Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY ({ornfU IGam i>rlinoI Hibtatu Cornell University Library KF 8935. W55 1879 ¥.1 A commentary on the law of evidence in c 3 1924 020 113 100 A Cornell University J Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020113100 A COMMENTARY ON THE LAW OF EVIDENCE IN CIVIL ISSUES. BY FRANCIS WHARTON, LL. D., AUTHOR OP TREATISES ON CONFLICT OP LAWS, MEDICAL JURISPRIJDENCE, NEGLIQBNOE, AQENCY, AND CRIMINAL LAW. IN 'TWO VOLUMES. Ij ff VOLUME I. JW^U^ SECOND EDITION. PHILADELPHIA : KAY AND BROTHBK, 17 AND 19 SOUTH SIXTH STREET, 1879. Entered, according to Act of Congress, in the year 1877, by FRANCIS WHARTON, In the. Office of the Librarian of Congress at Washington. Entered, according to Act of Congress, in the year 1879, by FRANCIS WHARTON, In the Office of the Librarian of Congress at Washington. RITERSIDB, OAHBBISQE: PRINTED BY H. 0. nODQHTON AND COMPANT. PREFACE TO SECOND EDITION. The two years which have elapsed since the publication of the first edition of this work have given me time to bestow on it a careful revision. A good deal of space has been gained by condensation ; but this space has been more than filled up by new material which I have felt it my duty to introduce. Ref- erences have also been inserted to numerous cases which have been reported since the first edition went to press. F. W. Juke 1, 1879. iii PREFACE TO FIEST EDITION. The changes in the Law of Evidence, which the following pages are designed to meet, are as follows : — 1. The admission, as witnesses, not merely of interested per- sons, but of parties. The first and most obvious result of this change is, that a vast mass of rulings, embracing about one sixth of the common law cases on EAddence, has become useless ; while in the shape of adjudications on the new statutes we have a series of decisions which abound in important distinctions, and demand careful discussion. But the results of the rehabilitating statutes are not confined to the branch of law with which they are immediately concerned. Our whole system has been sympa- thetically affected by the change. The doctrine of presump- tions, as will hereafter be more fully shown,^ that of intent,^ that of fraud,^ and that of relevancy,* are necessarily modified by so great an alteration, not merely in the form, but in the principles, of jurisprudence. It is proper that these modifica- tions should be specifically discussed. 2. The disuse of special pleading, and the almost unlimited liberty of amendment in civil issues, have rendered practically obsolete, in such issues, the old decisions on variance. These decisions, in relation to criminal trials, so far as they are still operative, I have analyzed in my work on Criminal Law. It would be not only a cumbrous but a useless repetition to insert them in the present treatise. 3. In England, by the recent Judicature Act, it is provided 1 See infra, §§ 460, 461. ' Infra, § 853. 2 Infra, § 482. * Infra, §§ 25-54. V PBEFACE TO THE FIEST EDITION. that wherever the rules of equity and of common law differ, the courts are to follow equity ; and we are now told, by the highest authority, that the term " rules," in the statute, includes " doc- trines." 1 Towards the same result our American jurisprudence has moved, in those states which have distinct equity courts, with steps more or less rapid ; while in other states equity doctrines, so far as concerns evidence, have been from the beginning ac- cepted as part of the common law. I have therefore thought it proper to incorporate in my text the principles of equity evi- dence. 4. The old common law rules with regard to relevancy can no longer be maintained against the criticisms, first, of Mr. Ben- tham, then, of Mr. J. S. Mill, and more recently, of Sir J. Stephen ; nor, in fact, do we find these rules recognized, in the shape in which they were formerly put, in our later au- thoritative adjudications. Relevancy, it is now felt, is to be de- termined by the laws, not of formal jurisprudence, but of free logic ; and, in obedience to this conviction, we have a series of recent rulings based on logical, as distinguished from technically juridical grounds. These decisions I have endeavored to system- atize, discussing, at the same time, the leading theories by which they may be harmonized. 5. To presumptions, as will hereafter be seen more fully,^ the observations just made apply with increased force. Of the old presumptions juris et de Jure, scarcely a representative remains ; presumptions of law, in the technical sense, retain a perma- nent existence, but with ranks greatly diminished. Presumptive proof, taking it in its general sense, is now, such is the tendency of our adjudications, inductive, not deductive ; and is regulated, therefore, not by tests applied generically, before the evidence is opened, but by tests applied specifically, after the evidence is closed.^ To illustrate this tendency requires a readjustment, which I have attempted, of the whole law in this relation ; so 1 Lord Coleridge, C. J., cited Lon- " ij^tra., §§ 1234-1236. don Law Times, Feb. 3, 1877, p. 235. ' See infra, §§ 1237 et seq. vi PREFACE TO THE FIEST EDITION. that our authorities can be considered in their logical, as well as in their technical juridical relations. Two other observations I must be permitted to make. The first is, that while, by the addition of a third volume, the present commentary could have been extended so as to include a treatise on evidence in criminal issues, it seemed to me better to retain the latter topic in my work on Criminal Law. In civil trials there is rarely occasion to cite a ruling on criminal evidence ; in criminal trials, it is a convenience for the practitioner to have by him, in an entire work, whatever appertains to the issue with which he is concerned. The second observation I would add is in the nature of an apology — not for the first time made by me T— for the apparent redundancy of my citations of authori- ties. If this be excepted to, I might reply that it would have been far easier to have cited only leading cases from what might be called leading states. , This course I once pursued ; but the changes that have occurred since I published my first law book have admonished me that neither leading cases nor leading states can be relied on as permanently retaining their rank. Several American States which, twenty years ago, had only terri- torial courts, now take a justly authoritative standing in our jurisprudence ; and many decisions which, twenty years ago, were leading, have now been overruled, or have become obsolete. I have therefore, on each point, cited, as far as I could collect them, the rulings, no matter how obscure, of each of our Ameri- can States, no matter how recent its establishment. One other reason for this course I may add. To a thorough student, the text is as much explained by the citations, as are the citations by the text. "A. v. B.," "C. v. D.," "E. v. F.," at the first sight appear dead formulas. They are, however, living signs, giving us the means of inquiring how the doctrine of the text works in real life, to what limitation it is subject, of what elas- ticity it is capable.- They not only dramatize the subject, but, as no two cases are alike, and each new case brings up a new application, they open a series of refined distinctions which, while vii PREFACE TO THE FIRST EDITION. necessary to the practitioner for their authoritativeness, may be resorted to by the student as affording, in connection with the maxims which they illustrate, the only mode of fully mastering the science of jurisprudence. With pec^iliar force does this ob- servation apply to a country in which, as in our own, each state not only has a distinctive population, but has received, either by tradition or by code, a jurisprudence in some respects peculiar to itself. F. W. March 7, 1877. viii TABLE OF CONTENTS. BOOK I. REQUISITES OF PROOF. CHAPTER I. PRELIMINAEY CONSIDERATIONS, §§ 1-15. CHAPTER II. EELEVANCY, §§ 20-56. CHAPTER HI. PRIMARINESS AS TO DOCUMENTS, §§ 60-113. I. General rules, § 60. II. Exceptions, § 77. III. Different kinds of copies, § 89. IV. Secondary evidence may be received when primary is unpro- ducible, § 129. V. So when document is in hands of opposite party, § 152. CHAPTER IV. PRIMARINESS AS TO ORAL TESTIMONY, §§ 170-269. I. Hearsay generally inadmissible, § 170. II. Exception as to witness on former trial, § 177. III. Exception as to depositions in perpetuam memoriam, § 181. IV. Exception as to matters of general interest and ancient posses- sion, § 185. ix TABLE OF. CONTENTS. V. Exception as to pedigree, relationship, birth, marriage, and death, §201. VI. Exception as to self-disserving declarations of deceased persons, §226. VII. Exception as to business entries of deceased persons, § 238. VIII. Exception as to general reputation, § 262. IX. Exception as to refreshing memory, § 257. X. Exception as to res gestae, § 258. XI. Exception as to declarations concerning parties' health and state of mind, § 268. BOOK II. MODE OF RECEIVING PROOF. CHAPTEE V. JUDICIAL NOTICE, §§ 276-340. I. General rules, § 276. II. Codes and their proof, § 287. III. Executive and judicial documents, § 317. IV. Notoriety, § 327. CHAPTER VI. INSPECTION, §§ 345-347. CHAPTER VII. BUEDEI^ OF PROOF, §§ 353-371. CHAPTER VIII. WITNESSES, §§ 376-609. I. Procuring attendance, § 376. II. Oath and its incidents, § 386. III. Privilege from arrest, § 389. IV. Who are competent witnesses, § 391. V. Distinctive rules as to husband and wife, § 421. VI. Distinctive rules as to experts, § 434. VII. Distinctive rules as to parties, § 457. VIII. Examination of witnesses, § 491. X TABLE OF CONTENTS. IX. Refreshing memory of witness, § 516. X. Cross-examination, § 527. XL Mode of impeaching witnesses, § 649. XII. Attacking and sustaining impeaching witness, § 568. XIII. Sustaining impeached witness, § 569. XIV. Reexamination, § 572. XV. Privileged connuunications, § 576. XVI. Depositions, § 609. CHAPTER IX. DOCUMENTS, §§ 614-756. I. General rules, § 614. II. Interlineations and alterations, § 621. III. Statutes ; legislative journals ; executive documents, § 635. IV. Non-judicial registries and records, § 639. V. Records and registries of birth, marriage, and death, § 649. VI. Corporation books, § 661. VII. Books of history and science ; maps and charts, § 664. VIII. Gazettes and newspapers, § 671. IX. Pictures, photographs, and diagrams, § 676. X. Shop books, § 678. XI. Proof of documents, § 689. XII. Inspection of documents by order of court, § 742. CHAPTER X. JUDGMENTS AND JUDICIAL RECORDS, §§ 758-841. I. Binding effect of judgments, § 758. II. When judgment may be impeached, § 795. III. Awards, § 800. IV. Judgments of foreign and sister states, § 801. V. Administration, probate, and inquisition, § 810. VI. Judgments, as a protection to judge, § 813. VII. Judgments in rem, § 814. VIII. Judgments viewed evidentially, § 819. IX. Records as admissions, § 836. xi TABLE OF CONTENTS. CHAPTEE XI. STATUTORY EXCLUSION OF PAKOL PROOF — STATUTE OF FRAUDS, §§ 850-890. I. General considerations, § 850. II. Transfers of land, § 854. III. Sales, of goods, § 869. IV. Guarantees, § 878. V. Marriage settlements, § 882. VI. Agreements infuturo, § 883. VII. "Wills, § 884. VIII. Equitable modifications of statute, § 910. CHAPTER XII. DOCUMENTS MODIFIED BY PAROL, §§ 920-1070 I. General rules, § 920. II. Special rules as to records, statutes, and charters, § 980. III. Special rules as to wills, § 992. IV. Special rules as to contracts, § 1014. V. Special rules as to deeds, § 1050. VI. Special rules as to negotiable paper, § 1058. VII. Special rules as to other instruments, § 1063. BOOK III. EFFECTS OF PROOF. CHAPTER XIII. ADMISSIONS, §§ 1065-1220. I. General rules, § 1075. 11. Admissions in judicial proceedings, § 1110. III. Documentary admissions, § 1122. IV. Admissions by silence or conduct, § 1136. V. Admissions by predecessor in title, § 1156. VI. Admissions by agent, attorney, and referee, § 1170. VII. Admissions by partners and persons jointly interested, § 1192. VIII. Admissions by representative and principal, § 1208. IX. Admissions by husband and wife, § 1214. xii TABLE OF CONTENTS. CHAPTER XIV. PRESUMPTIONS, §§ 1226-1365. I. General considerations, § 1226. II. Psychological presumptions, § 1240. III. Physical presumptions, § 1270. IV. Presumptions of uniformity and continuance, § 1284. V. Presumptions of regularity, § 1297. VI. Presumptions as to title, § 1331. VII. Presumptions as to payment, § 1360. xiii BOOK I. EEQUISITES OF PEOOF. CHAPTER I. PRELIMINARY CONSIDERATIONS. Proof is the sufficient reason for a proposi- tion, § 1. Formal proof to be distingnished from real, §2. Evidence is proof admitted on trial, § 3. Object of evidence is juridical conviction, §4- Formal proof should be expressive of real, §5. Analogy is the true logical process in jurid ical proof, § 6. Proof to be distingnished from demonstra- tion, § 7. Fallacy of distinction between direct and circumstantial evidence, § 8. Juridical value of hypothesis, § 12. Facts cannot be detached from opinion, §15. 1. Nature of Proof . § 1. Proof is logically defined as the sufficient reason (ratio suffieiens) for assenting to a proposition as true. Proof, in civil process, is a sufficient reason for the truth of a sufficient .,., .. , i'i 1 •! reason for juridical proposition by which a party seeks either to a pfoposi- maintain his own claim or to defeat the claim of an- other. § 2. The truth on which a juridical proposition depends is styled formal as distinguished from real. It is true, that the object of all sound jurisprudence is to render truth to be formal truth as far as possible the reflex of real. But guished this result can be only approximately reached. Apart "" "* " from the general consideration that no witness can detail with perfect accuracy that which he has seen, and that (from the inadequacy of language) no written instrument can be framed which can exclude all doubt as to the intention of the parties, VOL. I. 1 1 § 3.] THE LAW OF EVIDENCE. [BOOK I. cases must frequently arise in which an adjudicating tribunal is compelled to give a formal decision which conflicts with a moral conviction. A statute, for instance, prescribes that when, in a criminal trial, a defendant declines to be sworn on his own behalf as a witness, this shall not be regarded as a presumption against him, A case may be of such a character that, were such a statute not in force, the refusal by the defendant to avail himself of a means of explanation which the law gives him would turn the scales against him. But the statute forbids the application of such a presumption ; and the case has to be decided precisely as if the defendant had no opportunity of giving exculpatory testi- mony. So a confession by the defendant, made to counsel, may reach the court and jury ; and such testimony may be even re- ceived as evidence, and may be morally conclusive as to the de- fendant's guilt ; but should the court, convinced of the error of receiving the testimony, direct it to be stricken out, the case must be decided as if the testimony had never been rendered. § 3. So far as concerns the use to be made of the terms in the Evidence is present treatise, " proof " has a far wider meaning than mitted^oii " evidence." Evidence includes the reproduction, be- trial. fore the determining tribunal, of the admissions of par- ties, and of facts relevant to the issue. Proof, in addition, in- cludes presumptions either of law or fact, and citations of law.^ Proof, in this sense, comprehends all the grounds on vphich rests assent to the truth of a specific proposition. Evidence, in this view, is adduced only by the parties, through witnesses, docu- ments, or inspection ; proof may be adduced by counsel in argu- ment, or by the judge in summing up a case. The distinction is constantly noticed in the Roman standards ; though both senses are assigned to the word probare. Occasionally, indeed, we find implere used as convertible with probare, in the sense of putting in evidence. (See L. 19 ; L. 23, D. de prob.) As other equivalent expressions may be noticed, ostendere, adprobare, fidem facer e rei alicuius monstrare.^ In the Roman jurists, in fact, we may find three distinct meanings of the word " proof ; " each of which meanings is recognized in our own jurisprudence. First. Proof may be used in the wide sense, just noticed, of the 1 See Harvey v. Smith, 17 Ind. 272. ' Weher, Heflfter's ed. 4; Brisson, de V. S. vv. 2 CHAP. I.] PRELIMINAEY CONSIDERATIONS. [§3. reasons or grounds on which a particular proposition may be maintained. Thus counsel may say, " This point you may con- sider as fully proved ; " and hence, also, the common division of proofs into complete and incomplete.^ In this sense, also, we speak of invalid proofs, falsis prohationibus ; and of proofs tending to a particular conclusion, prohationes ad fidem facien- dam idoneae ; though the proofs in each case may be weak or strong, logical or illogical, true or false. Secondly. In a more narrow and arbitrary sense. Proof may be used as convertible with Conviction, and as producing conclusions as to which there can be no doubt. Thirdly. Proof may be received in its for- mal and juridical sense, as the instrument which tends to lead the minds of judge or jury to a particular conclusion. Proof in this sense is to be regarded not as an instrument to pro- duce mathematical or even moral certainty, — not as a means of convincing the opposing party, — not even as a means of working a moral conviction in the minds of judge or of jury ; but as a means of bringing them to such an official or juridical conclusion jis will require from them a particular legal action. 1 Sir J. Fitzjamea Stephen, in the " Definition of Terms," which is the introduction to his Digest of Evi- dence, tells us that " Evidence means (1.) All statements which the judge permits or requires to be made by wit- nesses in court, in relation to matters of fact under inquiry; " Such statements are called oral evidence. " (2.) All documents produced for the inspection of the court or judge ; " Such documents are called docu- mentary evidence." To this definition a critic in the Solicitor's Journal for September 2, 1876, objects that it excludes not only affidavits, on which cases are fre- quently tried, but depositions. The qualification, "which the judge per- mits or sufEers to be read," is also ex- cepted to not only as involving a con- tradiction, but as making the judge's decision the final test of evidence, when, in practice, judges may, and actually do, decide wrong. The fol- lowing definition is proposed as a sub- stitute for Sir J. F. Stephen's, so far as concerns evidence not documentary : " Evidence means (1.) Statements made by witnesses before the court in relation to matters of fact under in- quiry ; such statements are called oral evidence. (2.) Statements made by witnesses in relation to matters of fact under inquiry before persons author- ized by law to take affidavits, affirma- tions, and depositions to be used, or which may be used, on the hearing of such matters by the court; such state- ments are called evidence on deposi- tion." Mr. Livingston (Li v. Works, ed. of 1873, i. 419) defines evidence to be " that which brings, or contributes to bring, the mind to a just conviction of the truth or falsehood of the fact asserted or denied." 3 § 4.J THE LAW OF EVIDENCE. [BOOK I. In this sense, the only one in which we have here to consider the term Proof, the distinction between Proof and Evidence becomes the more clear. Evidence is a part, and only a small part, of Proof. It is part of the material on which Proof acts ; it is not reason, but a part of the basis of reason. It is there- fore such juridical admissions, and such reproduction of relevant facts, as, under due check of law, may be received on the trial of a litigated issue.-' § 4. Hence it is important at the outset to lay firm hold of the Object of principle that what is required in the trial of an issue ]*JrMlcaf'' is juridical (yeritas juridica,forenBis), as distinguished conviction, from moral truth. The dangers which would flow from an obliteration of this distinction are obvious. I may have, for instance, as a judge, a moral conviction of the guilt of a de- fendant on trial. He may have confessed his guilt to me in a way which leaves no doubt as to his sincerity ; or I may have learned from persons not called as witnesses facts which are in- consistent with his innocence. This, however, is not to be per- mitted to have the slightest effect on my juridical reasoning ; for, even though the man be really guilty, to punish him with- out juridical certainty of his guilt would be recognizing a prin- ciple fatal to public justice. Let it once be admitted that moral conclusions as to a case are to be substituted for juridical, and then, in the breasts of judges as well as of juries, prejudices de- structive of all social stability will determine the results of litiga- tion. The plaintiff is a bad man, and the money, if he recovers it, would be badly spent ; or he belongs to a political or religious party which it is important to suppress ; or he has acted fraud- ulently or oppressively in so manj^ other matters that it may be inferred that he acted fraudulently or oppressively in those under investigation ; and hence he should not succeed. Or the defendant is a rich man, and will not feel the loss if a judgment be entered against him ; or he belongs to a dangerous class ; or his antecedents, though those are not in evidence against him, make it probable that he is in the wrong ; and hence he should lose the suit;. If side considerations, such as these, are to be re- ceived to affect the judgment of court or jury, then such con- siderations would be multiplied indefinitely, and there would be 1 That Evidence and Reason are coordinate factors, see infra, §§ 278-9. 4 CHAP. I.] PBELIMINAEY CONSIDERATIONS. [§ 5. no case tried in which some prejudice, popular or personal, on the part of the adjudicating tribunal, would not be seized upon as a pretext on which the result would be made to hang. Hence it is that all civilized jurisprudences have imposed with peculiar solemnity rules to distinguish between juridical and moral evi- dence ; and have bound judges and jurors by oath to decide cases solely on juridical grounds. Even in respect to Proof, using the the term Proof in its wide sense as distinguished from Evidence, the office of the judge has been for the same reason closely de- fined. In reasoning upon evidence, it is true, he is entitled to fall back on the ordinary course of events, and to reach, from facts put in evidence, inductive conclusions, based on the com- mon experience of nature and of society. Under this head fall the conclusions from extraneous indications ; probatio artifidalis. Certain, indeed, of these conclusions are so compulsory as to ap- proach mathematical certainty. A man, for instance, cannot be in two places at exactly the same moment of time ; and a judge has a right to say, that assuming it to be true (which, however, is a point dependent upon the accuracy and honesty of witnesses), that A., at a particular moment, was in the city of B., he could not, at the same moment, have been in the city of C. A fortiori is this the case with natural laws. Where no conclusive law of this class can be invoked, the law, in certain specified cases, es- tablishes, for the purpose of limiting the range of judicial deci- sion, certain presumptions, which the judge is bound to accept, either as irrebuttable (e. g. that all subjects know the laws of their own country, and that an infant under seven is not capax doli}, or as rebuttable (e. g. that of regularity in business trans- actions, naturalia negotii ; that of innocence in parties accused, and that of sanity among persons arrived at years of discretion). In all matters of reasoning which are not so limited, the deter- mining tribunal is at liberty, as hereafter will be more fully seen, to draw from the evidence in the case such conclusions of fact as are consistent with sound logic. But no evidence (guarding the term by the limitations hereafter more fully expressed) ^ which is not admitted on the trial is to be permitted by that tribunal to influence its conclusions. § 5. That there is absolute truth, as to all controverted issues, 1 See infra, §§ 276 etsiq. 5 § 5.] THE LAW OF EVIDENCE. [BOOK I. is conceded in jurisprudence, as in all other moral sciences. Formal It is at the same time conceded that such truth can be should be reached by us, from the limitation of our faculties, not sioii*oF"*' objectively, as it really exists, but subjectively, as it real. may be made to appear to ourselves. In what way we can arrive at the most accurate conception of such truth is the object of the science of jurisprudence. Certain processes, e. g. those dependent upon logic, and on a priori conceptions, it uses in common with all other sciences. So far, however, as con- cerns the proof of facts on which its judgments are to rest, it requires that such proof should be offered in subordination to certain established juridical rules. It is not enough that the ad- judicating tribunal should be convinced of the truth of such facts ; such conviction must be worked by legal evidence legally admitted on trial. Truth thus reached is styled /ormaZ, as dis- tinguished from real. It must be remembered, however, that the term " formal " truth admits of several shades. It may, in its narrowest sense, be viewed as including only such truth as is actually proved by evidence offered in the case. In its widest sense, it includes not only such truth so proved, but all reason- able inferences from such truth ; and it assumes, as part of such truth, without requiring proof of the sanie, such conclusions of experience and of physical and social science, as are within the ordinary knowledge of intelligent men of the time and place. It wiU be seen that formal truth, viewing it in this enlarged sense, approaches as nearly to real truth as a sound policy will permit. If, dismissing the last relics of the old rules of special pleading, the parties are permitted to present issues which will embrace all of their respective cases ; if they are permitted to introduce all evidence, not excluded by sound rules of policy, which is relevant to such issue ; if the adjudicating tribunal is empowered, subject to such rules of policy, to determine the case on such evidence, by the aid of a free logic and of an enlightened acquaintance with the ordinary laws of sociology and physical science, then formal truth will coincide, so far as such coincidence is just and practical, with real truth. This end our Anglo-American legis- lation has for years been struggling to reach, seeking to throw off the restrictions of scholastic jurisprudence, — a jurisprudence which first, by subtle rules of pleading, compelled much that is 6 CHAP. I.] PRELIMINARY CONSIDERATIONS. [§ 6. material to be excluded from the issue, and then, when the issue was thus arbitrarily narrowed, shut out much evidence that was relevant, and attached to the evidence received certain arbitrary valuations which the courts were required to apply. These re- strictions, so far as they involve mutilating of issues by special pleading, have been now virtually abrogated by the rules of most of our courts, and, so far as concerns the excluding of all wit- nesses interested in a case, they have recently, both in England and in the United States, been removed by statute. So far as concerns the arbitrary valuation assigned to evidence when re- ceived, the scholastic subtleties were, with a single exception, not accepted in England. The exception to which I refer is the as- signment of various degrees of probative force to presumptions ; producing thereby an artificial system of formal as distinguished from real truth. This system is now in some of its branches destroyed by statute ; in others, as will hereafter be more fully shown, it is so modified by the courts as to leave of it little ex- cept a name. Supposing, as is assumed, the object of jurispru- dence, which these changes have in view, is to make formal truth the expression of real, then it may now be well maintained that this object has been in a great measure achieved. But the work has been done by processes which leave a large part of our earlier text-books without value, and which require the discussion of several important principles of which it was not necessary for those text-books to treat. The discussion of these principles, in connection with others which contribute to constitute the law as it really is, it is the object of the present work to undertake. § 6. The true logical process, in juridical as well as in his- torical reasoning, is imperfect induction, or analogy.^ Analogy " The inference of analogy is an inference from partic- logical* ulars or individuals to a coordinate particular or indi- ["^fcal" vidual. Its scheme is the following: — P™*^- 1 See this lucidly explained in He was bound and gagged; and the Ueherweg's Logic, Lindsay's trans- first and natural impression was that lation, § 131. he had been seized and tied by burg- On the evening of February 22, lars, while they plundered the bank. 1878, Mr. Barron, cashier of the sav- He died a few hours after he was dis- ings bank in the village of Dexter, covered. Some months after his death, Me., was found in an apparently dy- it was alleged that he was a defaulter ing state in the vault of the bank, to the bank; that his life was insured 7 §6.] THE LAW OF EVIDENCE. [book I. M. is P. S. is similar to M. S. is P. Or more definitely, since it also gives that in which the similar- ity consists, the following : — M. is P. M. is A. S. is A.- S. is P. " In so far as the logical connection between S. and P. is un- certain in Imperfect Induction or Analogy, the conclusion has only a problematic validity. If the reasons for its existence are of more weight than the reasons against, t^e conclusion has prob- ability (^prohahilitas). If an attempt be made to define more by him, so as to make his death a ben- that the condition Mr. Barron was in, when discovered, was that of a person who had taken opium. " But how do you know this V " " Because the symp- toms were the same as those observed in other cases of opium poisoning." Analogy is the process by which each of these conclusions is reached. It may be said that these are cases of what is called "circumstantial" proof. But is it different with what is called " direct" proof? A. says he saw B. shoot C. But does he not reach this conclusion also by analogy ? The Mid- Africans, whom Mr. Stanley tells us about in his "Dark Continent," argued when they saw a man fall af- ter being shot, that he fell struck by unseen lightning. They had known lightning kill men. They had never even seen rifles, and knew nothing of death produced by bullets. We know of numberless cases of death through efit to his family; that his death was really caused by opium, administered by himself; and that the gag and cords were arranged by his own hands so as to divert suspicion. I do not propose to offer any opinion as to the controversy which has thus arisen, and which has not yet been the sub- ject of judicial examination; and I use the case merely to illustrate the prin- ciples stated in the text. An expert, for instance, is called to sustain the burglar hypothesis. He swears that the facts indicate burglary. But why ? Because the gag was placed in a way burglars in other cases have inserted gags; and the cords were arranged in the way burglars in other cases ar- range cords ; and the scratches about the key-hole of the safe are such as have been made by experienced burg- lars attempting to force locks. The suicide hypothesis, as to the same in- bullets ; and when we hear the expfo- dications, is based on the assumption that burglars, under similar circum- stances, have not acted in the way de- scribed. A physician is called to sus- tain the suicide hypothesis, and swears 8 sion and see the flash, and find that a man falls within the range of the gun, we infer that he fell shot by the bul- let. But analogy is the basis of the reasoning in either case. CHAP. I.] PRELIMINARY CONSIDERATIONS. [§ 7. closely the different degrees intermediate between the complete certainty of the conclusion and the certainty of its contradictory opposite, the term probability is also used in a wider sense as the common name for the whole of these degrees. The degree of probability in this sense admits in certain cases of mathemat- ical determination, which may have not only probability but also certainty. When different analogies, some of which point to the conclusion and the others to its contradictory opposite, are in gen- eral alike applicable, the degree of probability may be repre- sented mathematically as a fraction, whose numerator is formed by the number of cases for, and its denominator by the number of cases compared. So far as the different analogies differ in the degree of the possibility of their finding application, a mathe- matical determination of the degree of probability is generally impossible. In this case a less exact valuation of the degree of probability may be arrived at, which can lay claim to probability only, not to certainty. This kind of valuation of the degree of probability is commonly called the philosophical, in opposition to the mathematical ; but more correctly the dynamic, in so far as it depends upon the relative consideration of the internal force of the causes for and against." ^ § 7. The fallacy which underlies the confusion of " demon- stration " with "proof" may require a more technical "proof" exposition. " Demonstration " is a conclusion drawn «nguifhed from a universal major premise, producing absolute cer- u°["njon. tainty ; " proof " is the conclusion drawn from a par- stration." ticular major premise, producing probable certainty .^ Thus we ^ Ueberweg'g System der Logik, certitude, each of which requires for Bonn, 1857, § 132. I have consulted its elucidation the proof of circum- Lindsay's translation in the above ren- stances. (1.) C, the witness, may dering. Mr. Lindsay refers to Mill's be misled, either by prejudice or by Logic, ii. p. 122, ff. ; De Morgan's defect in his perceptive powers; or his Formal Logic, or Calculus of Infer- narrative powers may be imperfect, ence, Necessary and Probable, pp. 170- (2.) A. 's identity, as identity is only 210; and Boole's Laws of Thought, an inference from circumstances, is pp. 243-399. open to doubt. (3.) "Killing " is only ' We may take as an illustration of an inference more or less strong. How what is spoken of as direct testimony do we know that a wpund that we saw the usual instance given of a state- inflicted, killed? Aside from the ment of C. that he saw A. kill B. question of the effect of the wound, Direct as this statement may be, it have not cases been known in which has in it four distinct elements of in- death from fright preceded a blow §7.] THE LAW OF EVIDENCE. [book I. say all A is B ; C is A, therefore C is B, Or, all islands are surrounded by water ; C is an island, therefore C is surrounded by water. The formula is thus illustrated : — which would otherwise have been fa- tal, or in which of two wounds aimed by different parties it was difficult to tell which took effect ? (4.) And then as to B. comes the question of identity. Have we not abundance of reported cases to show that identifica- tion of the dead is always disputable ? Here, then, as to this simple propo- sition, we have four factors, each open to doubt : the credibility of the wit- ness; and the non-demonstrability of, first, the subject; second, the predi- cate ; and third, the copula. Another important observation is to be made. While the unreal is ca- pable of demonstration, proof is the only mode by which we can become assured of the existence of the real. In proportion as we pass from the un- real to the real does demonstration give way to proof. " All A is B; C is A; therefore C is B," is demon- stration, because A, B, and C are terms expressing unrealities. As soon as these terms represent realities, the conclusion ceases to be certain and becomes only probable. " A straight line," we may sfiy, " is the shortest distance between the points it con- nects ; the railroad between Baltimore and Washington is a straight line: therefore it is the shortest distance 10 between the points it connects." All is well with our syllogism as long as we deal with imaginary properties. But the moment we assume any fact in our minor premise, — e. g. that the road between any two places is straight, — then our conclusion can only be approximately correct. See Princeton Keview, July, 1878, 158-9. " I conceive," says Mr. Jevons (Principles of Science, i. p. 224), " that it is impossible even to expound the principles and motives of induction as applied to natural phenomena in a sound manner without resting them on the theory of probability. Perfect knowledge alone can give certainty, and in nature perfect knowledge would be infinite knowledge, which is clearly beyond our capacities. We have, there- fore, to content ourselves with partial knowledge, — knowledge mingled with ignorance producing doubt." " I never can be quite sure that two colors are exactly alike, that two mag- nitudes are exactly equal, or that any two bodies, whatsoever, are identical even in their apparent relations. Al- most all our judgments involve quan- titative relations, and we can never attain exactness and certainty where continuous quantity enters In- ferences which we draw concerning CHAP. I.] PRELIMINARY CONSIDERATIONS. [§7. This is demonstration, and admits of no degrees of certainty, being necessarily true. On the other hand, " proof," in the sense in which the term is here used, is a conclusion drawn from a par- ticular major premise, and admits of various degrees of certainty, as will be illustrated by the following figures : — Supposing A represents those of the above circles drawn in dots, and B those drawn in continuous lines, then the major prem- ise, " some A is B," will enable us only to support a probable conclusion as to C, unless we know in what part of A, C happens to fall. In other words, we may say " some of the railroad in- vestments made before the panic of 1872 have proved worthless ; A. made certain investments in railroads prior to such panic ; therefore there is a probability that some of these investments made by A. have proved worthless." It is obvious that the conclusion is one admitting of various degrees of probability. Thus we may say " j^o o^ B is A ; C is B ; therefore it is 9 to 1 that C is A." ^ But in no case involving moral judgment are we able to exclude all possibility of the contrary ; in other words, in no cases involving moral judgment are we able to assert ab- solutely a universal affirmative or a universal negative.^ we declare such a thiog to be morally certain, because it has been confirmed by credible witnesses, this moral certi- tude is nothing else but a strong pre- natural objects are never certain ex- cept in a hypothetical point of view. .... Even the best established laws of physical science do not exclude false inference." Ibid. pp. 271 et seq. " Like remarks may be made con- cerning all other inductive inferences." Ibid, p. 274. ' See Ingram v. Flasket, 3 Blackf. 450; Crabtree v. Reed, 50 111. 206. ' " The phrase, ' moral certainty,' has been introduced into our jurispru- dence from the publicists and meta- physicians, and signifies only a very high degree of probability. It was observed by Pufendorf, that 'When sumption grounded on probable rea- sons, and which very seldom fails and deceives us.' Law of Nature and Nations (Eng. ed. 1749), book i. c. 2, § 11. ' Probable evidence,' says Bishop Butler, in the opening sentence of his Analogy, ' is essentially dis- tinguished from demonstrative by this, that it admits of degrees, and of all variety of them, from the highest moral certainty to the very lowest presumption.' 11 § 8.] THE LAW OF EVIDENCE. [BOOK I. § 8. A distinction is frequently made between direct and cir- Faiiacy of cumstantial evidence, and it is intimated that to the b'ettTen"" latter there is to be a higher degree of probability to be Ind™ dr- assigned than to the former.i It is difficult, however, cumsfan- to See how what is called " circumstantial," or " in- dence. direct," evidence differs in kind from " direct," how- ever great may be the difference in special instances as to the intensity of , the proof afforded. There is no testimony that is direct, if we mean by direct an immediate presentation of a fact observed. Mathematical demonstration might be called direct ; but mathematical demonstration is not evidence in the juridical sense. For juridical evidence is evidence of mutable phenomena through human agency addressed to a human tri- bunal ; and both as to the witnesses and the things to which they testify, credit is only given on probable grounds. This probability is both subjective, as to the witness, and objective as to the thing testified to ; in other words, in order to accept the truth of a statement of a witness that he saw a particular thing, not only must the witness be credible, but that which he testifies to must be credible. We may illustrate these points by Paley's famous argument for the truth of the testimony of the Apostles. He does not say, " All men speak the truth ; Matthew was a man ; therefore Matthew spoke the truth ; " but in view of the intrinsic improbability of some of the facts to which the Apostles testified, he appeals to a complex web of circumstances to show that the Apostles, uniting as they did in the main facts of their story, with only such circumstantial variety as is one of " Proof ' beyond a reasonable doubt ' before them, that the crime charged is not beyond all possible or imaginary has been committed by the defendant, doubt, but such proof as precludes and so satisfies them as to leave no every reasonable hypothesis except other reasonable conclusion possible." that which it tends to support. It is Gray, C. J., Commonwealth v. Cost- proof ' to a moral certainty,' as dis- ley, 118 Mass. 21. See, also, New- tinguished from an absolute certainty, man's Grammar of Assent (New York, As applied to a judicial trial for crime, 1870), 255 et seq. the two phrases are synynomous and i See Greenleaf's Ev. §§ 13 e« seq.; equivalent; each has been used by Taylor's Ev. §§ 56 «< sej.; Best's Ev. eminent judges to explain the other; § 25 ; Gates i>. Hughes, 44 Wis. 332; and each signifies such proof as sat- Silver Mining Co. v. Fall, 6 Nev. 115; isfies the judgment and consciences James v. State, 45 Miss. 572. See, of the jury, as reasonable men, and also, infra, § 509. applying their reason to the evidence 12 CHAP. I.J PRELIMINARY CONSIDERATIONS. [§8. the incidents of true historical narration, were from their history and character to be regarded as credible. Nor among the cir- cumstances upon which the probability of such testimony de- pends, must we omit to notice the way in which it is presented, which is one of its subjective features.^ \ * Mr. Greenleaf, when discussing the credibility of the Apostles (Green- leafs Test, of Evangelists, 38-41), has grouped, -with a completeness that leaves little to be added, the main in- cidents of this circumstantiality, with- out which the statements of the Apos- tles, however direct, would not have been probable. " Every event which actually transpires," he argues, " has its appropriate relation and place in the vast complication of circumstances of which the affairs of men consist; it owes its origin to the events which have preceded it, is intimately con- nected with all others which occur at the same time and place, and often with those of remote regions, and in its turn gives birth to numberless oth- ers which succeed. In all this almost inconceivable contexture and seeming discord there is perfect harmony; and while the fact, which really happened, tallies exactly with every other con- temporaneous incident related to it in the remotest degree, it is not possible for the wit of man to invent a story, which, if closely compared with the actual occurrences of the same time and 'place, may not be shown to be false. Hence it is, that a false wit- ness will not willingly detail any cir- cumstances, in which his testimony will be open to contradiction, nor multiply them where there is danger of his being detected by a comparison of them with other accounts, equally circumstantial. He will rather deal in general statements and broad as- sertions. And if he finds it neces- sary for his purpose to employ names and particular circumstances in his story, he will endeavor to invent such as shall be out of the reach of all op- posing proof; and will be the most for- ward and minute in details, where he knows that any danger of contradiction is least to be apprehended. There- fore it is, that variety and minuteness of detail are usually regarded as cer- tain tests of sincerity, if the story, in the circumstances related, is of a nat- ure capable of easy refutation if it were false. The difference in the de- tail of circumstances between artful or false witnesses and those who tes- tify the truth, is worthy of especial observation. The former are often copious and often profuse in their statements, as far as these may have been previously fabricated, and in re- lation to the principal matter; but beyond this all will be reserved and meagre, from the fear of detection. Every lawyer knows how lightly the evidence of a non-mi-ricordo witness is esteemed. The testimony of false witnesses will not be uniform in its texture, but will be unequal, unnat- ural, and inconsistent. On the con- trary, in the testimony of true wit- nesses there is a visible and strik- ing naturalness of manner, and an unaffected readiness and copiousness in the detail of circumstances, as well in one part of the narrative as an- other, and evidently without the least regard either to the facility or diffi- culty of verification or detection. It is easier therefore, to make out the proof of any fact, if proof it may be called, by suborning one or more false witnesses, to testify directly to the matter in question, than to procure 13 § 11.] THE LAW OF EVIDENCE. [BOOK I. § 9. Lady Tichborne's acknowledgment as her son of the claimant to the Tichborne estates may be taken as another il- lustration of the qualifying effect of circumstances on credibility viewing the same subjectively.^ If any testimony is to be re- garded as direct, that of a mother as to a child's identity must be so considered ; and we might, if we followed the old scholastic jurists, hold that among the most reasonable of their doctrines was that which declared that the recognition by a mother of a child was an irrebuttable presumption of the real existence of the relations. Yet Lord Chief Justice Cockburn's analysis of the influences acting on Lady Tichborne shows how unreliable, as a medium for the communication of fact, a mother, when testifying as to the identity of an alleged child, may become.^ § 10. When we turn from the subjective to the objective side of testimony, we find additional reason for the position just stated. Is there such a thing, we may first inquire, as an ob- ject without circumstances ? A witness, for instance, to resume the ordinary illustration, says, " I saw A. murder B." But with- out details, showing in what the murder consisted, this statement is not evidence, and if offered, would be rejected by the court, as constituting, not evidence of a fact, but a conclusion of law. To make a statement of such a killing admissible, the witness must detail the circumstances, and from these circumstances the jury must infer whether or no murder was committed. § 11. But aside from this general view, there is no such con- stancy in things human as to enable a conclusion from such con- ditions to be other than probable. Whether Roger Tichborne, for instance, had tattoo marks on his left arm was a question as to which two distinct groups of witnesses, each of whom had oppor- tunities of noticing his arm, were in express contradiction ; and whether twelve years would efface such marks, or whether they an equal number to testify falsely to es are false, because thereby the points such collateral and separate circum- are multiplied in which their state- stances as will, without greater dan- ments may be compared with each ger of detection, lead to the same other, as well as with the truth itself, false result. The increased number and in the same proportion is in- of witnesses to circumstances, and the creased the danger of variance and increased number of the circumstances inconsistency." themselves, all tend to increase the ' See infra, § 409. probability of detection if the witness- = Charge in Tichborne case I 611 14 ' ■ ■ CHAP. I.] PKELIMINAEY CONSIDERATIONS. [§ 11. could be effaced by any artificial process, were points as to which there was equal conflict of testimony. So as to blood-stains. Positive as are the assertions of scientific witnesses on each side -of the question whether dried blood-stains can be determined to be human, it is agreed that no conclusion on this issue has been as yet reached sufficient to sustain the verdict of a jury ; and it is also agreed that lapse of time gradually effaces in such blood- stains whatever differentia they may at first be supposed to pos- sess. So eminently is it the case with the human features. ^ The Tichborne trial, to which we may again refer, shows that as to questions of identity, after the lapse of twelve years, what is called "direct" testimony, — i. e. the testimony of A. that he had seen B. and C, and that they are one and the same person, — is inferior in weight to what is called " circumstantial," i, e. facts connected with B. and C. capable of supporting inferences as to such identity. In fine, if we should follow in this respect the Tichborne case, we might hold that " direct " evidence is only circumstantial evidence in a secondary state. T!klr. Hopkins, for instance, the family solicitor, holds the claimant to be Roger Tichborne, but on what. Chief Justice Cockburn well asks, does Mr. Hopkins base his opinion ? On similarity of appearance ? This is in any view no infallible test ; and after the lapse of a few years, owing to the treachery of memory and the changes of the human countenance and form, ceases to be entitled to much confidence. On the habits of the claimant ; on facts the wit- ness undertakes to remember with which Roger Tichborne was peculiarly familiar? These, however, are conclusions as to which it is the peculiar province of the jury to determine. The only question is whether they are to take such facts at first hand or second hand ; at first hand, as the independent materials for their own judgment ; or at second hand, as the materials from which Mr. Hopkins formed his judgment, colored, as they must neces- sarily have been, as he detailed them, by his attitude in the case. But even this distinction, plausible as it is, is illusory. The evi- dence of a witness to identification, under such circumstances, is, if it be of any value, as circumstantial as is the evidence of wit- nesses who never saw the party whose status is to be established, but who testify as to his handwriting, or any other conditions 1 See infra, § 410. 15 § ll.J THE LAW OF EVIDENCE. [BOOK I. peculiar to him. Mr. Hopkins' opinion, for instance, should he be called, is only valuable so far as it is sustainable by facta. In truth, should he appear to have had a bias in the matter, the efficiency of the facts, as transmitted by him, is impaired by his opinion. If he were a mere passive, opinionless transmitter of the facts, they would be of greater value than they would be if his prejudices tempted him to view them either in the one or the other light. We may take, as another illustration, the opinions as to the size of feet and hands, as given in the same remarkable trial. This opinion varied, so far as concerns Roger Tichborne, with the views of the witnesses as to the identity of the claimant with Roger. Opinions of such witnesses as to the size of Roger's feet, therefore, would be of very httle value. Of great value, however, would be the shoemaker's last, giving the size of Roger's shoes ; and of still greater value would be one of such shoes, as worn by Roger. Yet even here comes in the qualifying element arising from the infirmity of the subjective side of hu- man evidence. The shoe itself could not, if it were carefully preserved, tell a falsehood ; but a falsehood could be told, either intentionally or unintentionally, by the witnesses undertaking to identify it. Here, then, do we reach the true distinction on which to classify evidence in this relation. That which is muta- ble is a ground for a conclusion which rises in probability in in- verse proportion to such mutability. The opinions of witnesses are mutable ; the appearance of men is mutable ; instruments of evidence (e. g. scraps of writing, parchment deeds, inscriptions on stone) are more or less mutable ; even the face of nature is mutable, sometimes by convulsions through its own forces, some- times by the hand of man. The laws of nature, indeed (e. g, the recurrence of sunrising and sunsetting at fixed periods), we as- sume, for the purposes of justice, to be immutable ; and so, also, certain other facts are assumed, under the title of " fictions of law," as essential to a sound juridical policy. Oth^v primd facie presumptions we assume, under the title of presumptions of law, for the purpose of determining the burden of proof. But the scholastic distinction between " direct " and " circumstantial " evidence, with the consequent maxim that " direct " evidence has a greater probative force than "circumstantial," is based on a false analysis, and tends, in its operation, to the perversion of 16 CHAP. I.] PEELIMINAKY CONSIDERATIONS. [§11- justice. No such artificial test is philosophically possible ; to at- tempt to apply it is to resuscitate the absurdity of the scholastic distinction between whole-proof and half-proof, and to cause juries to find false verdicts under the lash of false law. The true test is, that all the evidence admitted in a case is to be weighed in the scales of logic. In other words, each piece of evidence, when in, is to have the weight attached to it by sound reason, unfettered by artificial rules. ^ 1 See The Slavers, 2 Wallace, 383; U. S. V. Martin, 2 McLean, 256 ; U. S.v. Cole, 5 McLean, 513; U. S. v, Douglass, 2 Blatch. 207; Findley v. State, 5 Blackf. 576; Sumner v. State, 5 Blackf. 579; McGregor v. State, 16 Ind. 9; McCann v. State, 21 Missis. 471; Simpson u. Barnard, 5 Fla. 528. Mr. EUey Finch, in a note to an essay On the Pursuit of Truth (Lon- don, 1873), p. 26, cites the following from Professor Amos : — ' ' From whatever cause, the fact in question cannot be itself approached; but the surrounding facts, past, con- temporaneous, or succeeding, may have been seen, heard, or felt, either by the investigator, or by somebody else, more or less likely to speak the truth about them. ' Circumstantial evidence ' is, then, the sort of evi- dence to a fact taking place which is supplied, not by anybody's having ob- served it take place, but by a number of other facts or circumstances having been observed which are held to fur- nish a legitimate ground for an infer- ence from them to the fact in ques- tion." A Systematic View of the Science of Jurisprudence, by Sheldon Amos, p. 333. To this is added the following from Mr. Wills: — " The distinct and specific proving power of circumstantial evidence de- pends upon its incompatibility with, and incapability of explanation upon, any reasonable hypothesis, other than VOL. I. 2 that of the truth of the principal fact in proof of which it is adduced Circumstantial evidence is inherently of a different and inferior nature from direct and positive testimony; but, nevertheless, such evidence is most fi'equently superior in proving power to the average strength of direct evi- dence." Wills on Circumstantial Evi- dence, pp. 274, 313. On these passages Mr. Finch thus comments: — "I cannot concur with Professor Amos in considering it a fallacy that circumstantial evidence may be in- trinsically and essentially of far higher positive value than direct evidence. It is, I conceive, sometimes of higher value, that is, more conclusive and convincing, for the reason he gives, viz. : ' The admitted truth, that among a large number of witnesses to isolated facts, of which facts the witnesses can- not appreciate the relevancy and im- port, there is less likelihood (or possi- bility, even) of conspiracy and perjury than where a small number of witness- es come prepared to tell an identical story about a limited number of direct facts obviously of the highest impor- tance.' Ubi supra. Every practical lawyer's experience will, I venture to think, confirm this. Where such sur- rounding facts are so compacted and adapted, each to the other, like the parts of an arch or a dome, as to mut- ually sustain each other and form a co- herent whole, they result in what Dr. 17 §13.] THE LAW OF EVIDENCE. [book I. Juridical value of hypothesis § 12. Such being the character of " proof," we are led to con- sider the value of hypothesis as a test for the discovery of evidential truth. We have before us, in every jurid- ical inquiry, a collection of facts beneath which the truth lies. Some of these facts are 'irrelevant ; others are forged, either unintentionally or intentionally. The case is to be winnowed from this refuse material, and the true import of what remains is to be discovered. A leading physicist. Professor Tyndall, in his Discourse on the Scientific Use of the Imagination,ihas shown how valuable is hypothesis in the extraction of scientific truth. It is of no less value in the extraction of juridical truth.^ § 13. Resorting again to the Tichborne case for illustrations, we may observe that the arguments for and against the claimant consisted, first, in the attempts, on the one side or the other, to Whewell terras the ' Consilience of Inductions.' Philosophy of the In- ductive Sciences, vol. ii. p. 65. In direct evidence ' the facts to which the witnesses testify are, as a rule, facts in which they are more or less interested, and which, in many cases, excite their strongest passions to the highest degree They know what the point at issue is, and how their evidence bears upon it, so that they can sliape it according to the effect which they wish to produce. .... And the facts which they have to observe, being in most instances portions of human conduct, are so in- tricate, that even with the best inten- tions on the part of the witness to speak the truth, he will generally be inaccurate, and almost always incom- plete in his account of what occurred.' The Indian Evidence Act, with an Introduction on the Principles of Ju- dicial Evidence, by James Fitzjames Stephen, Q. C, chap. ii. A State- ment of the Principles of Induction and Deduction, and a Comparison of their Application to Scientific and Judicial Inquiries, p. 29." 18 1 London, 1870. See particularly observations on pp. 16, 17. * " Hypothesis," to quote from an- other eminent thinker, " is the pre- liminary admission of an uncertain premise, which states what is held to be a cause, in order to test it by its consequences. Every single conse- quence which has no material truth, and has been derived with formal cor- rectness, proves the falsehood of the hypothesis. Every consequence which has material truth does not prove the truth of the hypothesis, but vindicates for it a growing probability, which, in cases of corroboration, without excep- tion, approaches to a position where the difference from complete certainty vanishes (like the hyperbola of the Asymptotes). The hypothesis is the more improbable in proportion as it must be propped up by artificial aux- iliary hypothesis (hypotheses subsidi- ariae). It gains in probability by sim- plicity, and harmony or (partial) iden- tity with other probable or certain presuppositions {Simplex veri sigillum ; causae praeter necessitatem non sunt multiplicandae)." Ueberweg's Logic (Lindsay's translation), § 134. CHAP. I.J PRELIMINARY CONSIDERATIONS. [§ 14. relieve the case of that which the party attempting the task con- sidered irrelevant or untrue, and then to fit to what remained, on the one side, the hypothesis of the claimant's identity, on the other side, the hypothesis' of his non-identity, with Roger Tichborne.^ § 14. When the issae involves, not a single question of iden- tity, as did the Tichborne case, but a question of unknown au- thorship, then the uses of hypotheses are still more striking. Who, for instance, was the author of Junius ? On the one side, we have a group of settled facts, — concealment ; idiosyncrasies of style, of information, of handwriting ; political partialities ; duration of correspondence ; presence in London at particular periods. On the other side, we have half a dozen claimants, on whom these facts are to be successively tried, to see if they fit. We have a similar duty in cases when an injury is inflicted, imputable to one of several supposed causes, our inquiry then being which of these agencies produced the result. A man, for instance, is found bruised and stunned by a railway track. Was it his own negligence that worked the injury ? Was it the neg- ligence of those operating the railroad ? Was it the malice of some third person who wished to hurt, and took this way of con- cealing his tracks ? Or a life insurance company is sued, and the evidence shows that a charred body, resembling that of the insured, was found in the smouldering ruins of a workshop in Baltimore. A good deal of evidence goes to show design in the burning ; a good deal to show traces of a person, claimed to be the supposed deceased, wandering in other places, after the fire ; other evidence gives ground to infer that he was afterwards act- ually murdered, near West Chester, Pennsylvania, by one of those concerned in insuring his life, in order to get him out of the way .2 To such a case as the last we have the following sev- eral hypotheses to be successively applied : — ^ 1. That the body found in the burned workshop was that of the insured, and that he met his death through casus. 2. That it was his body, but that his death was voluntary on his part, he intending to defraud the insurers for the benefit of his family. 1 See Charge, &c., II. 794. of Com. v. Udderzook, in the Appen- " See this case, in one of its final dix to Whart. on Horn. 2d ed. conditions, reported under the name 19 § 15.] THE LAW OF EVIDENCE. [BOOK I. 3. That it was not his body, and that at the time of the suit he was still alive. 4. That the body was not his, but that before suit brought he was dead, the murdered body found near West Chester being his. The proof in such a ease consists in showing the applicability of one of these hypotheses to the facts. The facts are meaning- less unless they fit to an hypothesis. Juridical conviction may be therefore defined to be the fitting of facts to hypothesis. If, in criminal issues, there is reasonable doubt whether the facts fit the hypothesis of guilt, then there must be an acquittal. In civil issues, when there are conflicting hypotheses, the judgment must be for that for which there is a preponderance of proof. § 15. It will hereafter ^ be seen that ordinarily the opinion of a witness, not an expert, cannot be asked as to a par- not be ab- ticular condition. At the same time it must be remem- dftached bered that, as we have just seen, opinion, so far as it from opin- represents an induction from certain given facts, can in few cases be excluded, because there are few statements of feats which are not inductions. The statement, for instance, already adverted to, " I saw A. shoot B.," is an induction ; the witness not seeing the ball strike B., but inferring that it did from the report of the pistol and the wound. We may take an- other illustration from a ruling in 1871 of the New York Court of Appeals, — a court peculiarly rigorous in applying the distinc- tion between opinion and fact. The plaintiff was injured by a railway collision, and having sued the railway company, her attendant was asked on the trial whether she was able to help herself, and whether she needed assistance. Answers to these questions required the expression of the witness's opinions, and nothing else. The plaintiff's inability was a conclusion drawn by the witness from the plaintiff's conduct. But the witness's answer, that the plaintiff was not able to help herself, was held admissible, for the reason that the conclusion was one which was in itself an abbreviation of the facts.'' Opinions, therefore, which are abbreviations of the facts, are admissible, when the facts, though not expressed, are implied.^ 1 Infra, § 509. » See fully intra, §§ 509-10. 2 Sloan w.R. R. 45 N. Y. 125. 20 CHAPTER II. RELEVANCY Relevancy is that which conduces to the proof of a pertinent hypothesis, § 20. Whatever so conduces is relevant, § 21. Process one of logic, applicable to all kinds of investigation, § 22. So in questions of identity, § 24. Mr. Stephen's theorj' of relevancy, § 25. Criticism of this theory, § 26. Conditions of an hypothesis, whose proof is relevant, may be prior, contemporaneous, or subsequent, § 27. Non-existence of such conditions is also rel- evant, § 28. Collateral disconnected acts generally irrel- evant, § 29. Scienter may be proved inductively by col- lateral facts, § 30. So may intent in trespass, § 31. So in libels and slander, § 32. So in fraud, § 33. So in adultery, § 34. So may good faith, § 35. So may prudence and wisdom, § 36. So in questions of identity and alibi, § 37. System may be proved to rebut hypothesis of accident or casus, § 38. From one part similar qualities of another part may be inferred, § 39. So in questions of negligence, § 40. Evidence of prior firings admissible against railroad for negligent firing, § 42. When system is proved, conditions of other members of the same system may be proved, § 44. Ownership may be inferred from system, §45. Character not relevant in civil issue, § 47. When character is at issue, general reputa- tion can be proved, § 48. Character is convertible with reputation, §49. Character may be proved to increase or mitigate damages, § SO. In suits for seduction, bad character of plaintiff may be shown, § 51. So in suits for breach of promise, § 52. So in suits for slander or libel, § 53. So in suits for malicious prosecution, § 54. Burden is on the party assailing character, §55. Particular facts cannot be put in evidence, §56. Usage of other specialists admissible in suits for negligence, § 57. § 20. Relevancy is that which conduces to the proof of a per- tinent hypothesis ; ^ a pertinent hypothesis being one Eeievancy which, if sustained, would logically influence the issue, conduces A will, for instance, is contested, and several hypoth- ^''pertjne'nt eses are presented, on any one of which, if proved, the hypothesis. instrument would be invalid. The signature, for instance, may have been forged, or the testator insane, or he may have been fraudulently induced to execute a paper different from that which he had in view. To each of these hypotheses a series of counter 1 See as to hypothesis, supra, § 12. 21 § 21.] THE LAW OF KVIDENCE. [BOOK I. hypotheses is conceivable. If the hypothesis set up for the de- fence is forgery, then all facts which are conditions of forgery are relevant. A party, for instalnce, sued on a bill, sets up forg- ery ; to meet this hypothesis, it is admissible for the plaintiff to prove that the defendant,'at the time of the making of the bill, was trying to borrow money .^ If the hypothesis set up for the defence is fraud, then all facts which are conditions of fraud are relevant. Or, to take another illustration : a prairie is fired, it is said, by a passing locomotive ; the hypothesis of the plain- tiff is that the firing was by negligence, and for the plaintiff all the conditions of negligence are relevant. The defence sets up flOiSMS, or contributory negligence ; and then, on the part of the defence, it is relevant to prove the conditions of either of the latter hypotheses. § 21. Hence it is relevant to put in evidence any circumstance Whatever which tends to make the proposition at issue either more duc™is °^ ^^S3 improbable. Nor is it necessary at once to offer relevant. ^\[ ^^\^q circumstances necessary to prove such proposi- tion. The party seeking to prove or disprove the proposition may proceed step by step, offering link by link. Whatever is a condition, either of the existence or of the non-existence of a relevant hypothesis, may be thus shown.^ But no circumstance 1 Stevenson u. Stewart, 11 Penn. Mass. 521; Willis v. Hulbert, 117 St. 307. Mass. 151; Com. v. Sturtivant, 117 . " E. V. Pearce, Pea. K. 75; E.. v. Mass. 122; Com. v. Costley, 118 Egerton, R. & R. 375, cited by Hoi- Mass. 1; Paine v. Farr, 118 Mass. 74; royd, J., in R. v. Ellis, 6 B. & C. 148; Hill v. Crompton, 119 Mass. 376 ; R. V. Briggs, 2 M. & Rob. 199, per Furnas w. Durgin, 119 Mass. 500; Mar- Alderson, B.; R. v. Rooney, 7 C. & tinu. Tobin, 123 Mass, 85; Blanchard P. 517; R. V. Fursey, 6 C. & P. 81 ; v. N. J. S. 59 N. Y. 292; People !