCE. [Paet III. 
 
 ment upon the resignation under tlie circumstances 
 detailed by the witness.' But if in either of these 
 cases the existence of the alleged facts, which made 
 the communications privileged, could not have been 
 established by the witnesses who produced them, 
 and had been open to dispute, and had been denied 
 by the parties offering the writings in evidence, the 
 papers must have been admitted to go to the jury, 
 subject to be excluded by them from consideration 
 if they should find the alleged facts to be true.^ 
 
 Sec. 115. Effect of alterations or spoliation. — ■ I^o 
 document which after its completion has been al- 
 tered in any material point is admissible in evidence 
 for the purpose of enforcing any right dependent 
 upon it in favor of any person by whom or by whose 
 concurrence such alteration was made, or in favor 
 of the representative in interest of any such person, 
 unless the alteration was made with the consent of 
 the party sought to be charged, or of his represent- 
 ative in interest.' This rule is founded upon the 
 very obvious principle of natural justice that no one 
 who has designedly falsified a document should after- 
 wards be allowed to avail himself of such falsified 
 document as evidence in his own behalf.* And 
 therefore one who for this reason is precluded from 
 
 1 Maurice v. Warden, 54 Md., 351. 
 
 2 Odgers on Libel and Slander, p. *185. 
 
 3 1 Whar. Ev., § 633 ; Ste. Dig., art. 89 ; 1 Gr. Ev., §§ 564-568 ; 
 Tay. Ev., §§ 1616-1635. 
 
 * 1 Whar. Ev., § 623 ; 1 Gr. Ev., § 565 ; Tay. Ev., § 1618 ; ilfas- 
 ters V. Miller, 4 T. R., 839 ; 8. C, 1 Sm. Lea. Ca., *934 ; Wood v. 
 State, 6 WalL, 80. 
 
Chap. V.] EFFECT OF ALTERATIONS. 161 
 
 offering in evidence an original paper is not allowed 
 to establish its contents by secondary proof.' Upon 
 the same ground any person by whom or by whose 
 connivance a document has been fraudulently de- 
 stroyed or mutilated is not permitted to prove its 
 contents by secondary evidence.^ But a person who 
 cannot be shown to have been in any way respon- 
 sible by negligence or otherwise, and who does not 
 claim as the representative of one who is so respon- 
 sible for such alteration, destruction or mutilation 
 of a document may support his case by any legal 
 proof as to what such document was before its alter- 
 ation or destruction, for otherwise the person who 
 had altered or destroyed a document might derive 
 a great advantage from his own wrongful act.^ In 
 the absence of positive proof as to when and by 
 whom any alterations apparent upon the face of a 
 document were made, the general presumption of 
 law, as already stated,* is that they were made con- 
 temporaneously with its execution, for the law will 
 not presume fraud without some evidence to sustain 
 the imputation ; but any ground of suspicion appear- 
 
 1 Id. ; Martindale v. Follett, 1 N. H., 95 ; Newell v, Mayberry, 3 
 Leigh, 250. 
 
 2 Blade v. Noland, 13 Wend, 173 ; Price v. Tallman, 1 Coxe, 
 N. J. (L.), 447. 
 
 3 1 Gr. Ev., § 566 ; 1 Whar. Ev., § 637 ; Cutis y. U. S., 1 GaU., 
 69 ; U. S. -v. Spalding, 2 Mas., 482 ; U. S. v. lAnn, 1 How., 104, 
 110 ; Bees v. Overbaugh, 6 Gowen, 746 ; Drew v. Drew, 183 Mass. 
 566 : conf. Davidson v. Cooper, 13 M. & W., 352. 
 
162 PRODUCTION OF EVIDENCE. [Paet IIL 
 
 ing upon the face of the instrument or arising from 
 the circumstances of the case is sufficient to rebut 
 this general presumption, and throws upon the party 
 ottering the document the burden of showing how, 
 when, by whom and with what intent such altera- 
 tions were made, it being judged only reasonable 
 that one who desires to avail himself of the benefit 
 of a document bearing suspicious alterations on its 
 face should be prepared to show how they came 
 there.' When a document bearing alterations ap- 
 parent upon its face is offered in evidence it is for 
 the court to determine in the first place whether in 
 view of the evidence already given in the cause the 
 paper shows sufficient grounds for suspicion upon 
 its face to rebut the general presumption against 
 fraud, and to require a satisfactory explanation of 
 the alterations before it can be received in evidence 
 at all ; but after such explanations have been given 
 it is for the jury to decide as a question of fact what 
 weight they are entitled to.^ The rule requiring the 
 person who offers such a document in evidence to 
 clear himself from aU responsibility for any mate- 
 rial alterations appearing upon its face is in England 
 limited to cases where the altered instrument is re- 
 lied on as the foundation of a right sought to he en- 
 forced,^ and has been held not to apply to cases 
 
 1 1 Gr. Ev., § 564 ; Tay. Ev., § 1616. 
 
 n Gr. Ev., (ij 564, n. 1 ; Ab. Tr. Ev., p. 406, § 31 and note 9 ; 
 Id., p. 696, n. 6 ; 1 Whar. Ev., § 629 ; Tillon v. Clinton Ins. Co., 7 
 Barb., 564 ; Little v. Herndon, 10 WaU., 26, 31. 
 
 3 Tay. Ev., §§ 1621-24; Davidson v. Cooper, 11 M. & W., 779, 
 800. 
 
Chap. V.] EFFECT OF ALTERATIONS. 163 
 
 where such instrument was introduced merely to 
 prove a right or title which, although originally cre- 
 ated by the execution of the altered paper, was no 
 longer dependent upon its continuing efficacy, or to 
 prove some collateral fact.^ An alteration is re- 
 garded as immaterial when it does not vary the 
 legal effect of the document, as where words are 
 inserted which the law would supply, or which are 
 altogether inoperative, or are necessary to correct 
 an obvious error, and in such cases does not affect 
 the admissibility of the document in evidence.^ 
 
 1 Id. ; Eutchins r. Scott, 3 M. & W., 809 ; Agr. Cattle Ins. Co. v. 
 Fitzgerald, 16 A. & -K, N. S., 433; Ld. Ward v. Lumley, 5 H. 
 &N., 87; 15 L. J. Ex., 333. 
 