•. M. of Anglesey v. Ld. Hatherton, 10 Horton, 64 N. Y. 610; Reed v. Deck- M. &W. 235, per Ld. Abinger; Fur- er, 66 N. Y. 182; Millet i». Barker, neaux v. Hutchins, 2 Cowp. 807; Doe 66 N. Y. 559; Wrintringham v. Dib- V. Sissou, 12 East, 62 ; Schuchardt ti. ble, 66 N. Y. 634; Yates v. People, 67 Aliens, 1 Wall. 359; Butler v. Wat- N. Y. 100; Wood i-. R. R. 70 N. Y. kins, 13 Wall. 457; Deitsch v. Wig- 195; Hickler v. Leighton, 70 N. Y. gins, 15 Wall. 540; Wiggin v. Scam- 610; Haughey v. Stricklor, 2 Watts mon, 27 N. H. 360; Hovey v. Grant, & S. 411; Pratt v. Richards, 69 Penn. 52 N. H. 569; Bedell v. Fobs, 50 Vt. St. 53; Thompson v. Stevens, 71 Penn. 94 ; Raynes v. Bennett, 114 Mass. St. 161 ; Arnold v. Bank, 71 Penn. St. '424; Fitzgerald v. Pendergast, 114 287; Confer ». McNeal, 74 Penn. St. Mass. 368; Com. v. Dowdican, 114 112; Forks Town u. King, 84 Penn. Mass. 257; Huntsman v. Nichols, 116 St. 246; Brooke u. Winters, 39 Md. 22 CHAP. II.] KELEVANCY. [§22. is relevant which does not make more or less probable the prop- osition at issue.^ § 22. What has been said applies to all lines of investigation of truth. "What we at present call the cuneiform „ i roc6S9 is inscriptions of Cyrus, Darius, Xerxes, Artaxerxes I., 'og'cal, Darius II., Artaxerxes Mnemon, Artaxerxes Ochus (of cable to ail which we now have several editions, translations, gram- vesdga-'"' mars, and dictionaries), — what were they originally ? ''°''' A mere conglomerate of wedges, engraved or impressed on the solitary monument of Cyrus in the Murghd,b, on the ruins of Persepolis, on the rocks of Behistun near the frontiers of Media, 419; St. Louis R. R. v. Thomes, 85 111. 464; Sevarcool v. Farwell, 17 Mich. 308; Nason p. Woodward, 16 Iowa, 216; Jeff. R. R. i'. Esterle, 13 Bush, 667; Bryant v. Ingraham, 16 Ala. 116. " We agree with the defendant's counsel that, as a general rule, no evi- dence should be admitted till the court can see that it is admissible. Where, howerer, the admissibility of evidence depends upon several facts, to some extent independent of each other, and where each fact must be proved to complete the chain of evidence, the exercise of a, sound judicial discre- tion does not require the court, uni- formly, to interfere in the order of the testimony. A beginning must he made somewhere ; and when, as in the present case, the court is satisfied that the party is acting in good faith, and intends fairly to supply each particu- lar link till the chain of testimony is perfect, the evidence, as offered, may come in, subject to objection, to be stricken out and go for nothing if the necessary connecting portion be not supplied." Foster, J., Moppin V. Mtna, Axle & Spring Co. 41 Conn. 34. In Insurance Co. v. Delpeuch, 82 Penn. St. 225, several illustrations will be found of the distinction in the text. 23 805; Donahue v. Shedrick, 46 Md. 226 ; Flickner v. Wagner, 46 Md. 580;' Comstock V. Smith, 20 Mich. 838 ; Welch V. Ware, 32 Mich. 77; Mar- quette R. R. V. Langton, 32 Mich. 251 ; Barden v. Briscoe, 36 Mich. 254; Comstock V. Norton, 36 Mich. 277 ; Stroh V. Hickman, 37 Mich. 490; Willoughby v. Dewey, 54 111. 266 ; Hough V. Cook, 69 111. 581; Smalley i;. Smalley, 81 111. 700; Hancock v. Wilson, 39 Iowa, 47 ; Mann v. R. R. 46 Iowa, 637; Smyth v. Ward, 46 Iowa, 339; Johnson v. Filkington, 39 Wis. 62; O'Dell r. Rogers, 44 Wis. 136; Baker v. Lyman, 53 Ga. 339; Selma V. Keith, 53 Ga. 178; Rucker v. Man. Co. 54 Ga. 84 ; Ashley v Martin, 50 Ala. 537. ' Ibid. ; infra, § 29 ; Carter v. Pryke, Pea. R. 95 ; Backhouse v. Jones, 6 Bing. N. C. 65; S. C. 8 Scott, 148; Hollingham v. Head, 4 C. B. (N. S.) 388 ; Rew v. Hutohins, 10 C. B. (N. S.) 829; Howard v. Sheward, L. R. 2 C. P. 148 ; Lucas v. Brooks, 18 Wall. 436; Sherman v. Trans. Co. 31 Vt. 162; Moore v. Harvey, 50 Vt. 297; Martin v. Tobin, 123 Mass. 85; King V. Colvin, 11 R. L 582; Van Buren v. Wells, 19 Wend. 203 ; Car- penter V. Tr. Co. 71 N. Y. 574; Carey V. Bright, 58 Penn. St. 70 ; Cunning- ham V. Williamsport, 84 Penn. St. 472; Borden Co. v. Barry, 17 Md. § 23. J THE LAW OF EVIDENCE. [BOOK I. and the precipice of Van in Armenia. When Grotefend at- tempted to decipher them, he had first to prove that these scrolls were really inscriptions, and not mere arabesques or fanciful ornaments. He had then to find out whether these magical char- acters were to be read horizontally or perpendicularly, from right to left, or from left to right. Lichtenberg maintained that they must be read in the same direction as Hebrew. Grotefend, in 1802, proved that the letters followed each other, as in Greek, from left to right ; even before Grotefend, Miinter and Tychsen had observed that there was a sign to separate the words. Such a sign is of course an immense help in all attempts at decipher- ing inscriptions, for it lays bare at once the terminations of hun- dreds of words, and, in an Aryan language, supplies us with the skeleton of its grammar. Yet consider the diflBculties that had still to be overcome before a single line could be read. It was unknown in what language these inscriptions were composed ; it might have been a Semitic, a Turanian, or an Aryan language. It was unknown to what period they belonged, and whether they commemorated the conquests of Cyrus, Darius, Alexander, or Sapor. It was unknown whether the alphabet used was pho- netic, syllabic, or ideographic. It would detain us too long were I to relate how all these difficulties were removed one after the other ; how the proper names of Darius, Xerxes, Hystaspes, and of their god Ormuzd, were traced ; how from them the values of certain letters were determined ; how with an imperfect alphabet other words were deciphered which clearly established the fact that the language of these inscriptions was ancient Persian ; how then, with the help of the Zend, which represents the Persian language previous to Darius, and with the help of the later Per- sian, a most effective cross-fire was opened ; how even more pow- erful ordnance was brought up from the arsenal of the ancient Sanskrit ; how outpost after outpost was driven in, a practical breach effected, till at last the fortress had to surrender and sub- mit to the terms dictated by the Science of Language." ^ § 23. A similar series of progressive tests is applied in order to exhibit the meaning of any controverted writing.^ A memo- 1 Muller's Lectures on Language, genuineness of the casket letters in 6th ed. vol. ii. Leot. I. the 7th volume o£ his History o£ Eng- ' See Froude's discussion of the land. 24 CHAP. II.J RELEVANCY. [§ 23. randum, for instance, in a foreign language, is put in evidence, for the purpose of proving a debt. The plaintifE sets up, first, that the instrument is, we may say, in German ; secondly, that certain phrases in it have, by the custom of trade, a meaning different from that they bear in ordinary use. Here are two hypotheses successively presented in order to get at the meaning of the instrument ; and whatever goes to prove either of these hypotheses is relevant. The number of the hypotheses increases with the complication of the case. If, for instance. Sir Philip Francis's title to the authorship of Junius is under investigation, we have a series of concentric hypotheses, each of which is per- tinent, and the innermost of which closely surrounds the point of identity. It is pertinent to argue, that the author of Junius, during the Chatham and Grafton ministries, was familiar with English public life ; that he possessed a practised pen ; that he was cognizant of the traditions of the war-office ; that his ani- mosity to Lord Mansfield and his attachment to Lord Chatham were strong ; that he had cogent motives for con cealment both at the particular period and for years afterwards ; that he ceased to write about 1773 ; that his handwriting had certain marked peculiarities. Each of these hypotheses being pertinent, it is relevant to prove that Sir Philip Francis was, during the period when the Junius letters appeared, familiar with English public life ; that his style was polished, vigorous, and not unlike that of Junius ; that he had been for some time a clerk in the war- office ; that his political relations repelled him from Lord Mans- field and connected him with Lord Chatham ; that to him dis- covery would be political ruin ; that about the time the Junius letters closed he left the country ; that his handwriting was strik- ingly similar to that of Junius. ^ 1 " This is in accordance with the construe the deed so as to give effect general rule in such cases, that proof to that intention when they can find is admissible of every material fact enough in the description, after reject- that will help to identify the person ing all the particulars in which it is or thing intended, and which will ena- false or mistaken, to identify the land." ble the court to put themselves as near Lane v. Thompson, 43 N. H. 320; and as may be in the situation of the par- see Shore v. Wilson, 5 Scott's N. R. ties to the deed; and then when the 958 ; Tenney v. East Warren Lumber court, by the aid of all these facts, can Co. 43 N. H. 343 ; Goodhue v. Clark, ascertain the intention of the parties, 37 N. H. 526 ; Emerson v. White, and especially of the grantor, they will 29 N. II. 482, 498; Webster v. At- 26 § 24. J THE LAW OF EVIDENCE. [BOOK I. § 24. In questions of identity we have abundant illustrations of the principles just announced. Thus in an action of tionsof"^' trover for the conversion of a heifer, which both par- identity. ^.^^ claimed to have raised, where there are conflicting hypotheses of identity, it is relevant to ask a witness who has tes- tified to having been among the plaintiff's herd of cattle for two or three years as to their tameness, as to their habits, and even as to their most general characteristics.^ So, recurring to a more conspicuous il lustration, to take the Tichborne case, we have both on the part of the plaintiff and of the defendant a succession of pertinent concentric hypotheses, the conditions of any one of which it was relevant to prove. On the part of the plaintiff, for instance, the hypothesis was that the legal owner of the Tichborne estates was Roger Tichborne, who was educated in France, who returned when a young man to England for a few years, which he spent carelessly if not dissolutely ; that he quar- relled with his father and mother, and sailed on a voyage of ad- venture to the new world ; that he was wrecked in South Amer- ica, and then found his way to Australia ; that in Australia he was employed as a butcher, under the name of Castro, was married, and acquired a home ; that upon the death of his father and uncle, he concluded to return to England ; that he was the plaintiff in the ejectment case on trial. On the part of the de- fence the hypothesis was that the defendant was Arthur Orton, a boy trained in a Wapping butcher's store, who led a vagrant life in South America and Australia for years, and then, when settled in Australia, having seen in the London Illustrated News a sketch of the wanderings and of the leading characteristics of the lost heir to the Tichborne estates, undertook to personate that long-sought individual, and was, by force of such persona- tion, the plaintiff in court. Here, on the part of both plaintiff and defendant, there was a succession of pertinent hypotheses, the conditions of which it was relevant to prove. No matter how slight may be the inference of identity to be drawn from any single fact, it is admissible as a fragment of the material from kinson, 4 N. H. 21; BuUen v. Run- v. Mitchell, 31 N. H. 582; Swain v. nels, 2 N. H. 258 ; Cocheco Man'f. Co. Saltmarsh, 54 N. H. 16. V. Whittier, 10 N. H. 305; Ricliard- i De Armond ». Neasmith, 32 Mich- son V. Palmer, 38 N. H. 212 ; Harvey 231. 26 CHAP. II.J RELEVANCY. [§ 25. which the induction is to be made. One hundred thousand per- sons may be in a city at the time when in that city a particular act is done ; yet proving A. to have been in the city at the time makes a point against him, which is by itself only as one against one hundred thousand, but is nevertheless relevant. Multitudes of persons having to work with kerosene have kerosene stains on their clothes ; yet, when on the trial of a person charged with burning a house the hypothesis of the prosecution is that an ac- complice of the defendant fired the building by means of a can of kerosene oil furnished for the purpose for the defendant, it is relevant for the prosecution to prove that the shirt of the al- leged accomplice had on it at the time of the firing kerosene stains.^ § 25. Sir J, Stephen, to whose energy and eloquence the cause of law reform is under great indebtedness, has Mr. ste- given a theory of relevancy differing in several minor ^ry "f^re'ie- points from that which is here expressed. According vancy. to Sir J. Stephen,^ " Evidence may be given in any action of the existence or non-existence of any fact in issue, and of any fact relevant to any fact in issue, and of no others Facts, which, though not in issue, are so connected with a fact in issue as to form part of the same transaction or subject matter, are relevant to the fact with which they are so connected Facts, whether in issue or not, are relevant to each other, when one is, or probably may be, or probably may have been, — " The cause of the other ; " The effect of the other ; " An effect of the same cause ; " A cause of the same effect ; or when the one shows that the other must or cannot have oc- curred, or probably does or did exist, or not ; or that any fact does or did exist, or not, which in the common course of events would either have caused or have been caused by the other ; pro- vided that such facts do not fall within the exclusive rules " be- fore stated, " or the exceptions " afterward stated. These exclusions and exceptions are afterwards thus specified : " Similar hut unconnected facts. The occurrence of a fact simi- 1 State V. Kingsbury, 58 Me. 239. " Digest of the Law of Evidence, London, 1876, pp. 4 et seq. 27 § 26.] THE LAW OF EVIDKNCE. [BOOK I. lar to, but not specifically connected in any of the ways herein- before mentioned with the facts in issue, is not to be regarded as relevant to the existence of such facts except in the cases spe- cially excepted in this chapter." The exceptions are, — Acts showing intention, good faith, &c. ; Facts showing system ; Existence of a particular course of business ; Acts showing that a particular person assumed to be a pub- lic officer.^ § 26. While adopting, as will hereafter be seen, several of Sir J. Stephen's positions, there are two criticisms I offer of the as explaining why I cannot accept his scheme as afford- ing a complete solution of the difficulties which beset this branch of evidence. In the first place, the words " cause " and " effect " are open, when used in this connection, to an objection which, though subtle, is in some cases fatal. . The " cause " of a fact in issue, it is alleged, is relevant ; yet whether such a cause produced such a fact is the question the action is often instituted to try ; and it is a petitio principii to say that the " cause " is relevant because it is the " cause," and that it is shown to be the cause because it is relevant. In the second place, the distinction between " facts in issue " and " facts rele- vant to facts in issue " cannot be sustained. An issue is never raised as to an evidential fact ; the only issues the law knows are those which affirm or deny conclusions from one or more evi- dential facts. This is shown by Sir J. Stephen's own illustra- tion : " A.," he says, when explaining the supposed distinction, " is indicted for the murder of B., and pleads not guilty. The following facts may be in issue : the fact that A. killed B. ; the fact that at a time when A. killed B. he was prevented by dis- ease from knowing right from wrong ; the fact that A. had re- ceived from B. such provocation as would reduce his offence to manslaughter. The following facts would be relevant to the issue : the fact that A. had a motive for murdering B. ; the fact that A. admitted that he had murdered B. ; the fact that A. was, after B.'s death, in possession of property taken from B.'s 1 In the Southern Law Review for the same volume will be found a re- 18771 have discussed Sir J. Stephen's ply by Sir J. Stephen to my criticism, rules of relevancy at some length. In See 3 South. L. R. N. S. 93, 567. 28 CHAP. II.] RELEVANCY. [§ 26. person." If we scrutinize the group of facts classified in the last quotation as " facts in issue," we will find that as they are facts which could not be put in evidence, they are not relevant facts, though they might be relevant hypotheses to be sustained by relevant facts. If counsel should ask a witness whether " A. killed B.," the question would, if excepted to, be ruled out, on the ground that it called, not for " facts," but for a conclusion from facts, and to such conclusions witnesses are not permitted to testify.! Equally summarily would be dismissed the questions whether " A. knew right from wrong," and whether " A. had re- ceived from B. such provocation as would reduce his offence to manslaughter." The only way of proving either of these " facts in issue," as they are called by Sir J. Stephen, is by means of what he calls " facts relevant to the issue." Did A. kill B. ? We cannot say that it would be relevant to the issue for a witness to say, " A. killed B.," for a witness would not be permitted so to testify. No facts are relevant which are inadmissible ; and the fact that A. killed B., being in this shape inadmissible, is irrele- vant. It is, however, admissible, adopting Sir J. Stephen's il- lustration of facts relevant to the issue, to prove that " A. had a motive for murdering B.; the fact that A. admitted that he had murdered B. ; the fact that A. was, after B.'s death, in posses- sion of property taken from B.'s person." From such facts, taken in connection with facts which lead to the conclusion that A. struck the blow from which B. died, the hypothesis that A. murdered B. is to be verified or discarded. The same line of ob- servations is applicable to the second and third of the " facts in issue " mentioned by Sir J. Stephen. The proof of A.'s inabil- ity to distinguish right from wrong, and of the extenuation of his offence through hot blood, can ouly be made by proving " facts relevant to the issue " from which irresponsibility or hot blood can be inferred. We must therefore strike out from the category of relevant facts what Sir J. Stephen calls '* facts in issue," or what may be more properly called pertinent hypothe- ses, and limit ourselves to the position that all facts relevant to " facts in issue " (or to pertinent hypotheses) are, as a rule, ad- missible. If we discard, as ambiguous, the word " fact," and substitute for it, as has previously been done, the word " condi- 1 See infra, § 507. 29 § 28.] THE LAW OF EVIDENCE. [BOOK I. tion " (corresponding to the logical " differentia " or incident), then the position we may accept is that all conditions of a perti- nent hypothesis are relevant to the issue ; and that such condi- tions may be either proved or disproved. § 27. Conditions, the presence or absence of which may be Conditions thus proved, may be regarded as either prior, contem- "riOT^n- poraneous, or subsequent. A debt, for instance, for temporane- goods sold, as is Contended, is sued for. Among the ous, orsub- o ' _ _ C7 sequent. prior Conditions of the hypothesis (or contention) of indebtedness may be mentioned the possession, by the plaintiff, of the goods. As contemporaneous conditions are to be classed what we call the res gestae, or circumstances of the sale. Among the subsequent conditions is the conduct of the debtor, more or less effectively admitting the debt. Or damages are claimed in a suit for injuring cattle by running them down on a railroad. Among the prior conditions of the liability are the unfenced con- dition of the road and the running of the locomotive at full speed over the unfenced sections. Among the contemporaneous condi- tions are the res gestae. Among the subsequent conditions are the admissions of parties entitled to speak for the railroad com- pany. ^ In other cases we may regard as relevant conditions a party's subsequent conduct showing good faith ; ^ the subornation of witnesses to give a false account of a past transaction ; ^ sub- sequent acts of adultery to prove a prior act of adultery ; * sub- sequent defamatory words to prove the animus of prior defama- tion.^ § 28. In the same way that the existence of the conditions of Non-exi3t- ^ pertinent hypothesis are provable, so also are the ence of non-existence of such conditions provable, whether thev suolicondi- , • , , ■' tions also be prior, contemporaneous, or subsequent.® Thus, when relevant. ^j^g, hypothesis of the plaintiff is that the defendant's engines were ill-constructed; that at the time of the alleged firing they profusely emitted sparks ; that the fire, by the ordi- nary and natural progress, consumed the plaintiff's house, it is 1 See infra, § 1173. R. 607; 5 M. & Gr. 700; Warwick 2 Gerish o. Cliartier, 1 C. B. 13. t,. Foulkes, 12 M. & W. 507; Simp- » Melhuisli u. Collier, 15 Q. B. 878. son v. Robinson, 12 Q. B. 511.' < Boddy V. Boddy, 30 L. J. Pr. & e Seg sheen v. Bumpstead, 2 H. Mat. 23. & C. 193; Gerish v. Cliartier, 1 C. ' Pearson t. Le Maitre, 6 Scott N. B. 13. 30 CHAP. II.J RELEVANCY. [§ 29. relevant for the defendant to prove the absence of conditions which vrould be the probable if not necessary conditions of such hypothesis. So, the defendant may show that his engines were so constructed as to make the profuse emission of fire highly improbable ; that the coals that escaped fell on the bed of the road, on which there was no accumulation of combustible mate- rial; and that the fire by which the plaintiff was injured was traceable to the negligence of other parties. Or, when the hy- pothesis of the plaintiff is that when A. and B. perished in the same ship at sea, A. survived B., it is admissible for the plaintiff to show that before the shipwreck A. was stronger than B. ; that at the time of the shipwreck A. was in a better place for the prolongation of life than B. ; and that after the shipwreck there were traces of A. having escaped the common and immedi- ate death of those remaining in the ship.^ Or, alibi being the hypothesis set up by the defence, it is admissible to prove even independent crimes committed by the defendant if such proof refutes or confirms the hypothesis of alibi? § 29. As a general rule, it is inadmissible, when the issue is whether A. did a particular thing, to put in evidence collateral the fact that he did a similar thing at some other nected" time.^ The reasons why this rule should be maintained ^*°[j ?^°^"[ are obvious. To admit evidence of such collateral evant. acts would be to oppress the party implicated by trying him on a case as to which he has no notice to prepare, and sometimes by prejudicing the jury against him by publishing offences of which, even if guilty, he may have long since repented, or which may have long since been condoned. Ti-ials would by this proc- ess be injuriously prolonged, the real issue obscured, and ver- dicts taken on side issues.* To sustain the introduction of such collateral facts, they must be in some way capable, as will pres- 1 See infra, § 1280. 3 Cush. 243; Goodrich v. Wilson, 119 2 R. V. Briggs, 2 M. & Rob. 199; Mass. 429; Martin v Tobin, 123 Mass. R. V. Booney, 7 C. & P. 517. 85; Williams v. Fitch, 18 N. Y. 546; ' See Vason v. Beall, 58 Ga. 500. Mailler v. Propeller Co. 61 N. Y. 312; ♦ Griffiths U.Payne, 11 A. &E. 131; Cole u. Com. 5 Grat. 696; Campbell Thompson v. Mosely, 5 C. & P. 502; v. R. R. 45 Iowa, 76; Williams v. R. V. Mobbs, 6 Cox C. C. 223 ; State State, 45 Ala. 67, and cases cited V. Whittier, 8 Shepl. 341 ; State v. La- supra, § 21. page, 57 N. H. 245; Com. v. Miller, 31 § 30.] THE LAW OF EVIDENCE. [BOOK I. ently be seen more fully, of being brought into a common sys- tem with that under trial. Thus, in an action against the ac- ceptor of a bill by an indorsee, the defence being forgery, it was held irrelevant to introduce proof that a collection of bills, on which the defendant's name had been forged, had been in the plaintiff's possession, and that some of them had been circulated by him, the reason given being that there was no distinct proof that the bill in question had ever formed part of that collection.^ So the fact that a party draws his notes generally in a particular way is not evidence to prove that he drew a specific note in such a way.^ § 30. Knowledge, however, must usually be proved inductively SdenUr from facts by which notice to the party can be in- proved^in- ferred ; and hence, within well ascertained limits, evi- ductiveiy dence of overt acts, of the same class as that under by collat- .... eral facts, investigation, is admissible for the purpose of proving scienter or intent, or of negativing accident. A party, for in- stance, is charged with holding or circulating forged paper, or other documents, as to which it is important to prove his scien- ter. One of such papers he may hold without being justly chargeable with knowledge of its character ; when three or four are traced to him, suspicion thickens; if fifteen or twenty are shown to have been in his possession at different times, then the improbability of innocence on his part in this relation is in pro- portion to the improbability that the papers could have found themselves in his possession without his knowing their true char- acter.^ The evidence of scienter is of course much strengthened by proof that the party had notice, on a prior occasion, that sus- 1 Griffiths V. Payne, 11 A. & E. » R. u. Fuller, R. & R. 808; R. v. 131. See Thompson v. Mosely, 5 C. Harris, 7 C. & P. 429; R. v. Roebuck, & P. 502. In Griffiths v. Payne, it 36 Eng. Law & Eq. 631 ; R. v. Pas- was said by Lord Detiraan that sueh coe, Pearce & D. 456 ; U. S. v. Burns evidence would be inadmissible on an 5 McLean, 23; Com. v. Hall, 4 Allen indictment for forgery. It certainly 305; Com. v. Edgerly, 10 Allen, 184 ; would, to prove that the paper was State v. Twitty, 2 Hawks, 449 ; Peo- forged, but it could be received to pie v. Farrell, 30 Cal. 316. See cases prove scienter, assuming a forgery. in Whart. Cr. Law, § 647 ; Taylor on ° Iron Mountain Bank v. Murdock, Ev. § 322. 62 Mo. 70. 32 CHAP. II.] RELEVANCY. [§ 32. picion attached to paper of the same character as that he is now charged with illegally holding or passing.^ So when the hypothesis proposed is that A. received certain articles from B., knowing them to be stolen, it is relevant to show that A. had received and pledged to other parties a series of other articles, proved to have been stolen by B.^ Again the conten- tion being that A., the acceptor of a bill of exchange, knew that the name of the payee was fictitious, it has been held relevant to prove that A. had accepted other bills in the same manner be- fore they could have been transmitted to him by the payee, if the payee had been a real person.^ Knowledge, in such case, may be inferred when it is more probable than ignorance. Thus, where a plaintiff sought to set aside a contract on the ground of his hav- ing been insane when it was made ; the court held, upon an issue as to whether or not the defendant was at the time aware of the insanity, that evidence of the plaintiff's conduct, at different times both before and after the date of the contract, was admissible, for the purpose of showing that the madness was of such a character as must have been apparent to any one, who had had opportuni- ties of observation like those afforded to the defendant.* § 31. To prove intent in trespass similar evidence is pertinent.* One blow given to A. by B. may be accidental ; few ^^ counsel would have the audacity to claim accident for intent in . t -rt • • trespass, eight or ten blows given to A. by B. at successive mter- vals, under varying conditions.^ § 32. One letter sent by A. to B., demanding money, may be ambiguous ; it may cease to appear so if seen in the g^ .^ light of a series of prior letters demanding money, with libel and threats whose purport is unmistakable.'^ 1 R. V. Hough, R. & R. 120; R. v. « See "Voltz v. Blackmar, 64 N. Hodgson, 1 Lew. 103 ; R. v. Forster, T. 440; Byers v. Horner, 47 Md. 23. Dear. 456; R. v. Francis, L. R. 2 C. ^ R- "• Voke, R. & R. 531; So- C. R. 128; State v. McAllister, 24 Me. douski v. McGee, 4 J. J. Marsh. 267. 139; Com. v. Stearns, 10 Met. 256; See Spencer v. Thompson, 6 Ir. C. L. Hendrick v. Com. 5 Leigh, 708; Ma- R- (N. S.) 537, 571 ; Com.t). McCar- 6on V. State, 42 Ala. 532. thy, 119 Mass. 354. 2 Dunn's case, 1 Mood. C. C. 146. ' R- "• Robinson, 2 Leach, 749 ; R. » Stephen's Evidence, 18, citing «. Boucher, 4 C. & P. 562; R. v. Gibson v. Hunter, 2 H. Bl. 288. Cooper, 3 Cox C. C. 547. * Beavan v. McDonnell, 10 Ex. R. 184. VOL. I. 3 33 § 33.] THE LAW OF EVIDENCE. [BOOK I. The hypothesis of the plaintiff in an action for libel or slander is that the libel was malicious ; to prove malice it is relevant for the plaintiff to prove other cases of defamation by the defendant ; ^ and for this purpose acts of defamation subsequent to that in issue are admissible.^ No subsequent libels, however, can be admitted, if they do not relate to the same general subject matter as that charged ; ^ though repetitions, even after action brought, are admissible.* It is scarcely necessary to add that any insulting acts, preceding or accompanying a defamatory publication, can be put in evidence as illustrating its motive.^ On the other hand, in mitigation of damages, the defendant has been allowed to prove that he copied the libel from another newspaper, ^ or that he had been provoked by attacks on him by the plaintiff,'' provided such libels relate to the general subject of the trial,^ or are generally calculated to provoke.* § 33. Fraud in an assignment is the question in dispute ; to g„ i„ solve this question it is admissible to prove that the as- fraud. signor at the same time made other conveyances clearly in fraud of creditors.^" Nor is a plaintiff, in a suit charging the defendant with fraud, confined to the fraudulent misstatements 1 Barrett u. Long, 3 H. L. Cas. 395, 6 Gray, 321; Robbins v. Fletcher, 414; Bassettu. Elmore, 48 N. Y. 123; 101 Mass. 115; Mix v. Woodward, Dustin w. Eose, 69 N. Y. 122; McBee 12 Conn. 262; Williams v. Miner, V. Fulton, 47 Md. 403 ; Prime v. East- 18 Conn. 464 ; Howard v. Sexton, 4 wood, 45 Iowa, 640. N. Y. 157; Kennedy v. Giflford, 19 " Pearson v. Le Maitre, 6 Scott N. Wend. 296. R. 607; 5 M. & Gr. 700. See, also, ^ Bond v. Douglas, 7 C. &P. 626; Hemmings v. Gasson, E., B. & E. 346; Kean v. McLaughlin, 2 S. & R. 469.' Perkins v. Vaughan, 4 M. & Gr. 988. See C. v. A. B., 2 Weekly Notes, 29l! In Warwick v. Foulkes, 12 M. & ' Saunders v. Mills, 6 Bing.'2"l3; W. 509, the defendant to an action affirmed in, Pearson v. Le Maitre, 6 for false imprisonment pleaded, first, Scott N. R. 607 ; 5 M. & Gr. 700. ' not guilty ; and secondly justification, ' Taylor's Ev. § 322, citino' Watts to the eflect that the plaintiff had v. Frazer, 7 A. & E. 223 ; Tarpley v. committed a felony. It was held that Blabey, 2 Bing. N. C. 437; 4 Scott' although the defendant subsequently 642; May v. Brown, 3 B. '& C. US- withdrew and apologized for the plea Hotchkiss v. Lothrop, 1 Johns. 28G. ' of iustification, it might be taken into " May v. Brown, ut supra. account as going to show malice. » See Wakley v. Johnson Ry & 8 See Finnerty K. Tipper, 2 Camp. M. 422; Thomas «. Dunaway, 30 111 7.2 ; Watson v. Moore, 2 Cush. 133. 373; Botelar v. Bell, 1 Md. 173- Pueh < Townsend on Libel, § 390. See, v. McCarty, 40 Ga. 444. ' as to general rule, Baldwin v. Soule, " Stockwell v. Silloway, 113 Mass. ^^ 884; Cookw. Moore, 11 Cush. 216. CHAP. II.] RELEVANCY. [§35. set out in the declaration ; other illustrative fraudulent misstate- ments may be put in evidence.^ The same distinctions are ap- plicable to other cases of fraud.^ § 34. The same line of reasoning leads, in suits for adultery, to the admission of other adulterous acts about the §„;„ same tinie,^ or even subsequent to that in issue.* adultery. § 35. It is sometimes important to determine whether a party, in doing a particular thing, acted in good faith. In the Good faith old practice his mouth was sealed; and in such cases f^rredfrom his good faith could be only shown by inferences from **'''^ ''.'^^'y circumstances. Under our present practice he may be "• examined as to his reasoning and motives ; ^ but such evidence is necessarily open to suspicion, since it undertakes to prove good 1 Huntingford v. Massey, 1 Post. & F. 690. " Fraud being alleged, a wide range is given in proof of circumstances tending to establish it, it being a mat- ter of secrecy generally. It is only by collecting together numerous cir- cumstances oftentimes that it can be brought to the light and exposed." Hall V. Stanton, Sup. Ct. Penn. 2 Weekly Notes, 578; Brown!'. Shock, 77 Penn. St. 471 ; Brinks v. Heise, 84 Penn. St. 246; Battles v. Laudensla- ger, 84 Penn. St. 446. "Where fraud in the purchase or sale of property is in issue, evidence of other frauds of like character com- mitted by the same parties, at or near the same time, is admissible. Its ad- missibility is placed on the ground that where transactions of a similar character, executed by the same par- ties, are closely connected in time, the inference is reasonable that they pro- ceed from the same motive. The prin- ciple is asserted in Gary v. Hotailing, 1 Hill, 311, and is sustained by nu- merous authorities. The case of fraud, as there stated, is among the few ex- ceptions to the general rule that other offences of the accused are not rele- vant to establish the main charge. See, also, Hall v. Naylor, 18 N. Y. 588, and Castle v. BuUard, 23 How- ard, 172." Comp. R. V. Holt, Bell C. C. 280 ; Hovey v. Grant, 52 N. H. 569. As to the latitude allowed in cases of fraud, see Simons v. Vulcan Co. &1 Penn. St. 202 ; Heath v. Page, 63 Penn. St. 108; Woods v. Gummert, 67 Penn. St. 136; Brown v. Shock, 77 Penn. St. 471 ; Stewart v. Feoner, 81 Penn. St. 177. 2 Horton v. Weiner, 124 Mass. 92; Hall V. Erwin, 66 N. Y. 649 ; Stone v. Wood, 85 111. 603 ; Lockhard v. Buck- ley, 10 W. Va. 88 ; Hunter v. Hunter, 10 W. "Va. 321; Brink v. Black, 77 N. C. 59 ; Summers v. Howland, 58 Tenn. 407. ' Norfolk t). Germaine, 12 How. St. Tr. 297 ; Com. v. NichoUs, 114 Mass. 285 ; Lockyer v. Lockyer, 1 Ed. Sel. Cas. 107. See Pollock v. Pollock, 71 N. Y. 137. * Boddy V. Boddy, 30 L. J. Pr. & Mat. 23 ; Thayer v. Thayer, 101 Mass. Ill, overruling Com. v. Thrasher, 11 Gray, 450. See Freeman v. FreemaUj 31 Wis. 235. For Criminal Cases see Whart. Cr. Law, tit. Evidence. «■ Infra, § 482. 35 § 35.] THE LAW OF EVIDENCE. [BOOK I. faith by an appeal to the very good faith which is to be proved. If the party is destitute of good faith, he cannot be a reliable witness to prove good faith ; and independently of this technical criticism, we know by experience that there are few objects as to which memory is so treacherous as our past motives and rea- sonings, if we separate these motives and reasonings from the facts by which they are induced. Hence it has been properly held that when good faith is at issue, it is relevant to put in evi- dence facts which would justify such good faith.^ One of the most striking illustrations of this rule is to be found in homicide cases, in which it is admissible, in order to sustain the good faith of a party who claims that he believed he was acting in self- defence, for him to show that he had been advised of threats on the part of his assailant to take his life.^ So, where the question was whether the defendant bad represented herself to the plain- tiff as a married woman, and had been hond fide trusted by the plaintiff as such, it was held that it would be relevant for the plaintiff to show that he had previously heard that the defendant had represented herself as a married woman to other parties.^ So in a case already noticed, where the hypothesis on which the plaintiff rested was that he was insane at the time of a particu- - lar contract, it was held admissible for him, in order to sustain the good faith of this hypothesis, and the fact that bis insanity must have been known to the other contracting parties, to prove, by his conduct at the time in question, that be must have been regarded as insane by those who dealt with him.* So, where the plaintiff's case was that the defendant represented to the plain- tiff that D. was solvent, when he knew the contrary, it is rele- vant, to disprove this hypothesis, to show that at the time when the defendant made the representations D. was, to the defend- ant's knowledge, supposed to be solvent by his neighbors and customers.^ Contemporaneous and subsequent acts may also be received to prove good faith. Thus, where A. is sued by B. for the price of work done by B., by the order of C, a contractor, 1 See Melhuish v. Collier, 15 Q. B. » Barden v. Keverberg, 2 M. & W. 878. And see infra, § 252. 61. 2 See Whart. on Homicide, § 694. « Beavan v. McDonnell, 10 Ex. R. See, also, Watts v. Frazer, 7 A. & E. 188. 223 f and infra, §§ 252, 269. 6 SiM&an v. Bumpstead, 2 H. & C. 193; S. C. in Ex. 1 H. & C. 858. 36 CHAP. II.] RELEVANCY. [§ 38. upon a house of which A. is owner, and where A.'s defence is that B.'s contract was solely with C, it is relevant for A., in order to show that in good faith he made over to C. the absolute and sole control of the work, to prove that he paid C. the entire sum necessary to pay for such work.^ § 36. What has been said as to the admissibility of indepen- dent acts as a basis from which good faith may be in- so as to ferred, applies with peculiar force to the admission of P™/!!;f ■*■ all CI tV13~ such facts when there is a contest as to whether pru- ^°'°- dence or diligence was exercised by a particular person at a par- ticular time. For instance, on a question as to whether an en- gineer, in the management of a train at a collision, acted pru- dently, there is no doubt that it would be admissible to prove the cries of by-standers without producing sucb by-standers. So in an action for malicious prosecution, when the question was, what influenced a magistrate to do a particular act, it has been held admissible to put in evidence a letter to the magistrate, without calling the person by whom the letter was written.^ So in all cases in which prudence and diligence are to be shown, it is admissible to put in evidence all the facts by which prudence and diligence are to be gauged.^ § 37. If identity is disputed, it is admissible, in order to defeat the hypothesis of non-identity, to prove that a person, c„i]a|.„ai like the party charged, was engaged about the same [.g^j^JJI^^ time in similar acts, even though these acts are inde- ducedto . ° ... prove iden- pendent crimes.* Or if an alibi is set up, it is relevant, lity or re- in order to defeat the hypothesis of alibi, to prove that the defendant, at the time he is alleged to have been absent, was present, perpetrating independent crimes.^ § 38. When as a defence to a suit for an injury inflicted by A. on B. the hypothesis is set up that the injury was gystem accidental or the result of casus, it is admissible, in "^^g^^^ order to defeat this hypothesis, to show that similar in- rebut hy- .„..,, -r, 1 . pothesisot juries were inflicted by A. on B., or on other parties, to accident or an extent which renders the hypothesis of accident or 1 Stephen's Evidence, 18, citing * R. v. Briggs, 2 M. & Rob. 199 ; Gerish v. Chartier, 1 C. B. 13. R. v. Rooney, 7 C. & P. 517. See 2 Taylor v. Willans, 2 B. & Ad. Shepherd v. State, 72 III. 480. 845. « Ibid. « See Whart. on Neg. §§ 26-69. 37 § 39.] THE LAW OF EVIDENCE. [BOOK I. casus improbable.^ " When there is a question -whether an act was accidental or intentional, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant." ^ A conspicuous illus- tration of this rule is afforded in prosecutions for poisoning, in which, to rebut the hypothesis set up by the defendant of acci- dent, it is admissible for the prosecution to show that the defend- ant had been concerned in prior fatal operations with the same or similar drugs.^ So when, to an indictment for malicious shoot- ing, the hypothesis of accident is set up, to meet this il is ad- missible to show a prior intentional shooting of the prosecutor by the defendant.* A defendant, to take another case, pleads casus in answer to the charge of firing his house in order to defraud the insurers. To meet this it is admissible for the prosecution to prove that on several prior occasions houses occupied by the defendant had been burned, and that he obtained payment for the same from separate insurance companies.^ In the same line may be men- tioned a New York ruling, that evidence of an attempt to set fire to a barn, in the same village, and on the same night, in which the building in litigation was burned, is admissible on the issue of accident.^ § 39. We may, in fine, conclude generally that when a mass From one °^ action is examined in block, it is allowable to as- FaTquaTi-" ^^i™^' ^^ a presumption of fact, that if a part of it is ties in tainted in a particular way, the rest is so tainted.'' maybe in- ihus where most of the vouchers produced by a party, in proving his accounts, show an overcharging of items, it may be inferred, as a presumption of fact, that a like propor- tion of the items not vouched are overcharged.^ In this relation, also, may be mentioned the reception in evi- dence, in cases in which the probable value of a life estate is concerned, or the probable duration of life is to be estimated, J Miller v. Barker, 66 N. Y. 559. 6 R. u. Gray, 4 F. & F. 1102. 2 Stephen's Evidence, 19. See K. ^ Paucett v. NichoUs, 64 N. Y. 377; V. Bleaadale, 2 C. & K. 768 ; Brown S. C. 4 N. Y. Sup. Ct. 597. V. State, 26 Ohio St. 176. ' See Faucett v. Nioholls, 64 N. Y. » See cases given in Whart. Cr. 377. Law, § 635. 8 Busjj „ Quion, 6 La. An. 798. * R. V. Voke, R. & R. 531. 38 CHAP. U,] RELEVANCY. [§ 39. of approved scientiflc calculations, such as the Carlisle Tables. These tables are based on an induction from a large number of particulars, and in this way reach a general rule which, for busi- ness purposes, is assumed to apply to new cases that may arise.i The same reasoning supports the admission of evidence based on the habits of men generally. These habits are inferred from a large number of particulars ; and in this way a general rule is reached which is applied to a new special case.^ To the same effect may be cited the ruling already given, that in an action for fraudulently representing that a trader was trustworthy, it is al- lowable for the defendant to call fellow-townsmen of the trader to state, that, at the time when the representation was made, the man was, according to their belief, in good credit." Again, A., being employed to pay the wages of B.'s laborers, is required to enter in a book the specific sums paid out. The book is found to contain one item overstating the amount paid, and A. is charged with making a fraudulent entry. It is relevant for the prosecution, in order to refute accident, to show that for a period of two years A. had made other similar false entries in the same book, all the errors being in his own favor.* So, in an action for an assault and consequent injury, where evidence for the defence was given that the plaintiff had ascribed her injury to a previous accident, she was allowed to show that in fact no such accident had ever occurred.^ So, where a hog, when trespassing on the defendant's land, was shot twice, about an hour intervening be- tween the shots, and the defendant was seen to fire the second shot, it was held that there was evidence from which a jury might infer that he fired the first shot.^ So, in a case elsewhere noticed, upon the question arising whether the acceptor of a bill of exchange had empowered generally the drawer to draw on him in favor of fictitious persons, it was held admissible to show that he had accepted similar bills, drawn in like manner, under cir- cumstances which showed he must have inferred the payee to be fictitious.'^ At the same time it must be remembered that a 1 See infra, § 667; Santer v. R. R. * Stephen's Evidence, 20, citing R. 66 N. Y. 50. V. Richardson, 2 F. &. F. 343. " Infra, § 1296. » Melhuish v. Collier, 15 Q. B. 878. " Sheen i'. Bumpstead, 1 H. & C. ' Landell i>. Hotchkiss, 1 Thomp. 358 ; aff. 2 H. & C. 193. & C. (N. Y.) 580. ' Gibson V. Hunter, 2 H. Bl. 288. 39 §40.] THE LAW OF EVIDENCE. [book I. party's habits in doing business cannot ordinarily be put in evi- dence to show that he did a certain thing in a particular way.^ § 40. Ordinarily, when a party is sued for damages flowing So in from negligence imputed to him, it is irrelevant, for 3f negU-^ reasons already given, to prove against him other dis- gence. connected though similar negligent acts.^ Thus, in an action against a bailee for the loss of property intrusted to him, evidence of independent acts of negligence not connected with the loss, is inadmissible.^ So, where the question, in a suit against a railway company, is whether a driver was negligent on a particular occasion, it is irrelevant to prove that he had been negligent on other occasions.* 1 Iron Mountain Bank v. Murdock, 62 Mo. 70. Supra, § 29. 2 Louisville R. R. v. Fox, 11 Bush, 493. ' First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 279. * " The only error that occurred in the trial in the court helow was in the admission of the testimony that the driver had been seen on several pre- vious occasions to stop the car sud- denly. The plaintiff's complaint was that in consequence of a sudden stop he was thrown from the platform, and injured by being run over. " The question for the jury, suppos- ing he had satisfied them that he was in the exercise of due care, was as to the exercise of the like degree of care on the part of the defendant at the time of the accident. The fact that the same driver had at some other times been guilty of carelesss or un- skilful management could have no legitimate bearing upon the question as to the care or skill exhibited at the time in controversy. This evidence was objected to, and the plaintiff's counsel appear to have yielded to the objection, and to have proceeded no further in this line of inquiry. It is true that it does not appear that it was afterwards alluded to, either by 40 the counsel or the court, but it had been given in the trial, and we do not find anywhere any instruction to the jury to disregard it. It is impossible to say that it did not have some in- fluence upon their decision, and the case therefore comes within the rule laid down in Brown v. Cummings, 7 Allen, 507. See, also, Ellis v. Short, 21 Pick. 142; Farnum v. Farnum, 13 Gray, 508. The plaintiiF had ceased to pursue the inquiry, but the evi- dence, so far as he had gone, was in, against the defendant's objection. The only way to prevent the jury from regarding it as legal and material was to give them a distinct ruling that it was not 80, and this does not appear to have been done." Ames, J., Ma- guire V. Middlesex Railroad Co. 115 Mass. 240. So in an action against a town to recover for injuries caused by a defect in a highway which the town is bound to keep in repair, evidence of an in- jury sustained a year before, at the same place, by a third person, of which the town had notice, is inad- missible, especially if it appears that the highway has been in the same condition for twenty-four hours before the injury sued for. Blair v. Pelham, 118 Mass. 420. See Coale v. R. R. 60 Mo. 232. CHAP. II.] RELEVANCY. [§ 41. § 41. But when a party is charged with the negligent use of a dangerous agency, and when the case against him is that he did not use care proportionate to the danger, then the question be- comes material whether he knew, or ought to haye known, the extent of the danger.^ On such an issue as this it is relevant for the party aggrieved to put in evidence of disconnected acts, of which it was the duty of the defendant to have been cognizant, and which, if he were cognizant of them, would have advised him of the extent of the danger, and would have made it his duty to take precautions which would, if faithfully applied, have prevented the injury sued for. Thus, in an action against a rail- road company for injuries sustained from a car running ofE the track, evidence has been received to prove seven or eight run- nings off the track on the same road, by the same line of cars, in the previous month.^ So, in a suit by A. against B. for dam- ages to A. through a ferocious dog negligently kept by B., it has been held relevant for A. to show that the dog had previously bitten X., Y., and Z., and that they had complained to B. of their hurts so sustained.^ And generally, when the issue is whether injuries were received through a specified animal, evidence of the character and habits of that animal, before and after the injury, is relevant.* 1 So as to subsequent acts forming The fact that a particular chimney- part of a system with that under trial, in a mill has been in the habit of Indian. K. E. v. Horst, 93 U. S. 391; emitting sparks which have set fire to Toledo K. R. v. Owen, 43 Ired. 405. materials in the neighborhood, is ad- 2 Mobile R. K. v. Ashcroft, 48. Ala. missible in a suit for damages for a 15. particular fire. Hoyt v. Jeffers, 30 Thus, it has been held aprimd facie Mich. 181 ; Hinds v. Barston, 25 N. Y. case of negligence that a passenger in 644. an omnibus was injured by a blow " Stephen's Evidence, 17, citing from the hoof of one of the horses, Roscoe's Nisi Prius, 739 ; Whart. on which kicked through the front panel; Neg. 912 ; Worth jj. Gilling, L. R. 2 C. there being no evidence that the horse P. 1 ; Kittredge v. Elliott, 16 N. H. 77; was a kicker, but it being proved that Whittier v. Franklin, 46 N. H. 23; the panel bore the marks of other Arnold «. Norton, 25 Conn. 92; Buck- kicks, and no precaution having been ley v. Leonard, 4 Denio, 500; Cock- taken by the application of a kicking erham v. Nixon, 11 Ired. L. 269 ; Mc- strap, and no explanation offered by Caskill v. Elliot, 5 Strobh. 196 ; Kee- the defendant. Simson v. London nan v. Hayden, 39 Wis. 558. General Omnibus Co. L. R. 8 C. P. * Worths. Gilling, L. R. 2 C. P. 64 ; 390. Todd V. Hawley, 8 Allen, 51; Maggi 41 §43.] THE LAW OF EVIDENCE. [book I. Evidence of prior firings from same engine relevant in suit against railroad for fires. § 42, If the plaintifE should prove that his house was fired by sparks emitted by engine No. 1, on the defendants' road, is it relevant for him to show that in a series of former occasions sparks were emitted by the same en- gine in such masses as to fire other property ? For the reasons just stated, we must hold such evidence to be relevant. The fact that the engine has frequently caused damage of this kind indicates defects in its con- struction which impose upon its owner, if not its condemnation, at least the exercise of peculiar care both in its repair and its management; and that such care was applied, the burden, after proof of frequent fires caused by the same engine, is on him to show.i On the other hand, suppose that after the plaintiff proves a firing from engine No. 1, he offers to show a series of prior fir- ings from engines Nos. 2, 3, 4, 5, and 6, without offering to show that there was such identity of construction of the engines as a mass as to make it probable that the defects in engines Nos. 2, 3, 4, 5, and 6 existed in engine No. 1. In such case the proof of firing from any other engine than No. 1 would be as irrelevant as, in an action by A. for hurt from a kick of a horse belonging to B., it would be irrelevant to show that on other distinct occa- sions other horses of B. had kicked C, D., and E.^ § 48. Suppose, however, that when evidence of prior firing by certain specified engines is offered, there is no identification, on the part of the plaintiff, of the engine by which the fire was emitted ; or suppose that though that particular engine is identi- situated 60 feet from a railroad track, was destroyed by fire caused by sparks emitted from one of the defendants' locomotives, and it appeared that the locomotive was furnished with a spark- arrester of the most approved pattern, and was in good condition, it was ruled that the testimony of persons living within a mile of the plaintiff's barn, to prove that the locomotive was emitting an unusual quantity of sparks as it passed their premises, and that after the passage of the train, the grass along the railroad was seen to be on fire, was properly admitted in evi- dence by the court below. V. Cutts, 123 Mass. 535; Kider v. White, 65 N. Y. 64 ; Caskill v. Elliot, 5 Strobh. 196. 1 See cases cited infra, § 43; Hinds V. Barston, 25 N. Y. 544 ; Henry v. R. K. 50 Cal. 176. 2 Erie R. R. v. Decker, 78 Penn. St. 293. See Waugh v. Shunk, 20 Penn. St. 130; Carson v. Godley, 26 Penn. St. 111. In Coale v. R. R. 60 Mo. 227, it was held inadmissible to prove that fire escaped from other lo- comotives of the same pattern. In Philadelphia & Reading R. R. v. Hen- drickson, 80 Penn. St. 182, where the plaintifi''s barn, built of wood, and 42 CHAP. II.J RELEVANCY. [§ 43. fied, there is no identification of the engines causing the prior fires, is the evidence relevant ? We have now to touch a ques- tion of probabilities which has already been noticed ; and we may adduce, in explanation, the same illustration. Although there were one hundred thousand people of a particular class at a particular place at a particular time, yet it is relevant to prove that A. was at that place at that time, when the question is whether A. did something that could only have been done at that place and time. So, when an offer is made of a series of fir- ings from a series of unidentified locomotives on the same road, such offer is relevant as one of the conditions of an hypothesis which charges a particular locomotive with the firing. Of weight, if disconnected with other evidence, it cannot be ; rele- vant, for the reasons just stated, it certainly is. " The third as- signment of error," so speaks Mr. Justice Strong, in giving an opinion to this effect in the Supreme Court of the United States in 1876,1 " is that the plaintiffs were allowed to prove, notwith- standing objection by the defendants, that at various times dur- ing the same summer, before the fire occurred, some of the de- fendants' locomotives scattered fire when going past the mill and bridge, without showing that either of those which the plaintiffs claimed communicated the fire were among the number, and without showing that the locomotives were similar in their make, their state of repair, or management to those claimed to have caused the fire complained of. The evidence was admitted after the defendants' case had closed. But whether it was strictly rebutting or not, if it tended to prove the plaintiffs' case, its ad- mission as rebutting was within the discretion of the court below and not reviewable here. The question, therefore, is, whether it tended in any degree to show that the burning of the bridge and the consequent destruction of the plaintiffs' property was caused by any of the defendants' locomotives. The question has often been considered by the courts in this country and in England, and such evidence has, we think, been generally held admissible as tending to prove the possibility and a consequent probability that some locomotive caused the fire, and as tending to show a negligent habit of the ofiB.cers and agents of the railroad com- 1 Grand Trunk R. R. v. Richardson, 91 U. S. (1 Otto) 454. 43 §43.] THE LAW OF EVIDENCE. [BOOK I. pany."i Or, again: if the defendants should set up the hy- pothesis of casus, or of one of those occasional mechanical aber- rations which due diligence cannot exclude, then it is relevant to show, as militating against this hypothesis, that other engines, constructed on the same general system as that by which the en- gine occasioning the fire was constructed, had emitted sparks to an extent from which negligence in the construction of the en- ^ As concurring in this conclusion sary to establish the fact hj such may be cited : Aldridge v. K. E. 3 Man. & G. 515; Piggott v. E. K. 3 C. B. 229; Boyce v. E. E. 42 N. H. 97; 43 N. H. 627; Cleveland v. E. E. 42 Vt. 449; Sheldon v. E. E. 14 N. Y. 218 ; Field v. E. E. 32 N. Y. 339; Westfall V. E. E. 5 Hun (N. Y.), 75; Huyett V. E. E. 23 Penn. St. 373 ; E. E. V. McClelland, 42 111. 358; St. Jos. E. E. V. Chase, 11 Kans. 47; Longa- baugh V. E. E. 9 Nev. 271 ; Penns. E. E. V. Stranahan, 79 Penn. St. 405. In the last case, the plaintiff's barn, situ- ate 100 feet from the railroad track, was destroyed by fire, which, it was proved, had spread along the ground from the track to the barn. In the absence of any evidence tracing the cause of the fire to any particular en- gine, the court below admitted evi- dence, offered by the plaintiff under objection, to show that at a distance twenty miles from plaintiff's property various locomotives of defendant had cast large sparks which had caused other fires near the line of the road. It was held that the evidence was re- ceivable. " This was not a case," said the court, "where a certain en- gine had thrown out the sparks which set fire to the plaintiff's barn, but it was one where the engine was un- known, yet the cause of the fire was clearly traced to the railroad track. proof as rendered the belief a certain fact. This could be done not by the proof that a, certain engine emitted sparks unusually ; non constat that this particular engine had passed the plaintiff's premises on that day. Hence it was necessary to permit the party to show that the emitting of coals and sparks in unusual quantities was fre- quent, and permitted to be done by a number of engines. The range of the evidence in this respect of necessity carried it to a greater range as to locality also." In Maryland, this con- clusion was at one time disapproved. Bait. E. E. V. Woodruff, 4 Md. 242. But more recently, in an action against a railroad company for so negligently managing one of its engines, that cer- tain cord-wood and growing timber of the plaintiff, whose land adjoined the road, was destroyed by fire emitted from the engine, the plaintiff, for the purpose of proving that the fire in question was occasioned by the de- fendant's engine, and as tending to prove negligence on the part of the defendant in the construction and management of its engines, may show that, within a week before the fire in question, the engines of the defendant in passing had scattered large sparks which were capable of setting fire to combustible articles along the road, and left the belief that some one of and that frequent fires, occasioned by the engines of the defendants had such sparks, had been put out within emitted the coals which set the barn that time. Annap. E. E. v. Gantt, 89 on fire. It, therefore, became neces- Md. 115. 44 CHAP. II.J RELEVANCY. [§44. gines, if not in the care of them, may be inferred.^ To meet another probable hypothesis such evidence may be relevant. It may be maintained by the defendants that the object fired was beyond the reach of sparks from their engine. In answer to this it has been held relevant for the plaintiff to prove that a short time before the defendants' engines, when passing the same point, emitted sparks which fell further than the building for whose firing the plaintiff sues.^ § 44. The rule that when a system is established, the condi- tions of other members of the system may be proved to affect the case in court has been further illustrated in teml" ''^^" cases in which the customs of one manor are put in conditlins evidence to affect other manors of the same system, members No rule is better established, or more frequentlv acted of the same ' ^ •' system upon, than that which precludes the customs of one maybe manor from being given in evidence to prove the cus- 2 Ross V. R. R. 6 Allen, 87; Shel- don V. R. R. 14 N. Y. 218; Burke v. 1 In Sheldon v. R. R. 14 N. Y. 221, above cited, Denio, J., said: "I think, therefore, it is competent prima facie evidence, for a person seeking to es- tablish the responsibility of the com- pany for a burning upon the track of the road, after refuting every other probable cause of the fire, to show that, about the time when it happened, the trains which the company were running past the location of the fire were so managed in respect to the fur- naces as to be likely to set on fire ob- jects not more remote than the prop- erty burned The evidence .... not only rendered it probable that the fire was communicated from the furnace of one of the defendant's engines, but it raises an inference of some weight that there was something unsuitable and improper in the con- struction or management of the en- gine which caused the fire.'' And see Hinds V. Barton, 29 N. Y. 544; Field V. N. Y. Cent. R. R. Co. 32 N. Y. 339; Webb V. R., W. & O. R. R. Co. 49 N. Y. 424. See, also, Longabaugh v. The Vir- ginia, &c. R. R. Co. 9 Nevada, 271. R. R. 7 Hiesk. 451. R. R. 10 Jurist, 571; 3 C. B. 229; Aldridge v. R. R. 3 M. & G. 515. In Rhode Island, "in an action against a railroad company for burn- ing the plaintiff's property by sparks from their locomotive, evidence that fires on the line of the road have origi- nated from sparks escaping from de- fendants' locomotives, before the oc- currence of the one in question, is ruled relevant, in order to enable the jury to judge whether the defendants, in view of the previous occurrence of such fires, exercised reasonable care at the time this one happened; but evidence of fires occurring from this cause subsequently to the one in ques- tion is held inadmissible, unless the possibility of communicating fire by sparks from a locomotive is disputed by the defendants, in which case it is admissible solely for the purpose of proving such possibility." Smith v. O. C. & N. R. R. Co. 10 R. I. 22. 45 § 44.] THE LAW OF EVIDENCE. [BOOK I. toms of another ; because, as each manor may have customs pe- culiar to itself, to receive the peculiar customs of another manor, in order to show the customs of the manor in question, would be inadmissible as a disconnected fact, by the rule above stated, and would put an end to all question as to the peculiar cus- toms in particular manors, by throwing them open to the cus- toms of all surrounding manors.^ But whenever a connection between the manors is proved, such customs become admissible. It is not enough, it is true, to show merely that the two lie within the same parish and leet ; nor even that the one was a subinfeudation of the other ; at least, unless it be clearly shown that they were separated after the time of legal memory, since otherwise they may have bad different immemorial customs.^ On the other hand, the customs of manors become reciprocally admissible if it can be proved that the one was derived from the other after the time of Richard the First ; ^ and it has been also held that if the customs in question be a particular incident of the general tenure which is proved to be common to the two manors, evidence may be given of what the custom of the one is as to that tenure, for the purpose of showing what is the custom of the other as to the same.* We will elsewhere see that value 1 M. of Anglesey v. Ld. Hatherton, Scotland (Rowe v. Parker, 5 T. R. 31 ; 10 M. & W. 235, per Lord Abinger; Ld. Kenyon), and those in the mining Furneaux u. Hutchins, 2 Cowp. 807; districts of Derbyshire and Cornwall, Doe u. Sisson, 12 East, 62; Taylor's will furnish other examples of the ap- Ev. § 300. plication of this rule; since, through- 2 M. of Anglesey v. Ld. Hatherton, out the former, a particular species of 10 M. & W. 218. tenure, called tenant-right, and in the « Ibid. 242, 243, per Alderson, B. latter, particular customs, as to the * Ibid. ; Stanley v. White, 14 East, rights of the miners and the rights to 338, 341, 342, per Ld. Ellenborough; the minerals, prevail; and consequent- K. V. Ellis, 1 M. & Sel. 662, per Ibid.; ly, if in one of the manors no example D. of Somerset v. France, 1 Str. 654; can be adduced of what is the custom Champian v. Atkinson, 3 Keb. 90; ex- in any particular case, it is only rea- plained by Rolfe, B., in 10 M. & W. sonable that, in order to explain the 246, 247. nature of the tenure or right in ques- For the above illustration of the tion, which is not confined to a single important principle that when system manor, but prevails equally in a great is proved, the pertinent incidents of number, evidence should be admissible other members of the system are rele- to show what is the general usage with vant, I am indebted to Mr. Taylor respect to that tenure or right. M. (Ibid. § 300), who adds: " The manors of Anglesey v. Ld. Hatherton, 10 M. on the border between England and & W. 237, per Lord Abino-er. Thus 46 CHAP. II.] RELEVANCY. [§ 45. at one place can be used to infer value at another place, when the two places are shown to belong to the same system.^ So, on the same reasoning, the mode of conducting a particular branch of trade in one place has been proved by showing the manner in which the same trade is carried on in another place.^ So, a geological system being established, physical peculiarities of one member of the system are relevant as to other members. Thus on a question as to the exact line of boundary between the manors of Wakefield and Rochdale, which the plaintifE con- tended was the ridge of a mountain, whence the waters descended in opposite directions, he was allowed to prove, in support of this view, that the ridge of the same range of hills separated the manor of Rochdale from another manor which adjoined the manor of Wakefield ; because this being a natural boundary, which was equally suitable in both cases, it was highly improb- able that it should have been varied.^ Perhaps on this ground we may sustain a contested New Hampshire ruling where it was held admissible, in order to show that a particular horse was frightened at a certain object, to prove that other horses were frightened at the same object.* § 46. Even ownership may be thus inferred. Thus, upon a question whether a slip of waste land, lying between Q^^^^gi^j the highway and the inclosed lands of the plaintiff, maj' be in- belonged to him, or to the lord of the manor, it was held from ays- that the lord might give evidence of acts of ownership '""■ on other parts of the waste land between the same road and the inclosures of other persons, although at the distance of two miles where in each of several manors be- missible, provided the land had been longing to the same lord, and forming all held under the assessional tenure, part of the same district, a particular Per Ld. Abinger, in M. of Anglesey class of tenants called assessional ten- v. Ld. Hatherton, 10 M. & W. 237, ants held .the farms, to whom their 238. See, also, Jewison v. Dyson, 9 tenements were granted by similar M. & W. 540. See Fleet v. Murton, words, evidence of the rights enjoyed 41 L. J. Q. B. 49." by those tenants in one manor was ^ See infra, § 1290. received, to show the extent of their ^ Noble v. Kennoway, 2 Doug. 510; rights in another. Rowe v. Brenton, Taylor's Ev. § 302. 8 B. & C. 758; 3 M. & R. 361, S. C. " Brisco v. Lomax, 8 A. & E. 198; This last case, indeed, raised no ques- 3 N. & P. 388, S. C. tion as to manorial title; for had there * Darling v. "Westmoreland, 52 N. been no manor at all, precisely the H. 401. Con(ra, Hawks u. Charlemont, same evidence would have been ad- 110 Mass. 110. See infra, § 1295. 47 § 46.] THE LAW OF EVIDENCE. [BOOK I. from the spot in dispute, and although the continuity of the waste was interrupted for the space of some sixty or seventy yards by the intervention of a bridge, and some old houses.^ It has also been held that where in trespass the object of the plain- tiff was to prove himself the owner of the entire bed of a river flowing between his land and that of the defendant, and thus to rebut the presumption that each party was entitled ad medium filum aquae, he was at liberty to give in evidence acts of owner- ship exercised by himself upon the bed and banks of the river on the defendant's side, lower down the stream, where it flowed between the plaintiff's land and the farm of a third party, ad- joining the defendant's property ; and that he could also prove repairs which he had done, beyond the limits of the defendant's land, to a fence which, dividing that and other land from the river, ran along the side of the stream for a considerable distance, till it came opposite to the extremity of the plaintiff's property on the other side.^ § 46. Relevancy in such case depending on system,'the court must first determine as a prerequisite to relevancy, whether there is such a relation between the case in court and the case pro- posed as a test as to make it probable that the incidents of the one belong to the other.^ Thus, where it was attempted to con- nect parcels of waste land with each other, merely by showing that they all lay within the same manor, and between inclosures and public roads, it was held that evidence of acts of ownership over some of these lands was inadmissible to prove title to the others.* 1 Doe V. Kemp, 7 Bing. 382 ; 2 giving judgment, observes : "If the Bing. N. C. 102; 2 Scott, 9, 5. C, lord has a right to one piece of waste recognized by Parke, B., in Jones v. land, it affords no inference, even the Williams, 2 M. & W. 327, 328; Bryan most remote, that he has a right to r. Winwood, 1 Taunt. 208 ; Dendy w. another, in the same manor, although Simpson, 18 Com. Bl. 831. hoth may be similarly situated wi'th » Taylor's Ev. § 303, from -which respect to the highway ; assuming that the recapitulation of the above cases all were originally the property of the is mainly taken; Jones u. Williams, 2 same person, as the lord of the" manor, M. & W. 326, citing Stanley v. White, which is all that the fact of their being 14 East, 332. in the same manor proves, ho presump- « Doe V. Kemp, 7 Bing. 536. Infra, tion arises from his retaining one part § ^^^^- in bis hands that he retained another; ♦ Taylor, § 305 ; Doe v. Kemp, 2 nor, if in one part of the manor the Bing. N. C. 102. Lord Denman, in lord has dedicated a portion of the CHAP. II.J KELEVANCY. [§47. § 47. Although in criminal cases good character may be proved by the defendant, as tending to substantiate the plea of not guilty,! yg|; jjj qIyH suits such evidence has been not ordi- held to be irrelevant. When the question comes whether vant"in the defendant has committed a crime, then, as a matter " ^'"'' of indulgence to one whose life or liberty is at stake, good char- acter, such as would make it improbable that he would have committed the crime in question, may be introduced among the elements from which the jurors are to make up their judgment. But whether it be because in a civil issue, between two private parties, both parties stand in this respect on the same footing, or whether it be because most civil suits grow out of or may be supposed to grow out of honest misconceptions of rights, Eng- lish and American courts have agreed in holding that, so far as concerns the proof in civil issues, the character of either party is as a rule irrelevant.^ So far has this been carried that in ac- wa8te to the use of the public, and granted out the adjoining land to pri- vate individuals, does it by any means follow, nor does it raise any probabil- ity, that in another part he may not have granted the whole out to private individuals; and they afterwards have dedicated part as a public road. But the case is very different with respect to those parcels, which from their lo- cal situation may be deemed parts of one waste or common; acts of owner- ship in one part of the same field are evidence of title to the whole; and the like may be said of similar acts on part of one large waste or common." Pp. 107, 108. See, also, Tyrwhitt v. Wynne, 2 B. & A. 554; Hollis v. Goldfinch, 1 B. & C. 218, 219, per Bay ley, J. 1 See fully Whart. Cr. Law, tit. " Character." Kuan V. Perry, 3 Caines, 120, is sometimes cited as authority for the position that in actions for tort charg- ing criminality, the defendant may put good character in evidence. In Fowler V. Ins. Co. 6 Cow. 675, and VOL. I. 4 Townsend v. Graves, 3 Paige, 455, Ruan V. Perry is cited with qualified approval; but it is emphatically re- pudiated in Gough v. St. John, 16 Wend. 646 ; Pratt v. Andrews, 4 Comst. 498; and Porter v. Seller, 23 Penn. St. 424. See Bigelow's over- ruled cases, in loco, referring also to Potter V. Webb, 6 Greenl. 14; Norton V. Warner, 9 Conn. 1 72. 2 Elsam V. Faucett, 2 Esp. 663; Atty. Gen. v. Bowman, 2 B. & P. 532, n.; Atty. Gen. v. RadlofE, 10 Ex. R. 84; Downing v. Butcher. 2 M. & Kob. 374; Jones v. Stevens, 11 Price, 235; Thayer u. Boyle, 30 Me. 475; Board- man V. Woodman, 47 N. H. 120 Wright V. McKee, 37 Vt. 161 Schmidt v. Ins. Co. 1 Gray, 529 McDonald v. Savoy, 110 Mass. 49 Gough V. St. John, 16 Wend. 646 Fowler v. Ins. Co. 6 Cow. 693 Townsend o. Graves, 3 Paige, 453 Pratt V. Andrews, 4 Comst. 493 Corning v. Corning, 6 N. Y. 97 Willis V. Forrest, 2 Duer, 310; Lock- yer v. Lockyer, Edm. S. C. 107; Dain r. Wyokoff, 18 N. Y. 45; Anderson 49 § 47.] THE LAW OF EVIDENCE. [BOOK I. tions for malicious prosecution and for false imprisonment, the defendant, to sustain the defence of probable cause, cannot put the plaintiff's bad character in issue ; though this proof may be offered in mitigation of damages.^ So, where the issue was whether a devisee under a will was guilty of fraudulently pro- curing the will, he was refused permission to prove his good character as a defence.^ So in a bastardy suit, evidence that the complainant had the reputation of being a prostitute for the three years preceding the accusation, is properly rejected.^ So that the plaintiff, in an action for assault, was not a person of sober habits, is inadmissible, on part of the defence, the offer being disconnected with any proposal to show that the plaintiff's want of sobriety contributed to his injury ; * and a general repu- tation for sobriety has been held inadmissible to rebut proof of drunken acts.^ It has been held, also in an action for assault, that proof of the defendant's peaceable character cannot be re- ceived on his behalf.^ So in actions for defamation, evidence of the plaintiff's good character is held irrelevant, even on a plea of justification, unless general character be put in issue.' And that the defendant has a " tendency " to do things of a u. Long, 10 S. &R. 55; M'Kenney u. Smith v. Hyndman, 10 Cush. 554. Khoads, 5 Watts, 343 ; Porter v. See particularly infra, § 54. Seller, 23 Penn. St. 424; Battles v. In "Winebiddle v. Porterfield, 9 Laudenslager, 84 Penn. St. 446; Penn. St. 137, it was said that "per- Church V. Drummond, 7 Ind. 19; haps" the defendant, in such case, Crose V. Kutledge, 81 111. 266 ; Morris might " show, for the purpose of miti- 17. Hazel wood, 1 Bush, Ky. 208; Smets gating the damages, and for no other V. Plunket, 1 Strobh. 372; Ward v. purpose, that the character of the Herndon, 5 Port. 282; Gutz wilier i>. plaintiff was bad on subjects uncon- Lackman, 26 Mo. 168 ; Dudley v. Mc- nected with the charge made by the Cluer, 65 Mo. 176. See Potter v. defendant." This is affirmed in Bos- Webb, 6 Greenl. 14. As to Indiana, tick v. Rutherford, 4 Hawk?, 85. To see Gebhart v. Burkett, 57 Ind. 378. same effect, see Israel v. Brooks, 23 1 Downing v. Butcher, 2 M. & Bob. 111. 575. See supra, § 32. 374 ; Jones v. Stevens, 11 Price, 235 ; 2 Goodright v. Hicks, Buller N. P. Newsam v. Carr, 2 Stark. R. 69, over- 296. ruling Rodrigues v. Tadmire, 2 Esp. « Sidelinger v. Bucklin, 64 Me. 371. 722; Bacon v. Towne, 4 Cush. 217; * Drohnii. Brewer, 77 111.280. See, Givens ji. Bradley, 3 Bibb, 192; Bos- also, Dimick «. Downs, 82 111. 570. tick V. Rutherford, 1 Hawks, 85; Mar- 6 McCarty v. Leary, 118 Mass. 509. tin V. Hardesty, 29 Ala. 458. « Soule v. Bruce, 67 Me. 584. " Where injury to character is dis- ' Powell on Ev. 515; Cornwall v. claimed, character cannot be attacked. Richardson, R. & M 305 • Brine i; 60 CHAP. II.] RELEVANCY. [§ 48. similar character with that with which he is charged is inadmis- sible.^ It has been ruled that in slander, when the general issue only is pleaded, the plaintifE may prove his good character, at least to increase damages.^ But the better opinion is against this con- cession; on the ground that the law presumes a party's character to be good, and that it is superfluous for him to prove that which is presumed. Even when justification is set up by proving the charge, the plaintiff, so far has the rule been pushed, cannot prove his good character in rebuttal.^ But usually when the plaintiff's character is directly attacked, evidence going to his whole pertinent general reputation may be introduced.* It has been said, however, that on an information in the Exchequer, filed by the attorney general, charging the defendant with keep- ing false weights, he is not entitled to give evidence of good character, on the ground ♦^^hat the right is limited to prosecutions strictly criminal.* § 48. Yet there are many cases in which the character of a person is one of the points at issue ; and in such cases ™.jj evidence as to character is not only relevant but of di- character rect importance. Is a master or agent, for instance, there gen- charged with culpa in eligeK-do ? In such case the bad tation^n^y general reputation of the employee is the very point ^^ proved. Bazalgette, 3 Exch. 692; Wright v. Adams v. Lawson, 17 Grat. 250; Shroeder, 2 Curtis C. C. 548 ; Sever- Shroyer v. Miller, 3 W. Va. 159 ; Byr- ancew. Hilton, 22 N. H. (4 Fost.) 147; ket v. Monohan, 7 Blackf. 83; How- Dame V. Kenney, 23 N. H. (5 Fost.) ell v. Howell, 10 Ired. 82; Sample v. 318 ; Inmaa v. Foster, 8 Wend. 602 ; Wynn, Busbee, 319; Burton v. March, Harcourt v. Harrison, 1 Hall, 474 ; 6 Jones L. 409 ; Scott v. Peebles, 2 Petrie v. Rose, 5 Watts & S. 364; Sm. &M. 546. Chubb V. Gell, 34 Penn. St. 114 ; » Matthews v. Huntley, 9 N. H. Harrison «. Shook, 41 111. 142; Haun 146; Stow v. Converse, 3 Conn. 325; V. Wilson, 28 Ind. 296 ; Holley v. Bur- Houghtaling «. Kilderhouse, 1 N. Y. gess, 9 Ala. 728. 530; aff. S. C. 2 Barb. 149. Though 1 R. V. Oddy, 5 Cox C. C. 210; 2 see Harding v. Brooks, 5 Pick. 244; Den. C. C. 264 ; People k. White, U Byrket v. Monohan, 7 Blackf, 83. Wend. Ill ; Eppendorflf v. R. R. 69 See for other cases infra, § 50. N. Y. 195 ; Albricht v. State, 6 Wis. * See more fully infra, § 50 ; Stein- 74; People v. Jones, 31 Cal. 565; man w. Mc Williams, 6 Penn. St. 170; Dowling V. State, 5 Sm. & M. 64. Spears v. Ins. Co. 57 Tenn. 370. 2 Romayne v. Duane, 3 Wash. C. C. ^ Atty. Gen. v. Bowman, 2 B. & P. 246 ; Bennett v. Hyde, 6 Conn. 24 ; 582, n. a. 61 §49.] THE LAW OF EVIDENCE. [book I. the plaintiff has to establish.^ Is the general conduct of a party at issue ? Then general reputation (as distinguished from proof of particular acts) is admissible to show, not that particular things were done or not done by the party, but that his general conduct was or was not as alleged.^ Hence, when character for chastity, in a suit for libel, is assailed, reputation is admissible, but not particular facts.^ § 49. Character, in the sense in which the term is here used. Character means the estimate attached to the individual by the •br°wTth'" community, not the private opinion held as to such in- reputation. dividual by the witness. Character, therefore, is to be regarded as convertible with " reputation," * or the general credit which a man has obtained in public opinion. A witness, there- fore, who is called to speak to character, — unlike a master who is asked for the character of his servant, — cannot give the result of his own person experience and observation, or express his I See Wharton on Ag. § 277; Cleg- horn V. R. R. 56 N. Y. 44 ; Chapman v. R. R. 55 N. Y. 579; Lee v. Detroit, 62 Mo. 565; Huntington R. R. v. Decker, 82 Penn. St. 119. Otherwise, when culpa in eligendo is not averred. Rob- inson V. R. R. 7 Gray, 92; Jacobs v. Duke, 1 E. D. Smith, 271 ; Harper v. R. R. 47 Mo. 567 ; Moss v. R. R. 49 Mo. 167. See infra, §§ 55-6. In Hays r. Millar, 77 Penn. St. 238, it was held that in an action against a bailee (not a common carrier) for negligence, ■when the bailor put in evidence loss by negligence of the bailee's servant, evidence of the skill and competency of such servant was admissible; citing Shaw V. Reed, 9 W & S. 72; Tenney V. Turtle, 1 Allen, 185. " There are certainly cases," said Sharswood, J., " in which it will be a defence, in an action against a person for damages resulting from the negligence of his servants, to show that he exercised all possible care in their selection; as where he is sued by one servant for the negligence of a fellow-servant, or where it is sought to make him liable 52 for the acts or omissions or want of skill of one employed by him in some independent work. These are excep- tional cases. A man is responsible for the consequences of the negligences of his servants in the course of their employment, without any regard to their character for care or skill." See Baulec v. R. R. 69 ST. Y. 356. Infra, §56. ^ Infra, § 563; Fountain v. Boodle, 3 Q. B. 6; Humphrey v. Humphrey, 7 Conn. 116; Anderson v. Long, 10 S. & R. 55; Atkinson v. Graham, 6 Watts, 411; Frazier v. R. R. 38 Penn. St. 104. ° "As has often been remarked, the general reputation of any one may be expected to be within the knowl- edge of attainable witnesses at all times, but it would be impossible to be prepared for all the particular slan- ders which perjured or malicious wit- nesses might invent." Campbell, J., Proctor V. Houghtaling, 37 Mich. 45. * Infra, § 564; Knode v. William- son, 17 Wall. 586; Wetherbee v. Nor- ris, 103 Mass. 566. CHAP. II.] RELEVANCY. [§ 50. own opinion, but in strict law, he must confine himself to evi- dence of mere general repute.^ In view of the fact that " the best character is generally that which is the least talked about," the courts have found it necessary to permit witnesses to give negative evidence on the subject, and to state that " they never heard anything against the character of the person on whose behalf they have been called." ^ The reputation to be estab- lished is that which would make it likely or unlikely that the party would do the controverted acts.^ When character is at- tacked it may be defended by rebutting proof as to general repu- tation, but not by proof of particular facts tending to show bad character.* Thus, where a party is charged in a libel, not with doing particular acts, but general dishonesty or incapacity, then, in a suit on such libel, it is admissible for the plaintiff to prove general honesty and capacity.^ § 50. It would be manifestly improper to permit a party suing for damages to put in evidence, as reason why he should Character have heavy damages, that his character is good. First, proved to the law assumes all characters to be good, and there is ijj^igafg'"' no use in proving that which is thus assumed ; secondly, damages, to make good character the basis of recovery would be equivalent to saying that a person with a bad character can be injured with impunity ; thirdly, a collateral issue would be provoked which would bear hard upon many deserving cases. For these and other reasons the courts have refused to permit such evidence to be put in. Thus, in an action for the seduction of a daughter, the good character of the girl cannot, as will be presently seen, 1 Taylor's Ev. § 325 a. St. 104; Hopps v. People, 31 111. 385; 2 Cockburn, C. J., L. & Cave C. C. People v. Garbutt, 17 Mich. 9; Sawyer 536; 10 Cox, 34; R. v. Turner, 6 How. v. Eifert, 2 Nott & M. 511 ; Davis v. St. Tr. 613; Gandolfo v. State, 11 State, 10 Ga. 101 ; State d. Touney, 27 Ohio (N. S.) 114; State v. Lee, 22 Mo'. 12; People u. Fair, 43 Cal. 137. Minn. 407. See fully infra, § 564. * See supra, § 49 ; R. v. Rowton, 8 R. V. Clarke, 2 Stark. 241 ; R. v. Leigh & C. 520 ; S. C. 10 Cox C. C. Stannard, 7 C. & P. 673; Com. v. 25; Com. v. Sackett, 22 Pick. 394; Hardy, 2 Mass. 317; Boynton v. Kel- Com. v. Webster, 5 Cush. 295; People logg, 3 Mass. 189; Com. v. Webster, v. White, 14 Wend. Ill; State v. Lee, 5 Cush. 324; Andrews v. Vanduzer, 11 22 Minn. 407. Johnson, 38; Douglass v. Tousey, 2 ^ King v. Waring, 5 Esp. 14 ; Foun- Wend. 352; Frazieru. R. R. 38 Penn. tain v. Boodle, 3 Q. B. 5. 53 § 52.] THE LAW OF EVIDENCE. [BOOK I, be put in evidence as part of the plaintiff's case.^ Nor will the plaintiff in an action for slander for charging theft be permitted to prove, as a part of his case, his character for honesty.''' But it is otherwise where the defendant sets up a defence by which the plaintiff's character is even indirectly impugned ; or when the general issue is pleaded, in which ease the plaintiff may prove his general good character in order to increase damages.^ § 51. It has been argued that in actions of seduction the good character of a third person is one of the grounds on seduction which a plaintiff in a suit claims damages ; and if so, previous"* the plaintiff, it is said, is entitled to put such good character character in evidence. It is clear that a father, for in- 01 person seduced is stance, suing for damages for his daughter's seduction, may prove the value of her services, though this inci- dentally involve the question of character ; * and the same reason- ing is used as to an action by a husband, for damages for adul- tery with his wife.^ But in neither of these cases can the plain- tiff, as a matter of evidence in chief, prove directly the prior good character of the seduced person as a ground for recovery.^ On the other hand, to mitigate the offence, the defendant has been held entitled to put in evidence not merely the prior general bad character, but particular prior acts of indiscretion, on the part of the person seduced.'^ In such case the plaintiff may prove the general good reputation of the seduced person in rebuttal.^ § 52. It does not bar an action for breach of promise of mar- > Bamfield v. Massey, 1 Camp. 460; * See Andrews v. Askey, 8 C. & P. Dodd V. Norris, 3 Camp. 519. 7; Dodd v. Norris, 3 Camp. 510; El- 2 Abbott, C. J., in Cornwall u. Rich- sam u. Faucett, 2 Esp. 562; Terry v. ardson, R. &; M. 307. See supra, § 47. Hutchinson, 9 B. & S. 487 ; Carpenter 8 Bate V. Hill, 1 C. & P. 100; R. v. Wall, 11* A. & E. 803 ; Grinnell t-. V. Clarke, 2 Stark. R. 241 ; Brown v. Wells, 7 M. & G. 1033. Goodwin, Ir. Cir. R. 61 ; cited in Tay- ^ Buller N. P. 27. lor's Ev. § 335 ; Romayne v. Duane, 3 ' Bamfield v. Massey, 1 Camp. 460; Wash. C. C. 246; Bennett v. Hyde, Dodd v. Norris, 3 Camp. 519; Pratt 6 Conn. 24; Sample u.Wynn, Busbee v. Andrews, 4 N. Y. 493; Wilson v. (N. C), 319; Burton v. March, 6 Sproul, 3 Pen. & Watts, 49. Jones L. 409 ; Holly v. Burgess, 9 ' Verry v. Watkins, 7 C. & P. 308. Ala. 728 ; Steinman v. Mc Williams, 6 « Bate v. Hill, 1 C. & P. 100. See Penn. St. 170; Shroyer v. Miller, 3 qualifications stated by Bronson, C. W. "Va. 168. See, for other cases, J., in Pratt w. Andrews, 4 N. Y. 495. supra, § 47; Townsend on Libel, § 387. 54 CHAP. TI.] RELEVANCY. [§63. riage that the plaintifE has a bad character, for promises must be kept to persons of bad character, as well as to per- in breach sons of good character. But when a plaintiff claims plaintiff's' that his character has been damaged, and his feelings actm^may crushed, by such breach of promise, then, in mitiga- ^^ proved, tion of damages, it may be shown that he had no character to be hurt by the breach,^ and no feelings that would be particularly shocked.^ With regard to immorality we may go a step further. If a man " is inveigled into an engagement by a harlot, he is a victim of a sheer, bald fraud." In such case he can, as part of his defence, put in evidence the bad character of the woman, showing that he was ignorant of such bad character at the time of the en- gagement.^ Whatever would show that the party suing was not in a condition to perform the contract is admissible in defence.* § 53. Much vexed has been the question whether, when a party sues for damages sustained by the defendant's When libel or slander, the defendant, in mitigation of dam- sues"for age, may put in evidence the plaintiff's general bad iJbei'l^de" 1 Foulkes V. Sellway, 3 Esp. 236 ; Boynton v. Kellogg, 3 Mass. 189. 2 Leeds v. Cook, 4 Esp. 256. ' Van Storch v. GriiBn, 67 Penn. St. 604. * " In Baddely v. Mortlock, 1 Holt's Nisi Prius Rep. 151 (1816), 3 E. C. L. R. 57, where a man brought an action against a woman for breach of prom- ise, the latter had heard some charges against him involving pecuniary fraud Car. & Payne, 350 (1824), (11 E. C. L. R. 412), it was held that if the promise was broken by the defendant because he found the plaintiff to be a loose and immodest woman, it went in bar of the action, unless he was aware of the circumstances. See note, also, to this case. See, also, Wharton v. Lewis, 1 C. & P. 529 (11 E. C. L. R. 459), where the same rule is extended to "misrepresentation or wilful sup- and perjury, and on not receiving any pression of the real state of the plain satisfactory explanation, broke off the tiff's family." In Bench v. Merrick match. Gibbs, Ch. J., held, if the charges were true, she was not bound to perform the contract, but that un- less they were clearly proven, the ex- istence of the rumor affected only the damages. See, also, the reporter's note to this case, citing Foulkes v. Sell- 1 Car. & Kir. (47 E. C. L. R.) 463 (1844), the rule laid down by the court in the principal case was adopted, where the promise had been made in ignorance that the woman had had an illegitimate child ten years before, thout^h her conduct since might have way, 3 Espinasse, 236 ; Leeds v. Cook, been perfectly correct, bee, also, 4 Esp. 256 ; and as to circumstances Toung v. Murphy, 3 Bmg. N. U 54 which justify non-performance of this (32 E. C. L. R. 38) ; Horam v. Hum- contract generally, Pothier, Traits du phreys, Lofft's Rep. 80." Note to Contrat de Mariage, part 2, chap. 1, S.C.ml Weekly Notes, 466. art. 7. In Irving v. Greenwood, 1 55 § 53.] THE LAW OF EVIDENCE. [book I. character, opening him to suspicion in the very rela- tions which the defamation in question covered. The inclination of opinion is in the affirmative.^ "The plaintiff's general character is in issue in this action, and the defendant may show that the plaintiff's reputa- tion has sustained no injury, because he had no reputation to lose." 2 But the defendant ought not to be permitted to intro- 1 Folkard on Slander, 541 ; 2 Star fendant may put plaintiff's general bad char- acter in issue. kie's Evid. 641, citing unreported de- cisions by Lord Denman, Parke, B., Lord Tenterden, and Coltman, J. ; Leicester !/. Walter, 2 Camp. 251 ; Richards v. Richards, 2 M. & R. 587; Newssam v. Carr, 2 Stark. R. 70; V. Moor, 1 M. & Sel. 284; Cil- ley V. Jenness, 2 N. Hamp. 87; Clark V. Brown, 116 Mass. 504; approved Cora. V. O'Brien, 119 Mass. 345 ; Foot V. Tracy, 1 Johns. 46; Paddock v. Salisbury, 2 Cow. 811; Hamer v. Mc- Farlin, 4 Denio, 509; Wilson v. Noo- nan, 27 Wis. 598; Whitaker v. Free- man, 1 Dev. L. 270; Bryan v. Gurr, 27 Ga. 378; Scott v. McKinrush, 15 Ala. 662 ; Pope v. Welsh, 18 Ala. 631 ; Fuller V. Dean, 31 Ala. 654. Contra, Jones u. Stevens, 11 Price, 258; Corn- wall V. Richardson, R. & M. 305; Jackson v. Stetson, 15 Mass. 48; Al- derman V. French, 1 Pick. 1 ; Walcott V. Hall, 6 Mass. 514. See Ross v. Lap- ham, 14 Mass. 275 ; Bailey v. Hyde, 3 Conn. 403; Bennett v. Hyde, 6 Conn. 24; Douglass v. Tousey, 2 Wend. 352. Compare Maynard v. Beardsley 7 Wend. 550 ; Winebiddle v. Porter- field, 9 Penn. St. 137; Young u. Ben- nett, 4 Scam. 43 ; B. v. J. 22 Wis. 372. In Pennsylvania, in Pease v. Ship- pen, 1878, it was ruled that "in an action for slander, evidence that when the words were uttered a general ru- mor or report existed in the neighbor- hood, that the plaintiff was guilty of the offence charged, is inadmissible. In England and in some of the states such evidence is admissible under the 56 general issue in slander, in mitigation of damages. Earl of Leicester v. Walter, 2 Campbell, 251 ; Wetherbee V. Marsh, 20 N. H. 561; Case v. Marks, 20 Conn. 248; Fuller w. Dean, 31 Alabama, 654; Galloway v. Court- ney, 10 Kirk (S. C.) Rep. 414 ; Callo- way V. Middleton, 2 A. K. Marsh. 372; Henson u. Veatch, 1 Blackf. 369. In other states it has been held that general reports of the truth of the charges cannot be given in evidence in mitigation of damages. Walcott V. Hall, 6 Mass. 514; Alderman v. French, 1 Pick. 17; Bodwell v. Swan, 3 Ibid. 376 ; Matson v. Buck, 5 Cowen, 499; Root U.King, 7 Ibid. 613; Cole m. Perry, 8 Ibid. 214 ; Mapes v. Weeks, 4 Wend. 659 ; Inman v. Foster, 8 Wend. 602 ; Shehan v. Collins, 20 111. 325 ; Young i). Bennett, 4 Scam. 43; An- thony V. Stevens, 1 Miss. 254. But whatever, say the court, may have been at one time the rule in this state as to the admission of such reports (Kennedy v. Gregory, 1 Binn. 85; Beehler v. Steever, 2 Whart. 313; Smith V. Stewart, 5 Barr, 372), it must now be regarded as the settled law of Pennsylvania, that they are not admissible for any purpose. Fitz- gerald V. Stewart, 3 P. F. Smith, 343; Lukehart v. Byerly, 3 Ibid. 418; Long V. Brougher, 5 Watts, 489 ; Conroe v. Conroe & wife, 11 Wright, 201, and the cases cited." See, for the above abstract, 7 Pitts. L. J. 97. " Davis, J., Whitney v. Janeville Gazette, 5 Bissell, 330. CHAP. II.] KELEVANCY. [§56. duce such evidence, without in some way, by plea or otherwise, giving the plaintiff notice.^ § 54. Although in an action for malicious prosecution the plaintiff's bad reputation, as has been stated, cannot be . put in evidence as proof of probable cause, such evi- cious pros- dence may be received in order to mitigate damages.^ But such bad reputation must be general ; not limited to a par- ticular class of persons.^ § 55. Good character being presumed, evidence to Barren ^n support it will not be received until it is assailed or pa.ltyas- . . , . , sailing until it is put directly in issue.* character. § 56. Particular facts, as going to make up a reputation for either good or bad character, cannot ordinarily be put in evidence.^ At the same time, in an action based on culpa in eligendo, against a principal, evidence may be given of particular facts from which the principal was bound to have inferred the agent's incompetency.^ Particular facts can- not be put in evi- dence. ^ Townsend on Slander, § 406, cit ing Anon. 8 How. Pr. 434. " Rodriguez v. Tadmire, 2 Esp, 772; Downing v. Butcher, 2 M. & K. 374; Bacon v. Towne, 4 Cush. 217 Goodrich v. Warren, 2t Conn. 482 Winebiddle v. Porterfield, 9 Penn. St. 137; Gwin v. Bradley, 3 Bibb, 192 Israel v. Brooks, 23 111. 575 ; Bostick V. Rutherford, 4 Hawks, 83 ; Beal v. Robeson, 8 Ired. 296; Martin v. Har- desty, 29 Ala. 758 ; Field on Damages, § 688. Though see Fitzgibbon v. Brown, 43 Me. 160. See supra, § 47. Alter, when attack on character is disclaimed. Smith v. Hyndman, 10 Cush. 554. ' Eschbach v. Applegarth, 47 Md. 61. * Ketland v. Bissett, 1 Wash. C. C. 144; Bruce v. Priest, 6 Allen, 100 Pratt V. Andrews, 4 Comst. 493 Cochran v. Toher, 14 Minn. 385 Goldsmith M. Picard, 27 Ala. 142. In- fra, §§ 562-8. 6 R. V. Rowton, L. & C. 320; Com. V. Sackett, 22 Pick. 394; Com. v. Webster, 8 Cush. 314; People v. White, 14 Wend. Ill-; McCarty v. People, 51 111. 231; Keener m. State, 18 Ga. 194 ; though see State v. Jerome, 33 Conn. 265. ' Huntington R. R. v. Decker, 84 Penn. St. 419 ; 3 Weekly Notes, 120 (apparently modifying Frazier v. R. R. 38 Penn. St. 103) ; Pittsburg R. R. v. Ruby, 38 Ind. 312 ; Couch v. Coal Co. 46 Iowa, 17. See Robinson v. R. R. 7 Gray, 92, and supra, § 48 ; Bauleo V. R. R. 59 N. Y. 356. Intemperate habits in a railway employee, such habits being known to the employer, can be proved to show culpa in eli- gendo, in order to inflame damages. Cleghorn v. R. R. 56 N. Y. 44. " Where a party undertakes to show that his reputation is good, or that the reputation of the other party or a wit- ness is bad, he cannot put in evidence of particular facts to prove the general reputation he is endeavoring to es- tablish. And to meet evidence of gen- eral reputation, the opposing party may put in evidence to the contrary 57 §ST.] THE LAW OF EVIDENCE. [book 1. § 57. Suppose that in a suit for negligence, the defence is that Usfgeof the defendant, being a specialist, exercised the care ciailstfld- "sual to good business men in his specialty ? In such missibie in gggg jj jg admissible for him to show the usage of such suits for , - negligence, specialists as to the particular matter in controversy.^ of a like general character. But he cannot prove particular facts, for the reason that a particular fact does not necessarily establish a general reputa- tion, or fairly meet the issue presented, and may also raise collateral issues ; and for the further reason, that while a party is presumed always to be ready to defend his general reputa- tion, he is not expected to be pre- pared to meet a distinct and specific charge." Peterson v. Morgan, 116 Mass. 350 " In Commonwealth v. Hardy, 2 Mass. 303, 318, it was said by Chief Justice Parsons ; ' It is not competent for the prosecutor to go into this in- quiry until the defendant has volun- tarily put his character in issue, and in such case there can be no examina- tion as to particular facts.' See Com- monwealth V. Sacket, 22 Pick. 394; Commonwealth v. Webster, 5 Gush. 295. " It is true that upon cross-examina- tion of a witness testifying to general reputation, questions may be put to show the sources of his information, and particular facts may be called to the witness's attention, and he may 58 be asked if he ever heard of them; but this is allowed, not for the pur- pose of establishing the truth of these facts, but to test the credibility of the witness, and to ascertain what weight or value is to be given to his testi- money. Leonard ^y. Allen, 11 Cush. 241 ; Hex v. Martin, 6 C. & P. 562. So in actions for slander, evidence of general bad character of the plaintiff may be put in evidence in mitigation of damages; and where the plaintiff alleges that the defendant has slan- dered him in a particular respect, as for thieving, the defendant may put in evidence for the same purpose that the plaintiff's general reputation in that respect is also bad. Clark v. Brown, 116 Mass. 504. But we are not aware of any case where the de- fendant upon that issue has been al- lowed to prove a particular act of theft." Commonwealth v. O'Brien, 119 Mass. 345, 346, 347, Endicott, J. 1 Cass V. K. R. 14 Allen, 448 ; Lane V. R. R. 112 Mass. 455 ; though see Hoye V. Jeffers, 30 Mich. 182 ; Ham- ilton D. R. R. 36 Iowa, 81 ; and crit- icism in Wharton on Neglig. 2d ed. § 46. CHAPTER III. PRIMARINESS AS TO DOCUMENTS. I. Gehebal Rules. Secondary evidence of documents is in- admissible, § 60. Eule applies to evidential as well as to dispositive documents, § 61. Record facts cannot be proved by parol, §63. Otherwise as to incidents collateral to records, § 64. Of administrative records parol evi- dence is inadmissible, § 65. Probate of will cannot be proved by parol, § 66. Administration must be proved by rec- ord, § 67. Parol evidence not admissible on cross- examination, § 68. Statutory designation of writings not necessarily exclusive, § 69. Primary means immediate, § 70. General test is not authority but imme- diateness, § 71. No primary testimony is rejected be- cause of faintness, § 72. Written secondary evidence inadmissi- ble, § 73. Counterparts are receivable singly, but not so duplicates, § 74. Brokers' books are primary in respect to bought and sold notes, § 75. Of telegrams original must be produced, §76. II. Exceptions To Rule. Rule does not apply where parol evi- dence is as primary as written, § 77. So where the party charged admits the contents of the document, § 79. Summaries of voluminous documents can be received, § 80. So of parol evidence of things fleeting and unproducible, § 81. So of documents which cannot be brought into court, § 82. Statute may require marriage to be proved by record, § 83. By private international law marriage may be proved by parol, § 84. In charges of penal marriage strict proof is required, § 85. Admissions may prove marriage, § 86. So may witnesses, § 87. III. DiFFEKENT KlHD OF CoriES. Classification, § 89. Secondary evidence of documents ad- mits of degrees, § 90. Photographic copies are secondary, §91. AH printed impressions are of same grade, § 92. Press copies are secondary, § 93. Examined copies must be compared, §94. Exemplifications of record admissible as primary, § 95. lu the Unites States made so by stat- ute, § 96. Statute does not exclude other proofs, §98. Only extends to courts of record, § 99. Statute must be strictly followed, §100. Office copy admitted when authorized by law, § 104. Independently of statute, records may be received, § 105. Original records receivable in same court, § 106. Office copies admissible in same state, §107. So of copies of records generally, §108. Seal of court essential to copy, § 109. Exemplification of foreign records may be proved by seal or parol, § 110. Of deeds, registry is admissible, § HI. Ancient registries admissible without proof, § 113. Certified copy of official register re- ceivable, § 114. 59 §60.] THE LAW OF EVIDENCE. [BOOK I. Exemplification of recorded deeds admissible, § 115. Wlien deeds are recorded in other states exemplifications must be under act of Congress, § IIS. Exemplifications of foreign wills or grants provable by certificate, § 119. Certificates inadmissible by common law; otherwise by statute, § 120. Notaries' certificates admissible, § 123. Searches of deeds admissible, § 126. Copies of .public documents receiva- ble, § 127. IV. Secohdary Evidence mat be ee- CEIVED WHEN PKIMARY IS UKPBO- DUCIBLE. Lost or destroyed documents may be proved by parol, § 129. So of papers out of power of party to produce, § 130. Accidental destruction of paper does not forfeit this right, § 132. Copies of copies not receivable, § 133. Abstracts and summaries of lost docu- ments admissible, § 134. So as to records, § 135. So as to depositions taken in same case, § 137. So as to wills, § 138. Witness of lost document must be sufficiently acquainted with origi- nal, § 140. Court must be satisfied that original is non-producible and would be evi- dence if prbduced, § 141. Loss may be inferentially proved, §142. Or by admission of opponent, § 143. Probable custodian must be inquired of, §144. Search in proper places must be proved, § 147. Degree of search to be proportioned to importance of document, § 148. Peculiar stringency in case of nego- tiable paper, § 149. Third person in whose hands is docu- ment must be subpoenaed to pro- duce, § 150. Party may prove loss by affidavit, §151. So WHEN Document is in Hands op Opposite Party. Notice to produce is necessary when document is in hands of opposite party, § 152. After refusal secondary evidence can be given, § 153. Notice must be timely, § 155. Notice to produce does not make a paper evidence, § 156. Party refusing to produce is bound by his refusal, § 157. After paper is produced opposite side cannot put in secondary proof, §158. Notice not necessary for document on which suit is brought, § 159. Nor where partj' is charged with fraudulently obtaining or withhold- ing document, § 160. Nor of documents admitted to be lost, §161. Nor of notice to produce, § 162. Collateral facts as to instrument may be proved without notice, § 163. L GENERAL RULE. § 60. Whenever an original document can be brought into Secondary court, secondary evidence of its contents fs, as a rule, inadmissi- inadmissible. In some instances this exclusion may be '''®- based on a statutory limitation. In others it may be sustained on the ground that when the parties to a contract agree to embody the contract in certain words on a certain paper, the contract can, in good faith, be evidenced in no other way. But whether the document, whose contents are in con- troversy, be one which a statute requires to be in writing ; or whether it be a contract put in writing by consent of the parties ; 60 CHAP. III.] PRIMAEINESS AS TO DOCUMKNTS. [§ 60. or -whether, belonging to neither of these classes, it be one whose meaning it is important for the purposes of justice accurately to collect, — the policy of the law, independent of other reasons, re- quires that its original, if practicable, should be produced. For, (1.) lex scripta manet, while memory as to words is treacherous; and even though not memory but a written copy be offered, such copy has between it and the original the possibility of mistake or of falsification. Then, (2.) if a party be permitted to hold back the original when he could produce it, and substitute for it a secondary proof, a door would be opened to fraud. And, (3.) unless such a rule be inexorably applied, an end would be put to that accurate and thorough presentation of facts which is essen- tial to the administration of justice. If no evidence is to be re- jected because it is secondary, a single witness would be sufficient to swear, either primarily or secondarily, either by first hand or second hand impressions, to a whole case, documentary and oral; the testimony of a witness, in such a case, would be a mere con- clusion of law, derived from his own notions of facts, with this peculiarity, that the law would be made by himself for the oc- casion; and the functions of both judge and jury would be dis- pensed with. If any evidence is to be rejected because it is secondary, then it is best to put the line where it is most intelli- gible ; where it is most likely to secure care and diligence in the preparation of a case, and accuracy in the presentation of that case to the court ; where the intent of parties in executing a writ- ing will be best promoted ; and where fraud, in the substitution of the spurious for the genuine, will be most effectually excluded. So far as concerns documentary evidence, these ends are best met by the rule above stated, which has been adopted with singular unanimity by all jurisprudences, that secondary evidence cannot be received of a document whose original could be brought into court.i 1 Among the cases in which this v. Kuczinski, 17 C. B. 251; Cory u. rule is vindicated may be found the Davis, 14 C. B. (N. S.) 370; Taylor - following : Brewster v. Sewell, 3 B. v. Riggs, 1 Pet. 591 ; Dwyer v. Dun- & A. 302; Cotterill v. Hobby, 4 B. & bar, 5 Wall. 318; Comstock v. Carnley, C. 465 ; Kowe v. Brenton, 8 B. & C. 4 Blatch. 58 ; Morton o. White, 16 737; Strother v. Barr, 5 Bing. 151 ; Me. 53; Greeley v. Quimby, 22 N. H. Vincent v. Cole, M. & M. 258 ; Twy- 335 ; Putnam v. Goodall, 3 N. H. 419; man v. Knowles, 13 C. B. 224; Siordet Wells v. Man. Co. 48 N. H. 491 ; Com. 61 § 61.] THE LAW OF EVIDENCE. [BOOK I. § 61. It makes no difference in this respect whether the doc- Euie ap- ument, whose contents are to be proved, is dispositive, weu to evi- *• ^- o"® disposing of rights, — or evidential, i. e. one dentiai as going to prove a relevant fact in dispute. In the latter dispositive oar a _ documents, case as Well as the former, the writing must be pro- duced if practicable, wherever it is necessary to prove the par- ticular act which the writing embodies. It becomes relevant, for instance, to prove a military desertion, of which an official registry is kept by authority of law. In such case, if such reg- istry is obtainable, the desertion cannot be proved by parol, or even by the soldier's letters.^ Again: when the question is whether a person was rated for the relief of the poor, this must be determined by the rate-book, and not by the collector's oral answer.^ A witness cannot even be asked whether certain reso- lutions were published in a newspaper ; ^ nor whether his name was written in a certain book,* unless the non-production of the newspaper or book be accounted for.^ In other words, with cer- tain exceptions to be hereafter stated,^ when a relevant fact con- sists of the substance of a document, the document itself is tho proper evidence of such fact. Until the absence of the document is satisfactorily explained, the fact cannot be proved by parol.^ V. Kinison, 4 Mass. 646; Bassett v. ^ Terrell v. Colebrook, 35 Conn. Marshall, 9 Mass. 312; Com.!). James, 188. Infra, § 65. 1 Pick. 375; Terrell v. Colebrook, 35 = R. v. CoppuU, 2 East, 25; Justice Conn. 188; Giraball v. Hufford, 46 v. Elstob, 1 F. & F. 256; R. v. Fitz- Ind. 126; McCombe v. R. R. 67 N. C. paine, 2 Q. B. 494. 193 ; Fitzgerald v. Adams, 9 Ga. 471 Newsom v. Jackson, 26 Ga. 241 Cloud V. Patterson, 1 Stew. Ala. 394 8 R. V. O'Connell, Arm. & T. 103. ^ R. V. CoppuU, 2 East, 25. 6 See infra, § 70. Isabella v. Pecot, 2 La. An. 387; Hall ° See infra, § 77. V. Acklen, 9 La. An. 219; Pendery v. "> Mr. Taylor (Ev.§ 373) illustrates Ins. Co. 21 La. An. 410 ; Ritchie v. the position in the text by cases Kinney, 46 Mo. 298; Chicago w. Ma- "where the question at issue was graw, 75 111. 566; Mason v. School simply what amount of rent was re- Dist. 34 Mich. 228; Conger v. Con- served by the landlord. R. v. Mer- verse, 9 Iowa, 554; Steele u.Etheridge, thyr Tidvil, 1 B. & Ad. 29; Augus- 15 Min. 501 ; Bemis v. Becker, 1 Kans. tien v. Challis, 1 Ex. R. 280. In "this 226; Bovee v. McLean, 24 Wis. 323; case Alderson, B., observes: 'You Cotton V. Campbell, 3 Tex. 493 ; Hoi- may prove by parol the relation of liday v. Harvey, 39 Tex. 670. And landlord and tenant, but without the so when a document is voluntarily de- lease you cannot tell whether any rent stroyed by the party. See infra, §§ was due.' So the writing must be 1265-70. produced to show who was the actual 62 CHAP. III.] PBIMAEINESS AS TO DOCUMENTS. [§61. As documents in this sense are to be reckoned letters, books, notes, deeds, contracts, accounts, records, journals, and wills.^ party to whom a demise had been made; R. v. Rawden, 8 B. & C. 708; 3 M. & R. 426, S. C; or under ■whom the tenant came into possession ; Doe V. Harvey, 8 Bing. 239 ; 1 M. & Sc. 374, S. C. In an action for the price of labor performed, where it appeared that the work was com- menced under an agreement in writ- ing, but the plaintifi's claim was for extra work, it has been several times held that, in the absence of positive proof that the work in question was entirely separate from that included in the agreement, and was in fact done under a distinct order, the plaintiff was bound to produce the original document, since it might furnish evi- dence not only that the items sought to be recovered were not included therein, but also of the rate of remu- neration upon which the parties had agreed. Vincent v. Cole, M. & M. 257, per Ld. Tenderden ; 3 C. & P. 481, S. C. ; Buxton v. Cornish, 1 Dowl. & L. 585; 12 M. & W. 426, S. C. ; Jones v. Howell, 4 Dowl. 176 ; Holbard v. Stephens, 5 Jur. 71, Bail C, per Williams, J.; Parton v. Cole, 6 Jur. 370, Bail C, per Patterson, J. See Reid v. Batte, M. & M. 413; Edie V. Kingsford, 14 Com. B. 759. See, also, Hawkins v. Warre, 3 B. & C. 697, where Abbott, C. J., draws the dis- tinction between papers signed by the parties or their agents, and those which are unsigned. "In Whitford v. Tutin, 10 Bing. 395; 4 M. & Sc. 166, S. C, the plaintifi" had been employed as secre- tary to the committee of a charitable society, pursuant to a resolution en- tered in the book of the committee, of which, during his service, he had had the care. The society being af- terwards dissolved, the plaintiff sued ' Wilson V. Young, 2 Cranch C. C. 33 ; De Tastet v. Crousillat, 2 Wash. C. C. 132 ; Sebree v. Dorr, 9 Wheat. 558 ; U. S. V, Boyd, 5 How. 29; Gage u. Wilson, 17 Me. 378; March v. Gar- land, 20 Me. 24 ; Whitney v. Balkam, 24 Me. 406 ; Skowhegan Bank v. Cut- ler, 49 Me. 315; Gale v. Currier, 4 N. H. 169; Morrill v. Otis, 12 N. H. 466 ; Brown v. Jewett, 18 N. H. 230; Hunt v. Rylance, 11 Cush. 117; New Haven Bk. v. Mitchell, 15 Conn. 206 ; Dygert v. Coppernall, 13 Johns. R. 210; Cole v. Jessup, 10 N. Y. 96; Bank V. Woods, 28 N. Y. 545 ; Smith V. Axtell, 1 N. J. Eq. 494; Vanhorn V. Frick, 3 Serg. & R. 278 ; Bryant V. Stilwell, 24 Penn. St. 314; Eddy v. Peterson, 22 111. 535 ; Wilt v. Bird, 7 Blackf. 258; Patterson v. Doe, 8 Blackf. 237; Williams v. Jones, 12 Ind. 561 ; Turner v. Singleton, 2 A. K. Marsh. 15 ; Smith v. Dudley, 1 Litt. (Ky.) 66; Smith u. Phillips, 25 Mo. 555 ; State v. Rosenfeld, 35 Mo. 472; Thompson v. Richards, 14 Mich. 172; Angell v. Rosenburg, 12 Mich. 24; Conway v. Bank, 13 Ark. 48; Graham v. Hamilton, 3 Ired. L. 381 ; Davidson v. Norment, 5 Ired. L. 555 ; Felton V. McDonald, 4 Dev. (N. C.) L. 406 ; Grynn v. Setzer, 3 Jones (N. C.) L. 382; Harris u. Eubanks, 1 Speers (S. C), 183; Miller v. Cot- ton, 5 Ga. 341 ; Fitzgerald v. Adams, 9 Ga. 471 ; Raines v. Ferryman, 29 Ga. 529; Mordecai v. Beal, 8 Port. (Ala.) 529; Hooks v. Smith, 18 Ala. 338 ; Kidd v. Cromwell, 17 Ala. 648 ; Dumas V. Hunter, 30 Ala. 75 ; Gaines V. Page, 15 La. An. 108; Dikes v. Mil- ler, 24 Tex. 417; Waterville v. Hughan, 18 Kans. 473 ; Poole v. Gerrard, 9 Cal. 593. 63 §62.J THE LAW OF EVIDENCE. [book I. § 62. To exclude, however, parol evidence on this ground, the objection must be taken at the time. Thus in a suit on an alleged debt, if the plaintiff can establish a primd facie case, without betraying the existence of a written contract relating to the subject matter of the action, he cannot be precluded from recovering by the defendant subsequently giving evidence that the agreement was reduced into writing ; but the defendant, if he means to rely on a written contract, must produce it as part of his evidence.^ So it has been ruled in an action of eject- ment, that the plaintiff could not be defeated by one of his wit- nesses proving on cross-examination that an agreement, which he only knew related in some way to the land in question, was seen on that morning in the hands of the plaintiff's attorney, and was produced at a former trial between the same parties ; and the court held that, in order to exclude parol evidence of the tenancy, it should appear that the agreement was between the same par- ties, and was binding at the time of the second trial ; neither of which facts was proved.^ But when a party discovers and dis- closes for the first time on trial that there is a writing embodying some of the members of the committee for his salary, and the court held that he was bound to produce the book under which he was engaged ; for though he was no party to the original resolution, which was entered into be- fore his appointment as secretary, yet by accepting the situation and the benefit attached to it, he must be taken to have adopted the terms contained in the resolution, and, consequently, was bound to produce the book to show what those terms really were. Whether, in an action on the ease for an injury done to the plaintiff's re- version, his interest as a reversioner may be proved by the parol testimony of the tenant, when it appears that the premises are occupied under a written agreement, may admit of some doubt. In one case it was held that the agreement must be produced ; Cotterill v. Hobby, 4 B. & C. 465 ; but in a later case, where nominal 64 damages only were recovered, and in- dependent proof was given of the prem- ises having been devised to the plain- tifif, the judges of the Court of Com- mon Pleas were equally divided upon the question whether a nonsuit should be entered, the plaintiff having omitted to produce the written agreement be- tween the occupier and himself. Stro- ther V. Barr, 5 Bing. 136; Best, C. J., and Burrough, J., in favor of non- suit; Park and Gaselee, JJ., cont. ; 2 M. & P. 207, S. C." Taylor's Ev. §§ 373-4. 1 Taylor's Ev. § 375; Magney v. Knight, 1 M. & Gr. 944 ; 2 Scott N. R. 64, S. C. ; Stephens v. Pinney 8 Taunt. 327; 2 Moore, 349, S. C; Marston v. Deane, 7 C. & P. 13; Fry V. Chapman, 5 Dowl. 2G5; R. v. Pad- stow, 4 B. & Ad. 208 ; 1 N. & M. 9, S. C. ; Reed v. Deere, 7 B. & C. 261, 266. ^ Doe ti. Morris, 12 East, 237. CHAP. III.] PBIMAKINESS AS TO DOCUMENTS. [§63. that which he proposes to prove by parol, the rule holds good. It is his business to duly prepare himself for trial, and to probe the nature of his testimony in advance.^ § 63. That which could be proved by record cannot ordinarily be proved by parol.^ Thus the filing of a paper must be proved by the certificate of the clerk,^ the discontinu- facts can- ance of an action must be proved by the record,* a par- proved by don must be proved by the warrant ; ^ a divorce must ^ be proved by the decree.® So the record is primary proof of prize proceedings in admiralty ; '^ of an order of court nune pro tunc ; ^ of a removal of goods under an execution ; ^ of a sale under order of court, or by sheriff ; ^^ of a tax sale ; ^^ of an agreement of 1 Scarborough v. Reynolds, 12 Ala. 252; Hoitt v. Moulton, 21 N. H. 586. 2 Molver v. Moore, 1 Cranch C. C. 90; Gleason v. Florida, 9 Wall. 779; Moody V. Moody, 11 Me. 247; Winsor V. Clark, 39 Me. 428; Chase v. Sav- age, 55 Me. 543; Pendexter v. Carle- ton, 16 N. H. 482; Smith v. Kirby, 10 Met. 150; Fleming v. Clark, 12 Allen, 191; Wayland v. Ware, 109 Mass. 248 ; Arnold v. Smith, 5 Day, 150 ; Brush v. Taggart, 7 Johns. R. 19 ; Rathbun v. Ross, 46 Barb. 127 ; Real, in re, 55 Barb. 186; Stebbins V. Cooper, 4 Denio, 191; Baskin v. Seechrist, 6 Penn. St. 154; Duvall u. Peach, 1 Gill (Md.), 172; Myers v. Smith, 27 Md. 91 ; Glascock v. Nave, 15 Ind. 457 ; Reilly v. Cavanagh, 29 Ind. 435; State v. Thompson, 19 Iowa, 299; Cherry v. Cants, 7 S. C. 224 Flournoy v. Newton, 8 Ga. 306 Rutherford v. Crawford, 53 Ga. 138 Kennedy v. Reynolds, 27 Ala. 364 State V. Longineau, 6 La. An. 700 State V. Smith, 12 La. An. 349 Flynn v. Ins. Co. 17 La. An. 135 Brown V. Wright, 4 Yerg. 57; Bogart V. Green, 8 Mo. 115; State v. Ed- wards, 19 Mo. 674; State v. Cardinas, 47 Tex. 250. Otherwise as to a fact, e. g. an offi- cial oath, of which no record is made. Farnsworth Co. v. Rand, 65 Me. 19. VOL. 1. 5 8 Peterson v. Taylor, 15 Ga. 483. * Sheldon v. Frink, 12 Pick. 568. ^ Spalding v. Saxton, 6 Watts, 338. 8 Tice V. Reeves, 30 N. J. L. 314. ' Massonier v. Ins. Co. 1 Nott & M. 155. ° Ludlow V. Johnston, 3 Ohio, 553. ° Wynne v. Aubuchon, 23 Mo. 30. " Dane v. Mallory, 16 Barb. 46; Phillips V. Costley, 40 Ala. 486. 11 " It is a rule well established by authority, that when one claims to hold another's property under statu- tory proceedings, as under a sale for taxes, he must show that every ma- terial provision designed for the se- curity of the persons taxed, for their protection, has been substantially com' plied with, otherwise the claim will fail. In fact the rule is generally laid down with much more strictness. Bloom V. Burdick, 1 Hill, 131 ; Sharp V. Spier, 4 Hill, 76 ; Doughty v. Hope, 3 Denio, 594; Whitney v. Thomas, 23 N. Y. 281 ; Van Rensselaer v. Whit- beck, 3 Seld. 517; People v. Che- nango Sup'rs, 1 Kern. 563 ; Thacher V. Powell, 6 Wheat. 119. The cases of Swift V. The City of Poughkeepsie (37 N. Y. 513), and Barhyte v. Shep- herd (35 N. Y. 251), have not changed this rule." Peckham, J., Cruger ». Dougherty, 43 N. Y. 121. 65 §64.J THE LAW OF EVIDENCE. [book reference ; i of a binding over for a crime ; 2 of conviction of a crime; 2 of a bastardy order;* of the desertion of a soldier, of which there is an official record ; ^ of the action of a town meet- ing as to which a record is required to be kept ; ^ of the pro- ceedings of municipal corporations ; ■!■ of the time of the terms of a court;* of a bankrupt discharge;* of the institution of suits ;^'' of the character of the pleadings and docket proceed- 11 But as with contracts, so with records, collateral inci- dents, not of record, may be proved by parol.^^ Thus parol evidence has been held admissible to prove that two records relate to the same cause of action,^^ though in such cases the records must be first put in evidence ; ^^ to show the cause of action of a judgment when not set forth by ings § 64. Incidents collateral to records may be proved by parol. 1 Grimes v. Grimes, 1 Dane, 234. 2 Smitli t!. Smith, 43 N. H. 536. » People V. Reinhardt, 39 Cal. 449; Clements v. Brooks, 13 N. H. 92; Com. V. Quinn, 5 Gray, 478 ; New- comb V. Griswold, 24 N. Y. 298 ; Peck t). Yorks, 47 Barb. 131; Jolinson v. State, 48 Ga. 116. See, as qualify- ing this, infra, §§ 77, 541-42; and see §64. * Tyrrel v. Woodbridge, 27 N. J. L. (3 Dutch.) 416. 5 Terrell v. Colebrook, 35 Conn. 188; though see Wilson v. McClure, 50 111. 366. See supra, § 61. 6 Cameron i'. School Dist. 42 Vt. 507. ' Perryman v. Greenville, 51 Ala. 507. ' Micbener v. Lloyd, 16 N. J. Eq. 38. » Regan v. Regan, 72 N. C. 195. " Sherman v. Smith, 20 111. 350; Hughes V. Christy, 26 Tex. 230. 11 Foster v. Trull, 12 Johns. R. 456 ; Harker v. Dement, 9 Gill, 7 ; Reilly v. Cavanagh, 29 Ind. 435; Milan v. Pemberton, 12 Mo. 598; Flynn i'. Ins. Co. 17 La. An. 135; Gliddon V. Goos, 21 La. An. 682. " Infra, § 991 ; Frost v. Shapleigh, 66 7 Greenl. 236 ; Mathews v. Bowman, 25 Me. 157; Torrey v. Berry, 36 Me. 589 ; Sturtevant v. Randall, 53 Me. 149 ; Bassett v. Marshall, 9 Mass. 312; Pease v. Smith, 24 Pick. 122. See Wabash Canal v. Rheinhart, 22 Ind. 463 ; Massey v. Westcott, 40 -111. 160; Dowling v. Hodge, 2 McMul. 209; Doty v. Brown, 4 Comst. 71; Dunckel v. Wiles, 11 N. Y. 420; White V. Madison, 26 N. Y. 117; McKnight v. Devlin, 52 N. Y. 339. IS And see R. v. Bird, 2 Den. C. C. 94 ; 5 Cox C. C. 20 ; Perkins v. Wal- ker, 19 Vt. 144 ; Com. v. Dellane, 11 Gray, 67; Com. v. Sutherland, 109 Mass. 342; Davisson v. Gardner, 10 N. J. L. 289; Butler v. Slam, 50 Penn. St. 456; Federal Hill Co. v. Mariner, 15 Md. 224; Porter v. State, 17 Ind. 415; Duncan v. Com. 6 Dana, 295; Shirley v. Fearne, 33 Miss. 653 ; State V. Andrews, 27 Mo. 267; State V. Scott, 31 Mo. 121; State v. Thorn- ton, 37 Mo. 360; State v. De Witt, 2 Hill (S. C), 292 ; Rake v. Pope, 7 Ala. 161; State v. Matthews, 9 Port. 370. See fully infra, § 988. " Webb V. Alexander, 7 Wend. 281; Inman v. Jenkins, 3 Ohio, 271. CHAP. III.] PEIMARINESS AS TO DOCUMENTS. [§ 65. the record;^ to prove that a judgment against an indorser was not intended to pass as collateral tea judgment against the prin- cipal ; ^ to prove that a new cause of action was introduced by an amendment to a declaration, thereby discharging an attach- ment ; ^ to identify property levied on ; * to prove a sale under the execution ;^ to prove that a judgment was put in evidence in a former suit ; ® to prove that parties interested united in lim- iting a lien ; ^ to prove the alteration of a record ; ^ to prove the death of an ex officio administrator ; ^ to prove attendance on court as a witness ; ^'^ to prove a jurat of town officers, in lack of record ; ^^ to prove that a particular person had been in prison ; ^ to prove the attendance of juries and of judges as parts of a trial ; ^^ to explain the date of a writ.^* The same distinctions are applicable to the records of corpora- tions. ^^ § 65. Wherever a statute requires that a record should be kept by law, then the record is the proper evidence of such of admin- acts,^^ and the acts can be primarily proved only by reSr the record. Thus parol evidence of a person's enlist- §3™^^^';'^ ment into the military service of the United States is admissible. not admissible.''^ Nor is a certificate officially signed by the provost marshal of the district, that the plaintiff " has this day been credited as a recruit in the navy to the " defendant town, " by order of the A. A. Pro. Mar. Gen. of Maine," legal evidence 1 Miles V. Caldwell, 2 Wall. 35; » Saltonstall v. Kiley, 28 Ala. 164. Parker v. Thompson, 3 Pick. 429; i" Baker u. Brill, 15 Johns. R. 260. Dunlap K. Glidden, 34 Me. 517; Lan- "Hathaway v. Addison, 48 Me. der V. Arno, 65 Me. 26; Stedman v. 440; Farnsworth Co. v. Rand, 65 Me. Patchin, 34 Barb. 218; Justice v. Jus- 19. tice, 3 Ired. L. 58; Walsh v. Harris, " Infra, § 567; Real v. People, 42 10 Cal. 391. See fully, § 986. N. Y. 270; Howser v. Com. 51 Penn. 2 Bank v. Fordyce, 9 Penn. St. 275. St. 332. See Darling v. Dodge, 36 Me. 370. '^ Massey v. Westcott, 40 111. 160. « Freeman v. Creech, 112 Mass. " Johnson v. Farwell, 7 Me. 370; 180. Society Prop. . Gospel v. Whitcomb, 2 ^ Darling v. Dodge, 36 Me. 370; N. H. 227. Sprague v. Brown, 40 Wis. 612. " Infra, §§ 69, 663. 6 Stanley V. Sutherland, 54 Ind. 339. " Supra, §§ 60, 61. 6 Denny v. Moore, 13 Ind. 418. " Atwood v. Winterport, 60 Me. ' Sankey v. Reed, 12 Penn. St. 95. 250. See Terrell v. Colebrook, 35 8 Brier v. Woodbury, 1 Pick. 362. Conn. 188. 67 §66.] THE LAW OF EVIDENCE. [book I. of his enlistment.! So taxation, if the records are not lost, can only be proved by the record.^ § 66. The probate of a will is a copy of the will under the seal „ ^ ^ of the Probate Court, with " a certificate stating that Probate of . . will neces- the Original will has been duly proved and registered? mission of and that administration of the goods of the deceased '^ '■ has been granted to one or more of the executors named therein." ^ Without this proof, the will itself, as a title to property, or as giving a right to the executor or administrator to sue, can- not be received in evidence.* The probate may be proved either by producing the document itself,^ or the register from the Court of Probate, containing an entry that the will has been proved, and probate granted,^ or a certified or examined copy of such reg- ister.'' Under local statutes, this admissibility extends to certi- 1 Atwood V. Winterport, 60 Me. 250. "The fact of enlistment is a matter of record. It must be proved by a duly authenticated copy from the army records. A sworn copy is ad- missible, or a copy certified by the proper certifying officer. But the cer- tificate offered is not, and does not purport to be, a copy of any recorded fact, or of any record. It is the asser- tion of the person certifying that the fact therein stated is true. A mere certificate that a certain fact appears of record, without the production of an authenticated copy of the record, is not evidence of the existence of the fact. Owen v. Boyle, 15 Me. 147. The officer certifying should certify a transcript of the record." Appleton, C. J., Atwood V. Winterport, 60 Me. 252. 2 Pittsfield u. Barnstead, 38 N. H. 115; Farrar ti. Fessenden, 39 N. H. 268. ' Taylor's Ev. § 1426, citing Toller on Ex. 58. * Ibid.; Jones v. Goodrich, 5 Moo. P. C. 15; Allen i>. Dundas, 3 T. R. 125; Ryves v. Wellington, 9 Beav. 579; Hood u. Barrington, L. R. 6 Eq. 218; Graham v. Whitely, 26 N. J. L. 254; Cogswell v. Burtis, 1 Hoff. (N. 68 Y.) 198. See Doe v. Gunning, 7 A. & E. 244. As to conclusiveness of probate of will, see infra, § 811. 5 In such case the seal proves itself. Kempton v. Cross, Hardw. 108. ° Cox V. AUingham, Jac. 514 ; R. v. Ramsbotham, 1 Lea. 25 n. ; Elden v. Keddell, 8 East, 187 ; Jackson v. Lu- cett, 2 Caines, 363; Russell v. Schuy- ler, 22 Wend. 277. ' Taylor's Ev. § 1427; R. v. Phill- pott, 2 Den. 308; Dorrett v. Meux, 15 C. B. 142; Fleeger v. Pool, 1 Mc- Lean, 185 ; Ackley v. Dygert, 33 Barb. 176; Kenyon ti. Stewart, 44 Penn. St. 1 79 ; Raborg v. Hammond, 2 Har. & G. 42; Taylor v. Burnsides, 1 Grat. 165; Wynn v. Harman, 5 Grat. 157; Rowland «. M'Gee, 4 Bibb, 439; Mc- Connell v. Brown, Litt. (Ky.) 459 ; Churchill v. Corker, 25 Ga. 479; Doe V. Roe, 31 Ga. 593. A copy of the probate and record of a will, duly certified by the probate judge, is conclusive evidence of the validity of, the will, on the trial of a collateral issue between a stranger and the devisee, respecting the property devised; and is admissible as evidence on the trial of such issue, notwith- standing proceedings to contest it may CHAP. III.] PRIMARINESS AS TO DOCUMENTS. [§ 68. fied copies of wills and probates registered in other states.^ But the probate must be included in the certificate.^ At common law, a foreign will, which is not admitted to probate by the law of the forum, must be proved by producing the will, if it is in existence ; if it be lost, by proving a copy.^ When a probate in one state is offered in evidence in another, the record is primd facie proof of its allegations.* § 67. The proof of letters of administration depends upon the local applicatory law. In England the proof is made Adminia- by producing the register or act book containing the ^J^^l"^ ],_ grant, or an exemplification or certified copy thereof ; record, or by producing the letters themselves under the seal of the court ; either of which modes of proof is primary evidence.^ § 68. English practice was for some time disturbed by the question whether a witness, on cross-examination, could p^^^j ^^. be examined as to the contents of a writing not yet in dence of , J. 1 writings evidence. In Queen Caroline's case, in 1820, the fol- not admis- lowing questions were put by the House of Lords, and cross-ex- the following answers given by the judges : ® " First, *°"''* '""■ Whether, in the courts below, a party, on cross-examination, be pending at the time it is offered law.' And the order allowing the ao- and admitted as evidence. Brown v. count recited as follows: ' All persona Burdick, 25 Ohio St. 260. interested in the settlement of said ^ McConnell v. Brown, Litt. (Ky.) account having had legal notice.' 459; Knight v. Wall, 2 Dev. & B. L. " Such recitals are not conclusive, it 125; Doe v. Roe, 31 Ga. 593; Phebe is true, where the jurisdiction of the V. Quillin, 21 Ark. 490. foreign court depends upon the fact of 2 Morris ti. Keyes, 1 Hill (N. Y.), notice. Carleton v. Bickford, 13 Gray, 540 ; Nichols v. Romaine, 3 Abb. Pr. 591. If the same rule applies where 122 ; Marr v Gilliam, 1 Coldw. 488; the jurisdiction exists, but the notice Bright V. White, 8 Mo. 422. is necessary to the regularity and va- » Graham v. Whiteley, 26 N. J. L. lidity of the proceedings by the lex 254. fori, still the burden of impeaching * " The objection made to the pro- them for that cause must rest upon ceedings in Rhode Island is that they the party asserting their invalidity." were had without due notice to par- Wells, J., Clark v. Blackington, 110 ties interested. The record of the Mass. 374. See infra, § 811. original proceedings, by which a copy « Taylor's Ev. § 1428, citing Kemp- of the will was ordered to be filed and ton v. Cross, Rep. temp. Hard. 108 ; recorded, and the appellant received Elden v. Keddell, 8 East, 187; Davis letters of administration in Rhode Isl- v. Williams, 13 East, 232. and, has the recital, ' Notice having « Best's Evidence, § 473 ; 2 B. & B- been duly given thereon, pursuant to 286. 69 § 68.] THE LAW OF EVIDENCE. [BOOK I. would be allowed to represent, in the statement of a question, the contents of a letter, and to ask the witness whether the wit- ness wrote a letter to any person with such contents, or con- tents to the like effect, without having first shown to the wit- ness the letter, and having asked that witness whether the witness wrote that letter, and his admitting that he wrote such letter ? " " Secondly, Whether, when a letter is produced in the courts below, the court would allow a witness to be' asked, upon showing the witness only a part of or one or more lines of such letter and not the whole of it, whether he wrote such part or such one or more lines ; and in case the witness shall not admit that he did or did not write the same, the witness can be exam- ined to the contents of such letter ? " " Thirdly, Whether, when a witness is cross-examined, and, upon the production of a letter to the witness under cross-examination, the witness admits that he wrote that letter, the witness can be examined in the courts below whether he did not, in such letter, make statements such as the counsel shall, by questions addressed to the witness, in- quire are or are not made therein ; or whether the letter itself must be read as the evidence to manifest that such statements are or are not contained therein ; and in what stage of the pro- ceedings, according to the practice of the courts below, such letter could be required by counsel to be read or be permitted by the court below to be read ? " The first of these questions the judges answered in the negative, on the ground that " The con- tents of every written paper are, according to the ordinary and well established rules of evidence, to be proved by the paper itself, and by that alone, if the paper be in existence ; the proper course, therefore, is to ask the witness whether or no that letter is of the handwriting of the witness. If the witness admits that it is of his or her handwriting, the cross-examining counsel may, at his proper season, read that letter as evidence, and, when the letter is produced, then the whole of the letter is made evidence. One of the reasons for the rule requiring the production of writ- ten instruments is, in order that the court may be possessed of the whole. If the course which is here proposed should be fol- lowed, the cross-examining counsel may put the court in posses- sion only of a part of the contents of the written paper ; and thus the court may never be in possession of the whole, though 70 CHAP. III.] PKIMARINESS AS TO DOCUMENTS. [§ 68. it may happen, that the whole, if produced, may have an effect very different from that which might be produced by a state- ment of a part." The first part of the second question, namely, " Whether, when a letter is produced in the courts below, the court would allow a witness to be asked, upon showing the wit- ness only a part or one or more lines of such letter, and not the whole of it, whether he wrote such part ? " the judges thought should be answered by them in the afiBrmative in that form ; but to the latter, " and in case the witness shall not admit that he did or did not write such part, whether he can be examined as to the contents of such letter," they answered in the negative, for the reasons already given, namely, that the paper itself is to be produced, in order that the whole may be seen, and the one part explained by the other. To the first part of the third ques- tion. Lord Chief Justice Abbott answered as follows : " The judges are of opinion, in the case propounded, that the counsel cannot, by questions addressed to the witness, inquire whether or no such statements are contained in the letter ; but that the letter itself must be read to manifest whether such statements are or are not contained in that letter. In delivering this opin- ion to your lordships, the judges do not conceive that they are presuming to offer to your lordships any new rule of evidence, now for the first time introduced by them ; but that they found their opinion upon what, in their judgment, is a rule of evidence as old as any part of the common law of England, namely, that the contents of a written instrument, if it be in existence, are to be proved by that instrument itself, and not by parol evidence." To the latter part of the question he returned for answer : " The judges are of opinion, according to the ordinary rule of proceed- ing in the courts below, the letter is to be read as the evidence of the cross-examining counsel, as part of his evidence in his turn, after he shall have opened his case ; that that is the ordinary course ; but that, if the counsel who is cross-examining suggests to the court that he wishes to have the letter read immediately, in order that he may, after the contents of that letter shall have been made known to the court, found certain questions upon the contents of that letter, to be propounded to the witness, which could not well or effectually be done without reading the letter it- self, that becomes an excepted case in the courts below, and for 71 § 68.] THE LAW OF EVIDENCE. [BOOK I. the convenient administration of justice, the letter is permitted to be read at the suggestion of the counsel, but considering it, however, as part of the evidence of the counsel proposing it, and subject to all the consequences of having such letter considered as part of his evidence." The following additional question was then put : " Whether, according to the established practice in the courts below, counsel cross-examining are entitled, if the counsel on the other side ob- ject to it, to ask a witness whether he has made representations of a particular nature, not specifying in his question whether the question refers to representations in writing or in words ? " Ab- bott, C. J., delivered the following answer of the judges : " The judges find a difficulty to give a distinct answer to the question thus proposed by your lordships, either in the affirmative or neg- ative, inasmuch as we are not aware that there is, in the courts below, any established practice which we can state to your lord- ships as distinctly referring to such a question propounded by counsel on cross-examination, as is here contained ; that is, whether the counsel cross-examining are entitled to ask the wit- ness whether he has made such representation ; for it is not in the recollection of any one of us that such a question, in those words, namely, ' whether a witness has made such and such representa- tion,' has at any time been asked of a witness. Questions, how- ever, of a similar nature are frequently asked at nisi prius, refer- ring rather to contracts and agreements, or to supposed contracts and agreements, than to declarations of the witness ; as, for in- stance, a witness is often asked whether there is an agreement for a certain price for a certain article, — an agreement for a certain definite time, — a warranty, — or other matter of that kind being matter of contract ; and when a question of that kind has been asked at nisi prius, the ordinary course has been for the counsel on the other side not to object to the question as a question that could not properly be put, but to interpose, on his own behalf, another intermediate question, namely, to ask the witness whether the agreement referred to in the question originally proposed by the counsel on the other side was or was not in writing ; and, if the witness answers that it was in writing, then the inquiry is stopped, because the writing must be itself produced. My lords, therefore, although we cannot answer your lordships' question 72 CHAP. III.] PRIMAEINESS AS TO DOCUMENTS. [§ 68. distinctly in the affirm ative or the negative, for the reason I have given, namely, the want of an established practice referring to such a question by counsel ; yet, as we are all of opiuion that the witness cannot properly be asked, on cross-examination, whether he has written such a thing (the proper course being to put the writing into his hands, and ask him whether it be his writing), considering the question proposed to us by your lord- ships, with reference to that principle of law which requires the writing itself to be produced, and with reference to the course that ordinarily takes place on questions relating to contracts or agreements, we, each of us, think, that if such a question were propounded before us at nisi prius, and objected to, we should direct the counsel to separate the question into its parts. My lords, I find I have not expressed myself with the clearness I had wished, as to dividing the question into parts. I beg, therefore, to inform the house, that, by dividing the question into parts, I mean that the counsel would be directed to ask whether the rep- resentation had been made in writing or by words. If he should ask whether it had been made in writing, the counsel on the other side would object to the question ; if he should ask whether it had been made by words, that is, whether the witness had said so and so, the counser would undoubtedly have a right to put that question, and probably no objection would be made to it." On commenting on the above procedure, Mr. Best remarks that the rule, that counsel who has a document in his possession shall not represent its contents to a witness, " may possibly be defended on the ground that whoever uses a document in a court of justice has no right to suppress any part of it, or prevent its speaking for itself ; although the fitness of extending even this principle to evidence extra causam is not beyond dispute. But whether a witness may be asked, with a view to test his memoxy or credit, if he has ever made a representation, not specifying whether verbal or written ; or has written a letter, not saying to whom, when, or under what circumstances ; in which "representa- tion or letter he has made statements inconsistent with the evi- dence given by him in causa, is a much larger question. It has been suggested that the above answers of the judges have not resolved this point in the negative, and that they were all based on the assumption that the letter was in the possession of the 73 §68.] THE LAW OF EVIDENCE. [BOOK I. cross-examining counsel. In .practice, however, a different con- struction is put upon them ; and we should at once dismiss the subject, had not that practice been condemned by text writers on the law of evidence,^ and the practice founded on them been recently modified by the legislature. And here it may be doubted how far the proceedings in Queen Caroline's case are binding on tribunals, the answers of the judges to the House of Lords having no binding force per se ; and although in that case the house adopted and acted on those answers, it was not sitting judicially, but with a view to legislation, which finally proved abortive." ^ In New York the rule in Queen Caroline's case has been so far recognized as to preclude the proving, on cross-examination, by parol, a written instrument.