 2Tay. Ev., § 1630; 1 Gr. Ev., § 567: 1 Whar. Ev., § 638; Al- 
 dons V. Cornwell, L. R., 3 Q. B., 573 ; Craighead v. McLoney, 
 99 Pa St., 311, 214 See Suffell v. Bank of England, 9 L. E., Q. B. 
 Div., 555. As to filling up blanks, see Angle v. K W. Mut. Idfe 
 Ins. Co., 93 U. S., 330. 
 
PAET IV. 
 
 OK THE CONDUCT OF THE EXAMINATION OF 
 WITNESSES. 
 
 CHAPTER. I. 
 
 EXAMINATION IN CHIEF. 
 Sec. 116. Ths examination of witnesses, an art. — 
 The examination of witnesses is an art, and as with 
 all the other arts, in order to attain the highest degree 
 of success in it, three things are requisite, viz.: 
 correct theoretical knowledge, some practical experi- 
 ence in the application of that knowledge, and a pe- 
 culiar talent for it. "Without the last no man can 
 ever become great in this branch of advocacy ; but 
 any person possessing the average amount of tact and 
 common sense, may, with the aid of the other two 
 requisites, acquire a respectable degree of profi- 
 ciency. It is. here proposed to state briefly the gen- 
 eral theory upon which it should be conducted, as 
 laid down by the best authorities upon the subject,' 
 and confirmed by some personal observation and 
 experience. 
 
 1 See Quintilian, Inst., lib. V, cap. De Testibus; Best on Ev., 
 §§ 649, 663; Alison, Pr. Crim. Law, 546, 547; Evans on Cross-ex., 
 in his appendix to Poth. Obi., No. 16, vol. 3, pp. 233, 234; 
 The Advocate, by Cox; Hints on Advocacy, by Han-is; Sergt. 
 Ballantine's Experiences. 
 
Chap. I.] THE EXAMINATION IN CHIEF. 165 
 
 Sec. 117. Object of examination in chief, and how 
 accomplished. — The duty of counsel in examining a 
 witness is to elicit the truth, and nothing but the 
 truth, yet only so much of it as in his judgment may 
 be calculated to benefit the cause of his client ; and 
 therefore, in order to avoid making the witness say 
 anything else, the first and most important rule to 
 be observed is : Never to ask a question without a defi- 
 nite object, and, when the witness has given the testi- 
 mony for which he has been called, to discontinue the 
 examination at once. For any further prosecution of 
 the examination cannot possibly do the case much 
 good, and may result in a serious disadvantage to it 
 by bringing 'out something injurious. Hence it is 
 always important to ascertain as far as possible, be- 
 fore the witness is put upon the stand, exactly what 
 facts are expected to be proved by him, and if these 
 facts are at all numerous, it is best^for the examining 
 counsel to have a brief memorandum of them before 
 him during the examination; as few things are more 
 mortifying to him, than, after turning a witness over 
 to his adversary, to suddenly remember that he has 
 omitted to interrogate him upon some material fact 
 which cannot be proved by any one else. 
 
 Sec. 118. The ordinary witness. — For the pur- 
 poses of an examination in chief, witnesses may be 
 divided into three general classes : 1. The ordinary 
 witness, who intends to tell the truth, and whose bias, 
 in so far as he has any, is in favor of the party by 
 whom he is called. 2. The swift witness. 3. The 
 
166 CONDUCT OF EXAMINATIONS. [Paet IV. 
 
 hostile witness. The general rule for dealing with 
 the ordinary witness is : To put Mtti at his ease, to 
 direct his 'mind to the matters aiout which his testi- 
 mony is required, and to let him. tell his story in his 
 own way, with no further interference than is neces- 
 sary. The best way to do this is to adopt a pleasant, 
 respectful and friendly manner, and to begin by ask- 
 ing a few unimportant questions, very deliberately, 
 and in an ordinary conversational tone, in order to 
 give him time to collect his ideas and get over the 
 natural embarrassment which most persons feel when 
 first put upon the stand, before bringing him to speak 
 of the matters about which his testimony is required. 
 Having once put the witness at his ease and started 
 him upon the right track, it is not well to interrupt 
 him unnecessarily, for all interruptions have a tend- 
 ency to confuse or irritate ; and in order to reduce 
 this tendency to a minimum, whenever interruptions 
 are necessary, as for the purpose of excluding irrele- 
 vant matter, they should always be made in a pleas- 
 ant and rather apologetic manner. It is best to make 
 a witness relate the facts about which he testifies in 
 the order of time in which they occurred, and it is gen- 
 erally advisable to call his attention as he goes along 
 to any material facts which he omits, in so far as it 
 can be done without putting directly leading ques- 
 tions. As soon as he has given the testimony for 
 which he was called, he should at once be turned 
 over to the other side for cross-examination. The 
 practice of cross-examining one's own witness and 
 
Chap. I.] THE SWIFT WITNESS. IQI 
 
 making him repeat his testimony, is worse than use- 
 less. For suocessMly conducting an examination in 
 chief, great patience and good temper are all impor- 
 tant, and especially is this the case where the witness 
 is stupid. H'othing can be more damaging than any 
 display of irritability towards one's own witness. 
 
 Sec. 119. Questions should he simple, short and 
 deliberately put. — It is of the utmost consequence 
 that all questions should be perfectly intelligible, 
 and that in an examination in chief they should be 
 put deliberately, so that the witness may have time 
 to take them in fully and not be flurried in answer- 
 ing them. It is far better to ask half a dozen short, 
 simple questions than a single long, complicated one 
 covering the entire ground, and it is therefore im- 
 portant that all questions should be as brief as pos- 
 sible, and always clothed in such plain and familiar 
 language as to be fully understood by the witness, 
 especially if he be an uneducated person. Verbosity 
 and pomposity are alike inexcusable in an examining 
 counsel. 
 
 Sec. 120. The swift witness. — The swift witness, 
 or one who wants to say too much, is a very dan- 
 gerous character to deal with, and requires to be 
 repressed instead of encouraged. This is best done 
 by adopting a rather grave and ceremonious manner 
 so as to check him at the outset, and then kindly, 
 but peremptorily, requiring him to do no more than 
 answer the questions put to him, which should be so 
 framed as to give no room for expatiating. Such a 
 
168 CONDUCT OF EXAMINATIONS. [Paet IV. 
 
 witness should be got rid of as soon as possible, for 
 there is always the greatest danger that he may 
 seriously injure the cause which he is over anxious 
 to sustain. 
 
 Sec. 121. The hostile witness. — A hostile witness 
 should never be called excepting when his testimony 
 is absolutely necessary, and where this is the case, 
 the great point is to make him state just so much as 
 is required, and no more. It is well to make his 
 hostility appear as soon as possible, for two reasons : 
 first, because as soon as the judge is satisfied that 
 he is really an adverse witness, he will permit leading 
 questions to be put on his examination in chief; and 
 secondly, because the more hostile he appears to the 
 party calling him, the more will his favorable 
 evidence be esteemed, and the less weight will be 
 given to whatever he says that is unfavorable. As 
 a general rule, the less said to a witness of this kind 
 the better. He should be brought directly to the 
 point which he is called to prove by questions so 
 framed as to afford the least possible, room for eva- 
 sion or explanation. All attempts at explanations 
 should be stopped by telling him that he will have 
 an opportunity for making them as soon as he has 
 answered all the qiiestions. When this time arrives, 
 he will probably have forgotten at least half of 
 them, and the others will prove far less effective 
 than if made in connection with the statement of 
 the facts which they are intended to qualify. It is 
 needless to add that a witness of this kind should be 
 
Chap. I.] DUTIES OF OPPOSING COUNSEL. 169 
 
 dismissed at the earliest possible moment. The im- 
 portance of restricting the testimony of a hostile 
 witness within the narrowest possible limits is even 
 greater in the United States than in England, by- 
 reason of the rule generally prevailing in this 
 country, by which the range of cross-examination is 
 limited (excepting for the purpose of testing or at- 
 tacking his credibility) to the facts and circumstances 
 connected with the matters stated by the witness in 
 his direct examination. 
 
 Sec. 122. Duties of opposing counsel during ex- 
 wmination in chief. — The duties of opposing coun- 
 sel during an examination in chief are to give the 
 strictest attention to all the questions and answers, 
 and to take notes of the testimony. Attention must 
 be given to the questions as well in order to see that 
 they are properly put as to ascertain their design ; and 
 to the answers, so as to consider their effect, and pre- 
 vent any illegal testimony from being received with- 
 out objection. The notes of testimony are of use 
 principally as memoranda for the cross-examination 
 and the argument before the jury, and also to assist 
 in preparing the bills of exceptions in case of an ap- 
 peal by either party. Improper questions must be 
 objected to before they are answered ; and as soon as 
 a witness begins to state anything that is not legal 
 evidence, he should be interrupted with an objection 
 at once. For instance, when a witness, after stating 
 that there was some agreement made between the 
 parties to the suit, begins to tell what it was, he 
 
170 CONDUCT OF EXAMINATIONS. [Pabt IV. 
 
 should be required to state whether such agreement 
 was verbal or in writing before being allowed to 
 proceed. 
 
 Sec. 123. Leading questions — Frivolous objections. 
 Leading questions should never be objected to, unless 
 suggestive of an answer in some way material to 
 the case. As to mere formal or introductory matters, 
 about which there can be no room for dispute, they 
 are not only unobjectionable, but rather to be en- 
 couraged as calculated to save time, and bring the 
 witness to the point at once. As leading questions 
 are oftener put through inadvertence than designedly, 
 objection to them should not ordinarily be made to 
 the court in the first instance, but rather by a good- 
 natured caution to counsel. If, after such a hint, he 
 should persistently continue to offend in the same 
 way, a more peremptory tone, or a direct appeal to 
 the judge, would be warranted. Good judgment and 
 great quickness of perception, as well as a thorough 
 familiarity with the law of evidence, are required 
 to know exactly when and how to object to evidence; 
 for while on the one hand the making of too fre- 
 quent and too frivolous objections is apt to have a 
 very bad effect upon the jury, especially if they are 
 overruled, yet, on the other hand, many a case has 
 been won solely through the advantages gained by 
 the practiced skill with which the successful counsel, 
 having perfect command of the rules of evidence, 
 could invoke and enforce them at the right moment 
 against his less ready opponent. 
 
Chap, n.] THE CROSS-EXAMINATION. 171 
 
 CHAPTER II. 
 
 CROSS-EXAMINATION. 
 
 Sec. 124:. Sergeant Bdilantinis theory of cross- 
 examination. — Cross-examination is a most powerful 
 weapon in the hands of the skillful advocate, but 
 likewise a very dangerous one to be trifled with by 
 a person who does not understand how to manage it, 
 as it is a matter of every-day occurrence for a wit- 
 ness who has utterly failed to establish by his tes- 
 timony in chief the facts that he has been called 
 to prove, to be completely rehabilitated by an inju- 
 dicious cross-examination. As Sergeant Ballantine 
 very justly observes,* " If the principles upon which 
 cross-examination ought to be founded are not 
 understood and acted upon, it is worse than useless, 
 and it becomes an instrument against its employer. 
 . . . In order to attain success in this branch of 
 advocacy, it is necessary for counsel to form in his 
 own mind an opinion upon the facts of the case, and 
 the character and probable motives of a witness, 
 before asking a question. This doubtless requires 
 experience, and the success of his cross-examination 
 must depend upon the accuracy of the judgment he 
 forms." And again he says, " The object of cross- 
 examination is not to produce startling effects, but to 
 
 iSome Experiences of a Barrister's Life, H. Holt & Co., 
 N. Y., 1883, pp. 104-6. 
 