^ It has been also explicitly held that when a witness is cross-examined' as to whether he wrote a letter containing certain statements, the writing must be first shown to the witness.* Merely showing the letter to the wit- 1 See Taylor's Ev. § 1301; Stark. Ev. 226-7. I have discussed this question in an article on Queen Caro- line's case, in the International Re- view for September, 1877. See, also, Lord Brougham's Sketch of Lord Camden, in the third series of Brough- am's Sketches; in which Brougham comments on Erskine's course at the trial in this connection. ^ Best's Evidence, § 474. The an- swers of the judges in Queen Caro- line's case were condemned by the common law commissioners of 1850, and at length received the condemna- tion of the legislature. The 17 & 18 Vict. c. 125, § 24, following almost verbatim the recommendation of those commissioners, enacts : " A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without such writing being shown to him ; but if it is intended to contradict such wit- ness by the writing, his attention must, 74 before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Pro- vided, always, that it shall be compe- tent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he shall think fit." By sect. 103, the enact- ments in this section are extended to every court of civil judicature in Eng- land and Ireland ; and 28 Viet. c. 18, sees. 1 and 5, extends them to criminal cases. ' Speyer «. Stern, 2 Sweeny, 516; Newcomb v. Griswold, 24 N. Y. 298 ; Gaffney v. People, 50 N. Y. 223, cited infra. < Stephens v. People, 19 N. Y. 549 ; Stamper ». Griffin, 12 Ga. 450; Calla- nan v. Shaw, 24 Iowa, 441. Contra, Randolph v. Woodstock, 35 Vt. 291. See State v. George, 8 Ired. 324 ; Smith t). People, 2 Mich. 415. CHAP. III.] PBIMAEINESS AS TO DOCUMENTS. [§70. ness is in any view insufficient. He must have time to notice its contents.^ § 69. A statute which prescribes certain kind of evidence as proof of certain facts does not, unless it expressly so statutory provides, exclude other proof of such facts when the fio3°evi- statutory proof cannot be had.^ Thus where the pro- ^^"'^ not J. j!Ti .. ,,. necessarily ceedings or directors, commissioners, public trustees, exclusive. and the like, are entered in books, the fact that such books are rendered by statute admissible in evidence does not ex- clude parol proof of what has taken place at the respective meetings.^ § 70. As illustrations of the doctrine that primary evidence is, in the sense before us, that which is immediate, we may "primary" mention the case of a newspaper, when the question is "i'^^ea;. what the newspaper published. For this purpose, the ^'®-" original manuscript from which the paper is printed is second- ary ; and a written copy or reprint by third parties of the news- paper is secondary; the primary evidence, receivable as such, is the newspaper itself, as issued by the party whose liability it is sought to establish.* 1 Morrison v. Myers, 11 Iowa, 538. " It is competent for a party on the trial to prove that a witness, on the part of his adversary, has made oral statements inconsistent with evi- dence upon a material question given by such witness on the trial, for the purpose of impeaching the credibility of a witness, and weakening the force of the evidence. But it is requisite that the party offering the impeaching evidence should first call the attention of the witness to the circumstances un- der which the statements were made, that he may have an opportunity of correcting the evidence given on the trial, or of explaining the apparent in- consistency between his evidence and his former statements. The reason of the rule applies as strongly to written as to oral statements made by the wit- ness ; and when his evidence is sought to be impeached by written state- ments, alleged to have been made by him, the writing should be first pro- duced, so that he may have an oppor- tunity for inspection and examination. And as the writing is the best evi- dence of the statement made by the witness therein, questions as to the contents are not ordinarily admissible. The Queen's case, 2 B. & B. 287; Newcomb v. Griswold, 24 N. Y. 298; Greenleaf on Evidence, § 463; 2 Phil- lips on Evidence, 962." Andrews, J., Gaffney v. The People, 50 N. Y. 223. 2 Kendall v. Kingston, 5 Mass. 524; Green i>. Gill. 8 Mass. Ill ; Com. v. Gutter, 8 Mass. 279; Bovee v. Mc- Lean, 24 Wis. 225. 8 Miles V. Bough, 3 Q. B. 845; Inglis V. R. R. 1 Macq. Sc. Ca. H. of L. 112. * Brunswick v. Harmer, 14 Q. B. 185; R. V. Amphlit, 6 D. & B. 126 ; Bond V. Bank, 2 Ga. 92. 75 § 72.] THE LAW OF EVIDENCE. [BOOK I. § 71. Much confusion has arisen from the ambiguity of the The test is, terms which are used to designate the evidence which ity.bu't'""'" is thus excluded. Mr. Bentham i distinguishes the two immediate- glasses as " original " and " unoriginal ; " which Mr. ness of im- ° tv r -n i_ pression. Best, though following in most points Mr. Bentham, changes into " original " and " derivative." But this is scarcely exact, as there is no evidence that is not in some sense " origi- nal ; " none that is not in some sense " derivative." ^ The dis- tinction is based on the nearness of relation of the witness to the thing as to which he testifies ; if he was in immediate contact with it, or separated only by material objects, then his relation is primary, and &is testimony is admitted ; if he is separated by the intervention of another self-determining agent, then the relation- ship is broken, and his testimony is not admitted. A., for in- stance, sees a railroad collision, though it may be A. is half blind, and is a mile off, and therefore a very uncertain observer, A. is an admissible witness, because his relationship, not being broken by the interposition of another self-determining agent, is im- mediate to the thing testified to.^ B., a person of great accuracy and intelligence, standing close to the scene of the collision, takes notes, and reads these notes to C, who is called as a witness, and as to whose accuracy and honesty in reproducing B.'s impressions there can be no doubt, but who is excluded, because he does not stand in immediate relation to the thing testified to, but this re- lation is broken by the interposition of B. The rule may in such cases work hardly, but it has for its general application three important reasons : first, by going to first hand, greater accuracy is usually attainable ; secondly, it is for the adjudicat- ing tribunal to adjust degrees of credibility to such witnesses as are admitted ; thirdly, to substitute for the sworn statements of immediate observers, tested by cross-examination, the impres- sions received by others as to what such observers said when un- sworn and without cross-examination, would open the way to great frauds. § 72. A series of witnesses may observe a particular transac- No pri- tion ; the impressions of some may be strong, the im- denTe T' pressions of others may be faint; but the faint impres- 1 Rat. Jud. Ev. book vi. chap. iii. » U. S. v. Gibert, 2 Sumn. 19. » See supra, §§ 8, 15. 76 CHAP. III.] PRIMARINESS AS TO DOCUMENTS. [§ 72. sion is not to be excluded because of its faintness, nor rejected because it is inferior, in respect of intensity, to the oflufaint- strong impression. In other words, that which consti- °«^^- tutes excluding secondariness is, not inferiority as to capacity to testify accurately, but removal, by the interposition of intelligent media, from the thing testified. There may be several thousand sheets, for instance, printed from the same type, and the last sheets printed may be blurred and confused ; but the last is as much an original as the first ; and would be as admissible as the first ; 1 while a written copy made by an amanuensis from the first would be excluded because secondary.^ Hence comes the maxim, that secondariness is based not on weakness, but on grade. Secondary evidence is excluded not because it is in- ferior, but because it presupposes more accurate and immediate evidence held back by the party offering.^ So, among witnesses standing on the same grade, one may be inferior to another as to trustworthiness, but this does not exclude him. In the Tich- borne case, for instance, all witnesses who claimed to have known Roger Tichborne were equally admissible as primary witnesses, though some were near relations and intimate friends of Roger, while others had been merely casual acquaintances. The test is, " Do you testify at first hand? " If so, no matter how incredi- ble may be the testimony, it is receivable, so far as concerns the present test. So the testimony of a mere by-stander is primary evidence of a conversation he overhears, though not likely to be so accurate as that of a participant.* So, as will hereafter be more fully seen, the fact that the alleged writer is not called as to the forgery of his signature does not exclude other witnesses.^ Yet where secondary evidence of high accuracy is kept back by a party, the court may refuse to permit him to produce evidence of an inferior type until the higher be accounted for.^ If a 1 See infra, §§ 92, 409. ^ R. v. Hazy, 2 C. & P. 458 ; R. v. " Bond V. Bank, 2 Ga. 92. Hurley, 2 M. & Rob. 473; Smith v. 8 Morrison v. Chapin, 97 Mass. 72; Prescott, 17 Me. 277; Ainsworth v. Lee V.Lee, 9 Penn. St. 169; Slioen- Greenlee, 1 Hawks, 190; MoCaskle berger v. Haokman, 37 Penn. St. 87 ; v. Amarine, 12 Ala. 17. Infra, §§ 705- Richardson v. Milburn, 17 Md. 67; 707. Young V. Mertens, 27 Md. 114; Car- « Infra, § 90 ; Stevenson v. Hoy, 43 penteru. Dame, 10 Ind. 125; Mc- Penn. St. 191; Ellis v. Huff, 29 111. Creary v. Turk, 29 Ala. 244. 449; Harvey v. Thorpe, 28 Ala. 250. * Peeples u. Smith, 8 Rich. S. C. 90. 77 §73.] THE LAW OF EVIDENCE. [book I. party has a facsimile of a lost paper, he cannot prove such pa- per by calling a witness as to its contents.^ A letter-book, how- ever, in which press copies are taken, is held to be so far a copy as to stand in the same relation to the original as do copies taken from itself. The letter-book, and copies taken from it, are equally secondary.'' § 73. As a general principle it may in fact be stated that a written copy of a written instrument (" transcripti- tious " evidence, as Mr. Bentham calls it) will not be received when the original can be obtained.^ Nor is a witness's written receipt of a payment admissible when St. Written secondary evidence inadmissi- ble. ^ Stevenson v. Hoy, 43 Penn. 191. 2 Infra, § 93, 133. " Whenever a copy of a record or document is itself made original or primary evidence, the rule is clear and well settled that it must be a copy made directly from, or compared with, the original. If the first copy be lo.st, or in the hands of the opposite party, so long as another may be obtained from the same source, no ground can be laid for resorting to evidence of an inferior or secondary character. The admission of k tran- script from the record of a deed, or other private writing, for the record of which provision is made by law, is not an exception to, but only a mod- ification of, the same rule. But when the source of original evidence is ex- hausted, and the resort is properly had to secondary proof, the contents of private writings may be proved, like any other fact, by indirect evidence. The admissibility of evidence offered i-, primary as by one oi his parents ; this is primary evidence. But written. acted upon in all the business arrange- ments of the country. " But there is a difference in prin- ciple between the two cases, — the let- ter received in reply to a written com- munication, and the dispatch received in reply to the same communication sent by telegraph. Telegraphic mes- sages are instruments of evidence for various purposes, and are governed by the same general rules which are applied to other writings. If there be any difference it results from the fact that messages are first written by the sender, and are again written by the operator at the other end of the line, thus causing the inquiry as to which is original. The original message, whatever it maybe, must be produced, it being the best evidence; and, in case of its loss, or of inability to pro- duce it from any other cause, the next best evidence the nature of the case will admit of must be furnished. If there was a copy of the message existing it should be produced ; if not, then the contents of the message should be shown by parol testimony. Scott & Jarnagan on Telegraphs, §§ 340, 341. Many cases are cited in the above work, from which it is held, that in all controversies between the sender of the message and the com- pany, the original message is the one left at the office by the party sending it; but where a man sends a propo- sition to another man, by telegraph, and gets a reply accepting the offer, the original message, so far as binding the acceptor is concerned, is the copy delivered to him at the other end. The message, as communicated to the acceptor, and his reply, as delivered to the operator to be returned, are what would govern in construing the contract, provided both parties volun- tarily, and of their own accord, sent their messages by the telegraph, and thus adopted the company as their agent. " In Matteson v. Noyes, 25 111. Rep. 591, Walker, J., in delivering the opinion of the court, says : ' On the trial below, appellee offered, and the court admitted, in evidence what pur- ported to be a telegram from the ap- pellant to Loren Darling. There was no evidence that it was the original, or that the original had been lost or destroyed, or could not be produced, or that the paper offered was a copy. It was simply offered and admitted as the dispatch which was received by the witness from the telegraph office, and as primary evidence. It is an elementary principle that a resort 1 Agricult. Cat. Ins. Co. v. Fitz- gerald, 16 Q. B. 435; Tucker v. Welsh, 17 Mass. 168; McFadden v. Kings- bury, 11 Wend. 667; Lathropp. Bram- hall, 64 N. Y. 372 ; Prater v. Frazier, 11 Ark. 249 ; Thompson v. Mapp, 6 Ga. 260; Planters' Bk. v. Borland, 5 Ala. 531; Sparks v. Rawls, 17 Ala. 211; O'Neal v. Brown, 20 Ala. 510; Duffie V. Phillips, 31 Ala. 571; St. Louis R. R V. Eakin.5, 30 Iowa, 279. 83 §77.] THE LAW of: evidence. [book I. the testimony of a relative cognizant of A.'s birth is also primary evidence of its date.i Marriage, as will hereafter be abundantly shown, may be proved by parol, though there be a written con- tract and a registry.* A militia company may be known by sev- eral names, and parol evidence to show this may be received, though the names may be noted in the records of the company.^ Proof, again, of what is done at a legislative or corporate meet- must always be had to the best evi- dence in the power of the party by which the fact is capable of proof, and it is an inflexible rule that, if it is in writing, the original must be pro- duced, unless it be shown that it is destroyed, or not within the power of the party to produce it, before sec- ondary evidence can be received of its contents. And before a copy of a written instrument can be admitted, a sufficient foundation must be laid by preliminary proof of destruction or ab- sence. In this case no such proof was made to justify the reception of this copy in evidence.' " There is also authority cited in Scott & Jarnagan, supra, from the 18th Upper Canada Rep. (Q. B.) 60, King- horn V. The Montreal Telegraph Co., where Robinson, C. J., in delivering the opinion of the court, says : ' We must look, I think, in the case of each communication, at the papers deliv- ered by the party who sent the mes- sage, not at the transcript of the mes- sage taken through the wire at the other end of the line, with all the chances of mistake in apprehending and writing the signals, and in tran- scribing for delivery.' " These cases seem fully to apply to this case. There is a class of cases are Dunning & Smith v. Roberts, 35 Barb. 463; Trevor & Colgate v. Wood, 36 N. Y. 307; and Durkee v. Railroad Co. 29 Vt. 127, in which last case, Redfield, J., in delivering the opinion of the court, says : ' In regard to the particular end of the line where in- quiry is first to be made, it depends upon which party is responsible for the transmission across the line, or, in other words, whose agent the tele- graph company is. The first com- munication in the transaction, if it is all negotiated across the wires, will only be effective in the form in which it reaches its destination. In such case inquiry should be made for the dispatch delivered. In default of that, its contents may be shown by the next best proof.' " But these cases do not change or affect the doctrine so far as it is ap- plicable to this case, because here the original answer delivered by Gould must be the one to be regarded as the original, so far as proof of handwriting is concerned, no matter in what form the message was received at the other end." Sargent, J., Howley v. Whipple, 48 N. H. 488-90. 1 Evans v. Morgan, 2 C. & J. 453; R. V. Manwaring, Dear. & B. 132; Morris v. Miller, 4 Burr, 2057; Suss. in which contracts have been made by Peerage, 11 CI. & F. 85; Com. v. telegrams, where, for the purpose of showing what the contract was, the message that was delivered to the per- son addressed, and the answer of ac- ceptance as delivered for transmission, were considered the originals; such 84 Norcross, 9 Mass. -1 92 ; Carskadden v. Poorman, 10 Watts, 82; Beeler v. Young, 3 Bibb, 520. ^ Infra, §§ 83-4. See Limerick v. Limerick, 4 Sw. & Tr. 252. = Emerson v. Lakin, 23 Me. 384. CHAP, III.] PEIMAEINESS AS TO DOCUMENTS. [§77. ing is not excluded by the fact that the meeting keeps minutes which may be evidence.^ A memorandum noting the terms of a parol contract, made at the time the contract was agreed to, and read to all the parties, does not exclude oral evidence of the con- tract, but may be received to corroborate such evidence.^ Pay- ment, also, of money to a third party, or for taxes, can be proved without accounting for the written receipt ; ^ and so may the ad- mission of a debt, though coincident with the giving a note,* and so may an oral notice sent at the time of a written demand.^ So the fact that trains on a railroad'are dne at a certain point on a certain time may be proved by parol as well as by the time ta- ble ; ^ so the fact of the posting of town ordinances may be proved by parol.'' In suits also of trover, for the conversion of a docu- 1 Miles V. Bough, 3 Q. B. 848 ; Inglis v. R. R. 1 Macqueen S. C. 112. " Lathrop v. Bramhall, 64 N. Y. 365. » Rambert v. Cohen, 4 Esp. 213; Jacob V. Lindsay, 1 East, 460 ; Keene V. Meade, 3 Peters, 7; Dennett v. Crocker, 8 Me. 239; Kingsbury v. Moses, 45 N. H. 222 ; Berry v. Berry, 17 N. J. L. 440; Leatherbury v. Ben- nett, 4 Har. & M. 392 ; Ford v. Smith, 5 Cal. 314 ; Hinchman v. Whetstone, 23 111. 185; Adams v. Beale, 19 Iowa, 61; Wolf V. Foster, 13 Kans. 116. Accordingly the payment may be sub- stantiated either by producing the creditor's receipt and proving his sig- nature, or by the oral deposition of the debtor. Though see McGregor v. Bugbee, 15 Vt. 734. * Singleton v. Barrett, 2 C. & J. 368. 5 Smith V. Young, 1 Camp. 439. 6 Chicago R. R. V. George, 19 111. 510. ' Teft V. Size, 10 111. 482. This exception has been extended (Taylor's Ev. § 377) to cases where, at the time of letting some premises to the defendant, the plaintiff had read the terms from pencil minutes, and the defendant had acquiesced in these terms, but had not signed the minutes. Trewhitt v. Lambert, 10 A. & E. 470; 3 P. &D. 676, S. C. See Drant u. Brown, 3 B. & C. 665; 5 D. & R. 582, S. C; and Bethell v. Blencowe, 3 M. & Gr. 119, where the court held that written proposals, made pending a negotiation for a ten- ancy, might be admitted without a stamp, as proving one step in the evi- dence of the contract; and when, upon a like occasion, a memorandum of agreement was drawn up by the landlord's bailiff, the terms of which were read over, and assented to by the tenant, who agreed to bring a surety and sign the agreement on a future day, but omitted to do so. Doe V. Cartwright, 3 B. & A. 326. See Hawkins v. Warre, 3 B. & C. 690; 5 D. & R. 512, S. C. And where, in order to avoid mistakes, the terms upon which a house was let were, at the time of letting, reduced to writing by the lessor's agent, and signed by the wife of the lessee, in order to bind him; but the lessee himself was not present, and did not appear to have constituted the wife as his agent, or to have recognized her act, further than by entering upon and occupying the premises ; R. v. St. Martin's, Leices- ter, 2 A. & E. 210 i 4 N. & M. 202, 85 § 77.] THE LAW OF EVIDENCE. [BOOK I. ment, the document may be generally proved by parol descrip- tion.i So it has been held that the inscription on a trunk tag can be proved without producing the tag ; ^ that a highway can be proved to be such without producing the deeds or record estab- lishing it ; 2 that the nature of clothes can be proved without pro- ducing the clothes ; * that the fact that a witness has been in prison can be proved without producing the record of conviction.* Again, where the occupation of land is the point at issue, this fact may as well be shown by calling a witness to prove such occupa- tion as by producing the lease.^ Thus in an English case,'^ to prove a subsequent settlement, a pauper was asked whether he had not occupied and paid rent for a tenement. The opposite counsel interposed, and asked if he had held under a written con- tract. It appeared that he had, and it was then submitted that the writing must be produced, and that the original question could not be answered. But the court held that it might. Bayley, J., said : " The general rule is, that the contents of a written instru- ment cannot be proved without producing it. But although there may be a written instrument between a landlord and ten- ant, defining the terms of the tenancy, the fact of tenancy may be proved by parol without proving the terms of it." And Lit- tledale, J., said: "Payment of rent as rent is evidence of ten- ancy, and may be proved without producing the written instru- ment." ^ The reason for these exceptions is that when parties agree that a fact should be evidenced by oral as well as by writ- ten proof ; or when, from the nature of the case, the proof must S. C. ; and where lands were let by read to them, parol evidence was re- auction, and a written paper was de- ceived. livered to the bidder by the auction- ^ JoUey v. Taylor, 1 Camp. 143 ; eer, containing the terms of the let- Scott v. Jones, 4 Taunt. 865. ting, but this paper was never signed ^ Com. v. Morrell, 99 Mass. 542. either by the auctioneer or by the ' Woburn v. Henshaw, 101 Mass. parties. Ramsbottom v. Tunbridge, 2 193. M. & Sel. 434. See Ramsbottom v. * Cora. v. Pope, 103 Mass. 440. Mortley, 2 M. &. Sel. 445, where, on » gee infra, § 541. the occasion of hiring a servant, the ^ See Spiers v. Willison, 4 Cranch, master and servant went to the chief 398 ; Hay v. Moorhouse, 6 Bino-. N. constable's clerk, who in their pres- C. 52. ence, and by their direction, took ' R. v. Kingston upon Hull, 7 B. & down in writing the terms of the C. 611; 1 M. & R. 444. hiring, but neither party signed the « See, also, Twyman v. Knowles, 13 paper, nor did it appear to have been C. B. 222. 86 CHAP. III.] PRIMAKINESS AS TO DOCUMENTS. [§ 78. rest primarily in the recollection of the parties, which the written memoranda are admissible only to refresh, then the existence of the written memoranda (there being no statute making it the exclusive method of proof) does not exclude the oral proof.^ § 78. It is also obvious that in most questions of genuineness and identity of documents, parol evidence must be re- „ T, , . ,.,. „ So when ceived to prove such genuineness and identity. Except writing in case of certain self-proving documents, the genuine- posesV™! ness of a document must be proved by witnesses before P™°^' it can be let in ; and, as is elsewhere seen, where the suit is tort for conversion, the document may be described by parol without notice to produce.^ So it may be proved by parol (there being nothing in the certificate to such effect) that a person taking an acknowledgment was a justice of the peace, or other proper offi- cer ; ^ and that certain persons were partners, without producing the deed.* So, as is elsewhere shown more fully, the fact of agency may be proved primd facie by recognition of the princi- pal.^ Nor, as to a parol agreement collateral to a written, does the rule apply.^ It must at the same time be remembered that the exceptions just noted are confined to cases where the parol evidence is evidential and not dispositive.' If it go to the essence and substance of a contract, which contract the suit is brought to enforce, then the writing must be produced ; as where a question of title is involved,^ or where the terms of a tenancy which is sued on are material.® 1 See St. Lawrence R. R. v. Mad- « Reid v. Batte, M. & M. 413 ; dox, 18 Kans. 546. Ramsbottom v. Tunbridge, 2 M. & S. 2 Scott V. Jones, 4 Taunt. 865 Read v. Gamble, 10 A. & E. 597 Bucher u. Jarratt, 3 B. & P. 145 434 ; Doe v. Cartwright, 3 B. & A. 326. Infra, § 1026. When the agree- ment is partly written and partly un- How V. Hall, 14 East, 275 ; Darby v. written, parol evidence is admissible. Ouseley, 1 H. & N. 1 ; Com. v. Mes- Infra, § 1015. Domestic Ins. Co. v. singer, 1 Binn. 274 ; McLean v. Hert- Anderson, 23 Minn. 57. zog, 6 S. & R. 154 ; McGinnis v. State, ' See R. v. Castle Morton, 3 B. & 24 Ind. 500 ; Ross v. Bruce, 1 Day, Aid. 590. 100. » Cotterill v. Hobby, 4 B. & C. 465. ' Rhoades v. Selin, 4 Wash. 715 ; » R. v. Merthyr Tidvil, 1 B. & Ad. Bank U. S. v. Benning, 4 Cranch C. C. 31. So, in the case of Yorke v. Smith, 81 ; SImltz V. Moore, 1 McLean, 620 ; 21 L. J. Q. B. 53, where a bill of sale State V. McNally, 34 Me. 210. was inadmissible for want of a stamp, * Alderson v. Clay, 1 Stark. R. 405. it was held that oral evidence of the ' Infra, §§ 1315-18. fact that there had been a sale was 87 § 80.] THE LAW OF EVIDENCE. [BOOK I. § 79. Another important exception, based upon the admis- Wherethe ^^""^ °^ ^^^ V^^^Y cliarged, will be hereafter dis- party cussed.i It IS enough for the present to say that a admits the party may, by admitting the contents of a document, the docu-° under certain limitations, relieve his opponent from its "°° ■ production. § 80. Cases may occasionally occur in which it is desirable to obtain information which is scattered through a vast of"voium'i-' number of public documents, the originals of which it ml'nts^may would be highly impolitic as well as inconvenient to here- remove from their archives. In such cases it would ceived. be a perversion of justice not to admit sworn abstracts, or summaries of such documents, made by their proper custo- dians, in all cases where such summaries are based on and ca- pable of being tested by an exact calculation ; and hence under such circumstances they may be received.^ This liberty, how- ever, is not allowed as to bank books, which must at common law be produced in court or their absence accounted for,^ nor as to the books of a railroad company.* Nor can the certificate of an officer having charge of public records, that a certain fact ap- pears by the records, be received, as the records themselves must be proved or exemplified ; ^ though an officer may be called to prove that a certain entry is not on the docket.^ So where a mass of private documents to be inquired into is so great that they cannot possibly be mastered in court, then, whenever a re- sult can be ascertained by calculation, the result of such calcula- wrongly admitted. But, as we have derson v. Hackney, 16 Ga. .^21 ; Bur- seen, if a contract be established by ton v. Driggs, 20 Wall. 133; cited oral evidence, it is for the adverse infra, §§ 82, 126, 177 a. See Johnson party to prove that it was in writing, v. Kershaw, 1 De (J. & Sm. 264, In R. V. Rawden, 8 B. & C. 710, Bay- ruling that to admissibility of the ab- ley, J., said : " There can be no doubt stract it is necessary that the books that a party may, by keeping out of should be ready to be produced if re- view a written instrument, make out quired. by parol testimony a prima facie case « Ritchie v. Kinney, 46 Mo. 298. of tenancy, and that it then lies on the * McCombs v. R. R. 67 N. C. 193. opposite party to rebut the prima facie 6 Wayland v. Ware, 109 Mass. 248 ; case so made out." Powell's Evidence, but see Weidman v. Kohr, 4 Ser^. & 4th ed. 63. R. 174. 1 Infra, § 1091. e McGrath v. Seagrave, 2 Allen, ' Roberts v. Doxen, Peake's Cas. 83 ; 448 ; Com. v. Evans, 101 Mass. 25. Meyer v. Sefton, 2 Stark. 276 ; Hen- CHAP. III.] PRIMARINESS AS TO DOCUMENTS. [§81. tion, subject to be tested by other expert witnesses, is admissi- ble.i And where bills of exchange have been, by certain parties, invariably drawn in the same way, this fact may be proved by one of their clerks without producing the bills.^ It is other- wise, however, as to matters not the subject of calculation, or of precise statement.^ § 81. An instrument may be of so evanescent and transient a character that the incapacity of the party to produce it may be assumed without proof. In such case secondary P*™' «^'- ■j j^-i 1- • 1 deiiee of evidence oi its contents may be given without produc- things ing it, or giving evidence explanatory of its non-pro- and'u^pro- duction.* Thus, without production or explanation of *"<"'''«• non-production, witnesses have been permitted to give parol evidence of the inscriptions on banners exhibited at public meet- ings ; ^ of the writing, as we have seen, on a trunk tag, at least for purposes of identification;^ and of the marks on clothes and other articles of personal property.' 1 Stephen's Ev. p. 70, citing Rob- erts V. Doxen, Peake, 83 ; Meyer v. Sefton, 2 Stark. 276. ^ Spencer v. Billing, 3 Camp. 310. » Topham v. McGregor, 1 C. & Kir. 320. See infra, §§ 126, 506-515. * See Carr v. Smith, 58 Ga. 361. « R. V. Hunt, 3 B. & Aid. 566; Sher- idan's case, 31 How. St. Tr. 679; R. V. O'Connell, Arm. & T. 235. ' Com. V. Morrell, 99 Mass. 542. " The law generally requires the pro- duction of the highest evidence of which a thing is capable, and evi- dence is to be excluded which sup- poses still higher evidence behind in the possession or power of the party. But the rule is far from being univer- sal. For example, it does not require that a supposed writer shall be called to prove his own handwriting, or that a person whose identity is to be proved shall be produced in court. The same is true in respect to an animal or any other object the identity of which is to be proved. " The general rule is most frequently applied to writings, where proof is of- fered of their contents. The writing itself must be produced. But there are many exceptions as to writing. An inscription on a banner or flag carried about by the leaders of a riot may be proved orally. The King ». Hunt, 3 B. & Aid. 566. Or a direc- tion contained on a parcel. Burrell v. North, 2 Car. & Kirw. 679. Or a no- tice to an indorser of a promissory note. Eagle Bank v. Chapin, 3 Pick. 180. " In the present case, the tag re- ferred to was not a document, but an object to be identified. The words written upon it served to identify it; and the court are of opinion that oral evidence was admissible for this pur- pose, and that it was not necessary to produce the tag. An inspection of the tag, with the written direction upon it, might have been more satisfactory to the jury than an oral description of it, and therefore might be regarded as ' Com. V. Pope, 103 Mass. 440. See Com. v. Hilla, 10 Cush. 530. 89 § 83.] THE LAW OF EVIDENCE. [BOOK I. § 82. Monuments, tomb-stones, and other immovable struct- And so as ures, may contain inscriptions which it is important to which fan- put in evidence. From the nature of the case, such in- brought scriptions may be proved either by photographs, or by into court, copies duly proved. 1 The same reasoning applies to marks on trees ; ^ to libels written on walls ; ^ to placards posted on walls.* It must appear, however, that the paper is so attached to the wall as to be irremovable.^ The same right has been ex- tended to papers in a country which forbids their removal ; ® in which case abstracts or exemplifications of such papers may be received.^ § 83. It is competent for the law-making power to prescribe Statute that marriage is only to be valid when solemnized with qaneviinr- particular formalities; and in ordinary cases, on the "roved*by* principle locus regit actum, a marriage contracted with- record. out such formalities in a country where such formalities are exacted cannot extra-territorially be held valid.^ Where this is the case the record of the marriage must be duly proved,* though to make the record or registry of the marriage evidence, it is necessary that it should be kept in conformity with law, and should be duly verified.^" A marked qualification exists, how- ever, to this rule. When parties have lived together as man and wife in the United States, it will require very strong proof that stronger evidence; but the strength ' Alivon v. Furnival, 1 C, M. & of evidence and the admissibility of K. 277; Boyle v. Wiseman, 10 Ex. R. evidence are different matters." Chap- 647; Quilter v. Jorss, 14 C. B. (N. man, C. J., Commonwealth «. Morrelli S.) 747; Hyam v. Edwards, 1 Dall. 99 Mass. 544. 2; Am. Life Ins. Co. u. Rosenagle, 1 Jones V. Tarleton, 9 M. & W. 77 Penn. St. 507. Infra, § 108. 675; R. V. Fursey, 6 C. & P. 84; Doe v. ' Supra, § 80. Cole, 6 C. & P. 360; Haslam v. Cron, 8 ggg Whart. Confl. of Laws, §§ 127 19 W. R. 969; North Brookfield v. elseq.; Holmes u. Holmes, 1 Abb. U. Warren, 16 Gray, 171. See Shrews- S. 526. bury Peerage case, 7 H. of L. Cas. 1 , ' State v. Horn, 43 Vt. 20. See 16- _ State V. Wallace, 9 N. H. 515 ; Jack- " Ibid. son v. People, 2 Scam. 232 ; Glenn 8 Mortimer v. McCallen, 6 M. & v. Glenn, 47 Ala. 204. See infra, W. 67. §653. * Bruce v. Nicolopulo, 11 Ex. 133. " State u. Dooris, 40 Conn. 145. See See Bartholomew v. Stephens, 8 C. & State v. Wallace, 9 N. H. 515; State P- 728. ». Horn, 39 Vt. 20. " Jones V. Tarleton, 9 M. & W. 675. 90 CHAP. III.] PKIMARINESS AS TO DOCUMENTS. [§83. their marriage was void for want of formality, in the place of solemnization, to justify with us an adjudication that it is in- valid, so as to destroy marital status or to bastardize children.^ With regard to parties marrying in their domicil of origin with the intention of settling in the United States, no American court, after the parents had taken up their residence in this coun- try, would venture to pronounce the marriage void because the formalities prescribed by the lex loci contractus were not fol- lowed.^ A fortiori must we repudiate the doctrine that themar- 1 See Whart. Confl. of Laws, §§ 173 et seq. " On this point the following thought- ful opinion strikes the true line: "It is not disputed that in a case of this nature an actual marriage must be proved. Such evidence of cohab- itation and reputation as would be sufficient, in other civil actions, will not suffice where it is sought to fix upon the woman a charge of adultery. Addison on Torts, 698 ; 2 Greenl. Ev. 461; 1 Bish. Mar. &-Div. § 442, 4th ed. But had the supposed mar- riage taken place in this state, evi- dence that a ceremony was performed ostensibly in celebration of it, with the apparent consent and cooperation of the parties, would have been evi- dence of a marriage, even though it had fallen short of showing that the statutory regulations had been com- plied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all cer- emony was dispensed with, if the par- ties agreed presently to take each other as husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a mar- riage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the set- tled doctrine of the American courts; the few cases of dissent or apparent dissent being borne down by a great weight of authority in favor of the rule as we have stated it. Fenton v. Keed, 4 Johns. 52 ; Jackson v. Winne, 7 Wend. 47; Starr i>. Peck, 1 Hill, 270 ; Rose v. Clark, 8 Paige, 574 ; Matter of Taylor, 9 Paige, 611 ; Clay- ton u. Wardell, 4 N. Y. 230; Cheney V. Arnold, 15 N. Y. 345; O'Gara v. Eisenlohr, 38 N. Y. 296; Pearson v. Howey, 6 Halst. 12 ; Hantz v. Sealy, 6 Binn. 405 ; Commonwealth v. Stump, 53 Penn. St. 132; Newbury v. Bruns- wick, 2 Vt. 151 ; State v. Rood, 12 Vt. 396; Northfield v. Vershire, 33 Vt. 110; Duncan v. Duncan, 10 Ohio N. S. 181; Carmichaelu. State, 12 Ohio N. S. 553. State v. Patterson, 2 Ircd. 346; Londonderry u. Chester, 2 N. H. 268 ; Keyes v. Keyes, 2 Foster, 553 ; Bashaw v. State, 4 Yerg. 177; Gris- ham a. State, 2 Yerg. 589; Chesel- dine v. Brewer, 1 H. & MoH. 152; State V. Murphy, 6 Ala. 765 ; Potier V. Barclay, 15 Ala. 439; Dumaresly V. Fishly, 3 A. K. Marsh. 368 ; Graham V. Bennet, 2 Cal. 503; Case u. Case, 17 Cal. 598; Patton v. Philadelphia, 1 La. An. 98 ; Holmes v. Holmes, 6 La. R. 463; Hallett v. Collins, 10 How. 174." Cooley, J., Hutchins v. Kim- mell, 31 Mich. R. 130. " It has been held in this state that the common law as it exists among us will be presumed to prevail in a foreign country in the absence of proof to the contrary; High, appellant, 2 Doug. 91 §84.] THE LAW OF EVIDENCE. [book I. riage abroad of domiciled citizens of the United States is void unless it was solemnized with formalities requisite in the place of solemnization. 1 Even on the strictest view, the judex fori will presume, until the contrary be proved, that a marriage abroad was in conformity with the lex loci contractus? § 84. Waiving, however, these considerations, as belonging more properly to another branch of jurisprudence, we may hold Mich. 515; Crane v. Hardy, 1 Mich. 56 ; and though it may be questionable if this doctrine is to be applied univer- sally, it cannot be disputed that the reason of it is applicable to all mar- riages celebrated in Christian coun- tries, in which it may be properly as- sumed that a general common law on the subject of marriage still prevails. Whart. Confl. L. § 171. And as has been well said, the inconvenience of adhering to more rigid rules in the proof of foreign marriages would, in a country so largely populated by im- migrants as is ours, be peculiarly great, and put courts and litigants to useless trouble and expense in every instance. Bish. Mar. & Div. § 628, 4th ed. Polygamous and incestuous marriages celebrated in countries where they are permitted are nevertheless treated as invalid here, because they are con- demned by the common voice of civi- lized nations, which establishes a com- mon law forbidding them; and the same reasoning which condemns them must sustain the marriages by mere consent which the common law per- mits and sanctions. Whart. Confl. L. § 180. And especially should this be the case where the parties, after taking such steps abroad to constitute a marriage aa would be sufEcient un- der our laws, remove afterwards to this country, and in apparent reliance upon the marriage, and the protection our laws would give it, continue for many years to live together as hus- band and wife, recognizing, as there is every reason to believe they did, 92 the validity and binding obligation of the marriage for all purposes." Cooley, J., Hutchins v. Kimmell, 31 Mich. R. 133; Foreign Eel. U. S. 1878, p. 465. 1 Whether the courts of the place of solemnization would hold valid such a marriage is a question I do not pro- pose to discuss in this place. It should be observed, however, that it by no means follows that because the judex loci contractus would hold the marriage invalid as to the subjects of his own state, he would hold it invalid when the parties are domiciled subjects of another state which recognizes con- sensual marriages as valid. On this topic the student is referred to several articles in the Revue du Droit Interna- tional, in one of which is given a rul- ing of the Tribunal de la Seine that such marriages would not be held binding in France when one of the par- ties is a French subject, — resting the decision, therefore, on the duty due by a subject to his sovereign. And see Jour- nal du Dr. Int. Priv. III. 182. Com- pare Mr. Lawrence's valuable mono- gram on this subject, disputing in some respects the conclusion above given, and his Commentaire sur le Droit International de Wheaton, III. p. 357. See Whart. Confl. of L. §§ 173 et seq. 2 R. V. Newton, 2 M. & Rob. 505. Com. V. Holt, 121 Mass. 61; Red- grave V. Redgrave. 88 Md. 93; Squire V. State, 40 Ind. 459; Com. v. Jack- son, 11 Bush, 679; Brown v. State, 52 Ala. 338 ; Arnold v. State, 53 Ga. 594. See fully infra, § 1297. CHAP. m.J PRIMARINESS AS TO DOCUMENTS. [§84. it to be a principle of private international law, as in force in the United States, that marriages may be proved by g j^^^ parol.i That which the parties hold themselves out as i?'^''';^- ^ . ^ tional law being they cannot ordinarily contest ; and hence general marriages . . , . . 1 • 1 ™^y be reputation, in respect to their marriage, which reputa- proved by tion their conduct establishes, may be, with cohabitation, ^*™ ' primary evidence of marriage. A fortiori is family reputation of marriage authoritative in such issues.^ The fact of cohabita- iWhart. Confl. of L. § 171; Van Tuyl V. Van Tuyl, 8 Abb. (N. Y.) Pr. N. S. 5; S. C. 57 Barb. 235 ; Bissell V. Bissell, 55 Barb. 325 ; Physick's Est. 2 Brewst. 179; Guardians of the Poori;. Nathans, 2 Brewst. 149 ; Rich- ard t-. Brehm, 73 Penn. St. 140; 111. Land Co. v. Bonner, 75 111. 315 ; Murphy v. Georgia, 50 Ga. 150; Camp- bell V. GuUatt, 43 Ala. 57; Diokerson V. Brown, 49 Miss. 357. See Omo- hundro's Est. 66 Penn. St. 113. " See infra, §§ 211, 224. Kay v. Vienne, 3 Camp. 123; Birt v. Barlow, 1 Doug. 174; Read v. Passer, 1 Esp. 214; Doe v. Fleming, 4 Bing. 266; Goodman v. Goodman, 28 L. J. Ch. 745 ; Brower v. Brower, 1 Abb. (N. y.) App. 214 ; Jewell v. Jewell, 1 How. U. S. 219; Crawford v. Black- burn, 23 Wall. 175; Senser t>. Bower, 1 Penn. R. 450 ; Com. v. Stump, 53 Penn. St. 132; Greenawalt v. Mc- Enelly, 85 Penn. St. 382 ; Physick's Est. 2 Brewst. 179; Guardians of the Poor I'. Nathans, 2 Brewst. 149; Bar- num u. Barnum, 42 Md. 257; Dicker- son V. Brown, 49 Miss. 357; Evans v. Morgan, 2 C. & J. 453 ; Doe v. Flem- ing, 4 Bing. 267. "Whenever the witness is shown to have derived his information from some assignable in- dividual. It is excluded as hearsay. Shedden v. Att. Gen. 2 S. & T. 170. Following the principle laid down by Mr. Eraser (Eraser on the Personal and Domestic Relation, vol. 1, p. 207), Lord Redesdale, in a case in the House of Lords (Cunningham v. Cunning- ham, 2 Dow. 511), held that repute, to raise presumption of marriage, must be founded on general not singular opinion; a divided repute is on such a subject no evidence at all. Here his lordship was speaking probably of Scotch marriages only ; for in the re- cent case of Lyle v. Elwood, 23 W. R. 157; L. R. 19 Eq. 98, Vice-Chancel- lor Hall said : It cannot be contended that wherever there is evidence of re- pute on one side and the other, a mar- riage cannot be established." Powell's Evidence, 4th ed. 147. " Marriage is a civil contract, jure gentium, to the validity of which the consent of parties able to contract is all that is required by natural or pub- lic law. If the contract is made per verba de praesentl, though it is not con- summated by cohabitation, or if it be made per verba de fuiuro, and be fol- lowed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary. 2 Greenl. Evid. § 460. Marriage is a civil contract which may be completed by any words in the present time, with- out regard to form. Hantz v. Sealy, 6 Binn. 405. The fact of marriage, then, may be proved and established by competent and satisfactory evi- dence. What kind of evidence is held to be satisfactory ? Marriage may be proved in civil cases by reputation, declarations, and conduct of the par- ties, and other circumstances usually 93 §84.] THE LAW OF EVIDENCE. [book I. tion as man and wife raises a presumption of a legal marriage ; ^ and this is particularly so after a long interval of time.^ But such cohabitation must be continuous and consistent to sustain the presumption.^ The reputation, which is thus to be proved, may accompanying that relation. 2 Greenl. Evid. § 462. For civil purposes, rep- utation and cohabitation are sufficient evidence of marriage. Senser et al. v. Bower et ux. 1 Penn. Rep. 450. In all civil cases, involving merely the right of property, tlie fact of marriage may be proved by long continued co- habitation as man and wife. Thorn- dell V. Morrison, 1 Casey, 326. Both cohabitation and reputation are neces- sary to establish a presumption of marriage, where there is no proof of actual marriage. Commonwealth v. Stump, 3 P. F. Smith, 132. Marriage is in law a civil contract, not requiring any particular form of solemnization before officers of church or state. Ibid. Unequivocal and frequent admissions of marriage, accompanied by long con- tinued cohabitation and reputation, are frequently most satisfactory evi- dence of marriage. Vincent's Appeal, 10 P. F. Smith, 228." Mereur, J., Richard v. Brehm, 73 Penn. St. 144. See, also, Fenno ». Fenno, 1 Weekly Notes, 165. 1 Infra, § 1297; Cunningham v. Cunningham, 2 Dow, 507 ; Piers v. Piers, 2 H. L. Cas. 337. 2 Campbell u. Campbell, L. R. 1 Sc. App. 193 ; Powell's Evidence, 4th ed. 76. ' "It is not a sojourn, nor a habit of visiting, nor even a remaining with for a time. None of these fall within the true idea of cohabitation as a fair presumption of marriage. Neither co- habitation nor reputation of marriage, nor both, is marriage. Wlien con- joined, they are evidence from which a presumption of marriage arises. The legal idea of cohabitation is that which 94 carries with it a natural belief that it results from marriage only. "It is argued here that the mere- tricious intercourse, to be inferred from the early relations of these par- ties, ought not to forbid a conclusion that the marriage relation existed afterwards, and we are referred to (among others) the case of Campbell V. Campbell, Law R. 1 Scotch Bivorce and Appeal Cases, before the House of Lords. But no case better illus- trates the true idea of cohabitation than it. Mrs. Ludlow, a young and comely woman, eloped with Captain Campbell. Ludlow, the husband, died within two or three years afterwards. Captain Campbell and his reputed wife went to America, and thereafter constantly lived together as man and wife, were so accepted and known in his regiment, and on his return to England were so received and recog- nized among all his relatives and ac- quaintances, including his relative, the Earl of Breadalbane, whose es- tate became the subject of controversy. They had children, who were baptized as theirs, and were accepted and re- ceived as legitimate offspring. Among other facts, Captain Campbell gave to her a general power of attorney, in which he named her as 'his wife, Eliza M. Campbell, residing at Ma- pleburgh (his residence), near the city of Edinburgh.' Thus they lived constantly together, moving from place to place together, always known and recognized as husband and wife, until his death, and after his death his son was recognized as heir ia legal pro- ceedings of tailzie. The evidence of cohabitation and general repute of CHAP. III.] PRIMAEINESS AS TO DOCUMENTS. [§84. be the reputation of either a neighborhood or of a family, and may be established by a single witness.^ But proof of mere reputation, unsupported by that of cohabitation, is by itself in- sufficient to establish a marriage.^ In any view the proof is re- buttable.^ marriage was miDst complete, said Lord Chancellor Chelmsford. The proof was so strong and overwhelm- ing, it overcame the original meretri- cious relation, and afforded convinc- ing evidence of a subsequent marriage by contract, all that is required by the Scottish law of marriage. In the case before us there is no such evidence, the case being left to rest upon a broken and irregular cohabitation, and a repu- tation whose weight lay on the side of single life. From the whole evidence we can draw no other conclusion than that Elizabeth Sithens was a kept mistress, and not a wife." Agnew, Ch. J., Yardley's Est. 75 Penn. St. 211-213. See, also, Jones o. Jones, 48 Md., S. a 4 Am. L. T. K. 489. As to presumptions in such cases, see in- fra, § 1297. 1 Evans v. Morgan, 2 C. & J. 453. ' See cases cited infra, § 205. See as discussing the points in the text. Eraser on Husband & Wife, 1876 ; London Law Mag. Nov. 1878, 236; and Kevue General du Droit, Sept. and Oct. 1877, by M. Thezard. In Chamberlain v. Chamberlain, 71 N. Y. 423, it was held that hearsay and traditional evidence as to mar- riage is received from necessity. It is not conclusive, but makes a strong prima facie case, sufficient for the ad- ministration and devolution of prop- erty, that there was either a formal marriage, which cannot otherwise be proved, or that the parties agreed per verba depraesenti to a marriage, which was followed by cohabitation. In this case C, an old man, had, during his early years, lived with E., a wo- man who was not of previous chaste character. There was hearsay testi- mony that she was called his wife by the neighbors, and that he had ad- mitted on several occasions that she was his wife. A child was born to them, and subsequently they sepa- rated, she taking the child. There was evidence that thereafter she joined with him in a deed conveying land as his wife. After she had left he formally married another woman, and they lived together until his death. E. outlived C, but during his life she took no steps to vindicate her claim as wife, though poor and de- pendent upon relatives for support, and she and her son made no claim for a share in his estate. The evi- dence was held by the Court of Appeals to prove that E. was not the wife of C, but that the other woman was. In Maryland it has been held, in deviation from the canon and com- mon law, that a marriage contracted merely per verba de praesenli, is not valid without some form of religious ceremony. Denison v. Denison, 35 Md. 361. See, however, for a more liberal view, Barnum v. Barnum, 42 Md. 251. In Meister v. Moore, 96 U. S. 76, it was ruled that a consensual mar- riao-e at common law is valid, notwith- standing the statutes of the state » Yardley's Est. 75 Penn. St. 213; Chamberlain v. Chamberlain, 71 N. Y. 423 ; Hunt's Appeal, Jackson's Es- tate, 5 Weekly Notes, 333. 95 §85.] THE LAW OF EVIDENCE. [book I. § 85. An important distinction, however, is to be noticed be- tween suits in which the legitimacy of children or the In cases . " . , "^ . j r, charging a sanctity of the domestic relation is at issue, and those riage '""' in which the effort is to impose on the defendant penal- proons re- t'^s attachable to an illegal marriage. In the first case quired. ^q jj^ye in favor of the marriage the presumption of legitimacy ,^ as well as those of good faith,^ and of regularity.^ In the second case we have against the marriage the presumption of innocence. We cannot, therefore, transfer the decisions in the last class of cases to the former. In this country the dis- tinction is of peculiar interest. An emigrant lands on our shores with a wife whom he has married without the observance of those restrictions which the peculiar social condition of several European states has imposed. He rears children whom he ac- knowledges, and who claim after his death to inherit his estate. Here, the validity of the marriage being in litigation, two im- portant presumptions arise to sustain the legitimacy of the chil- dren. The first is that all acts are presumed to be regular until the contrary appears. The second is that when the evidence is equally balanced, the courts, in all questions of legitimacy, will favor the hypothesis of matrimony. * On the other hand, if the emigrant in question has come to this country without a wife, marries here, establishes a home and family, and then is ar- where it is solemnized prescribe forms which such marriage has not followed, unless the statute make all marriages nullities unless the prescribed forms are complied with. And in Jones v. Jones, 48 Md., S. C. 4 Am. L. T. Rep. 489, it was held that a mere statutory- prohibition of ministers from celebrat- ing marriages of minors does not va- cate such marriages. The right to prove marriages by parol is not affected by the statutes permitting parties to be called as wit- nesses. Rockwell I'. Tunnieliff, 62 Barb. 408. The same right exists in suits brought in an action by the wife for damages in causing her husband's death. Lehigh R. R. v. Hall, 61 96 Penn. St. 361. As against the par- ties their admissions of marriage can he used. Carotti v. State, 42 Miss. 344. A man holding a woman out as his wife is estopped, in a suit against him by tradesmen for necessities fur- nished to her, from repudiating the relationship. Infra, §1151; Johnston V. Allen, 39 How. (N. Y.) Pr. 506. That the declarations of an ances- tor can be received to establish mar- riage, we will elsewhere see. See infra, §§ 203 et seq. 1 Infra, § 1298. 2 Infra, §1248. ' Infra, § 1297. * See Patterson v. Gaines, 6 How. U. S. 550; Shafher v. State, 20 Ohio R. 8. See infra, §§ 1248, 1297-8. CHAP. III.] PROOF OF MARRIAGE. [§ 86. rested here on the charge of bigamy, based on an alleged mar- riage in his native land ; the fact of the former marriage, instead of being aided by presumptions which in a doubtful case would turn the scales in its favor, has to encounter presumptions which in a doubtful case will turn the scales against it. The defend- ant's second marriage is not contested, and is looked on with peculiar favor by the judicial polity of a country such as this, which seeks to encourage family growth. But what is much more important, the fact of the first marriage is the gist of the prosecution's case, and to it applies eminently the maxim, that the charge of guilt, to justify a conviction, must be made out beyond reasonable doubt. § 86. In criminal prosecutions for bigamy or adultery, we can easily understand how a court should say, as some courts Admissions have said : " The lex loci contractus prescribes certain ^^le&Ja' solemnities as necessary to constitute the formalities of of ma™"* marriage, and therefore, in view of the maxim, ' locus "»gs- regit actum,'' we must hold that any other proof of the fact of marriage is but secondary and is not to be i-eceived." Had the first wife been brought to this country, and here acknowledged, the case would have been different. But when the prosecution rests simply on a technical first marriage, it is not inconsistent in courts, who recognize the validity of a consensual marriage, to hold that such technical first marriage should, in a criminal issue, in order to be made out beyond reasonable doubt, be proved in the way the lex loci contractus prescribes, and that secondary evidence should only be received when the prescriptions of the lex loci contractiis are peculiarly onerous, or when the primary evidence cannot be obtained.^ At the same time it is generally agreed that admissions are receivable to prove marriage in those states in which the lex fori does not require record proof. The question is as to the weight of such admissions when received, and this is a question of fact. One party may admit, for self- serving purposes, a marriage in fraud of another party. Or both parties may admit it, although untruly, to effect some object 1 See State r. Horn, 43 "Vt. 20 ; issues, Harris u. Cooper, 31 Up. Can. People V. Huinphrey, 7 Johns. 314; Q. B. 182 ; Proctor v. Bigelow, Sup. Weinberg v. State, 25 Wis. 370; Bird Ct. Mich. 1878. V. Com. 21 Grat. 800. See, in civil VOL. I. 7 ■ 97 § 89.] THE LAW OF EVIDENCE, [BOOK I. dear to them, e. g. the legitimizing of a child. This, however, goes to credibility. That the admission is to be received, when the fact is one capable of being proved by the local law by parol, we may regard as established.^ But such admissions, without adequate corroboration, cannot establish marriage ; ^ and in criminal trials, when the proof of the marriage is an essential element in the prosecution's case, such proof must be beyond reasonable doubt.^ § 87. The testimony of a witness, present at the marriage, is Witnesses admissible and adequate proof, unless the law requires ^ch "^ex- ofiBcial evidence.* When the marriage is extra-territo- riage. rial, the officiating clergyman, according to American cases, may not only prove the marriage, but the foreign law under which it was solemnized.^ But in England, unless a wit- ness be an expert, he cannot prove in this respect the foreign law.® In domestic marriages, the fact that a justice of the peace or clergyman performed the ceremony is proof that he professed and was generally understood to have the authority so to do.'' Whether the wife can be a witness is hereafter discussed.® III. DIFFERENT KINDS OF COPIES. § 89. Originals, by the Roman law, are styled exemplaria, ciassifica- autograpku, archetypa. Copies are called by the earlier tion. jurists exempla, apograpJia, but afterwards were some- times mentioned as copiae, translatum, transcriptum, exemplar, ex- 1 Infra, § 1096 ; R. v. Simmonsto, « Ibid. 1 C. & K. 164; R. V. Newton, 2 M. & * R. u. Manwaring, D. & B. C. C. Rob. 505; Cayford's case, 7 Greenl. 132; 7 Cox C. C. 192; State ». Kean, S7 ; State v. Hodgskins, 19 Me. 165; 10 N. H. 347; Warner v. Com. 2 Va. Com. V. Holt, 121 Mass. 61; Com. Ca. 95; Com. w. Putnam, 1 Pick. 136; V. Murtagh, 1 Asbm. 272; Greena- Wolverton v. State, 16 Ohio, 176. wait V. McEnelly, 85 Penn. St. 382 ; ^ Bird ti. Com. 21 Grat. 800 ; Am. Carmichael v. State, 12 Ohio, 553 ; Life & Trust Co. v. Rosenagle, 77 Wolverton v. State, 16 Ohio St. 173; Penn. St. 507; State v. Abbey, 29 Vt. Squire v. State, 40 Ind. 459; State 60. V. Sanders, 30 Iowa, 582; O'Neale v. « R. v. Povey, 6 Cox C. C. 83; S. Com. 17 Grat. 582; State «. Britton, P., R. v. Smith, 14 Up. Can. Q. B. 4 McCord, 256. 565 ; but see Wh. Con. of L. § 775, * R. V. Flaherty, 2 C. & K. 782; and Sussex Peerage case, there cited; Com. V. Littlejohn, 15 Mass. 163; and see fully infra, §§ 300-1. State V. Roswell, 6 Conn. 446; Clay- ' Bird v. Com. 21 Grat. 800; State ton V. Warden, 5 Comst. 230; Com. v. v. Abbey, 3 Williams (29 Vt.), 60. Jackson, 11 Bush, 679. » See infra, §§ 421-432. 98 CHAP. III.] COPIES OF DOCUMENTS. [§ 90. emplatio, duplarium. Copies were divided into certified, copiae authenticae, vidimatae, and simple, simplices, incertae, vagae. The first, to which the certificate Vidimus (hence vidimatae) was attached, were regarded, when certified by the proper offi- cials, as equivalent to originals. In many of the ancient record offices, the originals were placed by themselves in particular chests or caskets, while the copies were inscribed in books, called instrumenta volumina, panchartae, chartularia, antiquaria, regestraria, libri eopiales. To these books was assigned the authority of originals. A private copy is by the Roman law not evidence. The Roman practice makes to this the following ex- ceptions : — 1. When the original has been maliciously destroyed by the opposite party. 2. When in no other way could the information given by the instrument be obtained.^ By the Decretals (cap. 16, x. II. 22) an exemplification by the proper authority is evidence ; and in the practice of the modern Roman law, a notary, as to matters within his range, is such an authority.^ § 90. When we come to copies of written instruments, in view of the fact that there are degrees of accuracy as Secondary widely distinguished as is written testimony from oral ; of docu- we cannot escape the conclusion that a party who, hav- "ft^'L^dJ. ing in his power evidence of a higher degree, throws s^^s. much suspicion on his case if he withhold such higher evidence, and offer that which is not only lower, but necessarily inferior as a means of expressing truth.^ Hence, it has been held that if an 1 See Weiske, Eechtslex in loco. Bank, 9 Wheat. 681 ; Winn v. Patter- ° See Weiske's Rechtslex xi. 654. son, 9 Pet. 663; Barney v. Schmeider, By our own law, certified copies by the 9 Wall. 248 ; Hamilton v. Van Swea- proper officer maybe: "1. Exempli- ringen, Add. (Pa.) 48 ; Stevenson v. fications under the great seal; 2. Ex- Hoy, 43 Penn. St. 191; Coman v. amplications under the seal of the State, 4 Blackf. 241 ; Speyerw. Sterne, court where the record is; 3. Office 2 Sweeny, 516; Williams v. Waters, copies, i. e. copies made by an officer 36 Ga. 464 ; Evans v. Boiling, 8 Port, appointed by law for the purpose." (Ala.) 546. See Mortimer v. McCal- Best's Evidence, § 486 ; Taylor's Ev. Ian, 6 M. & W. 68, 69; Brewster v. § 1379. Sewell, 3 B. & Aid. 296 ; Brown v. ' Supra, § 71 ; infra, § 133 ; Lieb- Providence, Warren & Bristol Rail- man V. Pooley, 1 Stark. 167; Eenner v. road Co. 5 Gray, 35; Everingham v. 99 §90.] THE LAW OF EVIDENCE. [book I. exemplification of a lost record or deed be obtainable, a party- will not be permitted to prove such deed or record by memory of witnesses.^ So it has been ruled that a party who has control of a certified copy of a lost will, will not be permitted to prove the will orally.^ So when a notarial copy of a note is in a party's hands, he will not be permitted to prove the note by parol. ^ So a party cannot prove a record by parol when he has an opportu- nity to obtain an exemplificatiom* The principle is, that where a particular kind of copy is by lajfi' esn^cially directed and guarded, such a copy is to be regarded Mftse^MT primary as- to exclude, so long as it can be produc^^^m||iW(^^l^^tflections by unoflBcial per- sons of what is registered in the cOp^|^j&at unless a particular kind of copy is, by either statute or Common law, or by peculiar reasons of policy, made primary, the fact that it is withheld, how- ever much it may detract from the credit of a party,® does not preclude him from offering /sthes secondary evidence. As will hereafter be seen, the testrnponj^f a deceased witness can be proved either by notes of a shorfti^nd writer sworn to by him, or by the recollection or^witneas^**^^peither can exclude the other.'^ So it has been even argueSTGat a party is not precluded from proving a lost document, by flie fact that he has possession of a written copy of such document which could be verified.* It Boundell, 2 Mood. & Rob. 138 ; Kyves V. Braddell, Irish Term R. 184; Hol- land V. Reeves, 7 C. & P. 36 ; Morris V. Vanderen, 1 Dall. 64; Winn v. Pat- erson, 9 Pet. 663. 1 TJ. S. V. Britton, 2 Mason, 464; Lowry v. Cady, 4 Vt. 504 ; Cornett V. Williams, 20 Wall. 226 (quoted infra, § 135); Hilts v. Colvin, 14 Johns. 182; Piatt v. Haner, 27 Mich. 167; Ellis V. Huff, 29 111. 449; Har- vey V. Thorpe, 28 Ala. 250. See Thurston v. Slatford, 1 Salk. 285; Macdougal v. Young, Ry. & M. 392; Doe !>. Ross, 7 M. & W. 106. " 111. Land Co. V. Bonner, 75 111. 315. « U. S. V. Britton, 2 Mason, 464. * New York Co. v. Richmond, 6 Bosw. 213; Livingston v. White, 30 100 Barb. 72'; Higgins w. Reed, 8 Iowa, 298; Edwards v. Edwards, 11 Rich. (S. C.) 537. s See R. V. Wylde, 6 C. & P. 380. ' That it does so, see infra, § 1266; and see Shoenberger v. Hackman, 37 Penn. St. 87. ' See infra, § 177. 8 Doe V. Ross, 7 M. & W. 102; Jeans v. Wheedon, 2 M. & Rob. 486 ; Brown v. Brown, 1 Sw. & Tr. 32; Johnson «. Lyford, L. R. 1 P. & D. 546; Carpenter u. Dame, 10 Ind. 129. See, however, contra, Dennis v. Bar- ber, 6 Serg. & R. 420; Stevenson v. Hoy, 43 Penn. St. 191; III. Cent. Land Co. v. Bonner, 75 111. 315 ; Mer- ritt V. Wright, 19 La. R. 91 ; Harvey V. Thorpe, 28 Ala. 250 ; and infra, §135. CHAP. III.] COPIES OF DOCUMENTS. >. [§ 93. is certainly plain that he will not be precluded from offering an unofficial copy of a lost note by the fact that a notarial copy could have been at one time obtained by him ; he not having it in his power to obtain such copy at the trial.^ § 91. Whether photographs of writings may in any view be treated as primary evidence may be doubted, and it is clear that when an original is required, the original graphic must be produced.^ It is otherwise when the original ondary is non-producible.3 The merits, the defects, and the ®^"^^°°^- value of photographs and photographic copies, in other relations, will be hereafter discussed.* § 92. A printed copy of a manuscript is secondary to the man- uscript, which must be produced or accounted for.^ But the several printed copies produced by a single im- impies- pression, and issued m a single edition, come in pan of same passu, and though secondary evidence of the original, ^"^^ *" are primary as to each other.® § 93. Strictly speaking, a press copy is secondary to the origi- nal document from which it is taken.'^ Such a copy is press receivable on the loss of the original.* At the best, on^ar/^*^ however, it continues secondary. Hence it has been evidence. held that a copy can be produced from a press copy of a lost writing without producing the press copy.^ But though a press ' Renner v. Bank, 9 WTieat. 582. v. Paine, 57 Ga. 50; Smith v. Man. See supra, § 71. Co. 23 Minn. 141. See supra, §§ 71, " Eborn v. Zumplemann, 47 Tex. 73, 74; infra, § 133. See Merritt v. 504. "Wright, 19 La. An. 91. "The fact ' Leathers v. Salvor Co., 2 Woods, that a party keeps letterpress copies 680. of letters does not obviate the neces- * See infra, § 676. sity of producing the originals, or of ' R. V. Watson, 32 How. St. Tr. laying the foundation in the ordinary 82. See supra, § 76. and usual way for secondary evidence. 6 R. V. EUicombe, 5 C. & P. 522; For this error the judgment should R. 0. Kitson, Pearce & D. 187; R. v. be reversed, and a new trial granted, Doran, 1 Esp. 129. See supra, §§ 71, costs to abide the event." Earl, C, 72. Foot V. Bentley, 44 N. Y. 171. See ' Nodin V. Murray, 3 . Camp. 228; infra, § 133. Chapin v. Siger, 4 McL. 378 ; Marsh ' Cameron v. Peck, 37 Conn. 555. V. Hand, 35 Md. 123 ; King v. Worth- ' Goodrich v. Weston, 102 Mass. ington, 73 111. 161; St. Lawrence R. 362, cited supra, § 72. And see Com. R. r.Maddox, 18 Kans. 546 ; Watkins v. Jeffries, 7 Allen, 561. 101 § 94.J THE LAW OF EVIDENCE. [BOOK I. copy is thus secondary, it may be used as a means of determining the identity and genuineness of an instrument.^ § 94. Examined copies are, in England, resorted to as the most Examined usual mode of proving records. To enable such a copy mSlfbe ^'^ ^® '''^^'^' '^^ ™"^* ^® verified by a veitness, who will compared, gwear that he has compared the copy tendered with the original, either directly, or through a person employed to read the original.^ The work must be done by persons who under- stand the characters and language of the document.^ The prac- tice in making such copies is either for one person to compare the copy line for line with the original, or what is in one respect more accurate, for one person, after the copy is made, to read the original, and the other, holding the copy, to mark the corre- spondence. In such case it has been held not enough to produce only the witness who held the copy, since he only knew at sec- ond hand the original. The better course, it is ruled, is either for the comparing witnesses to change hands, so that the listen- ing witness might in his turn become the reading witness, or, for either of the two, after the process of comparing, to read the paper with the original, and thus to qualify himself to speak directly as to accuracy.* In prior cases it was held enough to call one of the persons engaged in the comparing process.^ A copy made by a witness, though without comparison, is undoubt- edly evidence of a high grade, if he testifies to its accuracy ; the more cautious course is to add comparison by another's aid.® The copy, to be admissible, must be complete ; and it will be excluded if it give abbreviations of that which in the original 1 Com. v. Eastman, 1 Cush. 217; « Rolf v. Dart, 2 Taunt. 52; Gyle Com. V. Jeffries, 7 Allen, 561. v. Hill, 1 Camp. 471, note. See Best's ' McNeil V. Perohard, 1 Esp. 264 ; Evidence, § 486. Gyles V. Hill, 1 Camp. 471, n.; Fyson * " The general rule of the law V. Kemp, 6 C. & P. 71 ; Kolf v. Dart, 2 upon this subject requires that a copy, Taunt. 51; R. v. McDonald, Arm., M. in order to be admitted as secondary 6 0. 112; Taylor's Ev. § 1389. evidence, should be proved by some » Crawford Peerage case, 2 H. L. one who has compared it with the Cas. 644. original. 1 Starkie on Ev. 270, 9th ♦ Slane Peerage case, 5 CI. & F. 42. Amer. ed.; Kerns v. Swope, 2 Watts, See Whitehouse J). Bickford, 29 N. H. 75." Sharswood, J., McGinniss w. 471; Catlin v. Underbill, 4 McLean, Sawyer, 63 Penn. St. 267. 199; Amer. Life Ins. Co. v. Rosenagle, 7 7 Penn. St. 507. 102 CHAP. III. J COPIES OF DOCUMENTS. [§ 96- is given at length.^ It need scarcely be added that the record copied must be shown to have been in its proper office when copied.^ § 95. Exemplifications of the record of a court, under the seal of the court, are not in England common, the usual ^ .... ' Exempli- course being, when the issue is raised as to the exist- fications of ence of a record which does not belong to the same missible m court, to obtain an exemplification under the great P"""*""-^- seal ; which cumbrous process consists in the removal of the record of such other court into the Court of Chancery ; and then an exemplification of the record is transmitted by mittimus out of chancery to the court where the trial is had, and in which proof of the record is needed.^ A record must be certified to as a whole, and not in loose and detached parts.* § 96. In the United States, the practice, so far as concerns the relations of the particular states, was fixed by the Act of Congress of May 26, 1790, which provides that. S. made so "the records and judicial proceedings of the courts of ^ ^ * " ®' any state shall be proved or admitted in any other court within the United States, by the attestation of the clerk, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenticated as 1 R.D.Christian, C. &M. 388; Com. of the judgment roll offered by the V. Trout, 76 Penn. St. 379. plaintiff," said Endieott, J., " was ^ Adamthwaite v. Synge, 1 Stark, printed, and a portion was in writing. K. 183. The only objection to its admission ' Taylor's Evidence, § 1380, citing was, that the certificate of the clerk Winsor v, Dunford, 12 Q. B. 603. See applied to the written part only. This Dunham v. Chicago, 55 111. 357. is a matter to be determined by exam- The mode of certifying records will ination and inspection of the papers, be hereafter more fully discussed. See No question of law is involved in the infra, §§ 824 et seq. It has been ruled decision, and it is apparent that the in Massachusetts that where a certi- certificate was intended to and does fied copy of a record is partly printed extend to the whole judgment roll. and partly written, but has the clerk's The ruling of the presiding judge ad- certificate at the end of the written mitting it in evidence was correct, part only, whether the certificate ap- Knapp v. Abell, 10 Allen, 485; 1 plies to the whole roll or to the writ- Greenl. Ev. §§ 504, 506." Endieott, ten part alone is a question of fact to J., Goodrich v. Stevens, 116 be determined by examination and in- 170. spection of the papers. Goodrich v. * Susquehanna R. R. v. Quick, Stevens, 116 Mass. 170. " A portion Penn. St. 189. See infra, § 824. 103 96.] THE LAW OK EVIDENCE. [book I. aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken." ^ * See as to rulings as to the char- acter of exemplifications under this statute, infra, § 824. As to foreign records, the practice is thus stated : " We are of the opinion that the record offered in evidence should have been received. There can be no question of its competency. Strictly speaking, it is the best, and only original, evidence of the facts recited in it. A verified copy of the record, although admissible, is still only secondary evidence. Anciently, the record itself was offered when the cause requiring it was in the same court where the record was; and an exemplification of it was used when the cause was pending elsewhere. Now, however, in most, if not all of the courts in this country, copies of the record properly authenticated are received as sufficient in all cases ; a practice said to be established either by immemorial usage or early statutes to that effect. Knox v. Silloway, 10 Me. 201; Vose v. Manly, 19 Me. 331; Brooks V. Daniels, 22 Pick. 498; Day V. Moore, 13 Gray, 522; Ladd o. Blunt, 4 Mass. 402; Commonwealth V. Phillips, 11 Pick. 28; and see 1 Greenl. on Ev. § 501, and notes. So that in this case the defendant was entitled to put in evidence either the record itself or a copy of it, at his op- tion. " The judge presiding, however, ex- cluded the original record, under the supposition that, if admitted, it must go to the jury room with the papers of the case. This, we think, was er- roneous. It was not necessary that the jury should have it. They could get no aid from an inspection of it it in their possession. The construction 104 of it was for the court. Where a do- mestic record is put in issue it is to be tried by the court, notwithstanding it is a question of fact. If a foreign judgment, the issue is to be tried by a jury. The reason is, that the court, in the case of a domestic judgment, can have an inspection of the record itself, but if it is a foreign judgment it can only be proved by a copy, the veracity of which is a question of fact for the jury. Hall v. Williams, G Pick. 232; Greenl. on Ev. and notes before cited." Peters, J., Sawyer v. Gar- celon, 63 Me. 25. On the general bearings of the con- stitutional provision, Thompson, C. J., in the Supreme Court of Pennsylvania, thus speaks: " The Constitution of the United States, Art. 4, § 1, declares ' that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,' and that Congress may prescribe a mode of authentica- tion of such records. Accordingly by Act of the 26th of May, 1790, Con- gress prescribed that the said records and judicial proceedings authenticated as therein directed, 'shall have such faith and credit given them in every court within the United States as they have by law or usage in the courts from whence such records are or shall be taken.' " Now the effect of the record of the case in hand, being, as already said, properly authenticated according to the act of Congress, is to give the same conclusiveness here which it has in the State of New York. Without it were shown that the court which rendered the judgment was a court of special or limited jurisdiction, no aver- CHAP. III.] COPIES OF DOCUMENTS. [§ fiT. § 97. Although by the terms of the original statute, it is lim- ited to state courts, it is extended by the Act of March 27, 1804, to the " public acts, records, office books, judicial proceedings, courts and officers of the respective territories of the United States, and countries subject to the jurisdiction of the United States," and it has been held that while the statute is not for- mally applicable to the federal courts, yet exemplifications of the records of such courts will be regarded as admissible when the prescriptions of the statute are followed.^ At the same time it must be remembered that records of a federal court, certified to by the clerk of the court, under the seal of the court, without the certificate of the chief judge, may be received by other fed- eral courts.^ And so may such records when so proved in state ment can be made against the conclu- siveness of its record. This is not pretended. We are therefore bound to regard what it has adjudicated upon as incapable of contradiction col- laterally here, because that would be the effect upon the record there. " The judgment roll of the court in New York recites most distinctly that the parties were personally summoned, and that after trial and verdict, judg- ment was entered on the verdict against them for the amount of the verdict and costs. This recital shows conclusively the jurisdiction of the parties in that suit, of which the de- fendant was one; and it cannot be contradicted or averred against in an action on the record without denying the effect which, by the Constitution and act of Congress, it is entitled to have conceded to it." Wetherill v. Stillman, 65 Penn. St. 114. " As to the jurisdiction by the court in New York of the cause of action, that is concluded by the legal maxim always applicable to judicial proceed- ings, ' Omnia praesumunter rite esse acta.' It must be presumed that the court has exercised jurisdiction legal- ly ; a contrary presumption would nec- essarily imply usurpation on the part of the court. To require proof of ju- risdiction when the court is a court of general jurisdiction would be to coun- tenance the idea of the possibility of usurpation on the part of the court, and would overthrow at once the con- servative maxim alluded to. The con- clusiveness of such records as this is sustained by many decisions. Baxley V. Linah, 4 Harris, 241 ; Hampton v. McConnel, 3 Wheat. 234; Mills v. Duryee, 7 Cranch, 481 ; Westerwelt v. Lewis, 2 McLean, 51 1 ; 2 Amer. Lead. Cases, 774. Neither, therefore, as to the jurisdiction of the person nor the subject matter of the action, was the affidavit effectual to raise an inquiry into the judgment, and the court be- low very properly granted judgment against the defendant for want of suf- ficient affidavit of defence." Thomp- son, C. J., Wetherill v. Stillman, 65 Penn. St. 114. 1 Tooker v. Thompson, 3 McLean, 94 ; Buford v. Hickman, Hemp. 232. See Mason v. Lawrason, 1 Cr. C. C. 190. 2 Turnbullv. Payson, 95 U. S.418; Murray v. Marsh, 2 Hayw. 290; U. S. V. Wood, 2 Wheel. C. C. 326; Redman v. Gould, 7 Blackf. 361 ; Wo- mack V. Dearman, 7 Port. 513. 105 § 99.] THE LAW OF EVIDENCE. [BOOK I. courts.^ That a record is certified to by a seal of court is evi- dence that the court is one of record.^ § 98. While a state court is required to accept an exemplifica- Federal tion of the records of the court of another state, when doea"not proved in conformity with the Act of 1790, yet this ofher^° does not preclude a state from authorizing records of proofs. other states to be received in evidence upon proof of less stringency, or by common law proof. The act does not say that records shall only be received upon such proof ; it merely says that when verified by such proof they shall be received.^ A federal court sitting in a particular state will accept the proof prescribed in such state of infra-territorial records.* And as has been seen, a state court may receive records of federal courts upon an ordinary exemplification.^ § 99. The records under the purview of this statute, it has Only ex- been held,^ are those of courts of record, in the cora- courts'of ^^^ ^^^ sense of the term ; and do not therefore in- record. elude the proceedings of municipal magistrates or jus- tices of the peace who keep no records ; "^ though it is otherwise when the justice of the peace holds a court of record, and is obliged by statute to keep a record of his proceedings ; ^ or when his proceedings are certified by him to the county court, 1 Adams v. Way, 33 Conn. 419; wyn, 25 Ga. 203; Karr v. Jackson, 28 English V. Smith, 26 Ind. 445; Mo. 317; Pryor «. Moore, 8 Tex. 250. Womaok v. Dearman, 7 Port. 513. See Porter v. Bevill, 2 Fla. 528. And Though see Tappan v. Norvell, 3 see, on general question, Eacott v. Sneed, 570; Holly v. Flournoy, 54 Mastin, 4 Moo. P. C. 130; Northam i-. Ala. 99. Latouche, 4 C. & P. 140. 2 Smith V. Kedden, 5 Harring. 321. * Mewster v. Spalding, 6 McLean, 8 State V. Stade, 1 D. Chipm. 303; 24. Raynham v. Canton, 3 Pick. 293 ; « Supra, § 97. Kingman v. Cowles, 103 Mass. 283 ; « See Brightly's Federal Digest, 266. Pepoon u. Jenkins, 2 Johns. Cas. 119 ; 'Robinson v. Prescott, 4 N. H. Biddis V. James, 6 Binn. 321; Ohio 450; and see Mahurin v. Bickford, t). Hinchman, 3 Casey (Penn.), 485; 6 N. H. 567; Warren «. Flagg, 2 Povall, ex parte, 3 Leigh, 816 ; Ell- Pick. 448; Thomas v. Robinson, 3 more u. Mills, 1 Hayw. 359; English Wend. 267; Snyder w. Wise, 10 Barr, V. Smith, 26 Ind. 445; Railroad Bank 157; Silver Lake Bk. v. Hardin^, 5 V. Evans, 32 Iowa, 202 ; Ordway v. Ohio, 545; Trader v. McKee, 2° 111. Conroe, 4 Wis. 45; Hackett v. Bon- 558; Gay v. Lloyd, 1 Greene (Iowa), nell, 16 Wis. 471; Lewis v. Sutliff, 78. 2 Greene (Iowa), 186; Parke v. Wil- ' Starkweather v. Loomis, 2 Vt. liams, 7 Cal. 247; Goodwyn v. Good- 673; Blodget v. Jordan, 6 Vt. 580; 106 Brown v. Edson, 23 Vt. 435; Bissell CHAP. HI.] COPIES OF DOCUMENTS. [§ 100. and there verified under the act of Congress.^ Bjit the English conceit, that a court of equity is not a court of iiecordi, has not been accepted by us ; and hence, the proceedings «f courts of chancery, as well as of orphans' courts and courts of probate, are to be proved as the act of Congress prescribes.^ The act, it should be remembered, does not authorize exemplifications of merely private writings, though filed in court.^ Nor does it ex- tend to judgments of the courts of the late Confederate States.* It covers, however, certificates of naturalization.^ § 100. The clerk, who under the act is to attest the record, must be the chief clerk of the court, or of its successor, statute to whom the care of its records, in case of its expira- ^"Hcti/ tion, is committed. The certificate of an under clerk, followed, or of a deputy or substitute, is inadequate.^ When the ofl&ces of judge and clerk are united (as in the case of surrogates), the judge acts as clerk in attesting the proceedings, and then his certificate as judge to the attestation will be sufficient.'^ The appending of the 'certificate of a cumulative clerk, however, does not vitiate the exemplification.* When there is no seal to the court, this should be explained in the certificate of either clerk or judge.^ If there be a seal, it must be attached to the record ; V. Edwards, 5 Day, 363; Belton v. « Morris v. Patchin, 24 N. Y. 394; Fisher, 44 111. 32; Draggoo v. Gra- Lothrop ti. Blake, 3 Penn. St. (3 Barr) ham, 9 Ind. 212. 495; Schnertzell v. Young, 3 H. & 1 Hade v. Brotherton, 3 Cranch C. McH. 502 ; Sampson v. Overton, 4 C. 594. Bibb, 409 ; Donohoo v. Brannon, 10 " Craig u. Brown, Pet. C. C. 352; Overt. 328. See, however, Stedman Morgan v. Curtenius, 4 McLean, 366; v. Patehin, 34 Barb. 218 ; Ault v. Ze- Kipple V. Ripple, 1 Rawle, 386 ; Case hering, 38 Ind. 429. B. McGee, 8 Md. 9; Settle v. Alison, ' Catlin v. Underhill, 4 McLean, 8 Ga. 201; Balfour v. Chew, 5 Mart. 199; Ohio v. Hinchman, 27 Penn. N. S. 517; Johnson v. Rannels, 6 St. (3 Casey) 484; Roop v. Clark, Mart. N. S. 621; Scott v. Blanchard, 4 Greene (Iowa), 294; Sally v. Gun- 8 Mart. N. S. 303; Melvin u. Lyons, ter, 13 Rich. 72; Cox v. Jones, 52 18 Miss. 78; Barbour v. Watts, 2 A. Ga. 438; Pagett v. Curtis, 15 La. K. Marsh. 290; Hunt u. Lyle, 8 Yerg. An. 451; Low v. Burrows, 12 Cal. 142; Patrick u. Gibbs, 17 Tex. 275. 181. See on this topic Haynes v. » Warren v. Wade, 7 Jones (N. C), Cowen, 15 Kans. 637. 494; Russel v. Kearney, 27 Ga. 96; " Weeks «. Downing, 30 Mich. 4. Carlisle v. Tuttle, 30 Ala. 613. " Craig v. Brown, Pet. C. C. 353; * Steere v. Tenney, 50 N. H. 461; Cox v. Jones, 52 Ga. 438; Strode v. Pennywit v. Kellogg, 1 Cincin. 17. Churchill, 2 Litt. (Ky.) 75. » Caulfield v. Bullock, 18 B. Mon. 494. 107 § 102.] THE LAW OF EVIDENCE. [BOOK I. it is not enough to attach it to the certificate.^ The certificate must be by the " chief " or " presiding " judge of the court ; it is not enough if it should issue from an associate judge,^ nor from a judge presiding at a particular trial, or simply "senior" to others ; ^ nor from a judge who styles himself merely " judge of the Probate Court." * But it has been held sufficient where a judge in his certificate states that he is one of the judges of the court ; that all the judges have equal authority, and that each is authorized to sign a certificate of a record.^ Nor is it necessary that the judge should be styled "chief judge," when by the laws of his state he is sole judge of his court.® § 101. The certificate of the presiding judge must state that the clerk is the then clerk of court, and that his attestation is in " due form," which form is that prescribed by the law of the state from whence the record comes.'' The certificate of the presiding judge is conclusive as to the " due form."^ The use of the words " proper form," however, instead of " due form," has been held not to be fatal.® § 102. When a court has ceased to exist, and its records have been transferred to another court, then the presiding judge and clerk of the latter court must certify.^'' 1 Turner v. Waddington, 3 Wash. C. 40; Johnson v. Howe, 2 Stew. C. C. 126. See, however, Simons v. (Ala.) 27; Bates v. McCuUy, 27 Miss. Cook, 29 Iowa, 324. 584. " Catlin V. Underhill, 4 McLean, ' State v. Hinchman, 27 Penn. St. 199; Stewart v. Gray, Hemp. 94; 479; Central Bank i>. Veasey, 14 Ark. Van Storch v. Griffin, 71 Penn. St. 672. 240; Pratt v. King, 1 Oregon, 49; ' Trigg v. Conway, Hemp. 638 Settle ti. Allison, 8 Ga. .201; Hudson Craig v. Brown, Pet. C. C. 364 V. Daily, 13 Ala. 722; Brown v. John- Hutchins v. Gerrish, 52 N. H. 205 son, 42 Ala. 208. See Holly v. Flour- Johnson v. Howe, 2 Stew. (Ala.) 27 noy, 54 Ala. 99; Norwood v. Cobb, 20 Duval v. Ellis, 13 Mo. 203; Wilburu Tex. 588. v. Hall, 16 Mo. 426. » Lothrop u. Blake, 3 Barr, 495; 8 Ferguson v. Harwood, 7 Cr. 408 Stephenson v. Bannister, 3 Bibb, 369; Tooker v. Thompson, 3 McLean, 93 Kirkland v. Smith,*' 2 Mart. La. (N. Taylor v. Carpenter, 2 Wood. & M, S.) 497. See, however, Taylor v. Kil- 4; Thompson v. Manrow, 1 Cal. 428 gore, S3 Ala. 214. Hutchinson v. Patrick, 3 Mo. 45 * Washabaugh v. Entriken, 34 Grover ». Grover, 30 Mo. 400; Sohoon- Penn. St. 74. maker v. Lloyd, 9 Rich. 173. « Orman v. Neville, 14 La. An. » White u. Strother, 11 Ala. 720. 392. See Arnold v. Frazier, 5 Strobh. " Capen v. Emery, 5 Jlet. (Mass.) 33; McKenny v. Gordon, 13 Rich. S. 436; Manning v. Hogan, 26 Mo. 570; 108 CHAP. III.] COPIES OF DOCUMENTS. § 103. If the certificate is in this respect coift^l&tg, a record will not be rejected because of omissions or excess&Sk.Mi '"(fti^tters irrelevant.^ A copy of a lost record may be certified under the act of Congress.^ § 104. An office copy of a record is a copy made by an officer duly authorized for the purpose, either by rule of court or by statute. Such copy, when the officer is authorized admitted only by rule of court, is admissible as evidence in the thorized same court and in the same cause; but, at common *'y''"'- law, the copy must be proved to be correct, if it be produced, either in another court, or even in the same court in another cause.^ Even where an action was brought in the Queen's Bench against a sheriff for a false return to a writ of fieri facias, the court refused to permit the plaintiff to put in office copies of the writ and of the return, though the original cause was in the same court.* Where, however, an officer is bound, either at common law or by statute, to furnish copies, these copies will " generally be admitted in all courts alike." ^ In England, by the acts of 12 & 13 Vict. c. 109, records and documents belong- ing to the common law side of chancery can be thus proved, and this convenience has been subsequently extended to other records.® § 105. In the United States the distinction between " office copies " and " exemplifications," as existing in England, practice in- is not recognized in practice; the reason being that of federal' there are but few cases in which there is not some statute. officer appointed by law to give certified copies which shall be generally admissible. The federal statute of 1790 prescribes, Young V. Thayer, 1 Greene (Iowa), » Den v. Fulford, 2 Burr. 1179 ; 196; Darrah v. Watson, 36 Iowa, 116. Jack v. Kiernan, 2 Jebb & Sy. 331 ; > Knapp V. Abell, 10 Allen, 485 ; Barron v. Daniel, Cr. & D. Abr. C. Gavit V. Snowhill, 26 N. J. L. 76; 283. Clark V. Depew, 25 Penn. St. 509; * Pitcher v. King, 1 C. & Kir. McCormick v. Deaver, 22 Md. 187 ; 655. Ducommun v. Hysinger, 14 111. 249; ^ Taylor's Ev. § 1384; citing Black Young u. Chandler, 13 B. Mon. 252 ; v. Ld. Braybrooke, 2 Stark. R. 12-14; Shown V. Barr, 1 1 Ired. (L.) 296 ; Appleton v. Lord Braybrooke, 6 M. West Felic. R. R. v. Thornton, 1 2 La. & Sel. 37. An. 736. « Taylor's Ev. §§ 1385 etseq. ' Robinson v. Simons, 7 Phila. R. 127. 109 § 107.] THE LAW OF EVIDENCE. [BOOK I. as we have seen, a specific form of verification on which judg- ments in one state shall be received in evidence in another ; and even in those cases to which this act does not apply, it has been regarded as giving tests a compliance with which secures admis- sibility.^ But the act, as we have also seen,^ does not provide that no record shall be admitted except on the proof specified ; and not only have the courts of several states held that records could be proved at common law by processes less stringent, but in almost every state, statutes have been passed facilitating such proof.^ These statutes place foreign records in a measure on the same footing as domestic, and as therefore more or less subject to rules we will proceed now to notice. § 106. A court of record takes judicial notice of its own rec- ords ; and when on a pending trial the records of such Original , ^ , i • ■, . , records of court are relevant, they may be admitted without wWch'suit further proof than is given by their production by the areevt'"^ clerk from the proper archives.* It has been even dence in held, that the original papers in an inferior court may be received in evidence in a superior court.^ But the genuineness of the paper must be proved as a prerequisite to its reception.^ And it should be produced by its proper custodian.'^ § 107. So far as concerns the courts of the same state, it is generally held that a copy, certified to be correct by the copies ad- clerk or proper ofiicer of the court where the record is in same deposited, wiU be received in evidence as primd facie proof of the record ; nor is it necessary that the certifi- cate of the judge should be appended.^ The same decision has 1 See supra, § 97. Tex. 203; Larco v. Casaneuava, 30 = Supra, § 98. Cal. 560 ; Sharp v. Lumley, 34 Cal. » See Kingman v. Cowles, 103 611. Infra, §§ 824-8. Mass. 283 1 Lansingv. Russell, 3 Barb. » State o. Bartlett, 47 Me. 396; 325. Odiorne v. Bacon, 6 Cush. 185; Hart * Odiorne v. Bacon, 6 Cush. 185 Betts V. New Hartford, 25 Conn. 180 Burk V. Tregg, 2 Wash. (Va.) 215 V. Stone, 30 Conn. 94 ; Sherrerd v. Frazer, 6 Minn. 572 ; Williams v. Brummel, 4 Ark. 129 ; Herndon v. Sutcliffe V. State, 18 Ohio, 469 ; Pres- Casiano, 7 Tex. 322. cott V. Fisher, 22 111. 390 ; Plarrison « Perry v. May, 1 Hill S. C. 76. V. Kramer, 3 Iowa, 543 ; Ward v. ' Phelps v. Hunt, 43 Conn. 19. Saunders, 6 Ired. L. 382 ; Peck v. Infra, § 828. Land, 2 Ga. 1 ; Adams v. State, 11 « State v. Bartlett, 47 Me. 396; Jay Ark. 466; Wallis v. Beauchamp, 15 v. East Livermore, 56 Me. 107; Ladd 110 CHAP. III.J COPIES OF DOCUMENTS. [§ 108. been reached where the copy and the certificate is by the judge and not the clerk of the court.'* But the certificate to the verity of the transcript must be explicit.^ When the whole record is put in evidence, this carries with it all the entries and indorse- ments on the writs or other papers of which the record is com- posed.' § 108. Nor is this indulgence restricted to copies of judicial records. Public records in general, when under the „, . , This rule charge of duly qualified public officers, acting within extended the range of their duties, are primd fade correct, and record's'^" may in many cases be brought into court, when within s^°"* ^^• the jurisdiction, by a subpoena duces tecum. But in some cases the privilege of the custodian may prevent this ; in others, the removal of the originals from their proper archives may be pro- ductive of great public inconvenience. In such cases there is a growing tendency, even at common law, to permit the records of executive as well as of judicial documents to be represented by exemplifications or by other authenticated copies.* The docu- ment, however, must be of a character technically public.^ Thus it has been held by the Court of Claims that a receipt for prop- erty captured, procured from a military governor by a claimant, is not such a public document that an exemplification of it can be put in evidence ; but that the original must be produced.^ V. Blunt, 4 Mass. 402; Com. v. Phil- lumbus E. R. v. Skidmore, 69 111. 566; lips, 11 Pick. 28; Odiorne v. Bacon, Bellows v. Todd, 34 Iowa, 18; Ingle 6 Cush. 185; Hart v. Stone, 30 Conn. v. Jones, 43 Iowa, 286; Pierce v. Reh- 94; Osborn v. State, 7 Ohio (Parti.), fuss, 35 Mich. 53 ; Eagle Man. Co. v. 212; Steel v. Pope, 6 Blackf. 176; Bradford, 57 Ga. 249; Allen w. Hoxey, Jenkins u.Parkhill, 25 Ind. 473; Anon- 37 Tex. 320; Stater. CuUar, 47 Tex. ymous, 1 Brev. (S. C.) 173; McCol- 295; Vance «. Kohlberg, 50 Cal. 346. lum V. Herbert, 13 Ala. 282 ; Winters See supra, § 82 ; infra, §§ 114, 127. V. Laird, 27 Tex. 616. By the U. S. Rev. Stat. § 882, 1 Brackett v. Hoitt, 20 N. H. 257. copies of any books, records, papers, ^ Lyon V. Boiling, 14 Ala. 753. or documents, in any of the executive * Lothrop V. Blake, 3 Penn. St. departments, authenticated under the 483. Infra, §§ 824, 832. seals of such departments, shall be * See cases cited infra, §§ 114, 130; admitted as evidence equally with ref- and see U. S. v. Gaussen, 19 Wall, erence to the originals. See infra, 198; Carpenter v. Bailey, 56 N. H. § 114. 263 ; Whiton v.Ins. Co. 109 Mass. 24; « See infra, § 127. Thompson v. R. R. 22 N. J. Eq. Ill; « Block o. U. S. 7 Ct. of Claims, Dunham v. Chicago, 55 111. 359 ; Co- 406. As to exemplification of bank- 111 § 109.] §109. THE LAW OF EVIDENCE. [book I. The seal of a court of record is an essential to the at- testation of the court of the accuracy of copies from its records.^ The seal proves itself.^ In Massachusetts, however, the usage, sanctioned by the courts has been for the clerk of the court to attest a copy veithout attaching the Seal of court es- sential to copy. ruptcy records, see Michener v. Pay- son, U. S. Cir. Court, 2 Weekly Notes of Cases, 339. In Alexander u. Mc- Cullough, 1 Weekly Notes of Cases, the plaintiff, in an action of eject- ment, gave in evidence a certified copy of a petition in bankruptcy, a certificate of the bankrupt's discharge, and a deed from the bankrupt's al- leged assignee. It was held by the Supreme Court of Pennsylvania (af- firming the judgment of the court be- low), that there was no evidence of the appointment of the assignee, and without this the plaintiff could not recover. On the general question of the ad- missibility of records, Mr. Taylor (§ 1379) thus speaks: — " One or other of these copies will always be admissible in lieu of the original record, excepting in two cases : first, if issue has been joined on a plea or replication of nul tiel record, in some cause in a court to which the disputed record belongs; 2 Ph. Ev. 129; and secondly, if a person is in- dicted for perjury in any affidavit, deposition, or answer, or for forgery with respect to any record. B. N. B. 239; R. ». Morris, 2 Burr. 1189; R. V. Benson, 2 Camp. 508 ; R. v. Spen- cer, Ry. & M. 97; Crook v. Dowling, S Doug. 77; Stratford v. Greene, 2 Ball & B. 296 ; Garvin v. Carroll, 10 Ir. Law R. 330; per Crompton, J.; Lady Dartmouth v. Roberts, 16 East, 340, per Lord EUenborough and Le Blanc, J. In this last case the judges intimated an opinion that the same strictness was necessary in actions for 112 malicious prosecution ; but this would seem to be a mistake. See B. N. P. 13 ; Purcell v. McNamara, 1 Camp. 200. In either of these cases the orig- inal document, unless it be shown that the prisoner has got possession of it, or that it has been lost or destroyed, must be actually produced. R. v. Milnes, 2 Fost. & Fin. 10, per Hill, J. On a trial, too, for perjury, the sig- natures of the defendant, and of the person whose name is attached to the jurat, must be proved (see note supra) ; after which the court will presume that the oath was duly administered. R. V. Spencer, 1 C. & P. 260, per Ab- bott, C. J. ; R. V. Turner, 2 C. & Kir. 732, per Erie, C. J. For the purpose of insuring the production of the orig- inal record, application should be made to the court to which it belongs, or to a judge in vacation, who will make the necessary order. Crook v. Dow- ling, 3 Doug. 77, per Lord Mansfield; Bastard v. Smitli, 10 A. & E. 214 ; Bentall v. Sydney, Ibid. 164. The ap- plication to the Court of Chancery, for leave to take an answer off the file, in order to prosecute the defendant for perjury, will be granted as a matter of right. Stratford v. Greene, 1 Ball & B. 204 ; Keenan v. Boylan, 1 Sch. &Lef. 332." ^ Turner v. Waddington, 3 Wash. C. C. 126 ; Hinton v. Brown, 1. Blackf. 429; Thomasson v. Driskell, 13 Ga. 253 ; Thames v. Erskine, 7 Mo. 213. 2 Infra, §§ 318-321, 695; Smith i-. Redden, 5 Harring. 321. See God- bold V. Bank, 4 Ala. 516; McLein u. Smith, 17 Mo. 49. CHAP. III.] COPIES OF DOCUMENTS. [§ HO. seal of the court.^ And in England, an ancient exemplification has been received without a seal.^ § 110. By Lord Brougham's Evidence Act of 1851, foreign judicial records may be proved by examined copies, Exempli- sealed with the seal of the proper court, or, if there be fication of foveiffn no seal, signed and certified to by the judge, who must records to also certify to the fact of there being no seal.^ In this by searor country we have several local statutes to the same effect. ^^ ^*™'' At common law, it has been held sufficient if an exemplification of a foreign record is certified to by the clerk and the presid- ing judge, with a certificate under the great seal of the state of the official character of the judge.* It has also been ruled that sworn copies, proved by the copyist himself, will be received, when attested by the seal of the clerk.^ A certificate from a sec- retary of foreign affairs has been held sufficient to authenticate the proceedings of a foreign court.^ But a consular certificate is not sufficient to authenticate the copy of a record of a foreign court of admiralty. The seal must be proved by a witness to whom it is familiar.'' It has been held that an exemplification may be admitted on proof by an expert of the genuineness of the seal of the court and of the signature of the judge ; ^ and, when the court has no seal, by proof of the handwriting of the clerk, and of the regularity of the exemplification.^ It has under stat- ute been held that the exemplification of the record of a foreign court, admitted to have common law jurisdiction, may be proved by the signature of the clerk verified by the seal of the court.^" 1 Chamberlin v. Ball, 15 Gray, ' Stanglein v. State, 17 Ohio St. 352. 453; U. S. v. Wiggins, 14 Pet. 334; 2 Beverley v. Craven, 2 M. & Rob. U. S. v. Kodman, 15 Pet. 130; Stein 140. V. Bowman, 13 Pet. 209. But see « Taylor's Evidence, § 1398. Church v. Hubbart, 2 Cranch, 187. * Watson V. Walker, 23 N. H. 471; See infra, § 119. Spaulding v. Vincent, 24 Vt. 501 ; ' Catlett v. Ins. Co. 1 Paine, 594. Griswold v. Pitcairn, 2 Conn. 85; » Owings u. Nicholson, 4 Har. & J. Thompson «. Stewart, 3 Conn. 171; 66. Hadfield v. Jamieson, 2 Munf. 53; » Packard y. Hill, 7 Cow. 434. Stewart v. Swanzy, 23 Miss. 502. i" Lazier v. Westcott, 26 N. Y.146 ; 6 Pickard v. Bailey, 26 N. H. 152; Capling v. Herman, 17 Mich. 524; Buttrick v. Allen, 8 Mass. 273; Spaul- though see Vandervoort o. Smith, 2 ding V. "Vincent, 24 Vt. 501; Delafield Caines, 154. V. Hand, 3 Johns. R. 310; Stewart v. Swanzy, 23 Miss. 502. VOL. I. 8 113 § 112.'] THE LAW OF EVIDENCE. [BOOK I. § 111. Ordinarily, when a statute authorizes the recording of „ deeds or other instruments, the book in which the regis- Eegistryof . ■, . , , i t • -i , . deed ad- try IS entered is by the statute made admissible as evi- dence.i Where it is not made so admissible, then, in order to enable such book to be put in evidence, the usual foun- dation accounting for the non-production of the original must be laid.^ Whether the book of the registry of a deed is primary evidence depends, as has been just stated, upon the terms of the statute.^ Where the book is not made evidence by statute, then it cannot be received without due explanation of the non-pro- duction of the original.* In any view the registry is only primd facie proof of the authenticity of the original.^ § 112. In England the memorial of a registered conveyance is inadmissible as primary evidence against third persons to prove the contents of the deed ; ^ although against the party by whom the deed is registered, and those who claim under him, it can certainly be received as secondary,'' if not as primary,^ evidence, being considered in the light of an admission.^ So an examined copy of the registry has been received as secondary evidence of the contents of an indenture, not only as against parties to the deed, who have had no part in registering it, but also as against third persons ; but, in all these cases, the evidence has been admitted under special circumstances : as, for instance, where parties have been acting for a long period in obedience to the provisions of the supposed instrument, or where the deed has been recited or referred to in other documents admissible in the cause.i" In any view the enrolment of a lease granted by the 1 Dick V. Balch, 8 Pet. 30 ; Thomas ^ Morris v. Keyes, 1 Hill (N. T.), V. Magruder, 4 Cranoh C. C. 446. In- 540. fra, §115. 6 Molton v. Harris, 2 .Esp. 549; 2 Den V. Gustin, 12 N. J. L. 42; Taylor's Ev. § 389, from which this Eucker v. McNeely, 5 Blackf. 123; section is derived. Peck u. Clark, 18 Tex. 239. See ' Doe v. Clifford, 2 C. & Kir. 448. Keinboth v. Zerbe, 29 Penn. St. 139. s Boulter v. Peplow, 9 C. B. 502. « See, also, Van Cortlandt v. Tozer, » Wollaston v. Hakewill, 3 M & Gr. 17 Wend. 338; S. C. 20 Wend. 423. 297. * Den V. Gustin, 12 N. J. L. 42; lo See Sadler v. Bic^gs, 4 H. of L. Peck «. Clark, 18 Tex. 239. See infra, Cas. 435; Peyton «.° McDermott, 1 §§ 130 et seq. Dru. & W. 198 ; Collins v. Maule, 8 114 C. & P. 502. CHAP. III.] COPIES OF DOCUMENTS. [S 114. crown is primary evidence, because the possessions of the crown cannot be alienated but by matter of record.^ § 113. It is elsewhere noticed that an ancient deed, when ac- companied with thirty years' possession, is admissible without proof of execution.^ The same indulgence is registries extended to ancient registries, so as to cure irregularity without * of authentication,^ and to ancient maps, establishing '"''"'*■ boundaries.* § 114. It has been already observed that entries in a public register can be proved by putting in evidence the register itself, after first proving from whence it came. Such a mode of . , . , . . , „ , Certified proof, however, is productive of so much collateral mcon- copj; of venience, in withdrawing from the public use, from time ?ster're-°^' to time, books of such high importance, exposing them ™'^* *" to injury and dilapidation, that, independently of the statutes which have been enacted for this purpose, it has been frequently held admissible to prove their contents by exemplifications or cer- tified copies.^ The originals, however, must be in some sense records. Thus it has been held by the Court of Claims that cop- ies, certified by the secretary of the treasury, of portions of the 1 Rowe V. Brenton, 8 B. & C. 755. 19 Wall. 198 i Hodgdon v. Wight, 36 ^ See infra, § 703. Me. 326 ; Eastport v. East Machias, 35 » Bust V. Boston Mill Co. 6. Pick. Me. 402; Jayw. Carthage, 48 Me. 353; 158; King v. Little, 1 Cush. 436; Willey w. Portsmouth, 35 N. H. 303 ; Adams v. Stanyan, 24 N. H. 405. Abington v. Bridgewater, 23 Pick. 170; * Adams v. Stanyan, 24 N. H. 405. Whitonw. Ins. Co. 109 Mass. 24; Gray See infra, §§ 194, 703. v. Davis, 27 Conn. 447; Thompson v. 6 Supra, § 108; infra, § 127. See R. R. 22 N. J. Eq. Ill; Hyam v. Lord Abinger in Mortimer v. McCol- Edwards, 1 Dall. 2 ; Rhodes v. Sei- lon, 6 M. & W. 67; Taylor's Ev. § bert, 2 Penn. St. 18; Vail v. MoKer- 1436; and see, also. Lynch v. Clerke, nan, 21 Ind. 421; Lane v. Bommel- 3 Salk. 154; 2 Doug. 593; R. v. man, 17 111. 95; Leo u. Getty, 26 111. Hains, Comb. 337; Hoe u. Nathrop, 1 76; Dunham v. Chicago, 55 111. 357; Ld. Ray. 154. Bellows v. Todd, 84 Iowa, 18; Fain v. In England this is effected by Lord Garthright, 5 Ga. 6 ; Brakebill v. Brougham's Evidence Act of 1851 ; Leonard, 40 Ga. 60; Hall v. Acklen, Taylor's Ev. §§1437 et seq. But as 9 La. An. 219 ; Davis v. Freeland, 32 common law authorities to the same Miss. 645 ; St. Louis Ins. Co. v. Cohen, effect, see cases above cited, and also 9 Mo. 421; Barton w. Murrain, 27 Mo. Bingham v. Cabbot, 3 Dall. 19; U. S. 235; Hurlbutt v. Butenop, 27 Cal. 60. V. Johns, 4 Dall. 412; U. S. u. Acosta, See, however, Chouteau v. Chevalier, 17 Pet. 16; 1 How. 24; U. S. v. Cor- 1 Mo. 843. win, 1 Bond, 149 ; U. S. v. Gaussen, 115 § 114.] THE LAW OF EVIDENCE. [book r. " archives of the late so-called Confederate government," are in- admissible, but that the originals should be produced.^ 1 Schaben v. U. S. 6 Ct. of CI. 230. See Steere v. Tenney, 50 N. H. 461; Pennywit d. Kellogg, 1 Cincin. 17. The method of exemplifying public records under the federal statutes is thus accurately stated : — "The mode of authenticating doc- uments of the departments of the United States is governed by the laws of the United States and the practice of such departments, and not by the statutes of th^ states. Gilman V. Riopelle, 18 Mich. 145. By the Act of Congress of the 15th of Septem- ber, 1789, all copies of records and papers in the office of the secretary of state, authenticated under the seal of his office, are made competent evi- dence equally with the original record or paper. Brightly's Dig. 846, § 7. By a subsequent act, passed 22d of February, 1849, all books, papers, documents, and records in the war, navy, treasury, and post-office depart- ments, and the attorney general's of- fice, may be copied and certified, un- der seal, in the same manner as those in the state department, and with the same force and effect. Brightly's Dig. 269, § 17. See Eev. Stat, cited supra, § 108. " It is the certificate of the officer who is the custodian of the original paper, document, or record, and the seal of the department, which makes the transcript evidence. Smithy. The United States, 5 Peters, 292, 300. The certificates, in this case, are in compliance with the several modes of authenticating documents under the act of Congress ; Catlett v. Pacific Ins. Co. 1 Paine C. C. 594, 612; 1 Wend. 661, 578i 4 Wend. 75; Smith v. The United States, 5 Pet. 292, 297 ; and the transcript was properly received in evidence. 116 " But independently of this tran- script, the oral proof in the cause and the certificate of the provost marshal issued to the volunteer on his enlist- ment, fully establish the facts that the plaintiff was enlisted and mustered into the service, and accepted by the mustering officer as a volunteer, and credited upon the quota of the city. Testimony of this character is com- petent, and may be received in sub- stitution of transcripts from the mus- ter-rolls of the war department, or even to contradict the entries of en- listment in the books of that depart- ment. Chapman Township v. Her- rold, 58 Penn. St. K. 106 ; Town of Lebanon v. Heath, 47 N. Hamp. 353; Steinberg v. Eden, 41 Vt. 187." De- pue, J., Hawthorne v. City of Hobo- ken, 35 N. J. 251. We must remember that we have to go elsewhere than to English prac- tice for authorities in reference to the admissibility of copies of registered deeds. The policy of the English landed interests was, until recently, to keep titles secluded from public inspection ; and, as we will elsewhere see, so jealously was this view main- tained, that a party could not be com- pelled to disclose his title unless upon the presentation of a substantial case against him. With us the tendency is in the other extreme, leading us to rely rather on the registry than the deed for title, and consequently to be more careless about the formalities of conveyancing. In England, however, under the new practice, besides the mode of proving enrolments which has just been stated, it is clear that they may now be proved in most, if not in all, cases by the production of office cop- ies; and by several acts of parliament CHAP. HI.J COPIES OF DOCUMENTS. [§ 115. § 115. In addition, however, to the common law rule, which has been iust noticed, the statutes authorizing the re- „ /■, ^ II. ., Exemplifi- cording of deeds and other instruments prescribe, almost cations of universally, that exemplifications of the instruments so deeds ad- recorded shall be admissible in evidence as primd facie ""^^' *' proof of their contents. To make such copies evidence, however, the requisites of the statute prescribed for the recording and for exemplifications must be complied with.^ The mere recording of an instrument, however, does not make a copy of it evidence unless specially prescribed by the statute, as ordinarily the exe- cution and non-producibility of the deed must be proved before such copies are made evidence, not only of the enrolment itself, but of the contents of the instruments enrolled. 1 Smith V. U. S. 5 Pet. 292; Bruce V. U. S. 17 How. 437; Younge v. Guil- beau, 3 Wall. 636 ; Webster v. Calden, 55 Me. 171; Farrar v. Fessenden, 39 N. H. 268 ; Crowell v. Hopkinton, 45 N. H. 9; Williams „. Bass, 22 Vt. 352; Pratt v. Battles, 34 Vt. 391; Abington v. North Bridgewater, 23 Pick. 1 70 ; Cone v. Emery, 2 Gray, 80; Pierce v. Gray, 7 Gray, 67; Bol- ton V. Cummings, 25 Conn. 410; Has- sell V. Borden, 1 Hilt. (N. Y.) 128 Garrigues v. Harris, 1 7 Penn. St. 344 Curry v. Raymond, 28 Penn. St. 144 Oliphant v. Ferren, 1 Watts, 57 Snyder v. Bowman, 4 Watts, 133 Harper v. Bank, 7 Watts & S. 204 Connelly v. Bowie, 6 Har. & J. 141 McCauley v. State, 21 Md. 556 ; Pol- lard V. Lively, 4 Grat. 73; Bohanan V. Shelton, 1 Jones L. 370; Hughes V. Debnam, 8 Jones L. 127; Clarke v. Diggs, 6 Ired. L. 159 ; Maxwell v. Carlile, 1 McCord, 534 ; Williams v. Co wart, 2 7 Ga. 1 8 7 ; Massey v. Hackett, 12 La. An. 54; Graham v. Williams, 21 La. An. 594; Carpenter «. Feather- ston, 15 La. An. 235 ; Cogan v. Frisby, 36 Miss. 178; Davis v. Rhodes, 39 Miss. 152 ; Bryan v. Wear, 4 Mo. 106; Gentry v. Garth, 10 Mo. 226 ; Gates v. State, 13 Mo. 11; Charlotte v. Chou- teau, 21 Mo. 590 ; Musick v. Barney, 49 Mo. 458; Sheldon v. Coates, 10 Ohio, 278 ; Dennis v. Hopper, 18 111. 82 ; Deininger v. McConnel, 41 111. 229; Moorehouse v. Potter, 15 Ind. 477; Wells V. State, 22 Ind. 241; Niles V. Sprague, 13 Iowa, 198; Mid- dleton Bank v. Dubuque, 19 Iowa, 469; Fouke v. Ray, 1 Wis. 104; Brown v. Cady, 11 Mich. 535; Gil- man V. Riopelle, 18 Mich. 145; Smith V. Brannan, 13 Cal. 107; Dixon v. Thatcher, 14 Ark. 141 ; Touchard v. Keyes, 21 Cal. 202; Garwood v. Has- tings, 38 Cal. 216 ; Canfield v. Thomp- son, 49 Cal. 211; Crayton v. Munger, 11 Tex. 234 ; Dikes v. Miller, 25 Tex. 281, Snppt. As to exemplifications of patents, see Peck v. Farrington, 9 Wend. 44; Davis ». Gray, 17 Ohio St. 330. In Wisconsin, where § 71, ch. 137, R. S., provides that where a certified copy of any record, document, &c., is allowed by law to be evidence, " such copy shall be certified by the officer, in whose custody the same is required by law to be, to have been compared by him with the original, and to be a cor- rect transcript therefrom," &c., it is ruled, that this statute requires the officer to certify separately to each document offered in evidence. New- ell V. Smith, 38 Wis. 39. 117 § 115.] THE LAW OF EVIDENCE. [book I. a copy of any kind is admissible.^ Nor, as will be in a moment seen, can the grantee in a deed, bringing suit upon it, hold it back and produce merely an exemplification of its registry. In all cases, however, when the object is to prove a link of title or to use a deed evidentially, an exemplification of the record is enough .2 A party in whose power the instrument is, or can be, cannot hold it back and offer instead an exemplifica- tion of the record. The non-production of the original must be accounted for.^ It is otherwise, however, as to parties not claiming under the deed, or as to the grantee himself, after prov- ing loss. When the deed is duly acknowledged and certified, the copy may be read in evidence if otherwise admissible, irrespective of the mode of attestation, in all cases where the statute does not 1 Lemon v. Bacon, 4 Cranch C. C. 466; New York Dry Dock u. Hicks, 5 McLean, 111; Hammatt v. Emer- son, 27 Me. 308 ; Wendell v. Abbott, 43 N. H. 68 ; Coule v. Harrington, 7 Har. & J. 147; Miles v. Knott, 12 Gill & J. 442 ; Berry v. Matthews, 13 Md. 537; Rollins v. Henry, 78 N. C. 842; Rushin v. Shields, 11 Ga. 636; Thomas v. Bank, 17 Miss. 201 ; Haile V. Palmer, 5 Mo. 403; Childress v. Cutter, 16 Mo. 24 ; Reading v. Mullen, 81 Cal. 104; Fitzpatrick v. Pope, 39 Tex. 314; Mapes v. Leal, 27 Tex. 845. Tor cases of the reception of the informal registry of an ancient grant, see Archibald v. Davis, 4 Jones L. 133 ; McMuUen v. Brown, Harper, 76. " Independently of rules of court, the certified copy of a deed duly re- corded is prima facie evidence, when the party producing it is not the gran- tee. Scanlan v. Wright, 13 Pick. 523; Hood v. Fuller, 15 Pick. 185; Commonwealth v. Emery, 2 Gray, 81 ; Hatch V. Bates, 54 Maine, 138. See, also, GroflP v. Ramsey, 19 Minn. 44; Bourne v. Boston, 2 Gray, 497. " The defendant objects that a rec- 118 ord copy of a deed in the line of his title was offered by the plaintiffs and admitted in evidence, without any previous notice to him to produce the original, or any attempt to obtain it by other means. This ruling was clearly right. The rule requiring the production of an original deed applies only to a case where it is necessary to prove a conveyance directly to a party to a suit, and which may reasonably be supposed to be in his possession, but does not include prior deeds in a chain of title. Commonwealth v. Emery, 2 Gray, 80." Bigelow, C. J., Thacher v. Phinney, 7 Allen, 148. See, to same general eitect, Ury i;. Houston, 36 Tex. 260. ' McEwen v. Bulkley, 24 How. 242; White V. Dwinel, 33 Me. 320; Farrar V. Fessenden, 39 N. H. 268 ; Com. v. Emery, 2 Gray, 80; Den v. Gustin, 12 N. J. L. 42 ; Bissell v. Pearce, 28 N. Y. 252 ; Pardee v. Lindley, 81 111. 1 74 ; McNichols u. Wilson, 42 Iowa, 385; Williams v. Hill, 16 Kans. 23 ; Candler v. Lunsford, 4 Dev. & B. L. 18; Tully 0. Canfield, 60 Mo. 99; Peck V. Clark, 18 Tex. 239; Ury v. Houston, 36 Tex. 260. CHAP. III.] COPIES OF DOCUMENTS. [§ 117. prescribe a particular mode of attestation.^ In such case there is no necessity of calling the subscribing witnesses.^ § 116. The copy may be certified to by the officer designated by the statute, or by his deputy acting for him and in his name.3 If by a stranger, the certificate is void.* There need, however, be no facsimile of vignette or seal, if the seal be indi- cated.^ § 117. An abstract or summary of an instrument is not within the recording statutes, and is not made evidence by force of such 1 " It is also objected that the reg- istered copy, when produced, disclosed the fact that the deed was not exe- cuted in the presence of any subscrib- ing witness. But it was not necessary to its validity that it should have been so signed. Dole i\ Thurlow, 12 Met. 157, 165. Nor did the fact that the grantor executed it without calling a, witness to attest the signature in any way affect the competency of the copy which was admitted in evidence. An acknowledgment of a deed duly cer- tified is essential to authorize the reg- ister of deeds to put it on record ; Gen. Sts. c. 89, § 28; but there is no provision which renders any partic- ular mode of execution necessary, in order to render a deed legally suitable for registry. As the deed in question was duly recorded, the record copy was good prima facie evidence of the contents of the original deed." Big- elow, C. J., Thacher v. Phinney, 7 Allen, 148. " Infra, § 740. " The office copy of the deed, Wm. M. Mann to Oba- diah Mann, dated July 28, 1853, was properly received under the provision of the statute of 1862, c. 112. This was held prima facie to establish the tenant's title. Blethen v. Dwinel, 34 Maine, 133. An oflSce copy being prima facie evidence, there is no ne- cessity for calling the attesting wit- ness. Eaton V. Campbell, 7 Pick. 12. It raises a presumption that the grantor had sufficient seisin to enable him to convey, and operates to vest the legal seisin in the grantee. Ward v. Puller, 15 Pick. 185. When the original is not in the custody of, or power of the party having occasion to use it, the certified copy is prima fade evidence of the original and its execution, sub- ject to be controlled by rebutting evi- dence. Com. V. Emery, 2 Gray, 80." Appleton, C. J. , Webster v. Calden, 55 Maine, 171. 8 U. S. V. Griffith, 2 Cranch C. C. 366; Bleecker v. Bond, 3 Wash. C. C. 329; Dyer v. Snow, 47 Me. 254 ; Hayne v. Porter, 45 111. 318; Grea- sons V. Davis, 9 Iowa, 219; Watson V. Tindal, 24 Ga. 494 ; Stephens v. Westwood, 25 Ala. 716; Clark u. Hummerle, 36 Mo. 620; Triplett v. Gill, 7 J. J. Marsh. 438. 4 Woods V. Banks, 14 N. H. 101; State V. Clark, 24 N. J. L. 516; Dev- ling V. Williamson, 9 Watts, 311. 6 Sneed v. Ward, 5 Dana, 187; Holbrook v. Nichol, 36 111. 161; State V. Bailey, 7 Iowa, 390. Infra, § 693. That the copy is only prima facie proof as . to authenticity and accu- racy, and may be assailed, see Har- vey w. Mitchell, 31 N. H. 675; Pres- ton u. Robinson, 24 Vt. 583 ; EberU V. Eberts, 55 Penn. St. 110; Sams v. Shield, 11 Rich. 182; Cong. Church v. Morris, 8 Ala. 182; Harvey u. Thorpe, 28 Ala. 250. 119 § 119.J THE LAW OF EVIDENCE. [BOOK I. Statutes.! jfor can an exemplification be admissible in cases where the original would not be received.^ § 118. An exemplification from a registry of another state is not admissible merely by force of the statutes of such calfo^sof other state.3 It must be authenticated (unless there corded in be local legislation or adjudications prescribing less mustb^'^^ stringent tests) according to the act of Congress.* proved When the act of Congress is substantially complied under act ^ , of Con- with, they may be received.^ But it must appear that greas. ^-^^ registry was in conformity with the laws of the registering state, which must be duly proved.^ Even when thus duly proved, a copy of a deed recorded in another state cannot be received to pass the title to lands in a state where it is pro- vided by statute that title shall only be passed by deeds recorded in the county where the land lies.'' § 119. Exemplifications of foreign wills, decrees, or grants, or Exempiifi- of other instruments that cannot be removed from the foreign ° original archives, may be proved by the official certifi- grants' '^^^^ ^^^ ^^^^ °^ *^® Secretary of the sovereign of the provable country where the archives exist.^ In Pennsylvania, cate. an exemplification of a will under the seal of the Eng- lish Prerogative Court has been received.^ So notarial copies have, in proper cases, been admitted.^" 1 Olven w. Boyle, 15 Me. 147; Ma- Key v. Vaughn, 15 Ala. 497; Wat- guire V. Sayward, 22 Me. 230; Grif- rous v. McGrew, 16 Tex. 506. See fith V. Tunckhouser, Pet. C. C. 418 ; McCormick v. Evans, 33 111. 327. Struthers v. Reese, 4 Penn. St. 129; ^ King v. Dale, 1 Scam. 513; Spen- Cox u. Cox, 26 Penn. St. 375; Drake cer u. Langdon, 21 111. 192; Rochester V. Morris, 2 Jones L. 368; Wray v. v. Toler, 4 Bibb, 106; Smith u. Roach, Ho-ya-pa-nubby, 18 Miss. 452; Poute 7^B. Mon. 17. t). McDonald, 27 Miss. 610. See su- ' Stevens «. Bomar, 9 Humph. 546; pra, § 80. Dickson v. Grissom, 4 La. An. 538 ; 2 State V. Wells, 11 Ohio, 261. Dunlop v. Dougherty, 20 111. 397; Kidd ° Drummond w. Magruder, 9 Cranch, v. Manley, 28 Miss. 156. 122; Hylton v. Brown, 1 Wash. C. ' State ii. Engle, 21 N. J. L. 847; C. 298; Quay v. Ins. Go. Anthon, 173; Kelley v. Ross, Busb. (N. C.) L. 184. Petermans v. Laws, 6 Leigh, 523. See s U. S. v. Wiggin, 14 Pet. 334; U. Thompson v. Bank, 3 Coldw. 46. S. v. Delespine, 15 Pet. 226 ; De So- * Drummond u. Magruder, 9 Cranch, bry v. De Laistre, 2 Har. & J. 19. See 122; Secrist v. Green, 3 Wall. 744 Garrigues v. Harris, 17 Penn. St. 344 Pennel v. Wayant, 2 Barring. 502 120 supra, § 110. ° Weston V. Stammers, 1 Dall. 2. 1" Bowman v. Sanborn, 25 N. H. 87. CHAP, in.] CERTIFICATES OF OFFICERS. [§ 120. § 120. At common law, the certificate of a public officer, no matter how high and solemn his office, is inadmissible Certificates to prove any disputed fact. The officer, if living, must admSibfe be produced to swear to the fact. If he be dead, his ^i^™ P™- m • ^ • T-7T1 • vided by oincial entries, made in the discharge of his duties, may statute. be evidence. If the object is to prove that a fact appears by rec- ord, the record itself must be exemplified or produced. His cer- tificate, however, being of the nature of hearsay, and ex parte, is in itself inadmissible.^ When the certificate states a con- clusion from a record, the record itself is the primary evidence. Thus a certificate from a clerk, stating the effect of a judicial proceeding (e. g. a judgment or decree), is not admissible to prove the fact therein stated when the object is dispositive. The record itself must be set forth.^ Nor can a certificate from a clerk of another court prove loss of papers.* So a certificate from 1 Roberts v. Eddington, 4 Esp. 88 ; Omichund v. Barker, Willes, 549 ; Sewell V. Corp. 1 C. & P. 392 ; R. v. Sewell, 8 Q. B. 161; Swan v. Hughes, 1 Wash. C. C. 216; Barert v. Day, 3 Wash. C. C. 243; Great Pond Co. v. Buzzell, 39 Me. 173; Jay v. East Liv- ermore, 56 Me. 107; Davis v. Clem- ents, 2 N. H. 390; Wells v. Burbank, 17 N. H. 393; Oakes v. Hill, 14 Pick. 442; Reed u. Scituate, 7 Allen, 141; Wayland v. Ware, 104 Mass. 46; Wayland v. Ware, 109 Mass. 248; Hopkins v. Millard, 9 R. I. 37; Jack- son w. Miller, 6 Cow. 751; Erickson V. Smith, 38 How. N. Y. (Pr.) 454; Porter v. Waring, 69 N. Y. 250; Wil- kinson V. Jewett, 7 Leigh, 115; Cope- land, ex parte, Rice Ch. 69; White V. Clements, 39 Ga. 232; Chouteau v. Chevalier, 1 Mo. 343 ; Stoner v. Ellis, 6 Ind. 152; Greenwood v. Spiller, 3 111. 502; Cross I;. Mill Co. 17 111. 64; Harbers v. Tribby, 62 111. 56; Beards- town V. Virginia, 81 111. 541 ; Allen v. Dunham, 1 Greene (Iowa), 89; Card- well V. Mebane, 68 N. C. 485; Mayo V. Johnson, 4 Ark. 613; Oberraier v. Core, 25 Ark. 562. See, however, as to certificates by foreign dignitaries, Bingham v. Cabot, 3 Dall. 19; U. S. V. Acosta, 1 How. 24; 17 Pet. 16; U. S. V. Mitchell, 3 Wash. 95. As to certificates of consuls, U. S. v. Mitch- ell, 2 Wash. C. C. 478; Morton v. Barrett, 19 Me. 109; as to protests of masters of ships, Harper v. Long, 1 Dall. 6 ; as to certificate of marine sur- veyors, Perkins v. Ins. Co. 10 Gray, 312; as to certificates of acknowledg- ment of deeds, see infra, § 1052. The government inspector's certifi- cate is not evidence upon the ques- tion whether a steamboat engine is constructed in accordance with the terms of the manufacturer's contract. Clark V. Detroit, 32 Mich. 348. Otherwise as to military certificates of honorable discharge from service. Fitchburg v. Lunenburg, 102 Mass. 358. 2 McGuire v. Sayward, 22 Me. 233; Jayu. Livermore, 56 Me. 109; Oakes V. Hill, 14 Pick. 448; Green v. Dur- fee, 6 Cush. 363. Infra, § 824. a Goldsmith v. Kilbourn, 46 Md. 289. 121 § 120.] THE LAW OF EVIDENCE. [book I. the United States commissioner of patents that diligent search has been made, and that it does not appear that a certain patent has been issued, is not competent evidence of that fact.^ Stat- utes, however, have been passed, in many instances, authorizing public officers to certify to facts within the range of their depart- ments ; and so convenient is this practice, that the tendency of the courts is to so construe these statutes, when this may be done consistently with- their letter, as to make such certificates primd facie evidence of the facts to which they certify.^ 1 Bullock V. Wallingford, 55 N. H. 619. " The certificate should have been rejected. It was the conclusion drawn by the certifying officer from the examination of the records in his office, and possibly he may have been mistaken. Hanson v. South Soituate, 115 Mass. 336. The statute author- izes him to certify to the correctness of copies of records in his office. What effect shall be given to such copies is a question for the court when put in evidence. When a party desires to prove the negative fact that there is no record, he must do so in the usual way, — by the deposition of the proper officer, or by producing him in court so that he may be sworn and cross- examined as to the thoroughness of the search made. If the summoning of such officer to testify in relation to the public records at the call of a suitor shall be found impracticable by reason of interfering with all his pub- lic duties, the remedy must be found in further legislation. The court can- not disregard the plain rules of evi- dence to meet the difficulty." Smith, J., Bullock V. Wallingford, 55 N. H. 620. So it has been ruled in Massachu- setts, that while an official certificate to a fact may be by statute admissible, it is otherwise at common law, as to an official summary of a document. Hanson v. South Scituate, 115 Mass. 122 341; citing Oakes v. Hill, 14 Pick. 442 ; Robbins v. Townsend, 20 Pick. 345. 2 R. V. Levy, 8 Cox C. C. 73; R. V. Wenham, 10 Cox C. C. 222; Wil- liams u. Canal Co. L. R. 3 Ex. 158 Oakes v. Turquand, L. R. 2 H. L. 325 Laing v. Reed, L. R. 5 Ch. Ap. 4 Fellows V. Pedrick, 4 Wash. C. C 477; Levy v. Burley, 2 Sumn. 855 Ferguson' u. CliflTord, 37 N. H. 86 Bartlett v. Boyd, 34 Vt. 256 ; Lem- ington V. Blodgett, 37 Vt. 210; People V. Cook, 14 Barb. 259; State o. Clo- thier, 30 N. J. L. 351; Weidman v. Kohr, 4 Serg. & R. 174; Crane v. State, 1 Md. 27; Prather w. Johnson, 3 Har. & J. 487; Morrill v. Gelston, 34 Md. 413 ; Usher v. Pride, 15 Grat. 190; Heffington u. White, 1 Bibb, 115; Brooking v. Dearmond, 27 Ga. 58 ; New Orleans R. R. o. Lea, 12 La. An. 388; Jones, Succession of, 12 La. An. 397; Tucker v. Burris, 12 La. An. 871 ; Gumo v. Tanis, 6 Mo. 330 ; Fay- ette Co. V. Chitwood, 8 Ind. 504; De- launay v. Burnett, 9 111. 454; John- ston V. University, 35 111. 518 ; Clark V. Polk Co. 19 Iowa, 248; Pierson t». Reed, 36 Iowa, 257; Dorman v. Ames, 12 Minn. 451 ; McDon*ald v. Edmonds, 44 Cal. 328. See Grant v. Coal Co. 80 Penn. St. 208. See, as to ruling that inventories by sworn appraisers of decedent's estates are admissible for or against strangers, Seavey v. Seavey, 37 N. H. 125. CHAP. III.] notaries' certificates. [§ 123. § 122. But where the duty of a public officer is merely to cer- tify to a record, this will not be construed as giving him author- ity to certify to facts explanatory of or collateral to the record.^ The certificate, also, must be made by the officer himself or his legal deputy. If by a person without official character, it is in- operative.2 Nor can such certificate cover facts out of the range of the officer's official cognizance ; ^ nor facts which are but a summary of writings on file in the archives of such officer.* The certificate cannot be by an informal letter or memorandum ; it must be formally certified to, under the officer's seal.^ § 123. In England, as we have already seen, whatever may have been the earlier tendency of the courts, it is now held that the execution of a foreign or colonial deed certificate cannot be proved by a notary's certificate.^ It is oth- *'^'"'^^''''^- erwise, however, by the law merchant, in respect to foreign ne- gotiable paper ; as to which the original protests, or duly cer- tified copies, when proved by the notarial seal, are primd facie Thus, under the U. S. St. of 1864, c. 106, § 6, a copy of the certificate of organization of an United States na- tional bank, which was certified by the comptroller of the currency and authenticated by his seal of office, is competent evidence in a state court. Tapley v. Martin, 116 Mass. 275. See Washing. Co. Bk. v. Lee, 112 Mass. 521 ; First Nat. Bk. of Memphis v. Kidd, 20 Minn. 234. " The copy of the certificate of or- ganization of the Hide and Leather National Bank, certified by the comp- troller of the currency, was properly admitted in evidence. The act of Congress provides that copies of such certificates, duly certified by the comp- troller, and authenticated by his seal of office, shall be ^ evidence in all courts and places within the United States.' U. S. St. 1864, 0. 106, § 6. And, in- dependently of this provision, such certificates, when filed, are a part of the public records, and may be proved by duly authenticated copies. Stetson V. Gulliver, 2 Cush. 494; Oakes v. Hill, 14 Pick. 442." Morton, J., Tap- ley V. Martin, 116 Mass. 275-76. 1 Brown v. Galloway, Pet. C. C. 291; Flanders v. Thompson, 2 N. H. 421; Stewart v. Allison, 6 Serg. & R. 324; Martin v. Anderson, 21 Ga. 301 ; Littleton v. Christy, 11 Mo. 390; Brown V. The Independent, Crabbe, 54. 2 Bleecker v. Bond, 3 "Wash. C. C. 329; Bunk v. Ten Eyck, 24 N. J. L. 756 ; Urket v. Coryell, 5 Watts & S. 60. ^ Garwood v. Dennis, 4 Binn. 314; Newman v. Doe, 4 How. (Miss.) 522. * Armstrong «. Boy Ian, 1 South. (N. J.) 76. See supra, § 80. 5 Davis V. White, 3 Yeates, 587; McKenzie v. Crow, 4 Yeates, 428; Morgan Co. Bk. v. People, 24 III. 304. See Brink v. Spaulding, 41 Vt. 96. 8 Nye V. Macdonald, L. R. 3 P. C. 331 ; Earl's Trusts, L. R. 8 Eq. 98. So, also, Diez, in re, 56 Barb. 591. And see fully supra, § 120. 123 § 123.] THE LAW OF EVIDENCE. [book I. evidence of demand and protest.^ Such certificates, howeYer, must be in conformity with the local law, on the principle, locus regit actum.^ The facts certified to must appear to have been within the cognizance of the notary, and to relate to bills of exchange or protests of ships,^ and the protest must have been promptly made.* Protest must be under seal,^ though this may be shown by the inspection of the document, when not recited in the certificate.^ The protest, it should be remembered, is but primd facie proof ; ^ and it is not exclusive proof. Notice and protest may be proved by other competent evidence.^ For such 1 2 Daniel on Negot. Inst. § 959 NichoUs V. Webb, 8 Wheat. 333 Townsley v. Sumrall, 2 Pet. 179 Wilson V. Stewart, 1 Cranch C. C. 128 Orr I'. Lacy, 4 McLean, 243 ; Pattee V. McCrillis, 53 Me. 410; Rushworth V. Moore, 36 N. H. 188; Austin v. Wilson, 24 Vt. 630; Union Bk. v. Gregory, 46 Barb. 98 ; Barker v. Ketchum, 7 Hill (N. Y.), 444 ; Mc- Andrew v. Radway, 34 N. Y. 511 ; Lawson v. Pinckney, 40 N. Y. Sup. Ct. 187; Dunn v. Devlin, 2 Daly, 122; Baumgardner v. Reeves, 35 Penn. St. 250; Ricketts v. Pendleton, 14 Md. 320 ; Elliott v. White, 6 Jones (N. C.) L. 98 ; Field v. Thornton, 1 Ga. 306; Booker v. Lowry, 2 Ala. 390; Rives V. Parmley, 18 Ala. 256; Spann V. Baltzell, 1 Fla. 301 ; Rowley v. Berrian, 12 111. 198 ; Carruth v. Walker, 8 Wis. 252 ; Fellows v. Menasha, 11 Wis. 550; Johnson v. Cocks, 12 Ark. 672; MoFarland t>. Pico, 8 Cal. 626; Tyler v. Bank, 7 T. B. Monr. 555 ; Moore v. Bank, 6 Mo. 379; Williams v. Turner, 2 Bay, 411. Contra, at common law, as to inland bills of exchange or promissory notes: Carter v. Burley, 9 N. H. 558 ; Dutch- ess Co. Bk. V. Ibbotson, 5 Den. 110 ; Kirtland v. Wanzer, 2 Duer, 278 ; Hatfield v. Perry, 4 Harr. (Del.) 463 ; Bond V. Bragg, 17 111. 69. And so as to presentments of notes for payment out of state : Dutchess Co. Bk. v. Ib- 124 botson, 5 Denio, 510; Schoneman v. Tegley, 7 Penn. St. 433; Coleman ». Smith, 26 Penn. St. 255; corrected by Starr v. Sanford, 45 Penn. St. 193. ^ McAfee v. Doremus, 5 How. 53; Bank of Rochester v. Gray, 2 Hill (N. Y.), 227; Ticknor v. Roberts, 11 La. 14 ; Ray v. Porter, 42 Ala. 327. 8 Talcott V. Ins. Co. 2 Wash. C. C. 449; Welsh v. Barrett, 15 Mass. 380; Foster u. Davis, 1 Litt. (Ky.) 71 ; Moore v. Worthington, 2 Duv. 307. ^ Boggs V. Bank, 10 Ala. 970; Win- chester w. Winchester, 4 Humph. 151. See Chatham Bk. v. Allison, 15 Iowa, 357 ; Brandon v. Loftus, 4 How. (Miss.) 127. 6 McKellar v. Peck, 39 Tex. 381. « Dale V. Wright, 59 Mo. 110. ' See cases just cited, and 2 Daniel on Negot. Inst. § 959, citing Dickens V. Beal, 10 Pet. 682; Ricketts v. Pen- dleton, 14 Md. 820; Union Bank v. Fowles, 2 Sneed, 555; Nelson v. Fot- terall, 7 Leigh, 180. 8 March r. Garland, 20 Me. 24; New Haven Bk. v. Mitchell, 15 Conn. 206; Cole V. Jessup, 10 N. Y. 96 ; Bank v. Woods, 28 N. Y. 545 ; Bell v. Bank, 7 Gill, 216; Wetherall v. Garrett, 28 Md. 450; Eddy v. Peterson, 22 111. 535 ; Ball v. Bank, 8 Ala. 590 ; La- throp V. Lawson, 5 La. An. 288; Bank of Ky. «. Duncan, 4 Bush, 294. CHAP. III.] notaries' certificates. [§ 123. purpose the admission of the party charged is competent.^ And the notary may himself prove the facts, although he has duly entered them in an ofl&cial registry, which he has preserved.^ By the law merchant the protest is not proof that the notices of dishonor were properly addressed, or that notice was properly given. When the bill has been protested, the official duties of the notary, under that law, are closed.* But in most jurisdic- tions a certificate of the notary is by statute, if not by local usage, primd facie evidence of all the facts it avers.* At the same time if the certificate avers notice to the indorsers at a par- ticular place, or by a particular agent, there must be proof that they lived in such place, or acknowledged such agent.® Nor is the notary's recital proof that the drawee had no funds.* Nor can the protest be stretched to make it evidence of any collateral facts which it does not specifically aver, unless such facts are involved in facts which are averred.'^ When, however, a fact is averred to be done by the protest, the presumption is that it was done regularly.* 1 Derickson v. Whitney, 6 Gray, 248; Long v. Crawford, 18 Md. 220. ^ Draper v. Clemens, 4 Mo. 62; Adams v. Wright, 14 Wis. 408 ; Ter- bell V. Jones, 15 Wis. 253. 8 Dickens v. Beal, 10 Pet. 582 Williams o. Putnam, 14 N. H. 540 Morgan v. Van Ingen, 2 Johns. 204 Miller v. Hackley, 5 Johns. 384 ; Bank of Rochester v. Gray, 2 Hill, 231; Walker v. Turner, 2 Grat. 536 ; Bank of Mobile v. King, 9 Ala. 279; Kives V. Parmley, 18 Ala. 256 ; Sullivan u. Deadman, 19 Ark. 484. See Cas- tles V. McMath, 1 Ala. 326 ; Leigh V. Lightfoot, 11 Ala. 935. It is plain that when the notary acts only as agent for a party, he is only bound to such party. Morgan v. Van Ingen, 2 Johns. K. 204. * Beckwith v. Man. Co. 26 Me. 45 ; Ticonie Bk. v. Stackpole, 41 Me. 321; Lewiston Bk. v. Leonard, 43 Me. 144; Housatonic Bk. v. Laflin, 5 Cush. 546; Union Bank v. Middlebrook, 33 Conn. 95 ; Bank of Rochester v. Gray, 2 Hill, 231; Bank of Com. ». Mudgett, 44 N. Y. 514 ; Starr v. Sanford, 45 Penn. St. 193. Crawley v. Barry, 4 Gill, 194; Fisher v. Bank, 7 Blackf. 610; O'Neil v. Dickson, 11 Ind. 253; Brooks V. Day, 11 Iowa, 46; Walker V. Bank, 3 Va. 486 ; Southern Bk. V. Mech. Bk. 27 Ga. 252; Rives o. Parmley, 18 Ala. 256 ; Bank of Ky. V. Goodale, 20 La. An. 50; McFar- land V. Pico, 8 Cal. 626. In Parsons on Notes and Bills, 408, it is con- tended that this holds good at com- ujon law. 6 Turner v. Rogers, 8 Ind. 139 ; Bradshaw v. Hedge, 10 Iowa, 402 ; Drumm v. Bradfute, 18 La. An. 680. " Dakin v. Graves, 48 N. H. 45. ' Dakin v. Graves, 48 N. H. 45; Young V. Bennett, 18 Penn. St. 261; Paine v. Rice, 2 Patt. & H. 530; Du- mont V. Pope, 7 Blackf. 367; Turner V. Rogers, 8 Ind. 140; Sullivan v. Deadman, 19 Ark. 486. 8 Infra, §§1311, 1318; Bank U. S. V. Smith, 11 Wheat. 171; Pattee v. 125 § 125.] THK LAW OF EVIDENCE. [book I. § 124. Evidence of a conflicting local custom is inadmissible to vary the duties imposed on the notary by the law merchant.^ If a custom be recognized in this respect, it must be not only pertinent but general.^ The entries of a deceased notary, in the course of his business, are, as is elsewhere seen, admissible.^ § 125. The general rule, says Mr. Taylor,* is that a duplicate, made out at any time from the original or protocol in the notarial book, is equivalent to an original drawn up at the time of the entry in the book. If, therefore, a foreign bill of exchange be protested for non-pay- ment, or if it be paid under protest for the honor of an indorser, the fact of the protest may be primarily established, not only by Duplicate protests are admis- sible as original. McCrillis, 53 Me. 410; Simpson v. White, 40 N. H. 540; Union Bk. v. Middlebrook, 33 Conn. 9,'5 ; Bank of Commerce v. Mudgett, 44 N. Y. 514 Coleman v. Smith, 26 Penn. St. 255 Nelson V. Fotterall, 7 Leigh, 179 Stainback o. Bank, 11 Grat. 260 Elliott V. White, 6 Jones (N. C), 98 Whaley v. Houston, 12 La. An. 585 Wamsley v. Rivers, 34 Iowa, 466; Mc- Farland v. Pico, 8 Cal. 626. See Ma- goun V. Walker, 48 Me. 420 ; Seneca Bk. V. Neass, 5 Den. 329. See discus- sion on this topic in Byles on Bills, 254; 2 Daniels on Negot. Inst. §§ 963 et seq. Of the New York statute we have the following authoritative construc- tion: — " It is provided by statute (Laws of 1823, chap. 271, § 8), that in all ac- tions at law the certificate of a notary, under his hand and seal, of the pre- sentment by him of any promissory note for payment, and of the protest thereof for non-payment, shall be pre- sumptive evidence of the facts con- tained in the certificate, unless the defendant shall annex to his plea an affidavit denying the fact of having received notice of non-payment of such note. Here the defendant served an affidavit denying the receipt by 126 him of notice of non-payment, but it was not annexed to his answer, and hence cannot have the effect men- tioned in the statute. It is claimed, however, that the sworn answer of the affidavit was an answer within the meaning of the statute. This claim is not well founded. This answer is verified in the usual way, the affiant affirming that it is true of his own knowledge, except as to the matters stated on information and belief, and as to such matters that he believes it to be true. When a defendant veri- fies an answer in this way, it is im- possible to tell what facts he states upon his own knowledge, and what upon information and belief. An affi- davit denying, upon information and belief, the receipt of notices, would not answer the requirements of this statute. To destroy the effect of the certificates of the notary as presump- tive evidence, the defendant must deny positively the receipt of notice." Earl, C, Gawtry «. Doane, 51 N. Y. 89. 