172 CONDUCT OF EXAMINATIONS. [Pakt IV. 
 
 elicit facts which will support the theory intended to 
 be put forward." 
 
 Sec. 125. Never ask a question without a definite 
 object. — The cardinal rule already given for examina- 
 tion in chief, Never to asTc a question without a definite 
 object, is doubly important as applied to cross- 
 examination ; for here the witness, being presumably 
 more or less adverse, is much more likely to say 
 something damaging. The plan so often adopted 
 by unskillful advocates, of recklessly asking a num- 
 ber of questions on the chance of getting at some- 
 thing, cannot be too much condemned ; for it must 
 always be remembered, that what is called a severe 
 cross-examination, when applied to a truthful witness 
 only makes the truth stand out more clearly ; and, 
 also, that if a dishonest witness, having inadvertently 
 made an admission injurious to himself, is informed 
 of its effect by the counsel persistently dwelling 
 upon it, he will probably endeavor to shuffle out of 
 it, and perhaps succeed in doing so. Hence the 
 force of Lord Abinger's celebrated axiom for the 
 conduct of a cross-examination, " Never drive out 
 two tacks by trying to hammer in a nail." 
 
 Sec. 126. General character of cross-examination, 
 how determined. — The manner of a cross-examina- 
 tion, like its matter, must be determined by the nat- 
 ure of the facts sought to be elicited, and the opinion 
 formed of the character and disposition of the wit- 
 ness, and the motives by which he is probably actu- 
 ated. In the, great majority of cases, where the 
 
Chap. II.] THE CROSS-EXAMINATION. 1Y3 
 
 witness does not intend to misrepresent, a pleasant, 
 frank and courteous manner is generally the best, 
 for the reason that most people are much more easily 
 led than driven, and a quarrelsome frame of mind 
 is very apt to induce a spirit of contradiction. If, 
 on the other hand, it appears that the witness delib- 
 erately intends to misrepresent, it is important to 
 form an opinion as to how far he will probably be 
 willing to go ^whether he will flatly perjure him- 
 self, if necessary for the purpose, or whether he will 
 not venture beyond equivocation; for while in the 
 latter case he should be closely pressed upon the 
 more salient points of his testimony, in order to de- 
 prive him of every opportunity of evasion, such a 
 course would be injudicious if he were evidently 
 prepared to swear his case through at all hazards ; 
 for in that event he would probably have made him- 
 self thoroughly acquainted with all that he must 
 say in order to sustain them, and therefore the more 
 rigidly he is cross-examined upon these points, the 
 more consistent and truthful will his story appear. 
 In such cases it is better to direct the cross-examina- 
 tion to circumstances about which he would not nat- 
 urally expect to be interrogated, and for which he 
 would not therefore be likely to prepare himself in 
 advance, and to put the questions in rapid succession. 
 It is quite possible for a shrewd witness to concoct a 
 story so plausible and consistent with itself, as to 
 sustain triumphantly the severest cross-examination 
 upon everything connected with it, which he has 
 
174 CONDUCT OF EXAMINATIONS. [Part IV. 
 
 thought over and arranged in his own mind before- 
 liand. But if he is questioned in regard to minute 
 circumstances, having no apparent immediate bear- 
 ing upon the main points at issue, it will be almost 
 impossible for him to invent answers upon the spur 
 of the moment that will not be likely to betray 
 him. In forming an opinion as to the moral char- 
 acter of a witness' testimony, it will be well to 
 bear in mind the statement of Sergeant Ballantine, 
 who says that his experience has led him to the con- 
 clusion that honest witnesses endeavor to keep 
 themselves to the facts they come to prove, but that 
 lying ones endeavor to distract the attention by in- 
 troducing something irrelevant. Often the best 
 method to deal with an adverse witness is to decline 
 cross-examining him at all, which, if done with a 
 rather supercilious air, will frequently impress the 
 jury with the idea that his testimony is either totally 
 untrustworthy, or else has little or no bearing upon 
 the case. 
 
 Sec. 127. Things to le a/uoided in cross-examina- 
 tion. — The principal things to be guarded against in 
 a cross-examination are, first, permitting the witness 
 to supply any omissions which he may have made in 
 his testimony in chief ; second, getting from him ex- 
 planations of any apparent inconsistencies that he 
 may have fallen into; third, allowing him to repeat 
 and impress upon the jury the points of his testi- 
 mony which tell most strongly in favor of the party 
 who called him; and finally, giving the opposing 
 
Chap. IL] . THE CROSS-EXAMINATION. 175 
 
 counsel the opportunity of bringing out on re-exam- 
 ination some unfavorable testimony which would not 
 have been admissible but for an injudicious question 
 put during the cross-examination. Plence it is always 
 advisable to keep in mind the following rules, and 
 never to depart from them without being able to give 
 a satisfactory reason for so doing : 
 
 Upon perceiving that a witness has omitted some 
 important point in his testimony, do not allude to it, 
 but keep him as far from it as possible, that he may 
 not have the opportunity to repair his blunder. 
 
 Never ask for explanations unless perfectly sure- 
 that they cannot be given, and even then be very 
 cautious about doing so. It is always much better to 
 point out the improbabilities and contradictions in a 
 witness' testimony, in the argument to the jury, than 
 to let him explain them away upon the stand. 
 
 Do not give the witness the opportunity to repeat 
 in detail on cross-examination the strong points of his- 
 testimony in chief. 
 
 IsTever ask him a question to which he is at all 
 likely to give an answer adverse to your case. 
 
 Never introduce new matters into the case by 
 cross-examination, or interrogate the witness about 
 conversations, without having considered what addi- 
 tional testimony his answers may possibly let in. 
 
 If the witness have a strong bias or prejudice 
 against your client, make this manifest to the jury as 
 soon as possible. 
 
 Never dispute with the witness. 
 