1 Commercial Bk. v. Varnum, 8 Lansing, 86. ^ Ocean Bk. v. Williams, 102 Mass. 141. » Infra, § 251. « Ev. § 394. CHAP. III.] notaries' and OTHER CERTIFICATES. [§ 127. producing a formal instrument of protest, extended by the no- tary from his register at the date of the actual protest, but by putting in evidence a duplicate protest, even though it may have been drawn up after the commencement of the action, provided that the entries in the notary's book can be shown to have been made at the time when the transactions occurred.^ § 126. In England, under the acts authorizing the registration of deeds, iii Yorkshire and Middlesex, the registrars „ are bound, if required, to give certificates of searches, of deeds di ,•£ J • I 11 • , 1 admissible, also certiiied copies or any recorded or registered documents within the purview of the statute. The certificates must be under the hand of the registrar, testified to by two cred- ible witnesses.^ In Pennsylvania it has been held admissible to prove by a certificate of the proper recorder or register, that he has searched in his ofiice for a particular paper, without being able to find it.^ § 127. Public documents cannot, without great inconvenience to the public, be put in evidence in their originals.* It copies of has been consequently held that such documents, like u^'^en^s'^re- statutes, may be proved by the printed volumes in ceivable. which they are published by authority,^ or by exemplifications from the proper office.^ ^ Geralopulo v. Wieler, 10 C. B. 712. United States, see supra, § 108; infra, 2 Taylor's Ev. § 1461. See supra, § 317. § 80. In England, royal proclamations, ' Weidman v. Kohr, 4 Serg. & R. and orders and regulations issued un- 174. See, however, Wayland v. Ware, der the authority of government, may 109 Mass. 248, and cases cited supra, be proved, like other public docu- § 120. ments, by producing either their orig- * See Carpenter v. Dexter, 8 Wall, inals, or examined copies; and in 513. addition to these obvious modes of ' Supra, § 108 ; infra, § 317; Wat- proof, others have been afforded and kins u Holman, 16 Pet. 26; Bryan v. defined by "The Documentary Act, Forsyth, 19 How. U. S. 334; Gregg v. 1868 " (2 Bl. Com. 346). Sec. 2 of that Forsyth, 24 How. U. S. 179; Whiton useful statute enacts that "^nma/aa'e V. Ins. Co. 109 Mass. 24; Dutillet u. evidence of any proclamation, order, Blanchard, 14 La. An. 97; Nixon v. or regulation (this act is made spe- Porter, 34 Miss. 697. As to foreign cially applicable to ' any regulation public documents promulgated in the made by the secretary of state in pur- ' Supra, § 108. See State v. Cardinas, 47 Tex. 450, as to copies of alcade deeds. 127 § 129.] THE LAW OF EVIDENCE. [book I. IV. SECONDARY EVIDENCE MAY BE RECEIVED WHEN PRIMARY IS UN- PRODUCIBLE. § 129. Where a document (and under this head fall deeds, Lost or records, letters, notes, accounts, wills) is lost or de- documm't stroyed without any suspicion of spoliation attaching ™ay ^8 to the party offering to prove it by parol evidence, then parol. such parol evidence is admissible to prove its contents, it appearing that due, but fruitless, efforts have been made to suance of ' the Naturalization Act, 1870, 33 & 34 Vict. c. 14, § 12, subs. 5), issued before or after the passing of this act by or under the authority of any such department of the gov- ernment, or officer, as is mentioned in the first column of the schedule hereto, may be given in all courts of justice, and in all legal proceedings whatsoever, in all or any of the modes hereinafter mentioned, that is to say: — " (1.) By the production of a copy of the Gazette purporting to contain such proclamation, order, or regula- tion. " (2.) By the production of a copy of such proclamation, order, or regu- lation issued by Her Majesty or by the Privy Council, of a copy or extract purporting to be certified to be true by the clerk of the Privy Council, or by any one of the lords or others of the Privy Council, and, in the case of any proclamation, order, or regulation, issued by or under the authority of any of the said departments or offi- cers, by the production of a copy or extract purporting to be certified to be true by the person or persons spe- cified in the second column of the said schedule, in connection with such de- partment or officer. " Any copy or extract made in pur- suance of this act may be in print or in writing, or partly in print and partly in writing. 128 " No proof shall be required of the handwriting or official position of any person certifying, in pursuance of this act, to the truth of any copy of or ex- tract from any proclamation, order, or regulation." Sees. 3 and 4 relate to matters of minor importance. Sec. 5 enacts, that " the following words shall in this act have the meaning hereinafter assigned to them, unless there is something in the context repugnant to such con- struction (that is to say) : — '"British colony and possession' shall for the purposes of this act include the Channel Islands, the Isle of Man, and such territories as may for the time being be vested in Her Majesty, by virtue of any act of parliament for the government of India and all other Her Majesty's dominions : " ' Legislature ' shall signify any au- thority, other than the Imperial Par- liament or Her Majesty in Council, competent to make laws for any colony or possession : " ' Privy Council ' shall include Her Majesty in Council, and the lords and others of Her Majesty's Privy Council, or any of them, and any Committee of the Privy Council that is not specially named in the schedule hereto : " ' Government printer ' shall mean and include the printer to Her Majesty, and any printer purporting to be the printer authorized to print statutes, ordinances, acts of state, or any other CHAP. III.] PROOF OF LOST DOCUMENTS. [§ 130. produce it in court ; ^ though, if the instrument were executed in duplicate or triplicate, &c., the loss of all the parts must be proved, in order to let in secondary evidence of its contents.^ But this exception does not from its very limitations apply to cases where the party could in any way procure the paper. Thus it has been held inadmissible for a party to prove by parol a paper sent by him to the clerk of the proper public office to be recorded.^ § 130. Secondary evidence may also be offered to prove the public acts of the legislature of any- British colony or possession, or other- wise, to be the government printer of such colony or possession : " ' Gazette ' shall include ' The London Gazette,' ' The Edinburgh Gazette,' and ' The Dublin Gazette,' or any of such gazettes." See. 6 enacts, " that the provisions of this act shall be deemed to be in addi- tion to, and not in derogation of, any powers of proving documents given by any existing statute or existing at common law.'' Taylor's Ev. § 1371 a. So, all proclamations, treaties, and other acts of state of any foreign state, or of any British colony, may be proved either by examined copies, or by copies purporting to bear the seal of the state or colony to which they re- spectively belong. 14 & 15 Vict. c. 75. In one case, where a book was ten- dered in evidence which purported to be a collection of treaties concluded by America, and was declared to have been published by authority there, as a regular copy of the archives in Wash- ington; and it was further proposed to prove, by the American minister resi- dent at this court, that the book was the rule of his conduct, Lord Ellen- borough rejected the evidence, observ- ing that he would not have admitted a book of Spanish treaties, though proved to have been printed by the king's printer in that country. Kich- ardson v. Anderson, 1 Camp. 65, note a. 1 Doe V. Wittcomb, 6 Exc. R. 601; K. V. Johnson, 7 East, 66; Brewster V. Sewell, 3 B. & A. 303; U. S. c. Rev- burn, 6 Pet. 352; Winn v. Patterson, 9 Pet. 663; Kenner v. Bank, 9 Wheat. 581; Butler v. Maples, 9 Wall. 766; Hedrick v. Hughes, 15 Wall. 123; Small V. Pennell, 31 Me. 267 ; Tucker V. Bradley, 33 Vt. 324; Oatman v. Barney, 46 Vt. 594 ; Jones v. Tales, 5 Mass. 101 ; Pruden v. Alden, 23 Pick. 184; Augur v. Whittier, 117 Mass. 451 ; Chamberlin v. Man. Co. 118 Mass. 532; Livingston v. Rogers, 1 Caines, 27, 488; Ford v. Wadsworth, 19 Wend. 334; Enders v. Sternbergh, 2 Abb. (N. y.) App. 31 ; McReynolds v. Longenberger, 57 Penn. St. 13; Kaul j;. Lawrence, 73 Penn. St. 410; Watson V. Jones, 85 Penn. St. 119; Hay ward V. Carroll, 4 Har. & J. 518 ; Allen v. Parish, 3 Ohio, 107; Sanders v. San- ders, 24 Ind. 133; Rudolph v. Lane, 57 Ind. 115 ; Richley v. Farrell, 69 111. 264; Wickenkamp u. Wickenkamp, 77 111. 92 ; Marlow v. Marlow, 77 111. 633 ; Bagley v. McMickle, 9 Cal. 430 ; Pol- lock b. Wilcox, 68 iN C. 46; Graham V. Campbell, 56 Iowa, 258 ; Nolen v. Gwyn, 16 Ala. 725 ; Graeie v. Morris^ 22 Ark. 415; State v. Cuellar, 47 Tex. 295, 298. 2 R. V. Castleton, 6 T. R. 236; B. N. P. 254 ; Alivon v. Furnival, 1 C, M. & R. 292. Supra, § 74. " Hawkins v. Rice, 40 Iowa, 435 ; Allen V. Parish, 3 Ohio,, 107. 12& § 132.] THE LAW OF EVIDENCE. [BOOK I. substance of a document which is out of the power of the party to So of a produce.! This right has been held to apply to papers pers out of in the hands of an attorney who could not be compelled party to to deliver them up,^ though it is otherwise if the de- produce, livery could be compelled j^ to papers fraudulently concealed by the opposite party ;* to papers out of the jurisdic- tion of the court,* provided due efforts be made to obtain such papers ; ^ to public documents which cannot be removed from of- ficial custody.'^ § 131. The same recourse is allowed whenever, for technical grounds, the original cannot be produced. " As soon as a party has accounted for the absence of the original document, he is at liberty to give any kind of secondary evidence. The rule is, that no evidence is to be adduced which ex naturd rei supposes still greater evidence behind in the party's own power and pos- session ; " 8 and therefore oral evidence of an original may be substituted for an attested copy, which was tendered but rejected for want of a stamp.^ The same right attaches as to instruments of the possession of which a party is deprived hj fraud.^" § 132. Yet it does not follow that because the paper is de- Accidental stroyed by the party himself, that secondary proof of of a™ocu°° its contents is inadmissible. Undoubtedly such is the ment by a case if the destruction was fraudulent on his part.^^ It 1 Dyer v. Smith, 1 2 Conn. 384 ; Den- « MoGregor v. Montgomery, 4 Penn. ton V. Hill, 4 Hayw. 73; Cooper v. St. 237; Dickinson u. Breeden, 25 111. Day, 1 Rich. S. C. Eq. 26. 186 ; Wood «. CuUen, 13 Minn. 894. 2 Lynde v. Judd, 3 Day, 499. ' Carpenter v. Bailey, 56 N. H. 283. 8 Bird V. Bird, 40 Me. 392. Supra, § 108. * Marlow v. Marlow, 77 111. 633. s per Parke, B., Doe v. Ross, 7 M. 5 Burton v. Driggs, 20 Wall. 133 ; & W. 102. Burnhami'. Wood, 8N. H. 334; Beat- ^ Ibid. See Hutchins v. Scott, 2 tie V. Hilliai-d, 55 N. H. 428 ; Binney M. & W. 809; Rumsey v. Sargent, 21 V. Russell, 109 Mass. 55 ; Forrest v. N. H. 397; Lea v. Hopkins, 7 Penn. Forrest, 6 Duer, 102 ; Black v. Cam- St. 492 ; Hickey v. Hinsdale, 12 Mich, den R. R. 45 Barb. 40 ; Ralph o. 99 ; and other cases cited infra, § Brown, 3 Watts & S. 395 ; Moody v. 1124. Com. 4 Mete. (Ky.) 1 ; Underwood v. 1° Infra, §§ 1264-70; Grimes u. Kim- Lane, 1 Dev. (N. C.) 173 ; Lunday v. ball, 8 Allen, 518; Reed v. Dickey, 1 Thomas, 26 Ga. 537 ; Shorter v. Shep- Watts, 152. pard, 33 Ala. 648; Brown v. Wood, " See infra, §§ 1264-70. See Ru- 19 Mo. 475; Gordon v. Searing, 8 dolph u. Lane, 57 Ind. 115. Cal. 49. 130 CHAP. III.] PROOF OF LOST DOCUMENTS. [§ 134. is otherwise, however, when it was innocent or casual.^ v^^ty does Nor does it exclude such proof that the original was de- elude from stroyed with the consent of both parties.^ ' '^ "^'"''' § 133. When a document is lost, a press copy or a photograph of such document has, as has been already noticed, high probative value. Next in value are copies sworn copie?r?ot to as accurate by those by whom they were made. '^'='^^"'*'^'*- Such copies, when so sworn to, are necessarily more reliable than memoriter statements of the contents of a document.^ Thus, a letter book of a party, sworn to by himself or his clerk, will be received as proof of the contents of a lost letter ; * nor will a party who has or may obtain such a copy, but withholds it, be permitted to prove portions of such letter, or give orally its im- perfect substance.^ But even a letter-press copy cannot, as we have seen, be treated as an original.^ And a copy must be proved by a witness who has compared it with the lost original.' A copy of a copy, it need scarcely be added, is inadmissible.^ § 134. In default of better proof of the contents of lost pa- pers, a witness, in supplying such contents, may re- fresh his memory by abstracts whose correctness he and sum- can verify.^ So the minutes of the acknowledgment such cases of a treasurer's deed, kept by a prothonotary, have ''^™'^*'"'- been received in order to prove such deed when lost.^" So the drafts from which, by indorsements upon them, it appeared that certain deeds were engrossed, have been held good second- 1 Riggs V. Tayloe, 9 Wheat. 483 ; 91. See, however, as to degrees of Tobin V. Shaw, 45 Me. 331 ; Stoddard secondary evidence, supra, § 90. V. Mix, 14 Conn. 12; Sturtevant v. " Chapin v. Siger, 4 McL. 378; Robinson, 18 Pick. 175; Orne u. Cook, Merritt v. Wright, 14 La. An. 91. 31 111. 238 ; Adams v. Guice, 30 Miss. Sec supra, § 90. 397; Bagley u. McMickle, 9 Cal. 430; ' McGinniss v. Sawyer, 63 Penn. People V. Dennis, 4 Mich. 609 ; State St. 259. See supra, § 94. i>. Taunt, 16 Minn. 109. * Foot o. Bentley, 44 N. Y. 171 ; 2 Gould V. Lee, 55 Penn. St. 99. Everingham v. Roundell, 2 M. & Rob. 8 Winn V. Patterson, 9 Pet. 663; 138; Liebman v. Pooley, 1 Stark. R. Evans V. Boiling, 8 Port. (Ala.) 846; 167. Williamsu. Waters, 36 Ga. 454; Peirce "Burton v. Driggs, 20 Wall. 133 !). Bank, 1 Swan, 265. See fully su- (cited fully infra, § 137); Sizer v. pra, § 90. Burt, 4 Denio, 426; Ins. Co. u. Weide, < Supra, § 93. 9 Wall. 677; Maysun v. Beazley, 27 ^ Dennis v. Barber, 6 Serg. & R. Miss. 106. See infra, §§ 516 et seg. 420; Merritt v. Wright, 19 La. An. " Halscyu. Blood, 29 Penn. St. 319. 181 § 136.] THE LAW OF EVIDENCE. [book I. aiy evidence of the contents of such deeds.^ So the abstracts of deeds shown to have been destroyed by fire have been properly received.^ § 135. The same Uberty to reproduce is applied to records. So as to When lost or destroyed, or otherwise non-producible, records. ^^nej may be proved either by copy, or by the recollec- tion of witnesses.^ In such case, if there be a certified copy ex- tant, that should be produced.* The same rule applies to tax books,^ to the minutes of a parish meeting ; ^ to acts of incorpora- tion,'^ and to government grants.^ § 136. Hence a copy, when verified, may be received as a 1 Waldy V. Gray, L. K. 20 Eq. 250; 23 W. R. 676 ; 44 L. J. Ch. 394. Pow- ell's Evidence, 4th ed. 352. 2 Richley v. Farrell, 69 111. 264. 3 Renner v. Bk. 9 Wheat. 581 ; Hed- rick V. Hughes, 15 Wall. 123; Cornett V. Williams, 20 Wall. 226 : Gore v. Elwell, 22 Me. 442; Foster v. Dow, 29 Me. 442; Heywood v. Charles- town, 43 N. H. 61; Brown v. Rich- mond, 28 Vt. 583 ; Thayer v. Stearns, 1 Pick. 109; Com. v. Roark, 8 Cush. 210; Leiandu. Cameron, 31 N.Y. 115; Mandeville v. Reynolds, 68 N. Y. 528; Farmers' Bk. v. Gilson, 6 Penn. St. 51 ; Huzzard v. Trego, 35 Penn. St. 9 ; Miltimore v. Miltimore, 40 Penn. St. 154 ; Clark v. Trindle, 52 Penn. St. 492; Mc Kee v. McKee, 16 Md. 516 ; Smith V. Wilson, 17 Md. 460; Smith V. Carter, 3 Rand. 167; Young v. Buckingham, 5 Ohio, 485 ; Ellis v. Huff', 29 111. 449; Gage v. Schroder, 73 111. 44 ; Read v. Staton, 3 Hayw. 169 ; State v. Hare, 70 N. C. 658; Mc- Queen V. Fletcher, 4 Rich. (S. C.) 152; Allen v. State, 21 Ga. 217; Bridges!). Thomas, 50 Ga. 378; Mc- Dade v. Meed, 18 Ala. 214; Derrett V. Alexander, 25 Ala. 265; Saloy v. Leonard, 15 La. An. 391; Eakin v. Vance, 10 Sm. & M. 549; Martin «. Williams, 42 Miss. 210; Grayson v. Waddle, 63 Mo. 523; Fowler v. More, 132 4 Ark. 570; Norris v. Russell, 5 Cal. 249; Rice v. Poynter, 15 Kans. 263; Bartlett v. Hunt, 17 Wis. 214. * " The principle established by this court as to secondary evidence in cases like this is, that it must be the best the party has it in his power to produce. The rule is to be so applied as to pro- mote the ends of justice, and guard against fraud, surprise, and imposi- tion. Renneri). Bank, 9 Wheaton, 597; 1 Greenl. Ev. § 84, and note. The copy here in question was properly admitted. Winn v. Patterson, 9 Peters, 676. This court has not gone the length of the English adjudications, which hold, without qualification, that there are no degrees in secondary evidence. Doe d. Gilbert i;. Ross, 7 Mees. & Wels. 106.'' Swayne, J., Cornett u. Williams, 20 Wallace, 245; S. P., Piatt V. Haner, 27 Mich. 167. See supra, § 90. 6 Pittsfield V. Barnstead, 38 N. H. 115. " Wallace v. First Parish, 109 Mass. 263. ' Stockbridge v. West Stockbridge, 12 Mass. 400; Blackstone v. White, 41 Penn St. 330. 8 U. S. V. Delespine, 12 Pet. 654; Lacey v. Davis, 4 Mich. 140; Hallet t'. Eslava, 8 St. & P. 105; Phillips v. Beene, 16 Ala. 720. CHAP. HI.] LOST DOCUMENTS. [§ 137. substitute for a lost record, loss being duly proved. ^ So where a record has become illegible from wear and lapse of time, a wit- ness who has examined and copied it when legible may be called to supply the defect.^ But parol evidence will not be received of a record of which only part is lost. That which still exists must be produced or exemplified.^ Nor is a party permitted to prove orally a record of which he could obtain an office copy un- less the record be shown to be lost so that the office copy is unat- tainable.* A fortiori does this rule exist where the non-produc- tion of the original is owing to the misconduct of the opposing party.^ Lost fragments of record, as we will elsewhere see, may be supplied by certificate.^ Ordinarily, however, no summary of a record is admissible.'^ The whole must be exemplified. § 137. Under this rule depositions in the same case, lq^j ^^^_ which depositions it is out of the power of the partv ^'^j""'^ °.* J-^ r XT J witness in to produce on trial, may be proved by copy in such trial another when the witness whose deposition is thus setondarily be thus " proved is out of the jurisdiction of the court.^ (N. J.) 76 ; Jay v. East Livermore, 56 Me. 107. See fully infra, §§ 824- 829; and supra, § 95. * This position is thus explained in the following opinion of the Supreme Court of the United States : — " It is an axiom in the law of evi- dence that the contents of any written instrument lost or destroyed may be proved by competent evidence. Judi- cial records and all other documents of a kindred character are within the rule. Renner v. Bank of Columbia, 9 Wheaton, 581 ; Riggs v. Tayloe, Ibid. 483 ; 1 Greenl. Evidence, § 509. But it is said a different rule as to deposi- tions — unless the witness be dead — obtains in Vermont, and the cases of FoUett V. Murray, 1/7 Vt. 530, and Low V. Peters, 36 Vt. 177, are re- ferred to as supporting the exception. Those cases are unlike the one before us. In Follett v. Murray the witness resided within the state, and, there beinf no copy of the caption, it did not appear that the deposition had 133 ' U. S. u. Delespine, 12 Pet. 654; Kelsey v. Hammer, 18 Conn. 311; Blackstone v. White, 41 Penn. St. 530; Rollins v. Henry, 78 N. C. 342; Lipscomb u. Postell, 38 Miss. 476; Willetts V. Mandlebaum, 28 Mich. 521; Hill f. Parker, 5 Rich. (S. C.) 87; White v. Barney, 27 Tex. 50. 2 Little V. Downing, 37 N. H. 355. See Coffeen v. Hammond, 3 Gr. (Iowa) 241. ° Nims V. Johnson, 7 Cal. 110. * New York Co. v. Richmond, 6 Bosw. 213; Higgins v. Reed, 8 Iowa, 298; Edwards v. Edwards, 11 Rich. (S. C.) 537. See supra, § 90. 6 Supra, § 132; infra, §§ 1264-70; Thayer v. Stearns, 1 Pick. 109; Gaines V. Kimball, 3 Allen, 518; Meyer v. Barker, 6 Binn. 228; Reed v. Dickey, 1 Watts, 152; Blevins v. Pope, 7 Ala. 371; Bell v. Hearne, 10 La. An. 515. 8 See infra, § 828; supra, § 95; Hawkins v. Craig, 1 B. Mon. 27; Cof- feen V. Hammond, 3 Gr. (Iowa) 241. ' Armstrong v. Boy Ian, 1 South. § 139.] THE LAW OF EVIDENCK. [book I. §138. Parol evi- dence ad- missible to establisli lost will. Even where a will, which has been duly executed, has been lost, parol evidence is admissible to sliow that the loss did not arise from an intention of revocation on the testator's part, but that he believed. that it was still in existence at the time of his death. In such case, on proof of due execution of the will, probate will be granted of a draft of the will duly proved. ^ So proof has been received to show that a draft, signed by a testator, and indorsed by him» " Intended will," was meant by him as a real will.^ § 139. Probate will also be granted, under like conditions) been regularly taken. In the other case the witness was dead, and no question was raised as to any defect in the lost original. The copy was, therefore, admitted as of course. If a deposition be not properly taken, it is not made admissible by the death of the witness. Johnson v. Clark, 1 Tyler, 449. In Harper v. Cook, 1 Carrington & Payne, 139, it was held that the contents of a lost affidavit might be shown by secondary evi- dence. The necessity of retaking it was not suggested. In the present case the witness lived in another state and more than one hundred miles from the place of trial. The process of the court could not reach him; for all ju- risdictional purposes he was as if he were dead. It is well settled that, if books or papers necessary as evidence in a court in one state be in the pos- session of a person living in another state, secondary evidence, without fur- ther showing, may be given to prove the contents of such papers, and no- tice to produce them is unnecessary. Shepard v. Giddings, 22 Connecticut, 282; Brown i,. Wood, 4 Bennett (19 Missouri), 475 ; Teall v. Van Wyck, 10 Barbour, 376. See, also, Boone r. Dykes, 3 Munroe, 582; Eaton v. Campbell, 7 Pick. 10 ; Bailey v. John- son, 9 Cowcn, 115; Mauri v. Heffer- nan, 13 Johnson, 58. Here there was nothing to prevent the operation of 184 the general rule as to proof touching writings lost or destroyed. The depo- sition was one of the files in the case. The plaintiff was entitled to the ben- efit of the contents of that document. Having been lost without his fault, he was not bound to supply its place by another and a different deposition, which might or might not be the same in effect with the prior one. " There was no error in admitting in evidence the copy to which this exception relates." Swayne, J., Bur- ton V. Driggs, 21 Wall. 133. 1 Lillie V. Lillie, 3 Hag. 184 ; Brown V. Brown, 8 E. & B. 876; Paulton V. Paulton, 1 Sw. & Tr. 55; S. C. 4 Jur. N. S. 341 ; Podmore v. What- ton, 3 Sw. & Tr. 449 ; Hobberfield v. Browning, 4 Ves. 200, n. ; Finch v. Finch, L. R. 1 Prob. & D. 372; Jar- man on Wills, 114; 1 Eedfield on Wills, 168. See Kitchens r. Kitchens, 39 Ga. 168. A copy of a lost will was held to be sufficiently proved when it appeared to have been in the hand- writing of one of the attesting wit- nesses, and when it was found after the lapse of fifty years among the so- licitor's papers, tied up with other papers belonging to the client; the solicitor having been one of the ex- ecutors appointed by the will. Sly v. Sly, L. R. 2 P. D. 91. ' Bone V. Spear, 1 Phillimore, 345. See Popple v. Cunison, 1 Add. 377. CHAP. III.] LOST DOCUMENTS. [§ 140. when the substance of a lost will can be proved by reliable wit- nesses.^ Thus, in an English case of great interest, decided in 1876, it was held that declarations, written or oral, made by a testator, both before and after the execution of his will, are, in the event of its loss, admissible as secondary evidence of its con- tents. It was also determined that when the contents of a lost will are not completely proved, probate will be granted to the extent to which they are proved.^ The fact that a will was duly executed must first be proved beyond reasonable doubt. If proved, however, to have existed, its substance may be proved as may that of any lost document. And though parol evidence to supply the place of a lost will must be strong and positive,* yet when strong and positive it may be received so as to author- ize probate.* The testimony of a party interested, whose cred- ibility is beyond suspicion, may be sufficient to prove the sub- stance of the will.® A party, however, who could produce a draft of such will, cannot prove it by parol.® § 140. To authorize memoriter proof of a lost document, the witness must have read it, or heard its contents from its author, and be able to speak at least to the sub- must have stance of such contents,^ taking them as a whole.^ In qualmed testifying he may refresh his memory by abstracts j^Ja^".""^" taken by himself.^ Such evidence, also, should be sup- 1 Wharram v. Wharram, 3 Sw. & 2 Binn. 406 ; Jones v. Murphy, 8 Watts Tr. 301; Moore v. Whitehouse, 34 L. & S. 275 ; Youndt v. Youndt, 3 Grant J. Pr. & Mat. 31; Body, in re, 34 L. Cas. 140; Steele v. Price, 5 B. Hon. J. Pr. & Mat. 55; Finch u. Pinch, L. 58 ; Morris v. Swaney, 7 Heisk. 591 ; R. 1 P. & D. 371; Burls v. Burls, L. Jackson u. Jackson, 4 Mo. 210 ; Dickey E. 1 P. & D. 472. V. Malechi, 6 Mo. 177. 2 Sugden 0. Lord St. Leonards, L. ^ Sugden v. Lord St Leonards, ut R. 1 P. D. (C. A.) 154, overruling supra. Quick V. Quick, 3 Sw. & Tr. 442, as to ^ m Land Co. v. Bonner, 75 111. declarations made after the execution 315. of the will. 7 See infra, § 514 ; Fisher v. Samu- 8 Lucas V. Brooks, 23 La. An. 117; da, 1 Camp. 193; Clark v. Houghton, Shepherd v. Brooks, 23 La. An. 129. 12 Gray, 38 ; Richardson v. Kobbins, * Clarki;.Wright,3 Pick. 87; Davis 124 Mass. 105; Coxe v. England, 65 V. Sigourney, 8 Met. 487; Johnson's Penn. St. 212 ; Rankin v. Crow, 19 Wilir40 Conn. 587 ; Dan u. Brown, 4 111. 626; Posten v. Rassette, 5 Cal. Cow. 483; Jackson v. Betts, 6 Cow. 467. 377 ; S.C.9 Cow. 205 ; Everitt v. Ev- 8 Edwards v. Noyes, 65 N. Y. 125. eritt, 41 Barb. 385 ; Howard v. Davis, 9 Burton v. Driggs, 20 Wall. 133; 185 § 141.] THE LAW OF EVIDENCE. [book X. ported strongly by circumstances in cases where the probabilities are that a writing of the character of that in dispute would be carefully preserved.^ The degree of accuracy with which a wit- ness is expected to speak in this relation is elsewhere more fully discussed.2 The admissions of the party himself are sufficient to sustain the accuracy of a copy.* It should be remembered, that to prove the contents of a lost writing it is not necessary to call the writer ; any witness familiar with the contents is equally admissible.* But subscribing witnesses should ordinarily be called, or their absence accounted for.^ § 141. The production of proof, satisfactory to the court, that it is out of the power of the party to produce the belltisfled document alleged to be lost, and of its prior existence that origi- ^^^ genuineness,^ is a prerequisite condition of the ad- The nal writing is not pro- duci{)le, and would be evi- dence if produced. mission of secondary evidence of its contents question of such admissibility is for the court.^ The court must therefore be satisfied that a deed, whose loss is set up, was duly executed.^ Ins. Co. V. Weide, 9 Wall. 677; Sizer V. Burt, 4 Denio, 426 ; May son v. Beas- ley, 27 Miss. 106. Infra, § 516. 1 Moore v. Livingston, 28 Barb. 543; Brown v. Austin, 41 Vt. 262; Brad- bury u. Dwight, 3 Met. Mass. 31; Whitney v. Sprague, 23 Pick. 198; Wylie V. Smitherman, 8 Ired. (N. 0.) 236; Marshall v. Morris, 16 Ga. 368. 2 Infra, §§ 514-15. 8 Infra, § 1091. "It is certainly not to be denied, or even doubted, that to make a copy of a lost instrument of writing admissible, the evidence of the genuineness of the original from which it was taken must be of the most posi- tive and unequivocal kind. McRey- nolds V. McCord, 6 Watts, 288; Slone V. Thomas, 2 Jones Penn. 209 ; Porter V. Wilson, 1 Harris, 641. But it does not follow that the only mode of estab- lishing such genuineness is the testi- mony of a witness who saw the hand- writing of the parties, and who knew and was able to identify it as such. If the party sought to be charged should himself hand the paper as genuine to a copyist, that certainly would be such an unequivocal acknowledgment of its genuineness as to dispense with any other evidence. The circumstances in evidence on the trial of this case as to the genuineness of the paper, a copy of which was offered and received, ap- pear to us to be equal to such an ac- knowledgment." Sharswood, J., Krise V. Neason, 66 Penn. St. 258. * E. V. Hurley, 2 M. & Rob. 473; R. u. Benson, 2 Camp. 508 ; Bank Prosecutions, R. & R. 378. See supra, §90. ^ Ketchum v. Brooks, 27 N. J. Eq. 347. Infra, §§ 142, 723. " Edwards v. Noyes, 65 N. Y. 125. ' R. u. Johnson, 7 East, 66 ; Doe v. Whitcomb, 6 Ex. R. 605 ; Biewster v. Sewell, 3 B. & A. 303 ; Gully v. Bishop of Exeter, 4 Bing. 298; Pardoe v. 136 ' Edwards v. Noyes, 65 N. Y. 125. CHAP. III.J LOST DOCUMENTS. [§ 142. § 142. Loss, like all other evidential facts, can be only infer- entially proved. In one sense no instrament can be Loss to be spoken of as lost that is not destroyed, or irrevocably ["1"^^' out of the power of the party desiring to produce it. proved. A check or promissory note may be carefully put away in a Price, 13 M. &W. 267; Bouldin v. Massie, 7 Wheat. 122 ; Butler v. Ma- ples, 9 Wall. 766 ; Batchelder v. Nut- ting, 16 N. H. 261; Morrill v. Foster, 32 N. H. 358; Brighton Bk. v. Phil- brick, 40 N. H. 506 ; Boynton v. Bees, 8 Pick. 329; Brackett v. Evans, 1 Cush. 79 ; Stratford v. Ames, 8 Allen, 577; Witter i;. Latham, 12 Conn. 392; Gary v. Campbell, 10 Johns. B,. 363 ; Chambers v. Hunt, 22 N. J. L. 552; Cauman v. Congregation, 6 Binney, 59 ; Young v. Mackall, 3 Md. Ch. 398; Marshall v. Haney, 9 Gill, 251 ; Morri- son V. Welty, 18 Md. 169; Beall v. Poole, 27 Md. 645; Ben v. Peete, 2 Rand. 539 ; Dawson v. Graves, 4 Call, 127; Lungsforth v. Smith, 12 Grat. 554; Redman v. Green, 3 Ired. Eq. 54 ; Dumas v. Powell, 3 Dev. (N. C.) L. 466; Reynolds v. Quattlebum, 2 Rich. (S. C.) 140; Holcombe u. State, 28 Ga. 66; Bigelow v. Yoqng, 30 Ga. 121 ; Oliver v. Parsons, 30 Ga. 391 ; Hadley v. Bean, 53 Ga. 685; Poulet V. Johnson, 25 Ga. 403 ; Cameron v. Kersey, 41 Ga. 41 ; Wiswall v. Kne- vals, 18 Ala. 65; Hussey v. Roque- more, 27 Ala. 281; Fralick v. Pres- ley, 29 Ala. 457; Glassell v. Mason, 32 Ala. 719; Bogan v. McCutchen, 48 Ala. 493 ; Perkins v. Bard, 16 La. An. 443 ; Marks w. Winter, 19 La. An. 445; Doe V. McCaleb, 2 How. (Miss.) 756; Benton v. Craig, 2 Mo. 198 ; Hanson V. Armstrong, 22 111. 442; Fisk v. Kis- sane, 42 111. 87; Nixon v. Cobleigh, 52 111. 387; Sloo v. Roberts, 7 Ind. 128; Manson v. Blair, 15 Ind. 242; Harlan v. Harlan, 17 Ind. 328 ; Norris V. Russell, 5 Cal. 249; Poorman v. Mil- ler, 44 Cal. 269; Winona v. Huff, 11 Minn. 119; Sternburg v. Callahan, 14 Iowa, 251 ; Johnson v. Mathews, 5 Kans. 118. "It is elementary doctrine that the contents of a deed of conveyance lost, destroyed, or suppressed, may be es- tablished by parol evidence in an ac- tion of ejectment, when its existence as a valid instrument has first been satisfactorily proved. McReynolds v. McCord, 6 Wright, 288. The effect of such proof is of equal force in sus- taining the title of the grantee as if the deed itself had been presented. This is so ex necessitate rei, otherwise titles might be defeated by fraud or accident, without fault on the part of the vendee, and in disregard of the consideration for the conveyance. A rule like this would be so obviously unjust that it could not exist in any civilized land. A near equivalent of such a rule would be any rule which should render such proof impractica- ble by technical requirements, or to the order of proof; such, for instance, as the requirement of perfect proof in the theory of a first step taken before a second should be attempted. All competent evidence in such a case should be received when offered, whether in logical sequence or not, especially if offered to be followed by what would make out a complete case if believed. When the testimony is in, it is the duty of the judge to inform the jury what the law requires to be extracted from the body of it in order to make out a good and valid case in law, and what effect a failure to do so would have. A party must be- gin with his proof somewhere ; and 137 § 142.] THE LAW OF KVIDENCE. [book I. book, and the place of deposit forgotten. Every effort may be honestly made to find it ; it is all the time in the seeker's li- brary, in the very place where he put it ; yet after all it may be hopelessly lost. It is not necessary, therefore, to prove ex- haustively that the paper exists nowhere. It is sufficient if the party offering parol proof show such diligence as is usual with good business men under the circumstances.^ But before such evidence will be admissible, it must be shown that the original instrument was duly executed, and was otherwise genuine.^ Where the document is one to whose validity attesting witnesses are essential, the attesting witness must, if known, be called, or in the event of his death, his handwriting must be proved, pre- cisely in the same manner as if the deed itself had been pro- duced ; though if it cannot be discovered who the attesting wit- ness was, this strictness of proof will, from necessity, be waived.^ where, is less important a great deal than its completeness. A judge ■will look at the latter with great care as being of the very essence of the con- test, and at the former as a desirable result rather than an essential one." Thompson, C. J., Diehl v. Emig, 65 Penn. St. 326. 1 Moore v. Tillotson, 7 Pet. 99 ; Bouldin v. Massie, 7 Wheat. 122; U. S. u. Sutter, 21 How. 170; Wing v. Abbott, 28 Me. 367; Simpson v. Nor- ton, 45 Me. 281 ; Pickard v. Bailey, 26 N. H. 152; Brown v. Austin, 41 Vt. 262 ; Taunton Bk. u. Richardson, 7 Pick. 436 ; Hatch v. Carpenter, 9 Gray 271 ; Kelsey v. Hanmer, 18 Conn. 311 ; Jackson v. Neely, 10 Johns. K. 374 ; Voorhees w. Dorr, 51 Barb. 580; Leland v. Cameron, 31 N. Y. 115; Augsbury v. Flower, 68 N. y. 619; Kingswood !). Bethlehem, 13 N. J. L. 221; Clark v. Hornbeck, 14 N. J. L. 430 ; Paul v. Durborow, 13 Serg. & R. 392 ; Parks v. Dunkle, 3 Watts & S. 291; Dreisbach v. Ber- ger, 6 Watts & S. 564 ; Flinn v. McGonigle, 9 Watts & S. 75 ; Spal- ding V. Bank, 9 Penn. St. 28 ; Hemp- 138 ■ hill V. McClimans, 24 Penn. St. 367; Graff V. R. R. 31 Penn. St. 489; Brown v. Davy, 78 Penn. St. 179; Coxe V. Deringer, 78 Penn. St. 271 ; Raab v. Urich, 2 Weekly Notes of Cases, 53 ; Prettyman v. Walston, 34 111. 175; Carr v. Miner, 42 111. 179; McMillan v. Bothold, 35 111. 250; Carter v. Edwards, 16 Ind. 238 ; Ellis V. Smith, 10 Ga. 253 ; Harper v. Scott, 12 Ga. 125; Roc v. Doe, 32 Ga. 39; Hill v. Fitzpatrick, 6 Ala. 314; Shields v. Byrd, 15 Ala. 818; Johnson v. Powell, 30 Ala. 113; Sex- ton V. McGiU, 2 La. An. 190; Merritt V. Wright, 19 La. An. 91 ; WiUiams V. Heath, 22 Iowa, 519. In what cases prima facie proof is enough, see Bot- tomley v. Goldsmith, 36 Mich. 27. 2 Goodier v. Lake, 1 Atk. 446; R. V. Culpepper, Skin. 673 ; Doe v. Whitefoot, 8 C. & P. 270; Jackson V. Frier, 16 Johns. R. 196; Hamp- shire V. Floyd, 38 Tex. 103, and cases above cited. 8 Ibid.; Taylor's Ev. § 434 ; Ketch- um U.Brooks, 27 N.J. Eq. 347. Infra, § 723. CHAP. m.J LOST DOCUMENTS. [§ 146. § 143. The admission of the opposing party, or of Orbvad- his attorney, is sufficient evidence of loss.^ opponent. § 144. If a document has been placed in the hands of a cus- todian, he must be required to make due search, and Custo- the fruitlessness of such search must be shown before ^^""^ *". j, secondary evidence can be let in.^ Where such person "*• is dead, inquiry must be made of his legal representatives, if the matter concerns his personalty, or of his heirs, if it concerns his realty.^ § 145. When there is doubt as to the proper custodian of an instrument, it may be necessary to search all probable places of deposit. Thus, in reference to a lost but expired indenture of apprenticeship, as the apprentice appears to have the greatest interest in its preservation,* stricter inquiry should be made of him than of the master, though, in the absence of positive proof respecting the possession, caution vrould suggest what the law might not require,^ a search among the papers of both. So, upon the loss of a marriage settlement, which, after providing a portion for younger children, and vesting a legal term in trus- tees to secure it, reserved an ultimate remainder to the settlor's heir, it was held, that a search among the papers of the surviv- ing younger child was insufficient to let in secondary evidence of its contents, and that the papers of the surviving trustee and of the heir should also have been examined.^ § 146. A lost expired lease may be looked for in the custody of either lessor or lessee ; but, after a considerable interval, it will frequently be found in the landlord's possession, as constitut- ing one of the muniments of his title.' It has, however, never been expressly decided that a search among the muniments of the lessor alone would not let in secondary evidence ; and Bay- 1 E. V. Haworth, 4 C. & P. 254 ; « Cruise v. Clancy, 6 Ir. Eq. R. Shortz V. Unangst, 3 W. & S. 45; 552, 556, per Sugden, Ch. ; Kichards Cooper V. Maddan, 6 Ala. 431. See v. Lewis, H Com. B. 1035. infra, § 1091. ' Hall v. Ball, 3 M. & Gr. 242, 253; 2 Hart V. Hart, 1 Hare, 1 ; E. v. 3 Scott, N. E. 577, S. C. ; Plaxton v. Piddlehinton, 3 B. & Ad. 460. Dare, 10 B. & C. 17; 5 M. & E. 1, S. " Tavlor's Ev. § 404. C; Elworthy v. Sandford, 34 L. J. * See Hall v. Ball, 3 M. & Gr. 247. Ex. 42; 3 H. & C. 330, S. C; R. v. « E. V. Hinckley, 32 L. J. M. C. North Bedburn, Cald. 352, per Buller, 158 ; 3 B. & S. 885, S. C. J.; Doe v. Keeling, 11 Q. B. 884. 139 § 147.] THE LAW OF EVIDENCE. [book I. Search in proper places must be proved. ley, J., on one occasion, seems to have thought that an examina- tion of the lessee's papers would not be absolutely necessary.^ § 147. Certain rules, however, have been settled as guiding the judgment of the courts in the exercise of this im- portant function. Thus it is not enough for a party offering secondary evidence simply to swear that he has made general search for the missing paper. To satisfy the court which has the determination of the question of admis- sibility, search in probable places of deposit must be proved, and the parties last in possession of the paper must, if possible, be examined.^ The search must be by persons having access to probable places of deposit,^ and must be recent.* If there be no grounds to impute bad faith, it is enough to show that the paper is not to be found in the place where it was last deposited, or by the person in whose custody it last was, and that all probable places of deposit have been searched in vain.^ 1 Brewster v. Sewell, 3 B. & A. 301, 302; Hall v. Ball, 3 M. & Gr. 247, per Erskine, J. 2 Gathercole* v. Miall, 15 M. & W. 319; R. V. Saffron Hill, 1 E. & B. 93; Pardee v. Price, 13 M. & W. 267; Simpson u. Dall, 3 Wall. 460; Mason V. Tallman, 34 Me. 472; Bartlett v. Sawyer, 46 Me. 317; Thrall v. Todd, 34 Vt. 97; Goignard v. Smith, 8 Pick. 272; Large v. Van Doren, 14 N. J. Eq. 208; Jackson v. Frier, 16 Johns. E,. 192; Dreisbach v. Berger, 6 W. & S. 564; Krise u. Neason, 66 Penn. St. 253; Clement v. Ruckle, 9 Gill, 326; Ringgold V. Galloway, 3 Har. & J. 451; Basford v. Mills, 6 Md. 385; Roberts v. Haskell, 20 111. 59; Booth V. Cook, 20 111. 129; Stow v. People, 25 111. 81; Holbrook v. Trustees, 28 111. 187; Chicago R. R. v. IngersoU, 65 111. 399; Wing v. Sherrer, 77 111. 200; Board of Education v. Moore, 17 Minn. 412; Adams v. Fitzgerald, 14 Ga. 36; Davenport v. Harris, 27 Ga. 68; Preslar v. Stallworth, 37 Ala. 402; Green v. State, 41 Ala. 419; McGuire V. Bank, 42 Ala. 589; Chaplain v. 140 Briscoe, 13 Miss. 198; Barton v. Mur- rain, 27 Mo. 235; Boyce v. Mooney, 40 Mo. 104; Christy v. Kavanagh, 45 Mo. 375; Anderson v. Mayberry, 2 Heisk. 653; Rash v. Whitney, 4 Mich. 495. ' Phillips V. Purington, 15 Me. 425; Hammond v. Luddeu, 47 Me. 447; Dennis v. Brewster, 7 Gray, 351; Gaither v. Martin, 3 Md. 146 ; Meek v. Spencer, 8 Ind. 118; Rankin v. Crow, 19 111.626; Sturgis v. Hart, 45 111. 103; Horseman v. Todhunter, 12 Iowa, 230; Brown u. Tucker, 47 Ga. 485; Lawrence v. Burris, 13 La. An. 611; Caulficld v. Sanders, 17 Cal. 569; King v. Randlett, 33 Cal. 318; Taylor v. Clark, 49 Cal. 671. * Porter u. Wilson, 13 Penn. St. 641. See Fitz v. Rabbits, infra. 6 R. V. Saffron Hill, 1 E. & B. 93; Hart V. Hart, 1 Hare, 9; McGahey v. Alston, 2 M. & W. 214; Tyler v. Dyer, 18 Me. 41; Moore v. Beattie, 33 Vt. 219; Wilter v. Latham, 12 Conn. 392; Waller v. School Dist. 22 Conn. 326; Francis v. Ins. Co. 6 Cow. 404; Kent v. Harcourt, 33 Barb. 491; Indianap. R. R. v. Jewett, 16 Ind. CHAP. III.] LOST DOCUMENTS. [§ 148. § 148. A document of importance may readily be hid away, from excessive care, in a place of peculiar secrecy, yet Degree of that place may be forgotten.^ A paper of little impor- quTredto" tance is likely to be swept away and destroyed. Of ^^ propor- the latter, therefore, the probabilities of destruction are importance 1 1 !■ 1 I. -1 . T -1 "' docu- much greater than oi the former ; and, m order to let m ment. secondary evidence, much more vigilant search is required for im- portant than for unimportant papers. In an English case, where the defendant was sued for an alleged libel in a paper called The Non-conformist,^ a witness was called, in order to prove 273; Conkey v. Post, 7 Wis. 131; Ed- wards V. Edwards, 11 Rich. (S. C.) 537; Cooper v. Maddan, 6 Ala. 431; Juzan V. Toulmin, 9 Ala. 662; Dunn V. Choate, 4 Tex. 14; Dunning v. Ran- kin, 19 Cal. 640. When a document's proper place is in a public office, or some other special place of deposit, then it is generally- enough to prove a search in such office or place of deposit. Thus, secondary evidence of the contents of a warrant, issued by the defendant, has been re- ceived on proof by the high constable, who levied under it, that he had de- posited it in his office, and had sought for it there in vain ; though he added that the town clerk had access to the office, and it was objected that the de- fendant should have been served with a notice to produce the warrant, and the town clerk with a subpoena duces tecum. Fernley v. Worthington, 1 M. & Gr. 491. So, upon the loss of a cancelled check, where it was the duty of a pay- ing clerk of a parish to deposit the cancelled check in a room of the work- house, an application to the successor of this clerk for an inspection of the checks in the room, and an ineffectual examination of several bundles which were handed to the party searching by the successor, was deemed a suffi- cient search to let in secondary evi- dence, though no notice to produce had been served on the first clerk, he being the defendant in the cause, and though the person who succeeded him in the office was not called. McGahey V. Alston, 2 M. & W. 206. Again, upon the loss of a parish indenture of apprenticeship, where it was shown that the indenture had been given to a person, since dead, to take to the overseers, and a fruitless search was made for it in the parish chest, which was the proper reposi- tory for such instruments, secondary evidence was admitted, though none of the overseers were called, and no inquiry was made of the personal rep- resentative of the party, who ought to have delivered it to the parish offi- cers. R. V. Stourbridge, 8 B. & C. 96. Immediateness of search is not es- sential when such search was exhaust- ively made upon the discovery of the loss. Where it was made amongst the proper papers three years before the trial, this was held sufficient, though it was said that it would have been better had the papers been again ex- amined. Fitz V. Rabbits, 2 M. & Rob. 607. 1 Am. Life Ins. Co. v. Rosenagle, 77 Penn. St. 607. 2 Gathercole v. Miall, 15 M. & W. 319. See R. v. East Fairley, 6 D. & R. 153. 141 § 148.] THE LAW OF EVIDENCE. [BOOK I. the circulation of the libel, who said he was president of a lit- erary institution, which consisted of eighty members ; that a number of The Non-conformist was brought to the institution, he did not know by whom, and left there gratuitously ; that, about a fortnight afterwards it was taken (as he supposed) out of the subscribers' room without his authority, and was never returned ; that he had searched the room for it, but had not found it, and never knew who had it ; and that he believed it had been lost or destroyed. The judge trying the case ruled that after such proof secondary evidence of the contents of the paper was admissible. The court in banc, on a motion for a new trial, held the ruling to be right, Alderson, B., delivering the judgment, saying, " The question whether there has been a loss, and whether there has been sufficient search, must depend very much on the nature of the instrument searched for ; and I put the case, in the course of the argument, of the back of a let- ter. It is quite clear a very slender search would be sufficient to show that a document of that description had been lost. If we were speaking of an envelope in which a letter had been received, and a person said, ' I have searched for it among my papers, I cannot find it,' surely that would be sufficient. So, with respect to an old newspaper which has been at a public coffee-room ; if the party who kept the public coffee-room had searched for it there, where it ought to be if in existence, and where naturally he would find it, and says he supposes it has been taken away by some one, that seems to me to be amply sufficient. If he had said, ' I know it was taken away by A. B.,' then I should have said, you ought to go to A. B., and see if A. B. has not got that which it is proved he took away ; but if you have no proof that it was taken away by any individual at all, it seems to me to be a very unreasonable thing to require that you should go to all the members of the club, for the purpose of asking one more than another whether he has taken it away, or kept it. I do not know where it would stop ; when you once go to each of the members, then you must ask each of the servants, or wives, or children of the members ; and where will you stop ? As it , seems to me, the proper limit is, where a reasonable person would be satisfied that they had bond fide endeavored to produce the 142 CHAP. III.J LOST DOCUMENTS. [§ 149. document itself ; and therefore I think it was reasonable to re- ceive parol evidence of the contents of this newspaper." i § 149. At common law, a peculiarly stringent rule was adopted as to negotiable paper. Thus it was held that no ac- Peculiar tion at law could be sustained on a lost bill of exchansre. s'""ff«n<=y o^' required as promissory note, or check, or on the respective consid- '<> 'o^" "^ . . • 1 T 1 • 1 , , negotiable erations, provided the instrument had been originally paper, drawn payable to order, or bearer, and provided the fact of the loss had been specially pleaded.^ The remedy was held in Eng- 1 That the degree of search is to be proportioned to the importance of the instrument, see R. v. Gordon, Pearce & D. 586 ; Brewster v. Sewell, 3 B. & A. 303 ; Pardee v. Price, 13 M. & W. 267; Freeman v. Arkell, 2 B. & C. 494. See Bligh v. Wellesley, 2 C. & P. 400. As to who is the proper custodian, see infra, § 194. " The stringency of the rule re- quiring search for documents and proof of their loss, in order to make parol evidence of their contents ad- missible, is proportioned always to the character and value of the documents themselves. These letters were be- tween relatives, and do not appear to have had any such obvious importance as to require care for their preserva- tion. Slight proof of loss, therefore, was sufficient. This principle has uni- formly been applied where documents, which from their very nature would have only transitory interest, have been in question. In The United States V. Doebler, 1 Bald. 519, on the trial of an indictment for forging and delivering bank notes, after proof of the fact of forging a large quantity and the delivery of one note, it was held that p;irol evidence of the con- tents of a letter from the defendant to an accomplice on the subject of coun- terfeit notes, for which the accom- plice could not account and had not searched, but believed to be lost, was admitted. The principle extends to documents of more grave significance, if it appears, when the witness is ex- amined, that no rational motive for keeping them existed. A deposition will not be rejected because the wit- ness speaks of papers not produced, if it appear that the papers are such as would not probably be preserved for so great a length of time .as had elapsed when the testimony was taken, or are not in the possession or power of the witness or the party offering the deposition. Tilghmau v. Fisher, 9 Watts, 441. The principle is espe- cially applicable to the contents of family letters received by a witness in a foreign country. The evidence should have been admitted." Ameri- can Life Ins. Co. u. Rosenagle, 77 Penn. St. 514, Woodward, J. 2 Ramuz v. Crowe, 1 Ex. R. 167; Clay V. Crowe, 8 Ex. R. 295 ; Crowe V. Clay, 9 Ex. R. 604 ; S. C. in Ex. Ch. ; Hansard v. Robinson, 7 B. & C. 90 ; 9 D. & R. 860, S. C. ; Pierson v. Hutchinson, 2 Camp. 211; 6 Esp. 126, S. C. ; Mayor v. Johnson, 3 Camp. 324; Davis v. Dodd, 4 Taunt. 602; Champion v. Terry, 3 B. & B. 295 ; 7 Moore, 130, S. C. ; Bevan v. Hill, 2 Camp. 381 ; Woodford v. Whiteley, M. & M. 517. See Alexander v. Strong, 9 M. & W. 733 ; Lubbock V. Tribe, 3 M. & W. 607; Blaokie v. Pidding, 6 Com. B. 196; Charnley V. Grundy, 14 Com. B. 608 ; Taylor, § 408. 143 § 150.] THE LAW OF EVIDENCE. [book I. land to be at equity. In this country less mischief arises from the harshness of this rule, from the fact that our courts adminis- ter equity in this respect under common law forms.^ § 150. If the document was last seen in the possession of a Third per- third party, he must, as will hereafter be seen, be sum- moned by a subpoena duces tecum to produce it, so that his testimony concerning it can be taken in the only way that such testimony is receivable ; his declaration concerning loss by strict practice not being receivable in his lifetime, and only cautiously after his death,^ But as such testimony is addressed to the court, and as in "reference to such testimony the rule between direct and hearsay evidence is not necessarily preserved, such declarations of persons who are likely to know about the document, or to have had it in their inally made payable to himself alone, he cannot, as it would seem, be called upon to give an indemnity under this clause, but the action at law will be son, in whose hands is document, must be subpcenaed to produce. 1 See, as to the equitable doctrine, Walmsley v. Child, 1 Ves. Sen. 341 ; Toulmin v. Price, 5 Ves. 238; Ex parte Greenway, 6 Ves. 812; Macart- ney u. Graham, 2 Sim. 285; Davies v. Dodd, 1 Wils. Ex. 110; Mossop v. Eadon, 16 Ves. 430. In England the rule has been ma- terially modified by the Common Law Procedure Act of 1854 (17 & 18 Vict. c. 125. The Irish Act, 19 & 20 Vict. c. 102, contains a similar provision in § 90), which in § 87 enacts, that " In case of any action founded upon a bill of exchange or other negotiable in- strument," — which last words will in- clude a bank note; McDonnell v. Mur- ray, 9 Ir. Law R. N. S. 495, — "it shall be lawful for a court or a judge to order that the loss of such instru- ment shall not be set up, provided an indemnity is given, to the satisfaction of the court or judge, or a master, against the claims of any other per- son upon such negotiable instrument." See Aranguren v. Scholfield, 1 H. & N. 494; King v. Zimmerman, 40 L. J. C. P. 278. If the payee of a lost note can show that the instrument was never negotiable, as having been orig- 144 sustainable, either on the instrument itself, or on the consideration ; because, in such case, the defendant cannot be rendered liable to pay the amount a second time. Wain v. Bailey, 10 A. & E. 616 ; recognized in Ramuz v. Crowe, 1 Ex. R. 173; Clay v. Crowe, 8Ex. R. 298. As to what is the effect of the bill being destroyed, see Wright V. Ld. Maidstone, 1 Kay & J. 701, per Wood, V. C. See, too, Conflans Quarry Co. v. Parker, 3 Law Rep. C. P. 1 ; 37 L. J. C. P. 51, S. C; where circular notes having been lost, the party losing them was held not enti- tled to sue the bankers for money had and received. Taylor's Ev. § 408, from which the above is reduced. 2 Walker v. Beauchamp, 6 C. & P. 552; R. V. Denio, 7 B. & C. 620; R. V. Castleton, 6 T. R. 620 ; R. v. Saf- fron Hill, 1 E. & B. 93. See R. v. Morton, 4 M. & S. 48 ; R. v. Fording- bridge, El., Bl. & El. 678; Rusk v. Sowerwine, S Har. & J. 97. Infra, §§ 376-378. CHAP, in.] LOST DOCUMENTS. [§ 151. custody, have been received to prove loss.^ It should be remem- bered that if the witness refuses to produce, and lias no lawful excuse for so doing, his omission or refusal does not entitle the party serving him with the subpoena to give secondary evidence of the contents of the document.^ It is otherwise, however, when the person who refuses to produce the document is not by law compellable to produce it.^ § 151. A party himself (independently of statutes enabling him to testify in his own cause) is competent by afE- Party may davit to make proof of loss and of due search ; and his bv°affida^ testimony to this effect, if he be the person in whose "^'t- custody the paper was, is sufficient to let in secondary proof.* 1 K. V. Kenilworth, 7 Q. B. 652 ; swear that his client has instructed K. V. Braintree, 1 E. & E. ftl ; City of Bristol 0. Wait, 6 C. & P. 591. 2 Jesus Coll. !.. Gibbs, 1 Y. & C. Ex. K. 156 ; K. v. Llanfaethly, 2 E. & B. 940. 8 Doe V. Cliflford, 2 C. & Kir. 448 ; Newton V. Chaplin, 10 C. B. 356. See Jesus Coll. V. Gibbs, 1 Y. & C. Ex. R. 156. Infra, § 585. "If a solicitor " (says Mr. Taylor, Ev. § 42 7) " refuses to produce a deed as claiming a lieu upon it, secondary evidence of its contents cannot be re- ceived, provided the party tendering such evidence be the person liable to pay the solicitor's charges. Att. Gen. V. Ashe, 10 Ir. Eq. R. N. S. 309. So, also, if an attorney, who is not acting under special instructions from his cli- ent, declines to produce an instrument on the ground of privilege, it may be very questionable whether the client must not be subpoenaed, in order to ascertain whether he also relies on his right to withhold the deed; Doe v. Ross, 7 M. & W. 122; Newton v. Chapliu, 10 Com. B. 256 ; In re Cam- eron's Coalbrook, &Ci Rail. Co. 25 Beav. 1 ; and this course will assur- edly be prudent, inasmuch as the priv- ilege is, in strictness, not that of the attorney, but that of the client. If, indeed, the attorney can undertake to VOL. 1. 10 him not to produce the instrument, it will not be necessary to subpoena the client ; for in such a case the court would very properly assume that the client, if called, would continue to be of the same mind." Phelps xj. Prew, 3 E. & B. 430. * Patterson v. Winn, 5 Pet. 233 ; Allen V. Blunt, 2 Wood. & M. 121; Woods V. Gassett, 11 N. H. 442; Ste- vens V. Reed, 37 N.H. 49 ; Baehelder V. Nutting, 16 N. H. 261 ; Adams v. Leland, 7 Pick. 62; Hathaway v. Spooner, 9 Pick. 23; Brigham v. Co- burn, 10 Gray, 329 ; Williston v. Wil- liston, 41 Barb. 635 ; Vedder v. Wil- kins, 5 Denio, 64 ; Ins. Co. v. Wood- ruff, 26 N. J. L. 541; Steel v. Wil- liams, 18 Ind. 161 ; Wade v. Wade, 12 111. 89; Fisk v. Kissane, 42 111. 87 ; Jones v. Morehead, 2 B. Men. 210; McRae v. Morrison, 13 Ired. (N. C.) L. 46 ; Smith v. Atwood, 14 Ga. 402; Poulet v. Johnson, 25 Ga. 403; Bass V. Brooks, 1 Stew. (Ala.) 44 ; Glassell v. Mason, 32 Ala. 719 ; Yale f. Oliver, 21 La. An. 454; Beach- board V. Luce, 22 Mo. 168 ; Kellogg V. Norris, 10 Ark. 18 ; Wallace v. Wil- cox, 27 Tex. 60; Fallon v. Dougherty, 12 Cal. 104. See, as limiting above conclusion, Viles v. Moulton, 13 Vt. 610. 145 § 152.] THE LAW OF EVIDENCE. [book 1. His withholding such an affidavit affords a presumption against him, which, however, is rebutted by proof that the paper never was in his care.^ But for proof of the prior existence and gen- uineness of such a paper, something more than the party's affi- davit is necessary. Such existence and genuineness must be substantively proved.^ It is immaterial, however, so far as con- cerns the order of proof, whether the proof of the existence and execution of the paper, or its loss, be received first, provided both are satisfactorily shown.^ V. SO WHEN DOCUMENT IS IN HANDS OF OPPOSITE PARTY. § 152. When it is desired to give secondary evidence of a doc- Notice to ument in the possession of an opposing party, it is nec- essary, by the common law practice, to give such party notice to produce the paper a suitable period before the trial.* Thus an extract from a lost letter cannot be proved without calling on the writer to produce his let- 1 Hanson v. Kelly, 38 Me. 456; Fos- Morrell, 4 Greenl. 368; Jack v. Wood?, produce neceasarj' when docu- ment is ia the hands of opposite side. ter V. Mackay, 6 Met. (Mass.) 531 ; Harper v. Hancock, 6 Ired. (N. C.) L. 124; Linning v. Crawford, 2 Bailey, 591. 2 Weatherhead ii. Baskerville, 11 How. 829 ; Kimball v. Morrell, 4 Greenl. 368; Downing v. Pickering, 15 N. H. 344 ; McPherson v. Rathbone, 7 Wend. 216; Lomerson v. Hoffman, 24 N. J. L. 674; Baskin v. Seechrist, 6 Penn. St. 154; Stone v. Thomas, 12 Penn. St. 209 ; ElmondorfT v. Carrai- chael, 3 Lltt. (Ky.) 472; Thompson v. Thompson, 9 Ind. 323; Owen v. Paul, 16 Ala. 130; Hanna v. Price, 23 Ala. 826; Millard v. Hall, 24 Ala. 209; Gould V. Trowbridge, 32 Mo. Stockdale v. Young, 3 Strobh. Reynolds v. Jourdan, 6 Cal. 108 8 Fitch V. Bogue, 19 Conn. Jackson v. Woolsey, 1 1 Johns. R. 446 ; Denn v. Pond, 1 Coxe N. J. 379; Dowler v. Cushwa, 27 Md. 354; Cul- pepper V. Wheeler, 2 McMul. 66. See Shrowders v. Harper, 1 Harr. (Del.) 444. That execution of such paper must be first proved, see Kimball v. 146 291; 601; 286; 29 Penn. St. 375 ; Shrowders v. Har- per, 1 Harr. (Del.) 444 ; ElmondorfF !'. Carmichael, 3 Litt. (Ky.) 472 ; Perry v. Roberts, 17 Mo. 36; Atwell V. Lynch, 39 Mo. 519. * Cates V. Winter, 3 T. R. 306; Smith V. Sleap, 1 C. & Kir. 48 ; U. S. V. Winchester, 2 McLean, 135; Com. V. Emery, 2 Gray, 80 ; Harris v. Whit- comb, 4 Gray, 433 ; Draper v. Hatfield, 124 Mass. 63 ; Waring v. Warren, 1 Johns. R. 340; Foster v. Newbrough, 58 N. Y. 481; Milliken v. Barr, 7 Penn. St. 23; Garland v. Cunningham, 37 Penn. St. 228 ; Anderson v. Apple- gate, 13 Ind. 339 ; Marlow v. Marlow, 77 111. 633; Patterson v. Linder, 14 Iowa, 414; Ledbetter v. Morris, 1 Jones (N. C.) L. 545 ; Potior v. Bar- clay, 15 Ala. 439 ; Olive v. Adams, 50 Ala. 373 ; Williams v. Benton, 12 La. An. 91; Lewin v. Dille, 17 Mo. 64; Farmers' Bk. v. Lonergan, 21 Mo. 46; Grimes v. Fall, 15 Cal. 63 ; Dean v. Border, 15 Tex. 298. For the prac- tice as to inspection of papers, see § 745. CHAP. III.J DOCUMENTS HELD BY OPPONENT. [§ 153. ter book, supposing the letter to be a duplicate original ; ^ though an entire duplicate original can be produced without calling on the opposite side for the other.^ A fortiori, a sworn copy of a letter in the hands of the opposite side cannot be received unless notice to produce be proved.^ Nor can a demand for a paper, prior to suit, be treated as notice to produce ; * nor does the fact that the paper had been on record excuse notice, if the record had been destroyed.^ A plaintiff, however, has been permitted to testify orally to the amount of an account of sales given by him to the defendant, without giving the defendant notice to produce.^ § 153. After refusal of the party having the instrument to produce it, the party calling for it may produce sec- After re- ondary evidence of its contents.'^ If the secondary evi- onTary evi- dence so offered is vague and indistinct, this, it must ?^".°® "^^^ o _ ' _' be intro- be remembered, is to be imputed, not toi negligence on duced. the part of the party offering it, but to the refusal of the party holding the superior evidence to produce such evidence. And a jur}', under such circumstances, will be justified in holding that between two probable interpretations of the secondary evidence, they are authorized to select that most unfavorable to the party refusing, for the reason that if such interpretation be not cor- rect, he could rectify it by producing the paper.^ 1 Supra, § 74; Dennis v. Barber, 6 Goldstein, 114 Mass. 272; Auger Co. Serg. & R. 420. V. Whittier, 117 Mass. 461; Spring ^ See supra, § 74 ; Hubbard v. Rus- Garden Ins. Co. v. Evans, 9 Md. 1 ; sell, 24 Barb. 401. Stoner v. Ellis, 6 Ind. 152; Smith v. = Foster v. Newbrough, 58 N. Y. Reed, 7 Ind. 242; Greenough v. Shel- 481. den, 9 Iowa, 503 ; Bonner v. Ins. Co. 4 MuUer v. Hoyt, 14 Tex. 49. 13 Wis. 677 ; Faribault v. Ely, 2 Dev. « Murchison v. McLeod, 2 Jones (N. C.) L. 67; Bethea v. McCall, 8 (N. C.) L. 239. Ala. 449 ; Bright v. Young, 15 Ala. ' First Nat. Bank. v. Priest, 50 112; Merwin u. Ward, 15 Conn. 377; 111. 321. Jackson v. Livingston, 7 Wend. 136; ' R. V. Watson, 2 T. R. 201; Par- West Branch Ins. Co. v. Helfenstein, tridge v. Coates, Ry. & M. 156 ; Riggs 40 Penn. St. 289. V. Tayloe, 9 Wheat. 483 ; Hanson v. » Clifton v. U. S. 4 How. 242; Cross Eustace, 2 How. 653 ; Lowell «. Flint, v. Bell, 34 N. H. 83; Eastman v. 20 Me. 401 ; Thayer v. Middlesex Ins. Amoskeag, 44 N. H. 143 ; Life Ins. Co. 10 Pick. 326 ; Narragansett Bank Co. v. Mut. Ins. Co. 7 Wend. 31; V. Silk Co. 3 Met. 282; Loring v. Barber u. Lyon, 22 Barb. 622; Shortz Whittemore, 13 Gray, 228 ; Com. v. v. Unangst, 3 Watts & S. 45 ; Beates 147 § 154.] THE LAW OF EVIDENCE. [book I. § 154. The rule admitting secondary evidence after notice has been extended to cases where the document has been proved to be last seen in the hands of the party in interest in the suit, though he be not a party to the record,^ and where the document is in the hands of a person in any sense under the control as agent or attorney of the party notified to produce.^ It is no an- swer to such a notice, that after its reception the party lost pos- session of the document called for, unless he has given the oppo- site party due notice of such loss, and of the persons into whose hands the document probably fell.^ It is the duty of the party in whose hands the document last was to purge himself, by showing what became of it.* But there must be some evidence, however slight, to charge the part}-, against whom the secondary evidence is offered, with the document.^ V. Retallick, 23 Penn. St. 288 ; Rector V. Rector, 8 111. 105. See, however, Hanson v. Eustace, 2 How. 653 ; Mer- ■win V. Ward, 15 Conn. 377. 1 Norton v. Heywood, 20 Me. 359. See Thomas v. Harding, 8 Greenl. 417 ; King v. Lowry, 20 Barb. 532. 2 Sinclair v. Stevenson, 1 C. & P. 584; Taplin v. Atty, 3 Bing. 164; Baldner u. Ritchie, 1 Stark. 338 ; Rush V. Peacock, 2 M. & Rob. 279. When there is no such control, then the per- son holding the document must be subpoenaed to produce. Supra, § 150; Parry v. May, 1 M. & Rob. 279; Evans v. Sweet, R. & M. 83; Shepard r. Giddings, 22 Conn. 282; Bowman V. Wettig, 39 111. 416 ; McCreary v. Hood, 5 Blackf. -316; MeAulay v. Earnhart, 1 Jones (N. C.) L. 602. 8 Sinclair v. Stevenson, 1 C. & P. 585; Knight v. Martin, Gow R. 103; Jackson v. Shearman, 6 Johns. R. 19 ; Jackson v. Woolsey, 11 Johns. R. 446. * R. V. Thistlewood, 33 How. St. Tr. 757; Harvey v. Mitchell, 2 M. & Bob. 366. ^ Sharpe v. Lamb, 11 A. & E. 805 ; Henry v. Leigh, 3 Camp. 502. The authorities as to the fulness required in the notice are thus given 148 by Mr. Taylor (Evidence, § 413). It may be difficult -to lay down any gen- eral rule as to what the notice ought to contain, since much must depend on the particular circumstances of each case ; but this much is clear, first, that no misstatement or inaccuracy in the notice will be deemed material, if it be not really calculated to mislead the opponent. Justice v. Elstob, 1 Fost. & F. 258; Graham v. Oldis, Ibid. 262. And next, that it is not necessary, by condescending minutely to dates, con- tents, parties, &c., to specify the pre- cise documents intended. Indeed, it may be dangerous to do so, since if any material errors were to creep into the particulars, the party sought to be affected by the notice might urge, with possible success, that he had been misled thereby. If enough is stated on the notice to induce the party to believe that a par- ticular instrument will be called for, this will be sufficient. See Rogers v. Custance, 2 M. & Rob. 181. Thus, a notice to produce " all letters written by the plaintiff to the defendant, re- lating to the matters in dispute in the action ; " Jacob v. Lee, 2 M. & Rob. 33, per Patteson, J. ; Conybeare ti. Far- CHAP. III.] NOTICE TO PRODUCE DOCUMENTS. [§ 155. § 155. When the document is in court, a notice given at the trial is generally sufiScient ; ^ but if it be not in court, 7 •" . . _ Notice the notice must be given a sufficient period before the must be trial to enable the party called upon conveniently to timely. ries, 5 Law Rep. Ex. 16 ; or " all letters ■written to or received by the plaintiff between the years 1837 and 1841, both inclusive, by and from the defendants, or either of them, or any person in their behalf, and also all books, papers, &c., relating to the subject matter of this cause ; " Morris v. Hauser, 2 M. & Rob. 392, per Lord Denman; C. & Marsh. 29, S. C. nom. Morris v. Hannen ; has been held suffiaient to let in parol evidence of a particular letter not otherwise specified. In these cases the names of the parties by and to whom the letters were ad- dressed appeared on the notice, and perhaps this circumstance sufficiently distinguishes them from an older de- cision [this distinction was pointed out and relied upon by Patteson, J., in Jacob V. Lee, 2 M. & Rob. 33], where a notice to produce " all letters, papers, and documents, touching or concerning the bill of exchange mentioned in the declaration, and the debt sought to be recovered ' ' (France v. Lucy, Ry. & M. 341, per Best, C. J.), was held too vague to admit secondary proof of a notice of dishonor sent by plaintiff to defendant. The authority, how- ever, of this last case has been shaken by a subsequent decision, where a no- tice to produce " all accounts relat- ing to the matters in question in this cause," was held to point out with sufficient precision a particular account relating to a small part of the work, though it appeared that many such accounts for different parts of the work had been rendered by the plaintiff to the defendant. Rogers v. Custance, 2 M. & Rob. 179. The case of Jones v. Edwards, McCl. & Y. 139, was an ac- tion against four defendants, as owners of a sloop, to recover an account for warehousing the rigging of the vessel. In order to prove that one of the de- fendants was a joint owner, the plain- tiff called for a letter, which was stated to have been written nine years before by this defendant to the son of another defendant, and relied upon a " notice to produce letters and copies of letters, and all books relating to the cause." The court decided that the notice was too uncertain, and no sensible man could entertain a different opinion. In one case, where the notice mis- described the title of the cause, it was held to be invalid. Harvey v. Mor- gan, 2 Stark. R. 17. (The notice in that case was entitled, "A. & B., as- signees of C. & D., V. E." instead of" A. & B., assignees of C. B., v. E.") But as the strict application of this rule, in cases where it is evident that the party served has not been misled, might be productive of serious injustice, it is hoped that at the present day it would not be allowed to prevail, unless the misdescription were of a flagrant nat- ure. Indeed, the Court of Exchequer has thrown out an intimation to this effect ; for where a notice was objected to on the ground that it was entitled (by mistake) in a wrong court, Mr. Baron Alderson discountenanced the objection, saying : " One does not know where we are to stop. Would the notice be bad if one of the names was spelt wrong ? .... At the time of the decision in Harvey v. Morgan, the courts were much more strict than now as to matters of this nature." Lawrence v Clark, 14 M. & W. 251. 1 Dwyer v. Collins, 7 Exch. 639; Brandt v. Klein, 17 Johns. 335; Anon. Anthon, N. Y. 199; McPherson v. 149 § 155.] THE LAW OF EVIDENCE. [BOOK I. produce it.^ The question of the length of notice is dependent upon that of the object for which the notice is given. Is it to enable the party served to have the paper in court ? Then time enough for this purpose is all that is required. Is it to enable the party served to prepare evidence either to weaken or to for- tify the paper called for ? This view, though at one time current in England, has now been finally overruled by the Court of Ex- chequer ; it being held that the sole object of such a notice is to enable the party to have the document in court to produce it if he likes, and if he does not, then to enable the opponent to give secondary evidence. "If," said Parke, B.,^ " this (i. e. the reason suggested by the above authorities) be the true reason, the meas- ure of the reasonable length of notice would not be the time nec- essary to produce the document, a comparatively simple inquiry, but the time necessary to procure evidence to explain or support it, a very complicated one, depending on the nature of the case and the document itself and its bearing on the cause." It was therefore ruled that where a party to a suit, or his attorney, has a document with him in court, he may be called on to produce it without previous notice, and in the event of his refusing, the op- posite party may give secondary evidence.