176 CONDUCT OF EXAMINATIONS. [Paet IV. 
 
 Never attack a witness without just provocation, 
 and then let it always plainly appear to the jury that 
 you are in the right, for otherwise they will be likely 
 to sympathize with him. Hence, although it may 
 sometimes be necessary to make the witness angry, 
 nothing will ever justify or excuse any display of 
 petulance or ill-temper on the part of counsel. 
 
 Of course the conduct of every cross-examination 
 must be governed in some degree by the circum- 
 stances of the case and the particular object to be 
 a,ccomplished by it, and therefore occasions may 
 arise which will at times require a departure from 
 evei'y one of the foregoing rules, excepting the one 
 which forbids putting any question without a distinct 
 purpose. This must be rigidly adhered to under all 
 circumstances. 
 
 Sec. 128. Duties of opposing counsel during cross- 
 examination. — The duty of opposing counsel during 
 •cross-examination is to take note of all answers of the 
 witness which may justify or require him to ask an 
 explanation upon the re-examination, and not to in- 
 terrupt except in cases of absolute necessity; as 
 where the cross-examiner puts a question which is 
 clearly inadmissible, such as interrogating the wit- 
 ness about matters not connected with the subject of 
 his examination in chief, or cross-examining him as to 
 alleged previous statements in writing, without pro- 
 ducing the paper referred to or satisfactorily account- 
 ing for its absence. Frivolous interruptions of a 
 cross-examination are not only unjustifiable, but ex- 
 
Chap. II] THE CROSS-EXAMINATION. 177 
 
 tremely foolish, for, as they always deserve, they 
 frequently get, a sharp rebuke from the court, which 
 is seldom without its weight with the jury, who 
 are very apt to attribute such interruptions to a 
 want of confidence on the part of the counsel mak- 
 ing them, either in his case or in his witness, since 
 he evidently fears to trust the latter to take care of 
 himself in the hands of his adversary. 
 13 
 
178 CONDUCT OF EXAMINATIONS. [Paet IV. 
 
 CHAPTER III. 
 
 RE-EXAMINATION. 
 
 Sec. 129. Purpose and scope of re-examination. — 
 Although the object of the re-examination is merely 
 to give the witness an opportunity to explain anjr of 
 his answers given on cross-examination which may 
 be deemed to require it, and its range is therefore 
 strictly limited to matters connected with or relating 
 to such answers, yet it often affords the means of 
 getting out of the witness matters which would not 
 have been admissible upon the examination in chief ; 
 as for example, where a witness is asked on cross- 
 examination as to statements made in a conversation 
 which he could not have testified to in chief on be- 
 half of the party who called him, he may neverthe- 
 less be required, on re-examination, to give the whole 
 conversation, in order to explain the statements about 
 which he was asked on cross-examination. A great 
 matter in re-examination is to be tolerably certain 
 beforehand as to the nature of the answer which 
 the witness will give to any question you may think 
 of putting to him, and also as to whether such an- 
 swer is likely to benefit your case. If at all doubtful 
 upon either point, it is better not to ask the question, 
 as the witness may be unable to give the explanation 
 asked for, or, when given, it may only serve to make 
 matters worse, and new matter thus brought out 
 
Chap. IH] THE RE-EXAMINATION. 1Y9 
 
 sometimes proves very damaging to the case of the 
 party by -vvhom it is elicited. Therefore, in re-exami- 
 nation as in cross-examination, the golden rule is to 
 ask nothing except upon a reasonably fair prospect 
 of gaining enough thereby to justify the venture ; 
 and the important thing for a counsel to know is 
 when to let well enough alone. In many cases a 
 skillful advocate can with great effect avail himself of 
 the re-examination to make his witness, in the course 
 of his explanation of the answers given on cross- 
 examination, go over again the more important points 
 of his testimony in chief, and thus impress them more 
 forcibly iipon the minds of the jury. 
 
 Sec. 130. Duties of opposing counsel during re- 
 examvnation. — The duty of opposing counsel pending 
 re-examination is to object to leading questions, and 
 prevent the witness from giving evidence of any new 
 matters, not strictly explanatory of his testimony 
 on cross-examination. 
 
II^DEX. 
 
 [the references are to the pages.] 
 
 Access, when presumed, 80. 
 
 Accomplice, evidence of, must generally be corroborated, 132L 
 
 Acquiescence, what is, so as to bind the party, 32. 
 
 Acts of congress, public, judicially noticed, 66. 
 
 Acts, legislative, public, judicially noticed, 66. 
 
 Acts of state, statements as to in statutes, proclamations, etc., 
 
 when relevant, 31. 
 Admiralty, courts of and seals judicially noticed, 68. 
 Admissions, definition of, 21. 
 
 when relevant, 21. 
 
 how they may be made, 32. 
 
 whole statement must be considered, 23, 
 
 by whom they may be made, 23. 
 
 by parties and privies, 33. 
 
 by those whose interest a party represents, 24. 
 
 by one suing in a representative character merely, 24 
 
 by those jointly interested with party, 24. 
 
 must be made while joint interest subsists, 35. 
 
 by former partner after dissolution of firm as to claim 
 barred by limitation, effect of, 25. 
 
 by those whom party has authorized to make them, as 
 counsel, attorneys, agents, etc., 25. 
 
 by persons referred to by party, 25. 
 
 by principal, when receivable against his surety, 26. 
 
 offers of compromise not admissions, 36. 
 
 but otherwise as to independent facts admitted during 
 treaty of compromise, 37. 
 
182 INDEX. 
 
 Admissions made under duress, excluded, 37. 
 
 (See Confessions.) 
 Adverse possession, presumption from, 78. 
 AflBrmation, in place of oath, 133. 
 AiBrmative (see Burden of pi'oof). 
 Agent, how far his admissions bind principal, 25. 
 Agreement (see Contract). 
 