^ But where the time is insufficient to enable the documents to be brought in, and where there is no bad faith or negligence in the party in putting them at a distance,* then the notice is not sufficient to admit secondary evidence.^ Rathbone, 7 Wend. 216; Atwellu. Mil- § 415 ; George v. Thompson, 4 Dowl. ler, 6 Md. 10; Choteau v. Kaitt, 20 656; Atkins u. Meredith, 4 Dowl. 658; Ohio, 132; Dana u. Boyd, 2 J. J. Meyrick u. Woods, C. & Marsh. 452; Marsh. 587; Brown v. Isbell, 11 Ala. R. v. Hamp, 6 Cox C. C. 167. 1009 ; Griffin v. Sheffield, 38 Miss. 359. = Dwyer v. Collins, 7 Exch. 639. The party's attorney may be com- » gge Reid v. Colcock, 1 Nott & pelled to say whether he has it in court. McC. 592. Ibid. ; Rhoades v. Selin, 4 Wash. C. * As to this, see R. v. Wagstaff, Ry. C. 718. Infra, §585. & M. 327; S. C. 2 C. &" P. 123; 1 R. u. Hankins, 2 C. & K. 823 ; R. Drabble v. Donner, Ry. & M. 47; ti. Kitson, Pearce & D. 187 ; Shreve Sturge v. Buchanan, 10 A. & E. 598. ti. Dulany, 1 Cranch C. C. 499 ; Durkee « Leaf v. Butt, C. & Marsh. 451 ; V. Leland, 4 Vt. 612; Jeflford v. Ring- Meyrick v. Woods, C. & Marsh. 452; gold, 6 Ala. 544; Cody v. Hough, 20 Firkins v. Edwards, 9 C. & P. 478; 111. 43 ; Barton v. Kane, 17 Wis. 37; Holt v. Miers, 9 C. & P. 195 ; Byne v. Divers V. Fulton, 8 Gill & J. 202. As Harvey, 2 M. & Rob. 88 ; Vice v. to English practice, see Taylor's Ev. Anson, 4 M. & M. 97. 150 CHAP. III.] NOTICE TO PRODUCE DOCUMENTS. [§ 157. § 156. Notice to produce does not invest the instrument called for with the attribute of evidence ; for if it did, testi- Notice to mony incapable of proof might be brought into a case 5™g"™t by such notice.! But where A. calls upon J3. to pro- ™akeaii - - T -n T instrument duce a document, and B. produces it, this primd facie evidence. avoids the necessity of proving such document on A.'s part, •where it is relied on by B. as part of his title.^ But A. is not obliged to put in evidence the papers called for by him ; ^ though when A., after notifying B. to produce a paper on trial, takes such paper and inspects it, so as to become acquainted with its contents, then A., is bound to treat the paper, if relevant, as his evidence.* The law in this respect, however, may be affected by the statutes making parties witnesses, and authorizing the compulsory production of papers. Under these statutes it may be argued that a document introduced by compulsion is open to counter-proof.^ § 157. A party is not permitted, after declining to produce a paper, to put it in evidence, after it has been proved p by his opponent by parol. Should he be allowed to do fusing to so, he would be able to hold back the paper until he bound by saw whether its parol rendering would be favorable or unfavorable to him, and thus to obtain an unjust advantage over his opponent.® The same rule is applied when the party calling for the paper has proved a copy, in which case the holder of the paper cannot produce it, and object to the reading of it without proof by an attesting witness.'^ Nor can he, after refus- 1 Krise v. Neason, 66 Penn. St. Wharam v. Routledge, 5 Esp. 235; 258 ; Moulton v. Mason, 21 Mich. Blake v. Russ, 33 Me. 360 ; Clark v. 364; McCracken v. McCrary, 5 Jones Fletcher, 1 Allen, 53 ; Long v. Drew, (N. C.) L. 399; Rives v. Thompson, 114 Mass. 77; Anderson v. Root, 16 41 Ga. 68. Miss. 362; though see Austin v. 2 Betts V. Badger, 12 Johns. R. 223; Thompson, 45 N. H. 113. Jackson v. Kingsley, 17 Johns. R. 157; ^ Moulton v. Mason, 21 Mich. 364. St. John V. Ins. Co. 2 Duer, 419. See, ° Doon w. Donaher, 113 Mass. 151. however, Rhoades v. Selin, 4 Wash. ' Jackson v. Allen, 3 Stark. R. 74; 715; Roger v. Hoskins, 15 Ga. 270; Doe v. Hodgson, 12 A. & E. 185; 2 Herring u. Rogers, 30 Ga. 615; Wil- M. & Rob. 283; Edmonds v. Challis, liams wrKeyser" 11 Fla. 234. 7 C. B. 413; 6 D. & L. 581; Collins » Blight t;. Ashley, Pet. C. C. 15; v. Gashon, 2 F. & F. 47. See Lewis State u.°Wisdom, 8 Porter, 511. v. Hartley, 7 C. & P. 405; Tyng v. * Wilson V. Bowie, 1 C. & P. 10; U. S. Submarine Co. 1 Hun (N. Y.), Calvert v. Flower, 7 C. & P. 386; 161. 151 § 159.] THE LAW OF EVIDENCE. [book I. ing to produce, put the paper into the hands of his opponent's witnesses for cross-examination.^ § 158. If a party called upon to produce a particular paper When pa- produces it, and offers to establish its genuineness, the party calling for the paper cannot, if he waive reading the paper, offer secondary proof of its contents. The best proof is the paper itself, and this, unless it be shown to have been tampered with, must be put in evi- dence.^ § 159. Notice to produce a document is not necessary in tort Notice not brought for its conversion or detention or loss ; ^ nor in respect to a document described in the pleadings as that on which the suit is brought ; * nor when, from any reason connected with the form of suit, the partj' is bound to know that he is charged with the document and will be qualification is so inwrought in an per )s pro duced op- posite party can- not put in secondary proof. necessary for instru- ment on wliich suit is brought. 1 Doe V. Cockell, 6 C. & P. 527. 2 Stitt V. Huidekope'rs, 17 Wall. 384. The Roman law makes the follow- ing distinction between a paper vol- untarily produced by a party to make out his own ease, and a paper he is compelled to produce by call from the opposite side. The first he accepts admission as to form part of it, then necessarily the admission cannot be used against the admitting party with- out the qualification. But when to an admission of a contract is attached an independent memorandum, operat- ing to defeat such contract, then such memorandum is to be regarded as uni- with all its qualifications ; the second lateral, amounting only to a claim by is not made evidence by the mere fact that it is thus brought into court. As to the first, the party producing is estopped from contesting genuine- ness. But beyond the recognition of the genuineness and authenticity of the instrument, the effect of pro- duction does not extend. Facts stated in the instrument, outside of such genuineness and authenticity, are in any view open to impeachment by the party producing the instrument. Were it otherwise, as is well argued (Weiske, Rechtslex. xi. 659), the damage done to business would be great. A debtor, in rendering his ac- counts to his creditor, would be able, by introducing entries favorable to himself, at least to make the accounts useless to the creditor. Wherever a 152 the party making it, not assented to by the opposing party, and therefore open to attack by the latter. To such a memorandum the maxim, Qui tacet consentire videtur, does not apply. The law does not compel a party on whom a claim is made to at once protest against such claim; and a fortiori, a party, receiving from another an ac- knowledgment of indebtedness, coup- led with a defeasance, cannot, by re- taining such acknowledgment, be re- garded as admitting the truth of the defeasance. See this argued at length in Weiske's Rechtslexicon, xi. 559. ' Scott V. Jones, 4 Taunt. 865; How V. Hall, 14 East, 274 ; Hays v. Riddle, 1 Sandt. 248. " Jolley «. Taylor, 1 Camp. 143 Dana v. Conant, 30 Vt. 246. CHAP. III. J NOTICE TO PRODUCE DOCUMENTS. [§ 162. required to bring it into court.^ But where the maker of nego- tiable paper does not deny his signature, the plaintiff, who is not then bound to produce the paper, may object to the defend- ant's giving secondary evidence of the paper without Nor when notice to produce.2 _ J^h^^'Y § 160. Nor is notice to produce necessary when the <^'!«''sed party notified is charged with fraudulently obtaining ulentiyob- the document to be proved ; ^ nor when he is charged withhoid- with its theft or forgery.* d"ocument. § 161. If a document is conceded by the party, in whose hands it was last heard from, to have been lost or de- „ Nor as to stroyed, then notice to him to produce is unnecessary, document whos6 loss He is estopped by his admission from setting up such is admit possession of the paper as would make a notice to pro- duce of use.^ And so as to a party who testifies that he never had possession 'of the document.^ ^ jj . No notice § 162. It stands to reason that notice to produce a needed as notice is not a prerequisite to proving such notice.' produce. 1 Colling V. Treweek, 6 B. & C. State v. Potts, 4 Halst. 26 ; Pendle- 398; Scott V. Jones, 4 Taunt. 865; ton v. Com. 4 Leigh, 694; Rose v. Read o. Gamble, 10 A. & E. 597; Lewis, 10 Midi. 483; McGinnis v. Kellar v. Savage, 20 Me. 199; Ross State, 24 Ind. 500; Hart v. Robinett, V. Bruce, 1 Day, 100; Mc Clean v. Hertzog, 6 S. & R. 154. 2 Goodered v. Armour, 3 Q. B. 956. As to notice to produce deed of which there is a registry, see supra, § 114. ' Dwyer v. Collins, 7 Ex. R. 639 ; Mitchell V. Jacobs, 1 7 111. 236 ; Gray V. Kernahan, 2 Hill (S. C), 65; Mor- gan V. Jones, 24 Ga. 155. * R. V. Aickles, 1 Leach, 294 ; Bucher v. Jarrett, 3 Bos. & P. 145 ; How V. Hall, 14 East, 275 ; R. v. Downham, 1 F. & F. 386 ; R. v. El- worthy, Law R. 1 C. C. 103 ; Stabe v. Mayberry, 48 Me. 218; Nealley v. Greenough, 25 N. H. 325; People v. Holbrook, 13 Johns. R. 90 ; Harden V. Kretsinger, 17 Johns. R. 293; Ham- 5 Mo. 11. See, however, contra, as to charge of forging deed, R. v. Ha- worth, 4 C. & B. 254. « Foster v. Pointer, 9 C. & P. 718 ; How V. Hall, 14 East, 276 ; Doe v. Spitty, 3 B. & Ad. 182. « Roberts v. Spencer, 123 Mass. 397. ' Philipson v. Chase, 2 Camp. Ill; Central Bank v. Allen, 16 Me. 41 ; Leavitt v. Simes, 3 N. H. 14 ; Eagle Bank V. Chapin, 3 Pick. 180; Morrow V. Com. 48 Penn. St. 305; Christy v. Home, 24 Mo. 242. "In Philipson v. Chase, 2 Camp. Ill, Lord Ellenborough observes: 'I approve of the practice as to notices to quit, and I remember when the point was first ruled by Wilson, J., mond V. Hopping, 13 Wend. 505; who said, that if a duplicate of the Forward v. Harris, 30 Barb. 338; notice to quit was not of itself suflS- People V. Kingsley, 2 Cowen, 52:J; cient, no more ought a duplicate of Com. V. Messinger, 1 Binney, 273 ; the notice to produce, and thus no- 153 § 163.] THE LAW OF EVIDENCE. [book I. Collateral s 163. The mere fact that a letter was sent can be facts as to "^ document proved without notice to produce the letter ; '■ and so may be , . , x- r proved as to lacts relating to ttie existence and execution or notice. the paper and not to its contents.^ tices might be required in infinitum.' The fallacy of this reasoning (says Mr. Taylor, § 450, 7th ed.) is ably exposed in 3 St. Ev. 730." Mr. Taylor, however, argues that the extension of the exception may be justified partly by the "experienced inconvenience attendant on a strict observance of the rule requiring no- tice ; 2 Ph. Ev. 226, n. 5 ; partly be- cause the secondary evidence that is usually offered of a notice is a copy of the paper sent, which partakes in great measure of the character of a duplicate original ; Kino v. Beaumont, 3 B. & B. 291 ; and chiefly because it constantly happens that the oppo- site party is well aware, from the nature of the suit, that he will be charged with the possession of the original document. Colling v. Tre- week, 6 B. & C. 399, 400, per Bayley, J. ; Robinson v. Brown, 6 Com. B. 754, per Maule, J. " On one or other of these grounds, it has been held that, in order to let in proof by a copy, if not any species of secondary evidence, no notice is re- quired to produce a notice to quit ; (Doe V. Somerton, 7 Q. B. 58 ; Jory V. Orchard, 2 B. & P. 41, per Ld. Eldon ; Colling o. Treweek, 6 B. & C. 398, per Bayley, J. See R. v. Mort- lock, 7 Q. B. 459 ;) a notice of dis- honor ; (Swain v. Lewis, 2 C, M. & R. 261 ; 5 Tyr. 998, S. C. ; Kine v. Beau- mont, 3 B. & B. 288; 7 Moore, 112, S. C; Ackland u. Pearce, 2 Camp. 601, per Le Blanc, J.; Roberts v. Bradshaw, 1 Stark. R. 28; Colling v. Treweek, 6 B. & C. 898, per Bayley, J. These cases — the first two of which were decided after conferring with the judges of the other courts — put the question beyond all dispute, and overrule the earlier decisions of Langdon v. Kutts, 5 Esp. 156, and Shaw !'. Markham, Pea. R. 165,) pro- vided the action be brought upon the bill, but not otherwise. Lanauze v. Palmer, M. & M. 31, per Abbott, C. J." The same indulgence has been extended to notices of actions, or written demands, which are neces- sary to entitle the plaintiff to recover. Jory V. Orchard, 2 B. & P. 39. So no notice is needed as to bills of costs of solicitors, attorneys, and parliamen- tary agents delivered pursuant to stat- ute. Colling V. Treweek, 6 B. & C. 394; 9 D. &R. 456, S. C. " On one occasion, when an action was brought against a surety, on a bond conditioned to pay to the plain- tiff, within six months after notice, the' sum that should become due from the principal, a notice to produce this notice was held necessary by Lord Ellenborough, on the ground that it was not a mere notice, but in the nat- ure, of a statement of account be- tween the plaintiff and the principal. Grove V. Ware, 2 Stark. R. 174. Whether this case would now be con- sidered a binding authority may be well questioned, since in principle it is diflScult to distinguish it from several of the cases cited above, in which the notice to produce has been deemed unnecessary. But, be this as it may, the judges have determined, in a case where two parties have become sure- i Webster v. Clark, 30 N. H. 245. 154 « Gist V. McJunkin, 2 Rich. S. C. 154; Lott V. Macon, 2 Strobh. 178. CHAP. III.] NOTICE TO PRODUCE DOCUMENTS. [§ 163. ties, by a joint and several bond, for the payment, witliin one month after notice should have been given to them, of such sum as should be due from their principal, that the service of notice upon one of the parties could not be proved in an action brought against another, by producing the du- plicate of the notice, but the first party should have been subpoenaed to produce the original, or to account for its non-production. Robinson v. Brown, 3 Com. B. 754. Indeed, the exception would seem to be always inapplicable to cases in which the no- tice has been served on a third per- son." See Taylor's Evidence, 7th ed. §451. 155 CHAPTER IV. PRIMARINESS AS TO ORAL TESTIMONY. I. Heaksay generally Inadmissible. Hearsay in its largest sense convert- ible with non-original, § 170. Non-original evidence generally in- admissible, § 171. Objections to such evidence, § 172. Acts may be hearsaj-, § 173. Interpretation is not hearsay, § 174. Tesiimonj- of non-witnesses not or- dinari'y receivable when reported bj' another, § 175. So of public acts concerning stran- gers, § 176. II. Exceptions as to Witness oh foe- MEE Tbial. Evidence of deceased witness in former trial admissible, § 177. So of witnesses out of jurisdiction or subsequently incompetent, § 178. So of insane or sick witness, § 179. Mode of proving evidence in such case, § ISO. III. ExcEPTios AS TO Depositions in Perpetuam Memouiam. Practice as to such depositions, § 181. IV. Exception as to Matters of Gen- eral Interest and Ancient Possession. Reputation of community admissi- ble as to matters of public interest, §185. Facts of only personal interest can- not be so proved, § 186. Insulated private rights cannot be so affected, § 187. Witnesses to such hearsay must be disinterested, § 190. Declarations of deceased persons pointing out boundaries admissi- ble, § 191. Declarations must be ante litem mo- iam, § 193. Ancient documents receivable to prove ancient possessions, § 194. 156 Such documents must come from proper custody, §§ 194-5. Need not have been contempora- neous possession, § 199. Verdicts and judgments receivable for same purpose, § 200. V. Exception as to Pedigree, Rela- tionship, Birth, Marriagb, and Death. Declarations admissible as to pedi- gree, § 201. Relationship of declai-ants necessary to admissibility, § 202. Pedigree may be proved by reputa- tion, § 205. Statements of deceased relatives ad- missible, but are to be scrutinized as to motive, § 207. Such declarations may extend to facts of birth, death, and mar- riage, § 208. Writings of deceased ancestor ad- missible for same purpose, § 210. And so may conduct, § 211. Declarations may go to facts from which relationship may be in- ferred, § 212. Must have been ante litem motam, §213. Declarant must be dead, § 215. Must have been related to the fam- ily, § 216. Dissolution of marriage connection by death does not exclude, § 217- Relationship must be proved aliunde, §218. Ancient family records and monu- ments admissible for same pur- pose, § 219. So of inscriptions on tombstone^ and rings, § 220. So of pedigrees and armorial bear- ings, § 221. CHAP. IV.J HEARSAY. [§ 170. Death may be proved by reputation, §223. So may marriage, § 224. Peculiarity in suits for adultery, § 223. VI. Exception as to Self-disserving Declarations of Deceased Peksoxs. Sucli declarations receivable, § 226. , No objection that such declarations are based on hearsay, § 227. Declarations must be selt-disserving, § 228. Independent matters cannot be so proved, § 231. Admissible, though other evidence could be had, § 232. Position of declarant must be proved aliunde, § 233. [Declaration must be brought home to declarant, § 235. Statements in disparagement of title receivable against strangers, § 237. VII. Exception as to Bdsiness Enteies of Deceased Peksons. Entries of deceased or non-procur- able persons in the course of their business admissible, § 238. Entries must be original, § 245. Must be contemporaneous and to the point, § 246. But cannot prove independent mat- ter, § 247. So of surveyors' notes, § 248. So of notes of counsel and other officers, § 249. So of notaries' entries, § 251. VIII. Exception as to General Reputa- tion WHEN SUCH IS Material. Admissible to bring home knowl- edge to a party, § 252. But inadmissible to prove facts, § 253. Hearsay is admissible when hearsay is at issue, § 254. Value so provable, § 255. And so as to character, § 256. IX. Exception as to hefresiiing Mem- ory OF Witness. For this purpose hearsay admissible, §257. X. Exception as to ees gestae. Res gestae admissible though hear- say, § 258. Coincident business declarations ad- missible, § 262. And so of declarations coincident with torts, § 263. What is done or exhibited at such a time may be proved, § 264. Declarations inadmissible if there be opportunity for concoction, § 265. Declarations inadmissible to explain inadmissible acts; nor are decla- rations admissible without acts, § 266. Inadmissible if the witness himself could be obtained, § 267. XI. Exception as to Declarations concerning Party's own Health and State of Mind. Declarations of a party as to his own injuries admissible, § 268. So as to his condition of mind when such is at issue, § 269. I. HEARSAY GENERALLY INADMISSIBLE § 170. Me. Bentham,^ in analyzing unoriginal evidence, gives the follov^ing specifications : — 1. Supposed oral through oral ; which he defines to be " supposed orally delivered evidence of a supposed extra-] udicially narrating v^itness, judicially delivered vivd voce by the judicially deposing witness;" which he declares to be the only species of unoriginal evidence to which the term "hearsay " is strictly applicable. 2. Supposed oral through "scriptitious," or written. 3. Supposed scriptitious through oral. 4. Supposed scriptitious through scriptitious. 1 Rationale of Jud. Ev., Lend. 1827, III. 439, Jas. Mill's ed. 157 Hearsay in its largest sense con- vertible with non- original. 172.] THK LAW OF EVIDENCE. [BOOK I. To which may be added, — 6. Supposed material, through oral or scriptitious. The third and fourth of these modifications have been already partially considered under the general head of secondary evi- dence. The fifth, as of comparatively unfrequent occurrence, may be noticed at the outset. § 171. Suppose, for instance, after a post-mortem examination, Non-orig- iu ^ case v?here poisoning is charged, portions of the d^nceYn- remains are given by E., the examining physician (an admissible, extra-j udicial witness, as Mr. Bentham would call him), to J. ; and J. produces these remains on trial, where, under the direction of the court, they are subjected to a chemical analysis. This is hearsay, because E. is not examined on trial to prove the identity of the remains with those which J. produces. Or, after a murder, the deceased's clothes are taken off by E. and handed to J., who brings them into court, and testifies that they are the clothes given to him by E. as having been taken from the body of the deceased. The articles thus produced are hearsay, in the wide sense of the term, and should be rejected.^ The question of terms is comparatively unimportant. With Mr. Bentham we may call such evidence simply " unoriginal ; " with Mr. Best, " second-hand ; " or we may fall back, as is here done, upon the general title of hearsay, as designating all testimony from an unoriginal source. It is in this sense that the term " hearsay " is to be used in the following sections. § 172. The objections to hearsay testimony, which operate to exclude it when offered on trial, and which are there- to such fore to be considered when we measure the extent to which the exclusion is to be carried, may be enumer- ated as follows : — 1. The depreciation of truth arising from its passing through one or more fallible media. — Mr. Bentham, who argues with great acuteness against the common law exclusion of such evi- dence, admits the force of this objection. " By every extra-ju- dicial medium the evidence is removed, removed by one remove, from that degree of proximity which it were desirable it should possess, and which in the case of ordinary evidence it does pos- sess, with reference to the eye or the ear of the jud^e." .... ^ Seo Wharton Crim. Law 7th ed. §§ 715, 822. 168 CHAP. IV.] HEARSAY. [§ 172. " In the case of hearsay evidence (especially if the discourse runs into lengths), it is frequently impossible for the deposing witness to speak to the very words ; and then comes the uncertainty whether, of the words really spoken, the purport attributed to them by the deposing witness be a faithful representation; whether and how far the interpretation put upon them by the deposing witness is correct." i Yet Mr. Bentham's criticism on this objection has a force which we cannot wholly disregard. We do not consider this fallibility as fatal, he argues, when we report the declarations of a party on trial ; we permit, in such a trial (e. g. on a trial for murder, in which the defendant's intent is to be proved by his language), a dozen witnesses to report, ac- cording to their own notions, what the defendant said ; and the same liberty exists in civil issues, in all cases where extra-judicial declarations of parties are to be shown. The mere fact, there- fore, that the language of one man, before it reaches us, passes through the medium of another man's perception, memory, and expression, is, it is argued, in itself no absolute ground for exclu- sion. Yet to this criticism it maj"^ be replied, that extra-judicial admissions of parties cannot be invoked as similar to extra-ju- dicial statements of third parties not produced on trial, because the former, as we will have hereafter occasion to show, are not so much evidence, as releases from evidence,^ and are not there- fore to be regarded as affording precedents for the treatment of that which is strictly evidence. Did A. do a particular thing ? Ordinarily B., the actor in the case against A., has to prove that A. did the thing. But A. says in court, " I admit I did it ; " and so far relieves B. from the necessity of proving the fact. Or, we produce what is virtually a release executed by A. before the trial, relieving B. from this necessity ; or A.'s intent is to be proved, and a witness is called to prove that A. admitted his intent to be that of the character charged. The witness then proves an admission by A. which relieves, if believed, B. from proving the fact of intent ; and it makes no matter whether the admission by A. in this respect was intentional or unintentional. A.'s admission, so proved, is neither " hearsay," nor " unorig- inal," nor " second-hand." Its reception cannot be used as a 1 Rat. Jud. Ev. III. 438, 455. 2 Infra, § 1075. 159 § 172.] THE LAW OF EVIDENCE. [BOOK I. precedent for the reception of a repetition by B. of what D., an extra-judicial witness said. 2. The abuses likely to arise from a non-diserimination by juries between primary and secondary. — " By the general rule of law, nothing that is said by any person can be used as evi- dence between contending parties, unless it is delivered upon oath in the presence of those parties Some inconvenience no doubt arises from such rigor. If material witnesses happen to die before the trial, the person whose cause they would have established may fail in the suit. But although all the bishops on the bench should be ready to swear to what they heard those witnesses declare, and add their own implicit belief of the truth of the declarations, the evidence would not be received. Upon this subject the laws of other countries are quite different; they admit evidence of hearsay without scruple. There is not an ap- peal from the neighboring kingdom of Scotland, in which you will not find a great deal of hearsay evidence upon every fact brought into dispute. But the different rules which prevail there and with us seem to me to have a reasonable foundation in the different manner in which justice is administered in the two countries. In Scotland and most of the continental states, the judges determine upon the facts in dispute as well as upon the law ; and they think there is no danger in their listening to evidence of hearsay, because when they come to consider their judgment on the merits of the case, they can trust themselves entirely to disregard the hearsay evidence, or to give it any little weight which it may seem to deserve. But in England, where the jury are the sole judges of the fact, hearsay evidence is prop- erly excluded, because no man can tell what effect it might have upon their minds." ^ Hence it has been held that where the ob- ject of evidence is to satisfy the court on matters which are for the court, and not for a jury, hearsay evidence may be heard, even where the court is discharging the function of a jury. Thus, in order to show that reasonable search has been made for a lost indenture, a witness may be asked whether he has inquired of persons who were likely to know about it, and what answers were given to his inquiries.^ 1 Mansfield, C J., 4 Camp. 4U. Powell's Evidence, 4th ed. 138. Su- ' R. V. Braintrec, X E. & E. 51 ; pra, § 150. 160 CHAP. IV.] HEARSAY. [§ 173. 3. Such testimony, in its first exhibition, is irresponsible. — A., a witness not produced on trial, says he saw B. do a particular thing. C, a witness produced on trial, says he heard A. say that he saw B. do this thing. A. is really the witness, yet he is not responsible for what he says. He is not subjected to the probe of a cross-examination. He is not indictable for perjury. No recourse can be had to him to make him, ordinarily, liable either civilly or criminally for an error. But the rule, that a party put on trial is entitled to have his case tried on the evi- dence of responsible witnesses, is essential to the fair determina- tion of the issue in litigation. In many of our constitutions we find one aspect of this rule given in the maxim, that a party accused has a right to meet the witnesses against him face to face. To dispense with these witnesses, and permit their testi- mony to be given by those who claim to have heard such wit- nesses speak, would be to evade this important sanction, and to put a party on trial on evidence whose falsity he would be pre- cluded from either detecting or punishing. § 173. Hearsay, however, in its legal sense, is not confined to that which is said. Men may express themselves by conduct as well as by words ; and to repeat what they be hear- said by words is no more hearsay than to repeat what ^*^' they said by conduct. An impostor dresses himself as an ofiicer of the army, and obtains credit on the basis of his being such an officer. If so, his dress and style are as much a declaration on his part as would be the words, " I am an officer of the array." Of the convertibility of acts with words in this relation, we have an interesting illustration in an English ruling in the Exchequer Chamber, afterwards affirmed in the House of Lords.^ The issue was that of devisavit vel non, and it was held that letters written to the testator by different persons since deceased, and who had been well acquainted with the testator, could not be received in evidence on a question of sanity. The letters, it was argued, were not receivable as mere declarations of deceased witnesses, or as independent facts. But, assuming that the letters were connected with any act of the testator relating to them by which intelligence was indicated, as, for example, if he had answered them, they were receivable. Parke, B., said : " The question 1 Wright V. Tatham, 7 A. & E. 313 ; and see infra, § 176. VOL. I. 11 161 § 174. j THE LAW OF EVIDENCE. [BOOK I. is whether the contents of these letters are evidence of the fact to be proved upon the issue ; that is, the actual existence of the qualities which the testator is in those letters, by iniplicar tion, stated to possess ; and these letters may be considered, in this respect, to be on the same footing as if they had contained a direct positive statement that he was competent. For this pur- pose they are mere hearsay evidence, statements of the writers, not on oath, of the truth of the matter in question, with the ad- dition, that they have acted upon the statements on the faith of their being true, by thus sending the letters to the testator. That the so acting cannot give a sufficient sanction for the truth of the statement is perfectly plain, for it is clear that if the same statement had been made by parol, or in writing, to a third per- son, it would have been insufficient. Yet in both cases there has been an acting on the belief of the truth, by making the state- ment, or writing and sending a letter to a third person ; and what difference can it possibly make that this is an acting of the same nature by writing and sending the letter to the testator ? " In a later case,^ which was an action to recover a sum of money paid by the plaintiff for the purchase of an estate, on the ground that he was a lunatic, and therefore incompetent to contract, evidence was received of his conduct before and after the trans- action, to show that the lunacy was of such a character as would be apparent to the defendant when dealing with him.^ The rea- soning here was that the defendant, from certain facts, was bound to make certain inferences ; which, as is elsewhere seen, is rele- vant on the question of bona fides.^ But where acts of third par- ties, not relating to the issue, are not relevant in the sense just mentioned, they must be excluded as hearsay.* Thus, on the question of seaworthiness, it would be inadmissible to prove that a deceased sea-captain, after a thorough examination of the ves- sel, embarked in it with his family, and that other underwriters had paid on the same policy.^ § 174. Mr. Bentham has observed that to constitute hearsay testimony, it, must be separated by the intei-position of some 1 Beavan v. McDonnell, 10 Exch. * Backhouse v. Jones, 6 BIng. N. C. 184. 65. Supra, § 29 ; and see infra, § 1 76. 2 Powell's Evidence, 4th ed. 140. « See Wright v. Tatham, 7 A. & E. 8 Supra, § 35 ; infra, § 176. 387-8. 162 CHAP. IV.] HEAESAY. [§ 175. appreciable time from its reception from the party from whom it is obtained. A., a witness in court, for instance, speaks in so low a tone that what he says has to be re- tion is not peated to the jury ; or a foreigner, when examined, has ^*'^*y- to be interpreted by an interpreter. In this case the transmis- sion of the witness's evidence is instantaneous, though through the medium of another person, and it is sometimes argued that because such evidence is instantaneous it is not hearsay. But a sounder reason for the distinction is, that in cases of repetition or interpretation, the inaudible or foreign witness is examined in court, and is therefore responsible ; whereas the extra-judicial witness, whose utterances are reported by another, is not exam- ined in court, and is therefore not responsible. ^ An illustration of the same principle may be found in the fact that a witness may interpret for himself, without the intervention of an inter- preter.2 We should remember, also, following the distinction already noticed, that when an interpreter acts, out of court, as an agent for a party, his statements are to be regarded as the statements of the party whom he represents.^ So we may re- ceive in evidence the rendering in the vernacular by a witness of a confession heard by him in a foreign tongue.* But a transla- tion to be admissible must be accompanied by the original.^ § 175. Hence we may hold the rule to be that the extra-judi- cial statements of third persons cannot be proved by Testimony hearsay, unless such statements were part of the res of non-wit- •' ' / nesses not gestce, or made by deceased persons in the course of ordinarily ^ See Swift v. Applebone, 23 Mich, the interpreter himself ought to be 252; People v. Ah Wee, 48 Cal. 236 ; called, as the witness neither under- Schearer v. Harber, 36 Ind. 586 ; Schall stood the question put to the party V. Eisner, 58 Ga. 190. Infra, § 407. nor the answer made by him ; and it 2 Com. V. Kepper, 114 Mass. 278. was held by Gould, J., that the evi- " " We have an early case upon this dence of the witness was clearly ad- point, in Fabrigas v. Mostyn, reported missible. In such case the interpreter in 20 Howell's State Trials, 123, where is the accredited agent of the party, an interpreter had been employed to acting within the scope of his author- communicate certain proposals and re- ity in the execution of his agency." ceive the answer of the other party, Dewey, J., Camerlin v. Palmer Co. and the question was, whether the 10 Allen, 541. words of the interpreter could be given * People v. Ah Wee, 48 Cal. 236. in evidence by a witness, or whether ^ Bixby v. Bent, 51 Cal. 590. 163 § 175.] THE LAW OF EVIDENCE. [book 1. receivable business, Or as admissions against their own interest.^ ■when re- ° ported by another. In this sense as hearsay are to be considered the state- ments of a person not a party to the suit, as to his mo- tives, when such statements are no part of the res gestae, but are offered for the purpose of proving the motive of the act ; ^ the opinion of others as to the wealth and status of an individual ; ^ letters from third parties, though non-residents ; * information derived from others as to contemporaneous historical events ; ^ the report of a state fair committee as to the value of a partic- ular invention ; ^ recitals in deeds as against strangers ; '^ evidence 1 Mima Queen v. Hepburn, 7 Cranch, 290; Nudd v. Burrows, 91 U. S. (1 Otto) 426; Evans v. Het- tick, 3 Wash. C. C. 409 ; Lanning v. Case, 4 Wash. C. C. 169; Gaines v. Relf, 12 How. 472; Gains v. Hasty, 63 Me. 361 ; Gordon v. Shurtliff, 8 N. H. 260; Page v. Parker, 40 N. H. 47; Goddard v. Pratt, 16 Pick. 412; Chapin v. Taft, 18 Pick. 379; How- land V. Crocker, 7 Allen, 153 ; Wes- son V. Iron Co. 13 Allen, 95; Brown V. Mooers, 6 Gray, 451; Young v. Makepeace, 103 Mass. 50; Robinson V. Litchfield, 112 Mass. 28 ; Brooks v. Acton, 117 Mass. 204 ; Carter v. Fitz, 124 Mass. 269; Treat v. Barber, 7 Conn. 274 ; School Dist. v. Blakes- lee, 13 Conn. 227; Salmon v. Orser, 6 Duer, 511; Luby v. E. R. 17 N. Y. 131; McKinnon ». Bliss, 21 N. Y. 206; Faulkner o. Whitaker, 15 N. J. L. 438; McCormick v. Eobb, 24 Penn. St. 44; Eureka Ins. Co. v. Robinson, 56 Penn. St. 256 ; Lancaster Co. Bk. v. Moore, 78 Penn. St. 407; Atwell v. Miller, 11 Md. 348; Williamson v. Dil- lon, 1 Har. & G. 444 ; Rosenstock v. Tormey, 32 Md. 169 ; Forrester v. Stete, 46 Md. 164; McKinney v. Mc- Connel, 1 Bibb, 239 ; Detroit R. R. v. "Van Steinburg, 17 Mich. 99 ; Atwood V. Cornwall, 28 Mich. 836 ; Keegan V. Carpenter, 47 Ind. 597; Killian v. Eigenmann, 57 Ind. 480; Jones v. Doei 164 2 111. 276; Aikin v. Hodge, 61 III. 436; Pollard V. People, 69 111. 148; Morse V. Thorsell, 78 111. 600; Kent v. Mason, 79 111. 540 ; Cobleigh v. McBride, 45 Iowa, 116; Rowland c. Rowland, 2 Ired. L. 61 ; State v. Haynes, 71 N. C. 79; Berry v. Osborne, 15 Ga. 194; Chastain v. Robinson, 30 Ga. 55 ; Yar- borough V. Moss, 9 Ala. 382 ; Scales V. Desha, 16 Ala. 308; Hartshorn v. Williams, 31 Ala. 149 ; Wells v. Shipp, 1 Miss. 353 ; Sherwood v. Houston, 41 Miss. 59; Kean v. Newell, 2 Mo. 9; Howell V. Howell, 37 Mo. 124; Bain V. Clark, 39 Mo. 252; Atwell v. Lynch, 39 Mo. 519 ; Entwhistle u. Feighner, 60 Mo. 214; Flynn v. Ins. Co. 17 La. An. 135; Davis v. State, 37 Tex. 277; Bornheimer v. Baldwin, 42 Cal. 27. ^ North Stonington v. Stonington, 31 Conn. 412. See supra, § 72. 8 Caswell V. Howard, 16 Pick. 567. See Kost v. Bender, 25 Mich. 515. * U. S. V. Barker, 4 Wash. C. C. 464 ; Longenecker v. Hyde, 6 Binn. 1; Rosenstock v. Tormey, 32 Md. 169; Winslow V. Newlan, 45 111. 145; Bray- ley V. Ross, 33 Iowa, 505; Bank of Ky. V. Todd, 1 A. K. Marsh. 157. 5 Swinnerton v. Ins. Co. 9 Bosw. 361; Milbank v. Dennistoun, 10 Bosw. 382. * Gatling V. Newell, 9 Ind. 572. ' Spaulding v. Knight, 116 Mass. 148 ; Rose v. Taunton, 119 Mass. 99 ; CHAP. IV.J HEARSAY. [§ 175. of the value of domestic goods based on information from partic- ular persons ; ^ declarations of third parties that they killed the deceased : ^ declarations of relatives (living at the trial) as to the mental condition of a person whose sanity is disputed ; ^ opinion of a neighborhood as to such sanity ; * even letters by a deceased person to a party whose sanity is in question, unless connected with evidence showing that he acted upon such letters.^ It Hardenburgh v. Lakin, 47 N. Y. Ill; Yahoola Co. v. Irby, 40 Ga. 479. See infra, §§ 1034-1042. 1 Green v. Caulk, 16 Md. 556 ; Wolf V. Ins. Co. 20 La. An. 583 ; though see infra, §§ 253, 447-450 ; Alfonso V. U. S. 2 Story, 421, where invoices of shipments of sugar, in July and August, were received to show market value of sugar; and see, also, Fennerstein's Champagne, 3 Wall. 145 ; and U. S. v. Champagne, 1 Ben. 341, admitting letters from third par- ties to prove market prices. 2 State V. Duncan, 6 Ired. L. 236 ; Smith V. State, 9 Ala. 990. 8 Heald v. Thing, 45 Me. 392. * Lancaster Co. Bk. v. Moore, 78 Penn. St. 407; qualifying Rogers v. Walker, 6 Barr, 375 ; Ashcraft u. De Armond, 44 Iowa, 229 ; Butler v. Ins. Co. 45 Iowa, 93 (excluding a physician's certificate) ; and see infra, §§ 812, 1254. 6 Wright V. Tatham, cited supra, §173. See 7 A. & E. 391, per Parke, B. ; 4 Bing. N. C. 545, per Ibid. ; Ibid. 531, per Alderson, B. ; Ibid. 502, 504, per Coleridge, J. ; Ibid. 525, 526, per Patteson, J. The letters re- jected in this case were three ; 1st. A letter of gratitude to the testator from a clergyman to whom he had formerly given preferment; 2d. A let- ter of friendship from a relative, with whom the testator was proved to have corresponded three years afterwards; 3d. A letter advising the testator to direct his attorney to take steps in a transaction with a certain parish. This letter was indorsed by the attor- ney, who was long since deceased. Three of the judges considered that all the letters were admissible, six thought that the last was. The remaining judges, including Lords Brougham, Lyndhurst, and Cottenham, held that all the letters were alike inadmissible. "Had the testator," adds Mr. Tay- lor, in commenting on this case, " in- dorsed these letters himself, or could any direct and positive evidence have been given to show that he had — whether by act, speech, or writing — manifested a knowledge of their con- tents, it is clear that the letters could not have been rejected, or in any way withdrawn from the consideration of the jury; for although they would then have been admitted solely on the technical ground that they explained and illustrated his conduct, no rule of law could have prevented them from operating with full effect upon the minds of the jury, as showing the un- biased opinions of the writers, and in what manner the testator had been treated by them." 7 A. & E. 325, per Ld. Denman; 4 Bing. N. C. 500, per Coleridge, J. ; Ibid. 530, per Al- derson, B.; Ibid. 510, per Williams, J.; Ibid. 567, per Tindal, C. J.; Tay- lor's Ev. § 513. In the ecclesiastical courts, where, as there is no jury, the distinction between primary and secondary evi- dence in this respect is less carefully maintained, such evidence is received. Morgan v. Boys, per Sir H. Jenner, cited 7 A. & E. 337; Handley v. 165 § 176.] THE LAW OF EVIDENCE. [BOOK I. is no reason for receiving such statements that the person mak- ing them is dead i (unless under the limitations which will be hereafter designated), or that he was called as a witness, and being suddenly taken sick, was unable to attend the trial ; ^ or that he is legally incompetent as a witness.^ § 176. What has been said as to the declarations of third par- So of pub- ties applies equally to adjudications between strangers, lie acts as ^g gjjg^^| hereafter have copious illustrations of this to stran- •*■ p . t a gers. principle when we consider the effect of ]udgments.* With at least equal force does the rule apply to non-judicial pub- lic acts.^ "A certificate of naturalization issues from a court of record when there has been the proper proof made of a residence of five years, and that the applicant is of the age of twenty-one years, and is of good moral character. This certificate is, against all the world, a judgment of citizenship, from which may follow the right to vote and hold property. It is conclusive as such ; but it cannot, in a distinct proceeding, be introduced as evidence of the residence or age at any particular time or place, or of the good character of the applicant.^ The certificate of steamboat inspectors, under the Act of Congress of 1852, is evidence that the vessel was inspected by its proper officer ; but it is held that it is not evidence of the facts therein recited, when drawn in question by a stranger, although the officer was required by law to make a return of such facts.' So it has been held, that where a sheriff sells real estate, giving to the purchaser a certificate thereof, although there can lawfully be no sale unless there be a previous judgment, and although tjie sale is based upon and as- sumes such judgment, and although the law requires the sheriff to give such certificate, the recital by the sherifiE of such judg- ment furnishes no evidence thereof. It must be proved indepen- dently of the certificate." ^ Jones, cited Ibid.; Waters v. Hewlett, * Infra, § 760. per Sir J. Nicholl, cited 1 A. & E. 8; ' Infra, § 923 ; supra, § 173. Wheeler v. Alderson, 3 Hagg. Ec. R. " Campbell v. Gordon, 6 Cr. 176; 574,609. See supra, § 172. Stark w. Chesapeake Ins. Co. 7 Cr. 420. 1 Crump V. Starke, 23 Ark. 131. ' Eriokson v. Smith, 2 Abb. Ct. of " Gaither v. Martin, 8 Md. 146. App. (N. Y.) 64; 38 How. Pr. 454. » Churchill v. Smith, 16 Vt. 560: « Mutual Benefit Life Ins. Co. v. Nettles V. Harrison, 2 McCord; 230; Tisdale, 91 U. S. Kep. (1 Otto) 245. Smith V. State, 41 Tex. 852 (a case Hunt, J., citing Anderson u. James, 4 of an infant too young to be sworn), Rob. Sup. Ct. 35. 166 CHAP. IV.] TESTIMONY OF DECEASED WITNESS. [§ 177. Even the fact that the declarations of a person were against his interest does not render them evidence, if he be living and could be called as a witness.^ Nor does the fact that hearsay evidence is reported by a party to the suit make it evidence, if it be reported merely as hearsay .^ II. EXCEPTION AS TO WITNESS ON FOKMEE TRIAL. § 177. Certain marked exceptions, however, exist to this rule. Among these the following is the first that may be enu- merated. What a deceased witness testified to on a for- mer trial between the same parties may be testified to, and may be proved by, witnesses who heard the testi- mony of the witness ; nor is such oral evidence excluded by the fact that the original testimony was reduced to writing. The admission of such evidence is based on the fact that the party against \v'bom the evidence is offered, having had the power to cross-examine on the former trial, and the parties and issue being the same, the second suit is virtually a continuation of the first.^ The general rule is thus given by Mansfield, C. J Evidence of deceased witness on former trial ad- missible. ^ Fitch V. Chapman, 10 Conn. 8 Gordon v. Bowers, 16 Penn. St. 226 Macon R. K. v. Davis, 21 Ga. 173 Coble V. McDaniel, 33 Mo. 363. 2 Stephens v. Vroman, 16 N. Y. 381. The minutes of a justice of the peace, of testimony taken at a trial before him, are not admissible (except by stipulation) at the trial of the same cause on appeal in the Circuit Court, either as evidence of the facts at issue, or to impeach or sustain the credibil- ity of a witness by showing what he testified before the justice. Zitske v. Goldberg, 38 Wis. 217. 8 Doncaster v: Day, 3 Taunt. 262; Lawrence v. Maule, 4 Drew. 472; R. V. Joliffe, 4 T. R. 290; Wright v. Tatham, 1 A. & E. 3 ; U. S. v. White, 5 Cranch C. C. 457; U. S.v. Ma- comb, 5 McLean, 287; Phil. R. R. V. Howard, 13 How. 307; U. S. •)'. Penn, 13 Bank. Reg. 464; Watson v. Lisbon, 14 Me. 201 ; State v. Hooker, 17 Vt. 658; Mathewson v. Sargeant, 36 Vt. 142 ; Earl v. Tapper, 45 Vt. 275 ; Lane v. Brainerd, 30 Conn. 565 Jackson v. Lamson, 15 Johns. R. 539; Wilbur V. Selden, 6 Cow. 162; Os- born V. Bell, 5 Den. 70 ; Hocker v. Jamison, 2 Watts & S. 438; Jones v. Wood, 16 Penn. St. 25; Bowie v. O'Neale, 5 Har. & J. 226 ; Letcher v. Norton, 4 Scam. 575; Cook v. Stout, . 47 111. 530; Hutchings v. Corgan, 59 III. 70; State v. Johnson, 12 Nev. 121 ; O'Brian v. Com. 6 Bush, 563 ; Cave u. Cave, 13 Bush, 452; Harper V. Burrow, 6 Ired. L. 30 ; Jackson v. Jackson, 47 Ga. 97;vClealand v. Huey, 18 Ala. 343; State v. Cook, 23 La. 447; Jaccard v. Anderson, 37 Mo. 91 ; Coughlin v. Haeussler, 50 Mo. 126 ; State u. Able, 65 Mo. 357; Poor- man V. Miller, 44 Cal. 269 ; People v. Devine, 46 Cal. 45. That the deposi- tion of a party may be so used, see Col- lins V. Smith, 78 Penn. St. 423. Infra, §477. And so of the notes of his tes- timony. Evans v. Reed, 78 Penn. St. 167 § 177.] THE LAW OF EVIDENCE. [BOOK I. " What a witness, since dead, has sworn upon a trial between the same parties, may be given in evidence, either from the judge's notes, or from notes that have been taken by any other person who will swear to their accuracy ; or the former evidence may be proved by any person who will swear from his memory to its having been given." ^ Wherever a judgment in one case would be evidence in the other case, there evidence of a deceased witness in one case may be reproduced in the other case, the wit- ness having been open to cross-examination. Mere formal varia- tions of suit will not work an exclusion.^ The successors and assignees of a party stand in the same position as the party him- self.^ What a deceased witness swore to at the preliminary hearing before the committing magistrate is evidence at the trial in chief ; * what a deceased witness swore to on a criminal trial is evidence on a second trial for the same offence, or an offence substantially the same.^ What a deceased witness swore be- 415 ; Pratt v. Patterson, 81 Penn. St. 114. 1 Mayor of Doneaster v. Day, 3 Taunt. 262; Powell's Evidence, 4th ed. 217. " It appears that the depositions could be read during the lifetime of the witnesses, on the authority of the City of London v. Perkins, 3 Bro. P. C, ed. Toml. 602, which was a case on appeal from the Exchequer to the House of Lords. Knight Bruce, V. C, in Blagrave v. Blagrave, 1 De G. & S. 252, expressed an opinion that when the point was substantially the same, it would be necessary to follow that case ; but in the last mentioned case he refused to allow the deposi- tions of witnesses, taken in a suit by a tenant for life in remainder under a will, to be used in a suit by a tenant in tail in remainder under the same will, without proof of the death or in- ability to be examined of such wit- nesses, although both suits were in- stituted for the preservation of the settled property. But in a suit by a legatee under a will against the execu- 168 tor, the depositions in a previous suit against the same executor by another legatee have been allowed to be read. Coke V. Fountain, 1 Vern. 413 ; cf. Nevil V. Johnson, 2 Vern. 447, the second suit being in pari materia with the first." Powell's Evidence, 4th ed. 223. ^ Wright V. Tatham, 1 A. & E. 3. See infra, § 760. 8 Doe V. Foster, 1 A. & E. 791 ; Indianapolis R. R. v. Stout, 53 Ind. 143. Infra, § 760. ' R. V. Edmonds, 6 C. & P. 164 ; State V. Hooker, 17 Vt. 658; Davis V. State, 17 Vt. 658 ; though see con- tra, State V. Campbell, 1 Rich. (S. C.) 124. 6 Whart. Cr. L. 7th ed. § 657; R. V. Joliffe, 4 T. R. 290 ; R. v. Smith, R. & R. 339 ; R. v. Lee, 4 F. & F. 63; R. V. Dilmore, 6 Cox, 52 ; R. v. Wil- liams, 12 Cox, 101 ; U. S. V Macomb, 5 McLean, 287 ; U. S. v. White, 5 Cranch, 457 ; U. S. v. Wood, 3 Wash. C. C. 440; Brown v. Com. 73 Penn. St. 321; Summons t>. State, 5 Ohio St. 325; Barnett v. People, 54 111. CHAP. IV.] TESTIMONY OP DECEASED WITNESS. [§ 177. fore arbitrators in a civil issue may thus be reproduced on trial of the same case in court ; ^ what a deceased witness swore on a criminal trial may be used on an action fordamages for the same ofEence.2 Depositions of deceased witnesses taken in a prior equity cause between parties substantially the same may be in like manner admitted in a suit at common law, though it is incum- bent on the party offering the depositions to put in evidence the bill and answer.* It has been even held that on an action for a malicious prosecution it is admissible to prove what a deceased witness swore to in the prosecution claimed to have been mali- cious.* Where, however, the parties in interest, in two civil suits, are essentially different, though the subject matter is the same, the evidence is not receivable.^ If there is a merely tech- nical variation of parties, this will not exclude the testimony.^ It is otherwise, however, if there be a substantial difference between the parties.'^ Unless the issues on the two suits are substantially the same, the evidence of the witness in the first suit cannot be re- produced.^ If the evidence was coram non judice, or the witness was not sworn,^ or cross-examination was precluded or restricted,^" the ground for admissibility falls away. It is not, however, nec- essary that there should be an actual cross-examination, provided there be liberty to cross-examine.^^ But though a party has cross- 325 ; State v. McO'Blenis, 24 Mo. ^ jJorris v. Monen, 3 Watts, 465. 402 ; O'Brian v. Com. 6 Bush, 563 ; " Phil. R. R. v. Howard, 13 How. Kendrick' v. State, 10 Humph. 479; 307. People V. Diaz, 6 Cal. 248 ; State v. ' Infra, § 760. See Melvin v. Whit- Atkins, 1 Overt. 229 ; though see con- ing, 7 Pick. 79. tra, Finn v. Com. 5 Rand. 701 ; U. S. « Infra, 782 ; Orr v. Hadley, 36 V. Sterland, 3 Quart. L. J. 244; 6 N. H. 575 ; Melvin u. Whiting, 7 Pick. Pitts. L.J. 50; Brogy u. Com. 10 Grat. 79; Perine v. Swaim, 2 Johns. Ch. 722. 475 ; Sample v. Coulson, 9 Watts & 1 Bailey v. Woods, 17 N. H. 365 ; S. 62 ; McMorine u. Storey, 4 Dev. & McAdams v. Stilwell, 13 Penn. St. 90; Bat. 189. though see Jessup v. Cook, 1 Halst. » See R. v. Griswell, 3 T. R. 721. (N. J.) 434. " Fitzgerald v. Fitzgerald, 3 Sw. & 2 Gavan v. Ellsworth, 45 Ga. 283. Tr. 397 ; Steinkeller v. Newton, 1 a Jones W.Jones, 48 Md. ; S. C. Scott N. R. 148; S. C. 9 C. & P. 4 Am. L. T. Rep. 489. The same rule 313 ; R. v. Ledbetter, 3 C. & Kir. applies to lost depositions whose maker 108. is out of the reach of process. Supra, '^ Cazenove v. Vaughan, 1 M. & Sel. § 137. 4; McCombie u. Anton, 6 M. & Gr. * Charlesworth v. Tinker, 18 Wis. 27. 633. 169 § 178.] THE LAW OF EVIDENCE. [book I. examined the testimony of a witness on a former trial, the tes- timony of the witness, if deceased, cannot be adduced against him, unless the opposite party be the same as in the former suit, or a successor or representative of the same.^ As the testimony taken in a former trial cannot be read if the witness is Death may . . . . . be pre- obtainable,^ the question arises, what proot is requisite from lapse to establish the fact that the witness cannot be obtained, of time. rpjjjg question is generally presented in the shape of alleged death ; and on this topic it is enough to say that death is to be inferred from the circumstances of each particular case, irrespective of any general presumption of law.^ § 178. Proof of mere disappearance of the original witness is So of wit- not by itself enough to admit such testimony if by due diligence the witness's attendance could have been se- cured,* though it is sufficient to show that the original witness is absent, and a non-resident in the state where the trial is held, being out of the jurisdiction of the court.^ It has even been held enough if the witness, though tech- nically within the jurisdiction, cannot, without extraordinary in- convenience, be brought to the trial.^ The testimony of a former witness, corruptly kept from court by the party against whom he is called, it has been held, may be in like manner reproduced.' nesses out of jurisdic- tion or since be- come in- competent. 1 Doe V. Derby, 1 A. & E. 783 ; Morgan u. Nicholl, L. R. 2 C. P. 117 ; Atkins V. Humphreys, 1 M. & Rob. 523. 2 See Chess v. Chess, 17 S. & R. 409. 2 See this discussed infra, § 1294. See, also, Benson v. Olive, 2 Str. 920. * U. S. V. Macomb, 5 McLean, 287; State V. Staples, 47 N. H. 113; Powell V. Waters, 17 Johns. R. 176; Wilbur v. Selden, 6 Cow. 162; Crary v. Sprague, 12 Wend. 41; Berney v. Mitchell, 34 N. J. L. 337; Brogy v. Com. 10 Grat^ 722; Summons v. State, 5 Ohio St. 325; Dupree v. State, 33 Ala. 380; Hobson V. Harper, 2 Blackf. 309; Ber- gen u. People, 17 111.426; Gerhauser 7). Ins. Co. 7 Nev. 174. 6 Fry V. Wood, 1 Atk. 445; Car- 170 penter v. Groff, 5 S. & R. 162; Cavan- hovan v. Hart, 21 Penn. St. 495; Wright V. Cumsty, 41 Penn. St. 102; Dye V. Com. 3 Bush, 3; Wilder v. St. Paul, 12 Minn. 192. See supra, § 137. 8 Fonsick ti. Egar, 6 Esp. 92; Ward V. Wells, 1 Taunt. 461; Mims v. Stur- tevant, 36 Ala. 636. See Varicas v. French, 2 C. & Kir. 1008; Carruthers V. Graham, 1 C. & Marsh. 6. As to California statute see Meyer v. Roth, 51 Cal. 582. ' Morley's case, 6 How. St. Tr. 770; R. V. Scaife, 2 Den. C. C. 281; 17 Q. B. 238; R. v. Guttridge, 9 C. & P. 473; Williams v. State, 19 Ga. 402. Infra, § 1265. In Blagrave v. Blagrave, 1 De Gex & Sm. 252, a person was tenant for life of certain real and personal estate, CHAP. IV.J TESTIMONY OF WITNESS AT FORMER TRIAL. [§ 178. So, the former testimony of a witness who has intermediately- become incompetent may be proved on a second trial.^ Answers to inquiries made on searching for the witness will and two suits were instituted against him in respect of alleged mismanage- ment of the property, the one heing commenced by the tenant for life in remainder, and referring only to the real estate, the other being commenced by the first tenant in tail, and embrac- ing both the real and the personal estate. Under these circumstances, it was proposed, on the authority of Nevil V. Johnson, 2 Vern. 247; Bar- ton V. Palmes, Free, in Ch. 233; Byrne v. Frere, 2 Moll. 157, and, particularly, the City of London v. Perkins, 3 Br. P. C. 602, to read, as against the defendant in the second .suit, the depositions that had been taken against him in the first, with- out any proof that the witnesses were dead, or otherwise incapable of being examined. Vice- Chancellor Knight Bruce, however, properly held that this course could not be pursued; and his decision would not have de- served any notice had it not been that, while pronouncing his judgment, he appeared to recognize the case of the City of London v. Perkins as an au- thority, to a certain extent, for the doctrine propounded by the plaintiff's counsel. The real facts, so argues Mr. Taylor, in discussing this case (Ev. § 440), were these: The city of London having filed a bill against Messrs. Perkins to recover certain tonnage dues under an alleged cus- tom, claimed to read, in evidence of reputation with respect to the cus- tom, certain depositions which had been taken by them in two former suits for the recovery of the same spe- cies of tonnage against two other de- fendants. The Court of Exchequer rejected this proof, on the ground that the deaths of the witnesses were not shown by " the depositions taken in the cause; " and they refused to allow the plaintiffs to prove by viva, voce tes- timony or by affidavit that the wit- nesses were in fact dead. The plain- tiffs appealed, and prayed, among other things, that the order of the court be- low should be reversed, and that they might be at liberty to read the deposi- tions ; whereupon the House of Lords, without granting or alluding to the last paragraph of the prayer, gave judg- ment that the order be reversed. See, and compare, 3 Br. P. C. 602, and 24 Lords J. 448, under date 23d Jan. 1734. See, also, Carrington v. Cor- nock, 2 Sim. 567. It is obvious, there- fore, that this case does not decide that depositions can in any event be read in evidence where the witnesses are themselves capable of being called. Neither can such a doctrine be sup- ported by any of the three other cases cited by the plaintiff's counsel in Bla- grave v. Blagrave, 1 De 6ex & Sm. 252. In Byrne v. Frere, 2 Moll. 157, it is clear that the witnesses were dead ; and there is nothing whatever to show that they were alive either in Nevil v. Johnson, 2 Vern. 447, or in Barton v. Palmes, Prec. in Ch. 233. These last two cases were decided at the com- mencement of the last century by a judge of no very exalted reputation, Sir Nathan Wright, and are, moreover, so wretchedly reported as to be utterly valueless as expositions of the law. 1 Jones V. Jones, 1 Cox Ch. 184; Andrews v. Palmer, 1 Ves. & B. 22; Reed v. Keed, 78 Penn. St. 415; Spey- erer u. Bennett, 79 Penn. St. 445; Pratt V. Patterson, 81 Penn. St. 114. See Gresley on Ev. 366, citing Gosse V. Tracey, 1 P. Wms: 287; Cope v. Parry, 2 J. & W. 588. 171 § 179.] THE LAW OF EVIDENCE. [BOOK I. be rejected as hearsay, if tendered in proof of the fact that the witness is abroad ; ^ but where the question is simply whether a diligent and unsuccessful search has been made for the witness, the better opinion is, that the answers should be received.^ In order to show that inquiries have been duly made at the house of the witness, his declarations as to where he lived cannot be received,^ neither will his statement in the deposition itself that he is about to go abroad, render it unnecessary to prove that he has put his purpose in execution.* § 179. Sickness, as has been incidentally seen, falls under the So of in- same rule. Thus in an old case, where a witness, on gfcl^wit- '^i® journey to the place of trial, was taken so ill as to ness. bg unable to proceed, we find it recorded that his dep- osition was allowed to be read ; ^ and the same liberty would apply to depositions taken in a prior case between the same parties. At the same time it should appear that the sickness is of a character imposing permanent inability, as otherwise, to adopt a criticism of Lord Ellenborough, there would be very sudden indispositions and recoveries.^ The rule laid down by Lord Ellenborough, that where a witness is taken ill, the party requiring his testimony should move to put off the trial, is less open to objection and abuse.'^ It is, of course, in such cases, a conflict of inconveniences ; but in criminal trials, where the ob- jection to secondary evidence of this class is peculiarly strong, it has been ruled that the deposition of a woman, who was so near her confinement as to be unable to attend a trial, could not at common law be received.^ It is otherwise, however, when from the nature of the illness or other infirmity no reasonable hope remains that the witness will be able to appear in court on any future occasion.^ Mental incapacity, from whatever cause, is a 1 Robinson v. Markis, 2 M. & Rob. ' Taylor's Ev. § 445, citing Harri- ses, son V. Blades, 3 Camp. 458. " Wyatt V. Bateman, 7 C. & P. 586; s k. i,. Savage, 5 C. & P. 143, per Austin V. Rumsey, 2 C. & Kir. 736. Patteson, J. 8 Doe V. Powell, 7 C. & P. 617. » R. v. Hogg, 6 C. & P. 176, per * Proctor V. Lainson, 7 C. & P. 631 ; Gurney, B. ; R. v. Edmunds, Ibid. 165, Taylor's Ev. § 443. per Tindal, C. J.; R. v. Wilshaw, C. 6 Luttrell V. Reynell, 1 Mod. 284. & Marsh. 145; R. v. Coekburn, Dear. Harrison u. Blades, 3 Camp. 458, & Bell, 203; 7 Cox, 265, i\ C. ; per Lord Ellenborough; Jones v. Jones v. Jone.s, 1 Cox Ch. R. 184; Brewer, 4 Taunt. 47, per Heath, J. Andrews v. Palmer, 1 Ves. & B. 22 ; 172 CHAP. IV.] TESTIMONY OF SICK OK INSANE WITNESS. [§ 180. sufficient inducement.^ It has been said that if the insanity is temporary, the true course is to continue the case until the wit- ness recovers ; ^ but the contrary view has been expressed by an English court,^ and there are some classes of cases (e. g. criminal of high grade) in which such a continuance cannot in law be granted, and others in which the inconveniences would be so great as to amount to an obstruction of justice. § 180. The evidence of the original witness may be proved by the notes of counsel, or of the judge, or of a short-hand reporter, sworn to by the reproducing witness ; nor is it necessary that the notes should purport to give more of deceased than the substance of the language of the original wit- ^"°®^^- ness.* In such case the notes are not evidence fer se ; their only Mode of proof of evidence Fry V. Wood, 1 Atk. 445; Corbett V. Corbett, Ibid. 335, 336. Contra, Doe V. Evans, 3 C. & P. 219, where Vaughan, J., is said to liave rejected the depositions of a witness, who was bed-ridden and nearly a century old, and quite unable to attend the trial. But this case is said to be obviously not law by Mr. Taylor, Ev. § 445. 1 " Though we have no express de- cision upon the subject, it seems clear upon principle that the deposition or testimony of a witness formerly taken in the same cause can be read in evi- dence, on showing that he is sick and unable to attend, insane, or in such a state of senility as to have lost his memory of the past, equally as where he is dead or out of the jurisdiction. 1 Greenl. on Ev. § 163, n.; Jack v. Woods, 5 Casey, 375. The evidence that Philip Smyser fell within the cat- egory of loss of memory and general mental incapacity from old age was very ample. Nor was it necessary to have him in court for examination. It would have been a painful and im- proper exposure, and no rule of law requires it. Besides, he would not have understood the meaning of the subpoena, — would not have attended, perhaps, voluntai'ily, — and an attach- ment against him for contempt would have been entirely out of the question. It was abundantly proved .that at the time the deposition was taken he was in the possession of his memory and reason. It was therefore rightly re- ceived." Sharswood, J., Emig v. Diehl, 76 Penn. St. 373; S. P., K. v. Griswell, 3 T. R. 720. » See Taylor's Ev. § 444. 8 K. V. Marshall, C. & Marsh. 147. * Infra, § 614 ; Tod v. Winchelsea, 3 C. & P. 387 ; Doncaster v. Day, 3 Taunt. 262 ; Jeanes v. Wheedon, 2 M. & Rob. 486 ; R. v. Joliffe, 4 T. R. 290 ; R. V. Christopher, 1 Den.,C. C. 536 ; 2 Car. & K. 994 ; U. S. v. Ma- comb, 5 McLean, 286 ; U. S. v. White, 5 Cranoh C. C. 457; Emery «. Fow- ler, 39 Me. 326; Lime Bank v. Hew- ett, 52 Me. 531 ; Young v. Dearborn, 22 JST. H. 372; Williams v. Willard, 23 Vt. 369; Woods v. Keyes, 14 Allen, 238; Clark v. Voree, 15 Wend. 193; Huff t;. Bennett, 6 N. Y. 337; Martin v. Cope, 3 Abb. (N. Y.) App. 182; Sloan v. Summers, 20 N. J. L. 16 ; Wolf V. Wyeth, 11 S. & R. 149 ; Rhine v. Robinson, 27 Penu. St. 30; Philadel. R. R. u. Spearen, 47 Penn. St. 300; Brown v. Com. 73 Penn. St. 321; Summons v. State, 5 Ohio St. 173 § 181.] THE LAW OF EVIDENCE. [book I. value being as means of refreshing the memory of the witness.^ But the whole relevant part of the testimony as remembered must, if required, be given, so that the substance of such testi- mony may be reproduced.^ The mere notes of the judge, un- sworn to, or unproved, cannot be received.^ If the judge be alive he must be called as a witness, the notes being then receiv- able to refresh his memory.* III. EXCEPTION AS TO DEPOSITIONS IN PERPETUAM MEMORIAM. § 181. Proof in perpetual memory (^probatio in perpetuam rei . memoriarri) is evidence taken provisionally, under order tions taken of a Competent court, to be used subsequently in cases uai mem- where no other mode of producing the same proof is °^^' feasible. The Roman law permits evidence to be thus provisionally received, in anticipation of suits which a party is prevented from instituting by no fault of his own ; supposing that in such case evidence exists which, if not at once taken, will be lost.^ The canon law, taking hold of the conscience, extended this right to all cases in which it was important, in the interests of justice, to register testimony which would otherwise be lost.® 325; Horneu. Williams, 23 Ind. 37; Marshall v. Adams, 11 111. 37; Mineral Point R. R. V. Keep, 22 111. 9; Rivereau u. St. Ament, 3 Greene (Iowa), 118; Burson v. Huntington, 21 Mich. 415, Fisher v. Kyle, 27 Mich. 454; Jones v. Ward, 3 Jones L. 24; Riggins v. Brown, 12 Ga. 271; Trammell v. Hemphill, 27 Ga. 525; Gildersleeve v. Caraway, 10 Ala. 260; Smith V. Steamboat Co. 1 How. Miss. 479; Thompson u. Blackwell, 17 B. Mon. 609; Thurmond v. Trammell, 28 Tex. 371; People v. Murphy, 45 Gal. 137. For a more stringent rule see U. S. V. Wood, 8 Wash. C. C. 440; Com. v. Richards, 18 Pick. 434; Warren v. Nichols, 6 Cow. 162; Black V. Woodrow, 39 Md. 194; Ephraims v. Murdock, 7 Blackf. 10. 1 Waters v. Waters, 35 Md. 531; Zitske t). Goldberg, 38 Wis. 217. See fully infra, § 514. » Goss «. Quinton, 3 M. & G. 625; 174 Robinson v. Scotney, 19 Ves. 584; Smith V. Biggs, 5 Sim. 391; Tibbetts V. Flanders, 18 N. H. 284; Marsh v. Jones, 21 Vt. 378; Com. v. Richards, 18 Pick. 434; Warren v. Nichols, 6 Met. 261; Wood v. Keyes, 14 Allen, 236; Buie v. Carver, 73 N. C. 264; Gildersleeve v. Caraway, 10 Ala. 260. Harrison v. Charlton, 42 Iowa, 573; Fell V. R. R. 43 Iowa, 177. Infra, §§ 514, 1109. 8 Huff V. Bennett, 4 Sandf. 120; Miles u. O'Hara, 4 Binn. 108; Schall 0. Miller, 5 Whart. R. 156; Living- ston V. Cox, 8 W. & S. 61; State v. McLeod, 1 Hawks, 344 ; Zitske v. Goldberg, 38 Wis. 217. * Grimm v. Hamel, 2 Hilt. 434. See Conradi v. Conradi, L. R. 1 P. & D. 514; Learmouth, ex parte, 6 Madd. 113. * See L. 40. D. ad. leg. (ix. 2); Nov. 90, c. 4. ^ Cap. 5. X. Ut lite n. cont. ii. 6 ; C. 34, 41, 43, X. De test. (ii. 20.) CHAP. IV.] DEPOSITIONS IN PERPETUAM MEMOKIAM. [§ 182. As to this form of testimony the following qualifications are ob- served : 1. Such evidence, to be thus perpetuated, must be ephemeral. Witnesses, whose death might be looked forward to, and whose testimony could not be otherwise reproduced, are taken as the usual illustrations of the rule. But the principle applies equally to all proof equally ephemeral. This principle is acted on by our courts when they direct particular articles (e. g. instruments of crime) to be impounded and placed under the custody of the court ; and when, on a crime being committed, steps are taken under the direction of a competent magistrate to have measure- ments and photographs of the locus delicti, and of all indications of guilt on building or soil. The canon law recognizes, in addi- tion, the right of a party who has interests dependent upon a writing in process of decay or obliteration to have such writing juridically perpetuated by exemplification.^ 2. The proceedings must as far as possible be carried on in conformity with the ordinary laws of evidence. Notice, for in- stance, should be given to all known parties in interest, and op- portunity afforded to them to come in and cross-examine.^ 3. The testimony must be deposited in court, to be open for juridical use to the opposite party. 4. Although such testimony can be taken before a suit is val- idly begun (e. g. in cases of contumacious absence making it im- possible to serve a wit), yet, by the canon law, if the institution of a suit, when practicable, is wilfully delayed, the testimony will be excluded.^ § 182. Under the English equity practice, when the testimony of a material witness is likely to be lost by death or departure from the realm, a bill to perpetuate testimony is granted to take the deposition of such witness.* In 1842, this right was ex- tended so as to enable any person who, under circumstances alleged by him to exist, would be entitled to legal remedies on the happening of any future event, though not before, to file a bill in chancery to perpetuate testimony which might be material 1 Cap. 4, X. ii. 6. * Gresley's Eq. Ev. 129; Smith's 2 See Heffter, Inst. p. 528. Chan. Pr. 765. As to N. Y. statute, s See Weiske, Rechtslexioon, II. see Fay's Stat. ii. 8-10. 164; Cap. 5, x. Dt lite (ii. 6). 