 Alteration of written contracts by subsequent oral agreements, 
 101. 
 of documents, effect of, 160-163. 
 presumptions as to, 112. 
 Atheists, incompetent witnesses at common law, 119. 
 Attested documents must he proved by at least one attesting 
 witness, if any aUve, 84, 85. 
 except id certain enumerated cases, 86, 87. 
 Attorneys and counsel, how far admissions biud principal, 25. 
 communications with cUent privileged, 126, 137. 
 when not compellable to produce documents, 156. 
 Begin, right to, how determiaed, 115-117. 
 Belief (see Opinion). 
 Bible, family (see Pedigree). 
 
 Bodily f eeUng, statements showing, when relevant, 9. 
 Boundaries, when provable by general reputation, 44. 
 Burden of proof, heson party substantially asserting affirmative 
 of the issue, 107. 
 except where disputable presumption of law exists in his 
 
 favor, 108. 
 or the subject matter of his allegation lies pecidiarly within 
 the other party's knowledge, 113-114 
 ■Cause, facts showiag probable cause for existence of fact in is- 
 sue or relevant thereto, are generally relevant, 10, 15. 
 Certified copies of documents, when admissible, 88, 91. 
 
 of public documents, primary evidence, 89, 90. 
 Character, generally irrelevant, 16. 
 
 but admissible in favor of a person indicted criminally, 16. 
 or when put directly ia issue by the nature of the action, 17. 
 Circumstantial evidence defined, 6. 
 
INDEX. 183 
 
 Clergymen, confidential commuiiications to, not privileged 
 at common law, 138 ; but made so by statute in some 
 states, id. 
 Communications during marriage, privileged, 123, 124 
 Comparison of handwriting, to what extent admitted, 62, 63, 
 Competency of witnesses, 118-138 (see Witness). 
 Complaint of pei-son against whom crime committed, fact of, 
 
 relevant, but terms not, 11, 12. 
 Compromise, oflfer of, not an admission, 36. 
 Conclusive presumptions (see Presumptions). 
 Conduct of the examination of witnesses, 164^179. 
 the examination in chief, 164^170. 
 the cross-examination, 171-177. 
 the re-examination, 178, 179. 
 Confessions not made voluntarily, excluded, 37. 
 what deemed involuntary, 28. 
 facts discovered by means of involuntary, may be proved 
 
 by other evidence, 28. 
 sworn, made by accused deemed involuntary at common 
 
 law, 39. 
 how far this rule modified by statutes permitting accused 
 
 to testify, gwxre, 80. 
 made under promise of secrecy, or obtained by deception, 
 
 not involuntary, 31. 
 f aiLui'e to warn prisoner does not render them inadmissible, 
 31. 
 Coniidential commvmications (see Privileged communications). 
 Confirmation of testimony of accomplices, when required, 133. 
 Conspirators, when bound by each other's acts and declara- 
 tions, 9. 
 judge must be satisfied ot prima facie case against, 9. 
 Conti'act, written, terms of must be proved by the v^riting itself, 
 i£ obtainable, 83 ; except in certain cases, 98-102. 
 to what extent its terms may be interpreted or explained 
 by extrinsic evidence, 108-106. 
 Conviction, record of, is the only proper evidence, 139, note. 
 Copies of documents, when equivalent to exemplification, 90. 
 
184 INDEX. 
 
 Copy, proof by, in what cases allowed, 84, 88-96. 
 Corroboration required to overcome sworn answer in chancery, 
 131. 
 
 of plaintifE in divorce proceedings, generally required, 133. 
 
 required in criminal cases when only testimony is that of 
 accomplice, 182. 
 Counsel (see Privileged communications). 
 Course of business, relevancy of, 11. 
 Credit of witnesses, impeaching, 146-150 (see "Witness). 
 Crime, conviction of, disqualified witness at common law, 121. 
 
 may in most states be proved to affect the credibUity of a 
 witness, 121. 
 Crimen falsi, what, 131. 
 
 Crimes, what render witness incompetent at common Law, 121. 
 Cross-examination of witnesses, 138-144 
 
 to what must be directed, 138. 
 
 questions lawful in, 139-142. 
 
 as to inconsistent statements, 143, 144 
 
 conduct of, 171-177. 
 Custom, how proved, 44, 53. 
 
 proof of, to what extent admitted to explain or vary terms 
 of written contract, 101. 
 Date of document, presumption as to, 111. 
 Death, presumption of, 110. 
 
 Declarations, or statements made by persons since dead, insane 
 or absent from the state, when admitted in evidence, 20. 
 
 evidence given in former proceeding, 46. 
 
 dying, admissible to prove cause of death, 47. 
 
 made in the ordinary course of business, 47 ; written en- 
 tries, 48 ; made by party in his own shop books, 48, notei 
 
 made against interest of declarant, 49. 
 
 of testator as to contents of wiU, 52. 
 
 as to any pubHc or general right or custom, 53. 
 
 as to matters of pedigree, 54 ; entries in family Bible, 56. 
 Deeds, presumption as to sealing and dehvery of. 111, 113. 
 Depositions of witness, how taken, 134. 
 
 when admissible in evidence, 46, 134, 185. 
 
INDEX. 185 
 
 Disputable presumptions of law, 108-113. 
 
 (See Presumptions.) 
 Documents, how put in evidence, 157-160. 
 
 effect of alteration or spoliation of, 160-163. 
 Duress, confessions made under duress, excluded, 27, 28, 
 Dying declarations, when admissible, 47. 
 Entry in pubho record, made in performance of duty, relevant, 
 32. 
 
 in books of corporations, for what pui-poses relevant, 34 
 
 by deceased person, made in ordinary course of business, 48. 
 
 or in books of account when against bis own interest, 52. 
 
 in party's own books, when relevant, 48, and note. 
 
 in family Bible or Testament, admissible to prove pedigree, 
 56. 
 Estoppels, doctrine of, 81. 
 
 of acceptor of bill of exchange, 83. 
 
 of tenant, licensee, baUee or agent, 83. 
 Evidence, definition of, 4. 
 
 direct and circunistantial, 6. 
 
 relevancy of evidence, how determined, 6, 7. 
 
 res gestcB admissible as evidence, 8, 9. 
 
 facts showing probable cause generally relevant. Id. 
 
 ordinary course of business, 11. 
 
 probable effects may be shovsm in evidence, 11. 
 
 explanatory facts, 13. 
 
 res inter alios not admissible in, 14. 
 
 character, hearsay and opinion generally .inadmissible, 15. 
 
 best attainable required, 64. 
 
 aU facts not judicially noticed or expressly admitted must 
 be proved by, 3, 65. 
 
 oral (see Oral evidence). 
 
 primary and secondary, 83, 84. 
 (See Facts ; Presumptions ; Witness.) 
 Examination of witnesses, 133-150 (see Witness). 
 
 theory of the conduct of, 164-177. 
 Examined copy of pubUc document, 88. 
 Exemphfioations, what are, 90. 
 
186 INDEX. 
 
 Experts, who are, 60. 
 
 to what matters they may give opinions, 60, 61. 
 testimony of, as to handwriting, 62, 63. 
 Facts must always be proved, unless judicially noticed or ex- 
 pressly admitted, 3, 65, 73. 
 what judicially noticed, 66, 78. 
 in issue, definition of, 5. 
 relevant to the issue, what are, 6. 
 
 those forming part of same transaction, 8. 
 
 statements accompanying an act, 9. 
 
 acts of conspirators, 9. 
 
 facts showing probable cause, 10. 
 
 ordinary course of business, 11. 
 
 natm'al effects, 11. 
 
 complaints, 12. 
 
 facts showing animus, 12. 
 
 similar occurrence showing intention, 13. 
 
 facts explanatory of relevant facts, 12. 
 
 all facts connected with another by way of cause and 
 
 effect not necessarily relevant thereto, 15. 
 character, hearsay and opinion generally irrelevant, 15. 
 ultimate, defined, 76. 
 
 must be established by direct oral testimony, except in 
 four cases, 75. 
 Foreign acts of state, how proved, 32. 
 
 Foreign judgments, practically the same doctrine applicable to 
 them as to domestic judgments, 43 ; how proved, id. 
 laws, how proved, 61. 
 General reputation, in what cases relevant, 43, 44. 
 
 (See Character.) 
 Handwriting, opinion as to disputed, 61, 62. 
 
 what persons deemed competent to express opinion as to, 62. 
 comparison of disputed with genuine, 62, 63. 
 Hearsay, generally irrelevant, 17. 
 
 exceptions to rule excluding, 19, 20. 
 Husbands and wives, confidential commimications between, 
 privileged, 133, 134. 
 
INDEX. 187 
 
 Husbands and wives, when competent witnesses for or against 
 
 each other, 132-134 
 Information as to commission of offense, 136. 
 Innocence, presumption of, 109. 
 Inquisitions, prima facie evidence only, 39. 
 Insanity, generally held in United States to have same efEect as 
 death in rendering declarations admissible, 30. 
 opinions of witnesses as to, 58. 
 Inspection of private writings, 153-155. 
 Interlineation of documents, presumption as to, and effect of, 
 
 111, 161, 163. 
 Interpretation of documents by extrinsic evidence, 103-106. 
 Judges, their competency and privileges, 134 
 Judgment, conclusive evidence of the substantive facts recited, 
 34 
 but not evidence of the correctness of the decision rendered 
 
 except as between the parties and the juries, 37. 
 or when declaratory of the stattis of a person or thing, 39, 40. 
 and ia certain cases involving custom and pedigree, 39. 
 who are parties to a, 40, 41. 
 must be proved by records of the court, 82, 90. 
 Judicial notice, of what facts courts take, 66-73. 
 
 when courts may refuse to take judicial notice of such 
 facts, 73. 
 proceedings, how proved, 90, 91. 
 Jurisdiction of court rendering judgment may always be in- 
 quired into, 41. 
 Jurors, when competent to testify, 135, 126. 
 Leading questions, 135, 186, 141, 145, 170. 
 JjegaJ advisers, confidential communications with, 136, 138. 
 Legislative acts of states and territories, how proved, 90. 
 Legitimacy, w;hen presumed, 80. 
 Magistrate, confessions made to, 37-80. 
 Marriage, communications during, privileged, 133, 134 
 
 opinion as to existence of, 44, 45. 
 Medical men, confidential communications to, not privileged at 
 common law, 138. 
 
188 INDEX. 
 
 Motive, relevancy of facts supplying motive, 10. 
 Negative (see Burden of proof). 
 Notice to produce, rules as to, 93-94. 
 Oath, nature of, 133. 
 
 how administered, 133. 
 aJl oral testimony must be given under, 133. 
 Office, appointment to, when presumed, 113. 
 Opinions, generally irrelevant, 57. 
 
 formed from personal observation admissible, when the best 
 
 evidence that the natm-e of the case admits of, 57, 58. 
 of subscribing witnesses to a wOl as to testator's sanity, 
 
 58, 59. 
 of experts, when admissible, 60. 
 as to handwriting, 61, 63, 63. 
 Oral evidence, all ultimate facts must be proved by, except in 
 certain enumerated cases, 75. 
 may not be received to controvert conclusive presumptions 
 
 of law, 77. 
 excluded as to matters of which law requires full official 
 
 record to be kept, 83. 
 contents of written instrument may not be proved by, ex- 
 cept in certain enumerated cases, 83, 93, 95. 
 may not be given to prove or vary terms of written con- 
 tract, 96-98. 
 rule only extends to writings intended as a binding state- 
 ment of contract, 98. 
 admitted to prove collateral agreement, 99. 
 or usage, 100. 
 
 or subsequent parol modification, 101. 
 rule limited to controversies between parties and those 
 
 claiming under them, 101-103. 
 how far meaning of writing may be explained by, 108-106. 
 how it may be taken, 133. 
 Order of proof discretionary with judge, 117. 
 Overt act pro jf of, in treason, 130. 
 Parol evidence (see Oral evidence). 
 Parties incompetent as witnesses at common law, 131. 
 
 how far made competent by statute in United States, 121. 
 
INDEX. 189 
 
 Pedigree, matters of, how proved, 54-56. 
 Perjury, what amount of evidence necessary to establish, 131. 
 Physicians generally obUged to disclose confidential communi- 
 cation, 128. 
 Preparation, relevancy of facts constituting, 10. 
 Presumption, conclusive, defined, 77. 
 
 of title from twenty years' adverse possession, 78. 
 
 of the correctness of judicial proceeding, 78, 79. 
 
 that instrument under seal has been made upon good 
 
 consideration, if not impeached, 79. 
 of the regularity of acts done under legal authority, 
 
 after lapse of thirty years, 79. 
 that documents thirty years old, produced froni proper 
 
 custody, are genuine, 76. 
 in respect to capacity of infants, 80. 
 as to legitimacy, 80. 
 resting upon doctrine of estoppel, 81. 
 disputable, effect of, in shifting the burden of proof, 108. 
 of innocence, 109. 
 as to coercion of wife committing felony in company 
 
 with her husband, 110. 
 that every sane man contemplates the natural conse- 
 quences of his intentional acts, 110. 
 of the continuance of state of things once proved to 
 
 exist, 110. 
 of the death of a person not heard from for seven years, 
 
 111. 
 of sanity. 111. 
 
 of the regularity of judicial and official acts. 111, 
 as to date of documents. 111. 
 as to sealing and delivery of deeds. 111. 
 as to alterations and interlineations, 113, 161, 163. 
 Previous conviction, proof of, when relevant, 131, 148. 
 
 must be proved by record, 139, nota 
 Primary evidence of documents, what, 83, 84, 89. 
 Privileged communications, 133-130. 
 between husband and wife, 123, 134. 
 
190 INDEX. 
 
 Privileged comnmnioations to public officers and grand jurors, 
 136. 
 as to state secrets, 126, 129. 
 between legal adviser and client, 136-128. 
 Proclamation, judicially noticed by recitals in, vrben relevant, 31. 
 Production of document, bow enforced, 150-157. 
 Professional communications, wben privileged, 126-128. 
 Public documents, how proved, 88-91. 
 certified copies of, 88, 89. 
 right, common to all citizens of state, how proved, 53, 54 
 Recitals of public facts in statutes and proclamation, when rele- 
 vant, 31. 
 Refreshing memory by document, when admissible, 137, 138. 
 Relevancy of facts, how determined, 6, 7, 8. 
 
 (See Evidence ; Facts.) 
 Spoliation of documents, effect of, 160-168. 
 Statements accompanying or explaining act, how far relevant, 
 8,9. 
 by deceased, insane or absent persons, relevancy of, 45-56. 
 previously made by witness inconsistent with his testi- 
 mony, may be proved when, 143, 144. 
 in works of history, almanacs, maps, etc., how far rele- 
 vant, 38, 34. 
 made in presence of party to suit, 22. 
 Treason, two witnesses always required in prosecutions for, 130, 
 
 131. 
 Usage, proof of, wben admissible to explain written contract, 
 100. 
 more than one witness ordinarily required to establish gen- 
 eral usage, 132. 
 Witness, presumed to be competent until the contrary is af- 
 firmatively shown, 118. 
 when objection to competency of, must be made, 118. 
 what rendered incompetent at common law, 119. 
 want of mental capacity, 119. 
 want of religious belief, 119, 120. 
 conviction of any infamous crime, 121. 
 
INDEX. 191 
 
 Witness, being a party to the record or interested in the result 
 of the suit, 121 ; this disqualificatioii now abolished by 
 statute, 121. 
 
 being husband or wife of party to record, 133. 
 
 forbidden to testify as to certain matters, 133. 
 
 confidential communication between husband and wife, 
 123. 
 
 how far judge may be exajmined as, 124 
 
 as to what matters grand or petty juror may be a, 123. 
 
 communications made to public officers and grand jurors 
 with a view to criminal prosecutions may not be dis- 
 closed by, 126. 
 
 state secreis may not be disclosed by, 126. 
 
 legal adviser may not disclose confidential communications 
 of his chent, 126, 127. 
 
 privilege of cUent as to disclosing communication made by 
 him to legal adviser, 128. 
 
 privileged as to facts tending to criminate him, 129. 
 
 privilege of government and state officials as to pubUo mat- 
 ters, 130. 
 
 when corroboration required to testimony of single, 130-133. 
 
 must be examined on oath or aflirmation, 133. 
 
 in open com-t, or under a commission, or by deposition, 133, 
 134. 
 
 when and how objections to deposition may be made, 135. 
 
 examination in chief, 135. 
 
 leading questions forbidden, 136. 
 
 except by permission of court in special cases, 136. 
 
 irrelevant and irresponsive answers excluded, 136. 
 
 refreshing memory, 137. 
 
 cross-examination of, 138. 
 
 confined to matters connected with testimony in chief, 138. 
 
 and questions to test accuracy and credibihty, 138-143. 
 
 privilege as to questions tending to criminate him, 139. 
 
 extent to which cross-examination to test credibihty may 
 be carried is always discretionary with court, 140. 
 
192 INDEX. 
 
 Witness, rule for exercise of this discretion as laid down in 
 India evidence act, 141, note. 
 
 leading questions generally allowed on cross-examination, 
 141. 
 
 how fax his answers on cross-examination may be contra- 
 dicted, 143. 
 
 his previous inconsistent statements may be shown when 
 proper foimdation laid, 143. 
 
 when his previous inconsistent statements in vsriting may 
 be shown, 144 
 
 re-examination of, to what restricted, 144^ 145. 
 
 leading questions forbidden on re-examination, 145, 
 
 impeaching credit of, 145, 146.' 
 
 party may not impeach credit of his own, 146. 
 
 but may contradict his own, 147. 
 
 of adversary may be impeached by showing bias, 148, 
 
 or previous conviction of infamous crime, 148. 
 
 or general reputation for want of veracity, 149. 
 
 may be compelled to produce documentary evidence ma- 
 terial to the case by subpoena duces tecum, 151, 
 
 (See Conduct of the examination of witnesses.) 
 
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