175 § 184.J THE LAW OF EVIDENCE. [BOOK I. in pursuing such remedies. In 1856 the Divorce Court was au- thorized to make decrees declaratory of legitimacy in advance of legal process. In suits to perpetuate testimony, whether under these statutes, or in the ordinary equity practice, parties who have an interest in contesting the plaintiff's claim must be cited,^ and will be compelled to appear and answer ; ^ and the witness is to be examined according to the practice of courts of law in reference to witnesses going abroad.^ Ordinarily the bill must set forth that the facts to which the testimony relates cannot be immediately investigated in a court of law ; or if they can, that the sole right of action belongs to an opposing party ; or that such other party has interposed obstacles that prevent the insti- tution of an action.* § 183. In the United States, the time for recording the dep- ositions so taken is usually limited by statute ; and depositions not recorded within the prescribed time are inadmissible.^ It is generally essential to the admission of such depositions that they should have been taken before the commencement of the suit in which they are used ; *■ though it has been said that a deposition in perpetuam may be used in suits pending at the time of the caption, in cases where, prior to the trial of such suit, the witness has died.^ § 184. Publication of depositions taken in perpetual memory is refused except in cases of witnesses dead, or incapable of at- tendance, and in support of a suit or action.^ 1 Dearborn v. Dearborn, 10 N. H. ute, Patons v. Westervelt, 5 How. Pr. 473. See Taunce v. Gray, 21 Pick. 399; 2 "Wait's Pr. 675. 243. ' Dearborn v. Dearborn, 10 N. H. 2 Taylor's Ev. § 490, citing Ellice 473. As to Virginia practice, see V. Kowpell, 2 New E. 3, 150; S. C. Smith v. Grosjean, 1 Patt. &H. 109. 32Beav. 299, 308, 318. s 1 Smitli's Ch. Pr. 768; Taylor, * Taylor, § 490. § 490, citing Morrison v. Arnold, 19 * Booker v. Booker, 20 Ga. 777. Ves. 670 ; Atty. Gen. v. Ray, 2 Hare, See Com. v. Stone, Thach. C. C. 604. 518 ; "Weguelin v. Weguelin, 2 Cur- See Smith 0. Grosjean, 1 Patt. & H. teis, 263. 109. " The case of Vane v. Vane, which ' Braintree v. Hingham, 1 Pick, came before the court on appeal on 245 ; Com. v. Stone, Thach. C. C. 604 ; Wednesday, April 5, affords a strik- Myers v. Anderson, Wright (Ohio), ing illustration of the difference be- 513. See Fay's Stat. ii. 8-10. tween the principles on which the ' Greenfield v. Cushraan, 16 Mass. courts now act with regard to evidence 393. See, however, under N. Y. stat- and those which prevailed in former 176 CHAP. IV.] HKABSAY AS TO ANCIENT FACTS. [§ 186. IV. EXCEPTION AS TO MATTERS OF GENERAL INTEREST AND ANCIENT POSSESSION. § 185. In matters of general interest, as to which there is no such controversy existing as to induce the concocting jj of testimony for a particular end, the declarations of ofcom- T 1 ., . , ,. . . . inunitv ad- deceasea witnesses, as to reputation in ancient times, missib'ieas and ancient documentary evidence, may be received to of pubu" prove matters of public interest, such as boundaries of '°'^'^««'- times. The plain tifi in the suit, which was commenced in 1872, claimed to be entitled to large estates, upon an allegation that his elder brother, through whom the defendant derived title, was illegitimate, having been born before the marriage of his par- ents. The elder brother had during his life been treated as legitimate, and had taken possession of the estates accordingly ; but the plaintiff alleged that he had, since his brother's death, discovered facts which proved the ille- gitimacy. From the defendant's an- swer it appeared that in 1802, a few years after the birth of the plaintiffs elder brother, a suit had been insti- tuted in his name to perpetuate testi- mony of that which was then alleged to be a fact, viz., that he was born after the marriage of his parents. To that suit the plaintiff in Vane v. Vane was not a party ; indeed, he was not born till some years after it was com- menced. Some depositions were taken in it, and they remained in the cus- tody of the court. The defendant in Vane v. Vane applied for an order that these depositions might be pub- lished; the plaintiff resisted the ap- plication, on the grounds that it was contrary to the settled practice of the court, as shown by Coventry v, Cov- entry (2 R. & M. 144), to publish the depositions in such a suit, except as between the parties to it, and that the depositions could not in any event be VOL. I. 12 admissible as evidence against the plaintiff in Vane v. Vane in that suit. Vice-Chancellor Malins, reserving the question of the admissibility of the depositions as evidence, ordered that they should be published immediately after the time for the closing of the evidence in Vane v. Vane. The Court of Appeal (James & Mellish, L. JJ., and Baggallay, J. A.) went still fur- ther. They ordered that the deposi- tions and the proceedings in the old suit should at once be open to both the parties to the new suit, and they extended the time for closing the evi- dence in the new suit for two months, in order to give both parties ample opportunity for considering the depo- sitions in the old suit. Lord Justice Mellish pointed out that the deposi- tions in question, even though they might be inadmissible as evidence, might be the means of putting the parties on the right track to obtain evidence. And he added, that the views of the courts as to the best method to be adopted for the discov- ery of truth have entirely changed in recent times. And Lord Justice James based his decision on this ground, that if the depositions in question had been in the possession of one of the parties to the new suit, the other party would have been compelled to make discovery of them. The court, there- fore, ought to do that which it would have compelled the parties to do, and 177 § 185.J THE LAW OF EVIDENCE. [book I. counties and towns, and rights of common. Such facts, indeed, could rarely be proved at all if we excluded ancient testimony of this sort. And as to it we may make this observation : it has not been exposed to the test of oath and of cross-examination, but it has been exposed to an equally severe test, contemporane- ous criticism from parties, some of them adverse, and in the face of such criticism, it has settled down, with its consequences, in the rank of established facts. Hence, on such public matters as boundaries of counties and of municipalities, rights of common, and public highways, the declarations of deceased ancient per- sons, and old documents, each originating ante litem motam, or before a controversy had arisen for which such testimony could have been concocted, are admissible, when the witnesses had pe- culiar means of knowing what was the ancient reputation as to the matters of which they speak. ^ So landmarks and marked in fact the interests of truth and jus- be presumed to have had sufficient ac- tice required that both parties should quaintance with the subject to which see the depositions." London Solici- their declarations related ; and that, tors' Journal, Ap. 8, 1876. although contrary evidence that the 1 Best's Ev. § 497; R. u. Bedford- castle was excepted from the hundred shire, 4 E. & B. 535; Creese v. Bar- was given from Domesday Book and rett, 1 C, M. & R. 919; Butler v. an old charter of Henry VI., the Mountgarret, 7 Ho. Lo. Cases, 633; judge was right in telling the jury to Boardman v. Reed, 6 Peters, 341 ; act on the evidence of a more modern EUicott u. Pearl, 10 Pet. 412; Shutte and continuous reputation. But when V. Thompson, 15 Wall. 151; Smiths, the question was as to the rights of Forrest, 49 N. H. 230; Morse !!. Em- the county of the city of Chester, ery, 49 N. H. 239; Wood v. Foster, as between that city and the county 8 Allen, 24; Hannefin v. Blake, 102 palatine of Chester, a decree by a lord Mass. 297; Casey v. Inloes, 1 Gill, treasurer and other persons who were 430; McCausland v. Fleming, 63 not a competent tribunal, and who Penn. St. 38; Cline v. Catron, 22 had no personal knowledge of the Grat. 378; Toole v. Peterson, 9 Ired. L. 180; Shook v. Pate, 50 Ala. 91; Evans v. Hurt, 34 Tex. Ill; Cox v. State, 41 Tex. 1. In the Duke of Newcastle v. Hun- dred of Broxtowe, 4 B. & Ad. 273, the question was, whether Notting- facts except such as they derived from an irregular judicial proceeding, was held inadmissible evidence of repu- tation. Rogers v. Wood, 2 B. & Ad. 245; Powell's Evidence (4th ed.), 156. So the conversations of former ten- ham Castle was within the hundred; ants of a manor, and of other persons and it was held that orders made at interested in it, have been held good the county sessions, between 1654 and evidence as to the boundaries of the 1660, in which the castle was de- manor. Doe v. Sleeman, 9 Q. B. scribed as being within the hundred, 298. were admissible, as the justices must 178 CHAP. IV.] HEARSAY AS TO ANCIENT FACTS. [§ 185. boundaries, such as would be matters of general observation in a community, may, in this country, be proved by hearsay testi- mony as to what in old times was believed, whenever such bound- aries are coincident with public boundaries, or whenever such boundaries belong to a system in which the community is inter- ested.^ The ground for the reception of such testimony is the supposition that the universality and notoriety of the interests concerned remove the temptation and the ability to misrepresent, which would arise if such evidence were received in matters of merely private and personal concern. Accordingly, it is rejected wherever the point at issue appears to partake more of the nat- ure of a private than of a public interest.^ Thus Coltman, J., argues :^ " The true line (says BuUer, J., in R. v. Eriswell) for courts to adhere to is, that wherever evidence not on oath has been repeatedly received and sanctioned by judicial determina- tion, it shall be allowed ; but beyond that, the rule that no evi- dence shall be admitted, but what is on oath, shall be observed. .... Evidence of opinion is admitted in some cases without oath ; as for instance where reputation is given in evidence to prove a public right The principle upon which I con- ceive the exception to rest is this, that the reputation can hardly exist without the concurrence of many parties interested to in- vestigate the subject ; and such concurrence is presumptive evi- dence of the existence of an ancient right, of which, in most cases, direct proof can no longer be given, and ought not to be ex- pected ; a restriction now generally admitted as limiting the ex- ception is this, that the right claimed must be of a public nature affecting a considerable number of persons." * To this Alderson, B., adds : " The general interest which belongs to the subject I Boardman v. Eeed, 6 Pet. 328 ; tliough see Winter v. U. S. Hemp. Conn V. Penn, Pet. C. C. 496; Fra- 344; Redding v. McCubbin, 1 Har. aer v. Hunter, 5 Cr. C. C. 470; Ad- & M. 368; Ralston v. Miller, 3 Rand. amsu. Stanyan, 24N. H. 405; Wen- (Va.) 44; Doe v. Roe, 4 Hawks, dellu. Ab^jott, 45 N. H. 349; Child 116; Den. w. Herring, 3 Dev. L. 340; V. Kino-sbury, 46 Vt. 47; Com. v. Smith r. Russell, 37 Tex. 247. Infra, Heffron° 102 Mass. 148; Wooster u. §188. Butler, 13 Conn. 309; RatcIifFe v. 2 Powell's Evidence (4th ed.), 151. Cary, 4 Abb. (N. Y.) App. 4; Don- » Wright v. Tatham, 7 A. & E. 360. ahue V. Case, 61 N. Y. 631; Nieman ^ S. C. in the Exchequer Chamber, V. Ward, 1 Watts & S. 68; McCaus- 4 Bing. N. C. 528. land V. Fleming, 63 Penn. St. 36; 179 § 186.] THE LAW OF EVIDENCE. [BOOK I. would lead to immediate contradiction from others, unless the statement proved were true ; and the public nature of the right excludes the probability of individual bias, and makes the sanc- tion of an oath less necessary." ^ To the admissibility of such evidence it is no longer considered an essential prerequisite that there should be proof of the exercise of the right claimed within the memory of living men ; though the absence of such proof will affect the value of the evidence received.^ Nor, as we have seen, is it an objection to such evidence that it is hearsay derived from hearsay.^ § 186. A fact of interest to a whole community may indubi- Facts only ^^^ly be thus established, because the statement of a of personal witness as to the impression of a community is open to interest , n. i . i • cannot be correction by calling other witnesses as to such impres- 60 pr V . ^.^^^ j^ .^ otherwise, however, as to statements con- cerning facts as to which a community would not be likely to be impressed.* Acting on this distinction, the courts have excluded hearsay evidence, that a deceased person planted a tree near the road, and stated at the time of planting it that his object was to show where the boundary of the road was when he was a boy ; * and when the issue is whether a road be public or private, dec- larations by old persons since dead, that they have seen repairs done upon it, will not be admissible.^ So where the question was whether a turnpike stood within the limits of a town, though evidence of reputation was received to show that the town ex- tended to a certain point, yet declarations by old people, since dead, that formerly houses stood where none any longer re- mained, were rejected, on the ground that these statements were 1 Powell's Evidence (4th ed.), 152. * Moseley v. Davies, 11 Price, 162, •" Creese v. Barrett, 1 C, M. & R. 169-172; Chatfield v. Fryer, 1 Price, 19, 930; Dunraven v. Llewellyn, 15 253; Garnons ii. Barnard, 1 Anstr. Q. B. 791, 809; R. v. Sutton, 8 A. & 298; 3 Eag. & Y. 380, S. C. ; Wells E. 523, n. c ; Curzon v, Lomax, 5 v. Jesus College, 7 C. & P. 284 ; Dea- Esp. 60, per Ld. Ellenborough; Steel cle i\ Hancock, McClel. 85 ; 13 Price, V. Prickett, 2 Stark, R. 466, per Ab- 226, S. C. See, also. Crease v. Bar- bott, C. J.; Roe v. Parker, 5 T. R. rett, 1 C, M. & R. 919, 930; 5 Tyr. 32, per Grose, J.; though see U. S. 458, 472, S. C. V. Castro, 24 How. 346. 6 r. „. BUsg, 7 A. & E. 550. 8 Barraelough v. Johnson, 8 A. & « Ibid. 552. E. 99, 108; Taylor's Ev. § 554. Su- pra, § 49 ; infra, § 227. 180 CHAP, IV.] HEARSAY AS TO ANCIENT FACTS. [§ 187. evidence of a particular fact.^ Reputation of a neighborhood as to a particular " poplar corner " has been for the same reason excluded.^ § 187. As has been already incidentally noticed, the admission of such testimony is confined to litigation as to public interests. Between public interests and private inter- private ests, when the admissibility of hearsay comes up in not be so this relation, it is difficult to draw an exact line of * ^*"®'^' principle and the distinction may be best illustrated by recur- rence to the adjudications. Hearsay has been received in Eng- land to establish the custom of manors,^ the custom of mining in a particular district,* the limits of a town,^ the extent of a parish,® the boundary between counties, parishes, hamlets, or manors,'^ or even between a reputed manor, that is, an estate which from some intervening defect has ceased to be an actual manor, and the freehold of a private individual,^ or between old and new land in a manor ; ^ a claim of tolls on a public road,^'' the fact whether a road was public or private,^^ a prescrip- tive liability to repair sea-walls, i^ or bridges,^^ a claim of high- way ,i* a right of ferry,^^ the fact whether land on a river was a 1 Ireland v. Powell, per Chambre, J., Pea. Ev. 16, cited by Williams, J., in R. V. Bliss, 7 A. & E. 555. 2 Shutte V. Thompson, 15 Wall. 162. * Doe V. Sisson, 12 East, 62 ; Weeks V. Sparks, 1 M. & Sel. 679; Prichard V. Powell, 10 Q. B. 589, explained in Ld. Dunraven v. Llewellyn, 15 Q. B. 812; Moseley v. Da vies, 11 Price, 162; White v. Lisle, 4 Madd. 214, 224, 225; Short v. Lee, 4 Jac. & W. 464, 473. * Crease v. Barrett, 1 C, M. & E. 919. 928-930. See Davies v. Morgan, 1 C. & J. 587. ' Ireland v. Powell, cited Pea. Ev. 16, per Chambre, J., and recognized by Williams, J., in K. v. Bliss, 7 A. & E. 555. * R. V. Mytton, 2 E. & E. 557; S. C. nom. Mytton v. Thornbury, 29 L. J. M. C, 109. ' Nicholls V. Parker, 14 East, 331, n. ; Brisco u. Lomax, 8 A. & E. 1 98 ; 3 N. & P. 388, S. C; Evans v. Rees, 10 A. & E. 151 ; 2 P. &D. 627, S. C; Plaxton V. Dare, 1 B. & C. 1 7 ; 5 M. & R. 1, 5. C; Thomas v. Jenkins, 6 A. & E. 525 ; 1 N. & P. 588, S. C. 8 Doe V. Sleeman, 9 Q. B. 298. » Barnes v. Mawson, 1 M. & Sel. 81. w Brettu. Beales, M. &. M. 416, 418, per Ld. Tenterden. 11 R. V. Bliss, 7 A. & E. 555, per Williams, J. 12 R. V. Leigh, 10 A. & E. 398, 409, 411. IS R. V. Sutton, 8 A & E. 516; 3 N. & P. 569, S. C. M Crease v. Barrett, 1 C, M. & R. 929, per Parke, B. ; Reed v. Jackson, 1 East, 355. w Pim V. Curell, 6 M. & W, 234. 181 § 188.] THE LAW OF EVIDENCE. [BOOK 1 public landing-place or not,^ the existence and rights of a paro chial chapelry,^ the jurisdiction of a court, and the fact whether it was a court of record or not,^ the existence of a manor,* a prescriptive right of toll on all malt brought by the west coun- try barges to London,^ a right by immemorial custom, claimed by the deputy day meters of London, to measure, shovel, unload, and deliver all oysters brought by boat for sale within the limits of the port of London,^ a claim by the lord of a manor to all coals lying under a certain district of the manor,^ a claim of heriot custom in respect of freehold tenements within a manor, held in fee-simple,^ a custom of electing churchwardens by a select committee,^ and a prescriptive right to free warren as appurtenant to an entire manor. ^^ § 188. Proof of reputation, on the other hand, has been re- jected in England where the question was, what usage had ob- tained in electing a schoolmaster to a grammar school,^^ whether the sheriff of the county of Chester, or the corporation of the city of Chester, was bound to execute criminals,^^ whether cer- tain tenants of a manor had prescriptive rights of common for cattle levant and couchant,^^ what were the boundaries of a waste over which many of the tenants of a manor claimed a right of common appendant,^* whether the lord of a manor had a prescriptive right to all wreck within his manorial boundaries,^^ 1 Drinkwater v. Porter, 7 C. & P. ' Berry v. Banner, Pea. R. 156. 181, per Coleridge, J. "> Ld. Carnarvon v. Villebois, 13 " Carr v. Mostyn, 5 Ex. K. 69. M. &. W. 313. » Goodtitle v. Dew, Pea. Add. Cas. " Withnell o. Gartham, 1 Esp. 324, 204. 325, per Ld. Kenyon. * Steel V. Priekett, 2 Stark. R. 466, " r, „_ Antrobus, 2 A. & E. 793- per Abbott, C. J. ; Curzon v. Lomax, 795. 5 Esp. 60, per Ld. EUenborough. ^' See Ld. Dunraven v. Llewellyn, s CityoE London v. Clerke, Carth. 15 Q. B. 791, 811, 812, overruling 181; D. of Beaufort v. Smith, 4 Ex. Weeks v. Sparke, 1 M. & Sel. 679; R. 460. "Williams v. Morgan, 15 Q. B. 782. ' Laybourn v. Crisp, 4 M. & W. See, also, and compare Warrick v. 320. Queen's Coll. Oxford, 40 L. J. 785, ' Barnes v. Mawson, 1 M. & Sel. 788, per Ld. Hatherley, C. 77, 81. In that case evidence was " Ld. Dunraven w. Llewellyn, 15 Q. given of a uniform exercise of the B. 791. right. " Talbot v. Lewis, 1 C, M. & R. 8 Damerell v. Protheroe, 10 Q. B. 495 ; 5 Tyr. 1, S. C. 20. 182 CHAP. IV.] HEARSAY AS TO ANCIENT FACTS. [§ 188. whether the plaintiff was exclusive owner of the soil, or had a right of common only,^ whether the land in dispute had been purchased by a former occupier, or was part of an entailed es- tate of which he had been tenant for life,^ what patron formerly had the right of presentation to a living,^ whether a /arm modus existed, and what was its nature,* whether a party had a private right of way over a particular field,^ whether the tenants of a particular manor had the right of cutting and selling wood,® and what were the boundaries between two private estates." Where, however, it was shown by direct testimony, the admis- sion of which was unopposed, that the boundaries of the farm in question were identical with those of a hamlet, evidence of repu- tation as to the hamlet boundaries was let in for the purpose of proving those of the farm ; for though it was objected that evi- dence should not be thus indirectly admitted in a dispute be- tween private individuals, the court overruled the objection, Mr. Justice Coleridge observing, that " he never heard that a fact was not to be proved in the same manner when subsidiary, as when it was the very matter in issue." ^ 1 Richards v. Bassett, 10 B. & C. a similar distinction prevails as to character, which can be proved by- reputation, but not by particular acts. Supra, § 56. 8 Thomas v. Jenkins, 6 A. & E. 525, 529 ; 1 N. & P. S. C. 588. See, also, Brisco v. Lomax, 8 A. & E, 198, 213; 3 N. & P. 388, 5. C. ; Taylor's 663. 2 Doe B. Thomas, 14 East, 323 ; 2 Smith L. C. 432, S. C. « Per Ld. Kenyon, in R. v. Eris- well, 3 T. R. 723, questioning Bp. of Meath v. L. Belfield, 1 Wils. 215. * Wells V. Jesus College, 7 C. & P. 284, per Alderson, B. ; White v. Lisle, Ev. § 549 4 Madd. 214, 224, 225; Wright v. Rudd, cited 1 Ph. Ev. 241, per Ld. Lyndhurst. See, however, Webb v. Petts, Noy, 44 ; Donnison v. Elsley, 3 Eag. & Y. 1396, n., and cases cited; 1 Ph. Ev. 241, n. 2; Taylor's Ev. §S 548-9, from which the above re- capitulation is taken. ' Semhle, per Dampier, J., in Weeks V. Sparke, 1 M. & Sel. 691 ; and per Ld. Kenyon, in Reed v. Jackson, 1 East, 357. Blackett o. Lowes, 2 M. & Sel. 494, 500, per Ld. EUenborough. ' Clothier v. Chapman, 14 East, 331, n. We have already seen that "Whether evidence of reputation is admissible to prove or disprove a private prescriptive right or liability, is involved," continues Mr. Taylor, "in some doubt. See Prichard v. Powell, 10 Q. B. 589. In the case of More- wood V. Wood, where a prescriptive right of digging stones on the lord's waste was claimed by the defendant, as annexed to his estate, and the lord offered evidence of reputation to prove that no such right existed, the judges of the Court of King's Bench were equally divided on its admissibility; 14 East, 327, n. ; but since in that case it is difficult to see how the public could 183 § 189.] THE LAW OF EVIDENCE. [BOOK I. § 189. It is true, as will be seen by an examination of the have been interested in the matter, unless it had been shown, which it was not, that the rights of the common- ers were infringed by the defendant's claim, such evidence would probably, at the present day, be rejected. It has, however, been determined by the Court of Queen's Bench, that, on the trial of an indictment against the in- habitants of a county for the non- repair of a public bridge, to which the defendants had pleaded that certain persons named were liable to repair the bridge ratione tenurae, evidence of reputation was admissible to support the plea. R. v. Bedfordshire, 4 E. & B. 535, overruling K. v. Wavertree, 2 M. & Rob. 353, and confirming R. v. Cotton, 3 Camp. 444. In this case it was very properly considered that the fixing an individual with, or the re- lieving him from, such a liability as the one in question, had a necessary tendency to abridge or increase the liability of the whole neighborhood (see Prichard v. Powell, 10 Q. B. 599, per Patteson, J.; Drink water v. Por- ter, 7 C. & P. 181, per Coleridge, J.); and, moreover, that the admissibility of evidence of reputation, when ten- dered to disprove a public liability or right, could not be governed by a dif- ferent principle from that which pre- vails when such evidence is oflFered to establish the liability or right." In Dunraven v. Llewellyn, 15 Q. B. 791, in the Exchequer Chamber, the question was in trespass, as to the property in a plot of ground which lay between the waste of the plaintiff and the estate of the defendant. The plaintiff offered evidence of statements made before any controversy arose, by his deceased tenants, who as such had exercised commonable rights over the waste adjoining, the locus in quo ; and other statements made by de- 184 ceased persons, who, although not ten- ants, were resident in the manor, and well acquainted with it. No evidence was given of an actual enjoyment of the right on the close by the tenants. Parke, B., said : " If the question had been one in which all the inhabitants of the manor, or all the tenants of it, or of a particular district of it, had been interested, reputation from any deceased inhabitant or tenant, or e,ven deceased residents in the manor, would have been admissible, such residents having presumably a. knowledge of such local customs ; and if there had been a common law right fi^r every tenant of the manor to have common on the wastes of a manor, reputation from any deceased tenant as to the extent of those wastes, and therefore as to any particular land being waste of the manor, would have been ad- missible. But, although there are some books which state that ' common appendant' is of 'common right;' and that ' common appendant ' is the ' common law right of every free ten- ant of the lord's wastes,' .... it is not to be understood that every ten- ant of a manor has by the common law such a right ; but only that cer- tain tenants have such a right, not by prescription, but as a right by com- mon law incident to the grant This right, therefore, is not a com- mon right of all tenants, but belongs only to each grantee (before the stat- ute of Quia emptores) of arable land by virtue of his individual grant, and is an incident thereto; and is as ranch a peculiar right of the grantee as one derived by express grant or prescrip- tion We are therefore of opinion that the case is precisely in the same situation as if evidence had been of- fered that there were many persons, tenants of the manor, who had sepa- CHAP. IV.J HEARSAY AS TO ANCIENT FACTS. [§ 189. American authorities cited above,i that with us .we have a se- ries of rulings extending evidence of this class to litigation as to boundaries of pi-ivate estates. The apparent conflict between the English and American cases, on this point, however, is easily explained, and the two lines of authorities will be found to start from a common principle. In England the boundaries of each estate rest on an insulated title, defined by private deeds, and interesting personally only the possessor and his immediate neighbors. With such boundaries the community would not con- cern itself, unless in consequence of a litigation which would make the opinions of individuals inadmissible ; and as to such bound- aries there could be therefore no tradition or reputation entitled to weight. In America, on the other hand, our boundaries go back, in the main, to proprietary or government grants, or to purchases from the Indians ; and those grants or purchases were of masses of land in blocks, such blocks being generally marked by two distinguishing features, as to each of which the commu- nity would take an interest. In the first place the exterior boundaries of these blocks are lines based on landmarks some- times shifting, sometimes imperfectly described, the meaning of which tradition and reputation have to be invoked to settle.^ In rate prescriptive rights over the lord's ^ " In April, 1847, the joint commis- wastes I and reputation is not admis- sioners of Massachusetts and Rhode sible in the case of such separate right, Island, appointed to ascertain and es- each being private, and depending on tablish the boundary line between the each separate prescription, unless the two states, made an agreement and proposition can be supported, that, be- presented it to their respective legis- cause there are many such rights, the latures. rights have a public character, and " Parties living in Massachusetts, the evidence, therefore, becomes ad- whose rights were affected by this missible. decision, petitioned the legislature " We think this position cannot be against the acceptance of the com- maintained We are of opinion, missioners' report. Mr. Choate ap- therefore, that the evidence of repu- peared for these remonstrants. A por- tation offered in this case was, accord- tion of the boundary line was described ing to the well established rule in the in the agreement as follows: ' Begin- modern cases, inadmissible, as it is in ning,' &c., &c., ' thence to an angle on reality in support of a mere private the easterly side of Watuppa Pond, prescription ; and the number of these thence across the said pond to the two private rights does not make them to rocks on the westerly side of said be of a public nature." Powell's Ev. pond, and near thereto, then westerly 4th ed. 159. to the buttonwood-tree in the village J See notes to §§ 185, 186. of Fall River,' " &c., &c. 185 § 191.] THE LAW OF EVIDENCE, [BOOK I. the second place, the inner lines of these blocks, by virtue of which they were distributed among several proprietors, were generally traced from the same uncertain and fluctuating land- marks, which reputation and tradition were required to explain, and were based on a common system of surveying, so that the peculiarities of one became the peculiarities of all. Hence it is that even in such inner lines, constituting the particular bound- aries of private estates, the community took such an interest as made its common opinion of value, as exhibiting, not merely what the parties understood the boundaries to be, but what they really made the boundaries. In such cases, the reputation of the community, as given by ancient persons, competent to speak on the subject, before litigation, is admissible, as relating, in fact, to matters of public interest.^ § 190. Reputation, it need scarcely be added, must, in order Witnesses to be evidence, be traced to a local community. " In mustbe*^ a matter in which all are concerned, reputation from competent, any one appears to be receivable ; but of course it would be almost worthless, unless it came from persons who were shown to have some means of knowledge, as by living in the neighborhood." ^ § 191. In connection with evidence of reputation, which has Deciara- been just treated, may be considered that of the dec- competent larations of deceased persons, familiar with a location. In his argument, commenting on There is scarcely a case involving the boundary, Mr. Choate thus re- questions of this kind in which the ferred to this part of the description : landmarks do not require to be sup- " A boundary line between two sover- plemented by parol. And on these eign states described by a couple of landmarks, private deeds, as well as stones near a pond, and a huUonwood public grants, depend. sapling in a village. The commission- ^ See Conn v. Penn, 1 Pet. C. C. ers might as well have defined it as 496; Boardman v. Reed, 6 Pet. 328; starting from a blue jay, thence to a Raymond v. Coffey, 5 Oregon, 132. swarm of bees in hiving time, and " Per Parke, B., Crease v. Barrett, thence to five hundred foxes with fire- 1 C., M. & R. 928 ; Powell's Evidence, brands tied to their tails." Brown's 4th ed. 163. See, to same effect, Dun- Life of Choate, 298. raven v. Llewellyn, 15 Q. B. 809; When the boundaries between states Warwick v. Queen's Coll. 40 L. J. were so loosely given, we cannot ex- Ch. 785 ; Evans v. Taylor, 7 A. & E. pect to find greater exactness in the 617; though see Freeman i). Reed, 4 boundaries of the blocks of territory B. & S. 174; Smith v. Brounfield, Law which were obtained by proprietary R. 9 Ex. 241. grant, or were taken from the Indians. 186 CHAP. IV.] HEARSAY AS TO ANCIENT FACTS. [§ 191. and having no tendency to mislead. Such declarations deceased have been received, when the declarant is deceased, and pointing was at the time of the declarations competent and dis- ariesre- ' interested, provided, however, they were made while '^^'^**''*- he was pointing out the boundaries to which they relate.^ Such declarations are to be subjected to severer scrutiny than are dec- larations as to the reputation of a neighborhood as to matters of public interest. The latter class of declarations can be corrected by calling other witnesses as to the reputation of a community, which is a common fact open to general observation. The for- mer declarations (i. e. those by a deceased declarant as to his particular opinion) cannot be so corrected ; and it is proper, therefore, that such declarations should only be received when made coincidently with pointing out boundaries, and by parties either performing business duties at the time, or having no in- terest to subserve in making the declarations.^ 1 Daggett V. Shaw, 5 Met. 223 ; Bartlett v. Emerson, 7 Gray, 174; Flagg V. Mason, 8 Gray, 556; Long V. Colton, 116 Mass. 414; Bender v. Pitzer, 27 Penn. St. 333. See Cook V. Harris, 61 N. Y. 448; Hill v. Proc- tor, 10 W. Va. 80. In Great Falls Co. V. Worster, 15 N. H. 412; Smith v. Forest, 49 N. H. 230; and Scoggin v. Dalrymple, 7 Jones L. 46, a wider range was permitted. ^ In an action of tort for break- ing and entering the plaintiff's close, where it appeared that the plaintiff's deed mentioned, as the corner where the description began, a stake and stones on land of B. , and a witness testified that he had a conversation with B., since deceased, on his land, while he owned it, about the corner, it being admitted that B. had never owned the land in controversy, it was held that it was inadmissible to show what statement B. had made in this conversation. Long v. Colton, 116 Mass. 414. " The declarations of deceased per- sons respecting boundaries," said Colt, J., " are received as evidence as an exception to the rule which rejects hearsay testimony. In most of the decided cases, it is held that the dec- laration should appear to have been made in disparagement of title, or against the interest of the party mak- ing it; but in Daggett v. Shaw, 5 Met. 223, it is said that the rule, as practised in this commonwealth, is not so restricted, and that declara- tions of ancient persons, made while in possession of land owned by them, pointing out their boundaries on the land itself, are admissible as. evidence when nothing appears to show that they are interested to misrepresent, and it need not appear affirmatively that the declaration was made in re- striction of or against their own rights. And in Bartlett v. Emerson, 7 Gray, 174, it is held, that to be admissible, such declarations must have been made by persons now deceased, while in possession of land owned by them, and in the act of pointing out their boundaries, with respect to such bound- aries, and when nothing appears to 187 § 193.] THE LAW OF EVIDENCE. [book I. § 192. It should be remembered that declarations of this class are receivable only in cases where there is an ambiguity to be cleared, as where landmarks, requiring extrinsic evidence for their explanation, are referred to. Hence the declarations of a deceased person, that a particular boundary was laid in a par- ticular way, cannot be received to control deeds or other muni- ments of title in matters in which no ambiguity appears. ^ § 193. It is scarcely necessary to add that declarations offered to establish matters of general interest are generally inadmis- sible, if it appear they are made from sympathy with or from show an interest to deceive or misrep- resent. Ware v. Brookhouse, 7 Gray, 454; Flagg v. Mason, 8 Gray, 556. " The declarations offered and re- jected at the trial do not come within the exception thus defined to the rule by which hearsay is- excluded. The decisive objection to their competency is that they do not appear to have been made while in the act of pointing out the boundaries on the declarant's land. This is an element which can- not be disregarded, especially when the question is one of private bound- ary. The declaration derives its force as evidence from the fact that it ac- companies an act which it qualifies or gives character to. The declaration is then a part of the act. Without such accompanying act, the declara- tion is mere narrative, liable to be misunderstood or misapplied, and open to the objections which prevail against hearsay evidence. " The declaration rejected does not appear to have been offered for the purpose of establishing a boundary by traditionary evidence or reputation. Such evidence has sometimes been said by American courts to be admis- sible; and in the cases from New Hampshire, cited by the defendant, it seems to be held that declarations of deceased persons, who, from their sit- uation appear to have the means of knowledge, and who have no interest 188 to misrepresent the facts, are admis- sible to establish private boundaries, although not made on the land. Smith V. Forrest, 49 N. H. 230, 237; Great Falls Co. V. Worster, 15 N. H. 412, 437. But by the current of authority, and upon the better reason, such evi- dence is inadmissible for the purpose of proving the boundary of a private estate, where such boundary is not identical with another of a public or quasi public nature. 1 Greenl. Ev. § 145 ; 1 Phil. Ev. (N. Y. ed. 1849) 241, 242, Cowen & Hill's Notes; Hall V. Mayo, 97 Mass. 416." Colt, J., Long V. Colton, 116 Mass. 414. See Coyle V. Cleary, 116 Mass. 208, where proof was admitted that adjoining owners had erected a stone wall more than twenty years old as a division line. This, however, was an admis- sion by a predecessor in title, and on this ground evidence. That hearsay and reputation as -to boundaries are admissible when no certain monuments can be found, or any date to deter- mine courses and distances, see Board- inan v. Keed, 6 Peters, 328; Nys v. Bie- meret, 44 Wis. 104. 1 Ellicott V. Pearl, 10 Pet. Bartlett v. Emerson, 7 Gray, Clements v. Kyles, 13 Grat. 468. Shepherd v. Thompson, 4 N. H. Dibble v. Rogers, 13 Wend. Medley v. Williams, 7 Gill & J. 61 Moore v. Davis, 4 Heisk. 540. 412; 174; See 218 536 CHAP. IV.J ANCIENT DOCUMENTS. [§ 194. interest in any pending or projected suit ; ^ though it would be a better expression of the rule to say that inadmissibil- „ , ^ . . ■' Declara^ ity is confined to declarations which are made as part tions must of a litigation, and which, from the nature of things, litem mo- cannot prove the generality of a reputation whose want of generality is shown by the very trial in which they were ut- tered. The fact that they were uttered in a contest as to gen- erality excludes them, for it shows that the generality they are called to prove is a generality that is contested.^ It is plain, however, that a suit, whose existence is thus to exclude declara- tions, must be a suit in which the generality of the reputation sought to be set up is specifically at issue.^ § 194. Long possession cannot be proved by living witnesses ; and to prove it it is necessary to have recourse to an- Ancient cient documents relating to such possession. Such doc- admiSle uments, however, must be thirty years old, and must *° ^j™^^ be traced to the proper archives or depositaries. No possession, doubt, ancient documents, as well as modern, may be forged. To this, however, so far as concerns the question before us, there are two replies. In the first place, while documents attested by witnesses, since deceased, have been forged, the fact that there is a possibility of such falsification is an objection to credibility, but not to competency. In the second place, by requiring that the document should be taken from the proper depositary, the probability of falsification is greatly diminished. We find this test applied in all investigations in which the authenticity of an alleged ancient document is in dispute. The authen- But must ticity of the Eikon Basilike is conditioned upon its pos- p^per "u™ session by custodians to whom it was committed by '"<*'*"• Charles I.* The authenticity of the Casket Letters, from which the guilt of Mary Queen of Scots is inferred, depends upon their original possession by Bothwell.^ The authenticity of the Codex Flatoiensis, on which rests the Scandinavian claim to a pre-Co- lumbian discovery of America, depends in a large measure upon 1 See authorities grouped, supra, * See Dr. C. Wordsworth's treatise § 185; and also infra, § 213, as to on this topic. qualifications in respect to pedigree. ^ See Froude's Hist, of England, 2 See further infra, § 213. Vol. VII. « Freeman v. Phillips, 4 M. & Sel. 497; Gee v. Ward, 7 E. & B. 509. 189 § 195.] THE LAW OF EVIDENCE. [BOOK I. the assumption that it was found two centuries ago in the archives of the Island of Flatoe.^ The spuriousness, on the other hand, of Napoleon's alleged exculpatory dispatch of March 30, 1808, to Murat, is inferred from the fact that no record of that dispatch is found in the letter-books or records of the time in which it was afterwards claimed to have been issued.^ The same test is as important in juridical as it is in historical inquiry. Is the authenticity of an alleged ancient map or deed disputed ? If it can be shown to have been deposited, near the time of its alleged date, in the proper archives, the first condition of its admissibil- ity is secured. It is enough, in such case, to entitle a document to be admitted in evidence, to show that it bears on its face marks of having been executed at least thirty years since, and that it comes from the custodians who would have possessed it if it were genuine.^ Thus checked, recitals in deeds, more than thirty years old, are competent, though neither party claims under such deeds, to prove the location of a disputed line.* So ancient deeds and leases are admitted, under similar conditions, as declaratory of the public matters contained in them.^ That maps can be so used will be elsewhere seen ; ^ and so are ancient court rolls and other documents.'' § 195. What, however, is the proper depository, reception 1 See Edinburgh Review for Oct. Whitman u. Heneberry, 73 111. 109; 1876, p. 150. Middleton v. Mass. 2 Nott & McC. ' See Lanfrey's Hist. Napoleon, 55 ; Johnson v. Shaw, 41 Tex. 428. Vol. III. 198. 4 Sparhawk u. Bullard, 1 Met. 95; 8 See infra, §§ 668, 703, 733, 1359; Morris v. Callahan, 105 Mass. 129; Best's Ev. § 499; Malcomson v. O'Dea, Hathaway v. Evans, 113 Mass. 264. 10 H. of L. Cas. 614 ; Bishop of Meath ^ Curzou v. Lomax, 5 Esp. 60 ; Brett V. Winchester, 3 Bing. N. C. 200; v. Beales, M. & M. 416; Plaxton v. Croughtonu. Blake, 12 M. &W. 205; Dare, 10 B. &. C. 17; Anglesey v. R. V. Mytton, 2 E. & E. 557; Doe v. Hatherton, 10 M. & W. 218; Beau- Roberts, 13 M. & W. 520; Randolph fort v. Smith, 4 Ex. R. 471. t!. Gordon, 5 Price, 312; Barr v. Gratz, » gge infra, § 668. 4 Wheat. 213; Winn v. Patterson, 9 ' Freeman v. Phillips, 4 M. & Sel. Pet. 675; U. S. v. Castro, 24 How. 486; Gee v. Ward, 7 E. & B. 509; 346; Goodwin v. Jack, 62 Me. 414; Crease v. Barrett, 1 C, M. & R. 919; Jackson v. Luquere, 5 Cow. 221; Evans w. Taylor, 7 A. &E. 626; Daniel Hewlett V. Cock, 7 Wend. 371; Crow- v. Wilkin, 7 Ex. R.429; McCausland detv. Hopkins, 10 Paige, 190; Mc- v. Fleming, 63 Penn. St. 38; Casey Causland v. Fleming, 63 Penn. St. v. Imloes, 1 Gill, 430. See Tolman 38; Casey u. Imloes, 1 Gill, 430; Wil- v. Emerson, 4 Pick. 160, cited infra, lets V. Mandlebaum, 28 Mich. 521 ; § 643. 190 CHAP. IV.] ANCIENT DOCUMENTS. [§ 196. from which gives this sanction to an ancient instrument ? On this point we have several English rulings. On the one hand, where an expired lease was produced from the custody of the lessor, and proof was given that he had received it from a former occupier of the demised premises, who had paid for several years the precise, rent reserved by it, and who, subsequently to the ex- piration of the term, had procured it from two strangers who claimed no interest in it, the court held the deed to be admissi^ ble, without proof in what manner it had come into the hands of these strangers ; because, by the act of giving it up to the occu- pier, they admitted his right to the possession of it, and were con- sequently presumed to have held it on his account.^ So the poor- house of a union has been held not to be an unsuitable depository for the documents of any parish within the union.^ An un- proved will has been received when taken from the custody of a younger son, a devisee under the will.^ Again, a case stated for counsel's opinion by a deceased bishop, respecting his right of presentation to a living, has been admitted against a subse- quent bishop of the same see, on a question touching the same right, though the paper was not found in the public registry of the diocese, but among the private family documents of the de- scendants of the former bishop.^ § 196. An old book of a collector of tithes, so it has been ruled, may be received when taken from the custody either of the executor, or the successor, of the incumbent, or of the suc- cessor of the collector.^ So, where a mortgagee in fee brought an action of ejectment, and the defendant's case was, that the mortgagor, his father, had, previously to the mortgage, conveyed the estate to trustees in settlement, reserving to himself only a life interest, the court permitted the- son to put in the deed of settlement, it being more than thirty years old, though it was produced from among the papers of his late father, against whom its provisions were intended to operate ; and though it was strongly urged that the trustees or their representatives were 1 Rees I). Walters, 3 M. & W. 527. Andrew v. Motley, 12 C. B. (N. S.) See Slater o. Hodgson, 9 Q. B. 727; 626. Bullen V. Michael, 2 Price, 399; E. v. *■ Meath v. Winchester, 3 Bing. (N. Mytton, 2 E. & E. 557. C.) 183. 2 Slater v. Hodgson, 9 Q. B. 727. 6 Jbid.; Jones v. Waller, 3 Gwill. » Doe V. Pearce, 2 M. & Bob. 240; 346. 191 § 197.] THE LAW OF EVIDENCE. [book I. the parties entitled to its custody ; and the more especially so, as by the deed having been permitted to remain with the settlor, he had been enabled to practise a fraud on the mortgagee.^ § 197. Yet, on the other hand, there must be proof that will positively trace the document to a custody which would be proper and natural for it at the time of its inception. If the proof fall short of this, the document cannot be received. Thus, where the grandson of a former rector of a parish produced a book purporting to have been kept by such rector, but the book was not further traced to the grandfather ; it was held that the book was not sufficiently proved.^ Terriers which have been found among the papers of a mere landholder in the parish,^ have in like manner been rejected, because the legitimate depos- itory for such documents would be either the registry of the 1 Doe V. Samples, 8 A. & E. 151 ; 3 N. & P. 254, S. C. See, also, Ber- tie V. Beaumont, 2 Price, 307 ; Ld. Trimlestown v. Kemmis, 9 CI. & Fin. 774, 773 ; Taylor's Evidence, § 597. On this topic the remarks of Tin- dal, C. J., in the House of Lords, in the case of Meath v. Winchester, 3 Bing. N. C. 200-202; 10 Bligh, 462-464, S. C, have been so often cited as to become elementary author- ity. " Documents," said this excellent judge, " found in a place in which, and under the care of persons with whom, such papers might naturally and reasonably be expected to be found, are precisely in the custody which giyes authenticity to documents found within it ; for it is not necessary that they should be found in the best and most proper place of deposit. If docu- ments continue in such custody, there never would be any question as to their authenticity ; but it is when doc- uments are found in other than their proper place of deposit, that the inves- tigation commences, whether it was reasonable and natural, under the cir- 192 cumstances in the particular case, to expect that they should have been in the place where they are actually found; for it is obvious, that, while there can be only one place of deposit strictly and absolutely proper, there may be many and various, that are reasonable and probable, though dif- fering in degree ; some being more so, some less ; and in those cases the prop- osition to be determined is, whether the actual custody is so reasonably and probably to be accounted for, that it impresses the mind with the convic- tion that the instrument found in such custody must be genuine. That such is the character and description of the custody, which is held sufficiently genuine to render a document admis- sible, appears from all the cases." See, also. Doe v. Samples, 8 A. & E. 154, per Patteson, J.; Doe v. Phillips, 8 Q. B. 158. 2 Randolph v. Gordon, 5 Price, 312. = Atkins V. Hatton, 2 Anstr. 386 ; 3 Gwill. 1406 ; 4 Wood's Decrees, 410; 2 Eag. & Y. 403, S. C. ; At- kins V. Ld. Willoughby De Broke, 4 Wood's Decrees, 424. CHAP. IV.] ANCIEHT DOCUMENTS. [§ 198. bishop, the archdeacon, or the church chest.i The same reason has led to the rejection of the registers of burials and baptisms required by the Act of 52 G. 3, c. 146, §§ 1, 5, to be kept by the clergyman of the parish either at his own residence or in the church, when such registers have been produced from the house of the parish clerk.^ The courts have also, on the same principle, rejected a manuscript found in the Herald's OfiSce, enumerating the possessions of a dissolved monastery ; ^ a curious manuscript book entitled the " Secretum Abbatis," preserved in the Bod- leian Library at Oxford, and containing a grant to an abbey ; * an old grant to a priory, brought from the Cottonian MSS. in the British Museum ; ^ and two ancient writings, purporting re- spectively to be an endowment of a vicarage and an inspeximus of the endowment under the seal of a bishop, both of which had been purchased at a sale as part of a private collection of man- uscripts.s In all cases of this class it is for the court to deter- mine, as a preliminary question, whether the document came from the proper quarter. § 198. Supposing the depository to be unquestionably suita- ble, must the custodian be sworn, when the document on its face purports to belong to the party who tenders it in evidence ? There are some judicial indications which would favor the negative of this view ; ^ but the better opinion is, that even when the proper custodian of the document is the party ofEering it, the fact of custody must be proved as any other fact necessary to make out a case.^ When there is no proper custodian for a document remaining, then the document may be received from the hands of any person to whom such document may naturally have fallen.® Thus proprietary books, in the State of Maine, bearing strong internal proof of genuineness, have been received 1 Armstrong v. Hewett, 4 Price, ' K. v. Eyton, 5 T. R. 259 ; R. v. 216. Neverthong, 2 M. & Sel. 337. 2 Doe V. Fowler, 14 Q. B. 700. ' Evans v. Rees, 10 A. & E. 151. « Lygon V. Strutt, 2 Anstr. 601. See Earl v. Leyris, 4 Esp. 1 ; Doe v. < Michell V. Rabbetts, cited 3 Taunt. Keeling, 11 Q. B. 884. 91. ' Monumoi Great Beach v. Rogers, « Swinnerton v. M. of Stafford, 3 1 Mass. 159 ; Rust v. Mill Co. 6 Taunt. 91. Pick. 165 ; Tolman v. Emerson, 4 « Potts V. Durant, 3 Anstr. 789 ; 2 Pick. 16.0 ; King v. Little, 1 Cush. Eag. & Y. 432, S. C. See, also, illus- 440. tration of same distinction, supra, § 56. VOL. I. 13 193 § 199.] THE LAW OF EVIDENCE. [BOOK I. from the custody of the librarian of the Maine Historical Soci- ety, there being no remaining natural custodian.^ § 199. Must it be proved, in order to admit such documents, Coincident that acts (e. g. taking of possession) were coinci- K^not dently done under them? So it has been zealously needed. maintained ; ^ but to require such preliminary proof is to deny the admissibility of the evidence to which such proof is preliminary. Ancient documents are admitted, if taken from the proper depository, on the assumption that living memory does not go back to the period to which the ancient document relates. If, however, living memory does go back to the period to which the document relates, so far as to be able to prove coincident possession, then the reason for the admission of the document fails ; or if, to prove coincident possession, a second ancient document is adduced, the case is no ways helped ; since, to sustain the second ancient document, coincident possession would still have to be proved. Hence, it has been properly ruled that the absence of proof of coincident possession goes not to admissibility but to weight.^ So where, in order to prove a prescriptive right of fishery as appurtenant to a manor, ancient 1 Goodwin v. Jack, 62 Me. 416. tors.' To require such evidence, or In this case, Dickerson, J., said : even parol testimony in the ordinary " The books ofifered in evidence pur- way, that the books offered are what porting to be ' Pejepscot Records,' they purport to be, would be practi- cover a period of more than a hun- cally to exclude these records from dred years, and contain strong inter- being used as evidence in any case nal evidence of their own verity, affecting the title to any land orii'i- There is no evidence to impeach their nally derived from those proprietors, genuineness, or of the present exis- " Under these circumstances, we tence of the proprietary, or of any think that the books offered are to be person authorized to represent it, or regarded as proving themselves to be having any proprietary interest there- what they purport to be, —' Pejepscot in. Previous to the decease of John Records,' — and that they are com- McKeen, of Brunswick, they were in petent evidence of the doings of the his possession, he claiming title to cer- ' Pejepscot Proprietors,' without parol tain lands under the ' Pejepscot Pro- or other evidence of their original or- prietors.' At the time of the trial ganization, or the regularity of their they were in the possession of the subsequent meetings." librarian of the Maine Historical So- » See fully for cases infra, § 733. ciety. Time has swept away all who ' Malcomson v. O'Dea, 10 H. of L. could have testified to the original Cas. 614. See to same effect Whit- organization of the association, so man v. Heneberry, 73 111. 109; Gard- long known as ' Pejepscot Proprie- ner v. Granniss, 67 Ga. 539. 194 CHAP. IV.] ANCIENT DOCUMENTS. [§ 200. licenses to fish in the locus in quo, which appeared on the court rolls, and "were granted by former lords in consideration of cer- tain rents, were tendered in evidence, Mr. Justice Heath, after argument, held that they were admissible without any proof of the rents having been paid ; but he added that, " to give them any lueight, it must be shown that in latter times payments had been made under licenses of the same kind, or that the lords of the manor had exercised other acts of ownership over the fishery which had been acquiesced in." ^ So, when it became necessary to show that the land in question had been part of the estate of the lessor's ancestor, Sir William Windham, and when, in order to establish this fact, a document was produced from the muni- ment room of the property inherited from Sir William, which appeared' to be a counterpart of a lease of this land made by him, but it purported to be executed only by the lessee, and no proof was given of actual possession under it ; the Court of Queen's Bench, after consulting with some of the other judges, held that this deed was admissible in evidence.^ And again, in a case relied on in the argument of that last cited, where the action was brought to try the title to the bed of a river, after proof of a grant from Henry VIII., two counterparts of leases were produced from the duke's muniment room, comprehending the soil in question. No payment by a tenant was proved, nor any modern act of ownership ; but Lord Denman admitted the instruments as coming from the right custody, observing thab no circumstance in the case threw suspicion upon them, and that " the absence of other kinds of proof was mere matter of observa- tion." 3 § 200. In matters of general interest, it is settled, a verdict or a judgment, in all cases in which reputation is evidence, is admis- sible in subsequent suits to affect even strangers to the original 1 Rogers u. Allen, 1 Camp. 309-311. R. N. S. 123; Doe v. Passingham, 2 See Malcomson v. O'Dea, 10 H. of L. C. & P. 444, per Burrough, J.; Ran- Cas. 593. cliffe v. Parkyns, 6 Dow, 202, per Ld. " Doe V. Pulman, 3 Q. B. 622, Eldon ; McKenire v. Eraser, 9 Ves. 626. See, also, Clarkson v. Wood- 5 ; Taylor's Ev. § 600, from which the house, 5 T. R. 413, n., per Ld. Mans- above references are taken. field; 3 Doug. 189, S. C; Brett v. » Bedford v. Lopez, cited 3 Q. B. Beales, M. & M. 41'8, per Ld. Ten- 623. terden ; Tisdall v. Parnell, 14 Ir. Law 195 § 201.] THE LAW OF EVIDENCE. [BOOK I. suit, in all cases in which such verdict or judgment went directly Verdicts to the question of reputation.^ Even a verdict with- meli&ld'- oiit judgment is for this purpose admissible ; 2 and a ver- missibie to ^[f,^^ taken in an inferior court, provided the proceed- proverepu- n » . 1 i i • i • ■t_i tation. ings be regularly and fairly conducted, is as admissible as a verdict taken in a superior court.^ But an award in a suit between strangers has been held inadmissible for the pur- pose above mentioned ; * and so have interlocutory orders in chancery.^ V. EXCEPTION AS TO PEDIGREE AND RELATIONSHIP ; BIRTH, MARRIAGE, AND DEATH. § 201. Pedigree, from the nature of things, is open to proof Hearsay by hearsay, in respect to all family incidents as to which *s?o'^'^u ^^ living witnesses can be found. If what has been Sf«e- handed down in families cannot be in this way proved, pedigree could not in most cases be proved at all. Nor is such tradition, in its best sense, open to the objections applicable to hearsay. A., called as a witness to pedigree, may indeed say, " B. told me this." But pedigree testimony usually takes another shape. It is not, " B. told this," but, " such was the understanding of the family." The constitution of a family may become a matter of immediate perception. A., B., C, and D. are brought up as brothers in the same household. If any one says to A., " B. is your brother," A. would not regard such an announcement as any more disclosing a fact to him than would the announcement to him that he is a human being. That B. is his brother, is one of the conditions of his family existence. He fits into a family of which B. is a member, in the same way that one stone fits into an arch of which another stone is part. The position -of the one presupposes the position of the other.* As to remoter relations the same reasoning applies, though with diminishing force. The recognition of such relations forms part 1 Infra, §§ 820-23, 827, 828-33 ; « Ibid. Reed v. Jackson, 1 East, 355; Brisco * Evans v. Rees, 10 A. & E. 151; V. Lomax, 8 A. & E. 211; Evans v. Wenman v. Mackenzie, 5 E. & B. Rees, 10 A. & E. 256 ; Pirn v. Curell, 447. 6 M. & W. 266. 6 Pim V. Curell, 6 M. & W. 234, "Brisco II. Lomax, 8 A. & E. 198. 265. See Carnavon v. Villebois, 13 M. & » See Mansfield, C. J., in 4 Camp. W. 313; R. V. Bierlow, 13 Q. B. 933. 416. 196 CHAP. IV.J PEDIGREE. [§ 202. of a family atmosphere ; the existence of such relationship con- stitutes the family. A family, in this sense, is an object of im- mediate, instead of mediate perception. To say that " A. is a brother or a cousin, or an uncle or an aunt," is not hearsay but primary evidence. But the recognition of pedigree is not limited to such conditions. Even when there is no family consensus to be appealed to, what is said by one member of the family to another as to pedigree may be received to prove such pedigree. Hence it is admissible for A. to prove, with the limitations here- after expressed, what was told him by deceased relatives as to family relations.^ Nor does the fact that family registers exist exclude proof of declarations of deceased members of the family .^ Even ex parte affidavits, taken ante litem motam, have been received for this purpose.^ § 202. To the admissibility of declarations when offered as 1 Crease v. Barrett, 1 C, M. & R. 928 ; Vowles v. Young, 13 Ves. Jr. 140;' Crouch v. Hooper, 1 Ex. 255; Hubbard v. Lees, L. K. 1 Ex. 255; Crispin v. Doglioni, 32 L. J. P. & M. 109 ; Monkton v. Atty. Gen. 2 R. & M. 147; Davis v. Wood, 1 Wheat. 6; Banert v. Day, 3 Wash. C. C. 243; Chirac v. Reinecker, 2 Pet. 621 ; EUi- cottiJ. Pearl, 10 Pet. 412; Jewell v. Jewell, 17 Pet. 213; 1 How. 219; Blackburn v. Crawford, 3 Wall. 175; Secristw. Green, 3 Wall. 744; Gaines V. New Orleans. 6 Wall. 642 ; Dussert V. Roe, 1 Wall. Jr. 39; Mooers v. Bunker, 29 N. H. 420; Webb v. Richardson, 42 Vt. 465; Mason v. Fuller, 45 Vt. 29 ; Chapman v. Chap- man, 2 Conn. 101 ; Jackson i'. Cooley, 8 Johns. R. 128; Jackson v. Browner, 18 Johns. R. 37 ; Douglass v. Sander- son, 2 Dall. 116; Winder v. Little, 1 Yeates, 152; Watson o. Brewster, 1 Penn. St. 381 ; Shuman v. Shuman, 27 Penn. St. 90; Am. Life Ins. Co. v. Bosenagle, 77 Penn. St. 507 ; State V. Green well, 4 Gill & J. 407 ; Jones v. Jones, 36 Md. 447 ; Cuddy v. Brown, 78 111. 415; Stockton v. Williams, Walk. (Mich.) 120; Morgan v. Pur- nell, 4 Hawks, 95 ; Cowan v. Hite, 2 A. K. Marsh. 288 ; Speed v. Brooks, 7 J. J. Marshall, 119; Saunders v. Fuller, 4 Humph. 516 ; Eaton v. Tall- madge, 24 Wis. 217; Anderson v. Parker, 6 Cal. 197. See Games w. Crandall, 10 Iowa, 377. ' Clements v. Hunt, 1 Jones L. 400. > Hurst V. Jones, Wall. Jr. 373. " Hearsay is good evidence to prove who is my grandfather, when he mar- ried, and what children he had, &c., of which it is not reasonable to pre- sume I have better evidence. So, to prove my father, mother, cousin, or other relation beyond the sea dead ; and the common reputation and belief of it in the family give credit to such evidence." Bull. N. P. 294, cited in note, 15 East, 294; Powell's Evi- dence, 4th ed. 177. As to the danger of placing too great reliance on this species of evi- dence, see the judgment of Lord Rom- illy in Crouch v. Hooper, 16 Beav. 182 ; Powell's Evidence, 4th ed. 174. 197 §.203.] THE LAW OF EVIDENCE. [BOOK I. authoritative in pedigree, it is essential that they should be made Keiation- hy lawful relatives.^ Thus, the declarations of deceased saryto'ad- Servants and intimate acquaintances are rejected, ^ missibiiity. gygjj though coming under the head of dying declara- tions ; ^ nor, as we shall hereafter see,* are the declarations of illegitimate relations received.^ " The law resorts to hearsay of relations upon the principle of interest in the person from whom the descent is to be made out ; and it is not necessary that evidence of consanguinity should have the correctness re- quired as to other facts. If a person says another is his relative or next of kin, it is not necessary to state how the consanguinity exists. It is sufficient that he says A. is his relation, without stating the particular degree, which perhaps he could not tell if asked. But it is evidence, from the interest of the person in knowing the connections of the family ; therefore, the opinion of the neighborhood of what passed among the acquaintances will not do." ^ But the declarations by a deceased husband as to his wife's legitimacy are admissible, as well as those of her blood re- lations.^ § 203. Admissibility has been held not to extend as far as to statements made by a wife's father.^ And a court has re- fused to admit the declarations of one brother, that a deceased brother had an illegitimate son.^ But legitimacy may be so established ; 1° and the declarations of a deceased father, that a son is illegitimate, have been received on the issue of legiti- macy .^i The better opinion is that a party's declarations, that he is himself illegitimate, are inadmissible, unless it be against himself and his successors as to title acquired subsequently to the declarations.^^ * See Connecticut Ins. Co. v. » Crispin v. Doglioni, 3 Sw. & Tr. Schwenk, 94 U. S. 593. 44. Infra, § 216. ^ Johnson u. Lawson, 9 Moore, 183. i" Gaines v. New Orleans, 6 Wall. » Doe V. Ridgway, 4 B. & Aid. 53. 642. Infra, §§ 208-216. * Infra, § 216. u Barnum o. Barnum, 42 Md. 251. 6 See fully infra, § 216. See infra, § 216. * Per Lord Erskine, VOwles v. " See, as tending to this conelu- Young, 13 Ves. 147. sion, R. v. Rishworth, 2 Q. B. 487; » Ibid. Infra, § 217. Dyke v. Williams, 2 Sw. & Tr. 49l'; » Shrewsbury Peerage, 7 H. of L. Hitchins v. Eardley, L. R. P. & D.' ^*^- 23- 248 ; Cooke v. Lloyd, Pea. Ev. App! 198 XXTUl. CHAP. IV. j PEDIGREE. [§ 205. § 204. It has been also ruled i that the declarations of a de- ceased woman, of statements made by her former husband, that his estate would go to J. P., and then to J. F.'s heir, were ad- missible to show the relationship of the lessor of the plaintiff to J. F. "Consanguinity, or affinity by blood, therefore," said Best, C. J., " is not necessary, and for this obvious reason, that a party by marriage is more likely to be informed of the state of the family of which he is to become a member, than a relation who is only distantly connected by blood ; as by frequent con- versations the former may hear the particulars and characters of branches of the family long since dead The declarations of deceased persons must be taken with all their imperfections, and if they appear to have been made honestly and fairly, they are receivable. If, however, they are made post litem motam, they are not admissible, as the party making them must be pre- sumed to have an interest, and not to have expressed an unprej- udiced or unbiased opinion." " There seems," says Parke, B., " to be no limitation in the rule as to blood relations ; but with regard to relationship by affinity it is different ; it seems to be confined to declarations by a husband as to his wife's relations. It is for the judge to decide, as a question precedent to the ad- mission of the evidence, whether the declarant has been suffi- ciently proved to have been connected by consanguinity or affin- ity to the family in question ; and it makes no difference that the legitimacy of the declarant happens to be also the only ques- tion in issue." ^ But the qualification as to the wife's declara- tions is, as we will see, abandoned ; it being now held that the statement of a wife as to her husband's family, and that of a husband as to his wife's family, stand upon the same footing.* § 205. Common reputation, in a family connection, as tp who are members of a family, is therefore admissible, when „ ..,, . . ., Common no superior evidence is attainable, or m connection with reputation superior evidence, to prove pedigree, legitimacy, and for same marriage.* Such reputation may amount to hearsay P"'P°^^- 1 Doe V. Randall, 2 M. & P. 20. Powell's Evidence, 4th ed. 175. Infra, " Parke, B., in Davies v. Lowndes, § 205. 7 Scott N. R. 185. See Doe v. Da- * Doer. Griffin, 1 5 East, 293; Shed- vies, 10 Q. B. 314. den v. Atty. Gen. 2 Sw. &Tr. 170; 80 » Per Lord St. Leonards, Shrews- L. J. P. & M. 21 7; Stegall v. Stegall, bury Peerage case, 7 H. L. Cas. 23 ; 2 Brock. 256 ; Strickland v. Poole, 1 199 § 206.] THE LAW OF EVIDENCE. [BOOK I. upon hearsay ; it may even te without a traceable authoritative source; but it is not for this reason to be excluded, unless it should appear to come directly from strangers, whose information would be only secondary.^ Thus, the declarations of a deceased widow, respecting a statement which her husband had made to her as to who his cousins were, — as also the declaration of a relative, in which he asserts generally that he has heard what he states, — have been received. If this were not so, the main ob- ject of relaxing the ordinary rules of evidence would be frus- trated, since it seldom happens that the declarations of deceased relatives embrace matters within their own personal knowledge.^ For this reason, as we have just seen, reputation in a family, proved by the testimony of a surviving member of if, is re- ceived.^ But when the fact of marriage is directly in issue (e. g. in prosecution for bigamy, or in suits where the imme- diate issue in the case is whether a marriage took place), proof of general reputation, unsuppocted by other proof, is inadmissible either to prove or disprove the marriage.* It is otherwise, how- ever, when other inferences come in, to aid such proof. Thus, evidence that a person went abroad when a young man, and according to the repute of the family had afterwards died in the West Indies, and that the family had never heard of his being married, is admissible to show that he died unmarried.^ § 206. The same distinction is applied where a suit by a rever- sioner is brought against a tenant pour autre vie, in which case Ball. 34; EUiottj;. Peirsoll,! Pet. P. 500 ; Shedden u. Atty. Gen. 30 L. J. Pr. & Mat. 217; 2 Sw. & T. 170. » Ibid. ; Doe v. Randall, 2 M. & P. 20. « Doe V. Griffin, 15 East, 293, and cases cited supra in this section. * Shields V. Boucher, 1 De Gex & S. 40 ; Westfield v. Warren, 3 Halst. 249; Carrie v. Gumming, 26 Ga. 690; 328 ; Waldron y. Tuttle. 4 N. H. 371 Chamberlain v. Chamberlain, 71 N. Y. 423; Jackson v. Cooley, 8 Johns. R 128; Copes u. Pearce, 7 Gill, 247 Johnson i;. Howard, 1 Har. & M. 281 Craufurd v. Blackburn, 17 Md. 49 Hutohins v. Kimmell, 31 Mich. 126 Proctor V. Bigelow, S. C. Mich. 1878 Ewell V. State, 6 Yerg. 364 ; Flowers Davis v. Orme, 36 Ala. ^40; Hender- V. Haralson, 6 Yerg. 494; Morgan v. son v. Cargill, 81 Miss. 367; Harman Purnell, 4 Hawks, 95. v. Harman, 16 111. 85 ; Miner v. State, 1 Slany v. Wade, 1 Myl. & Cr. 355; 58 111. 59. See supra, § 84; infra, Monkton v. Atty. Gen. 2 Rus. & M. § 224. 165; Robson v. Atty. Gen. 10 CI. & « Doe v. Griffin, 1 East, 298; Pow- 200 ell's Evidence, 4th ed. 177. CHAP. IV.] PEDIGREE. [§ 208. the death of the cestui que vie cannot be proved solely by reputa- tion.^ Nor can we extend the admissibility of this evidence to determine questions of social or political standing.^ And so status as to race cannot be established by such proof .^ § 207. Sometimes it is argued that the declarations of deceased members of a family are admissible for this purpose, be- Evidence cause we are all interested not only in knowing who are relatives to related to us, but in telling truly what we know. The ni^ze^as'to latter assertion, however, may be subject to some qual- motive, ification. We are interested in telling of creditable, but not of discreditable' relations. Even as to the nearest relationships, a person of the highest integrity and truthfulness may seal his lips ; while distant relationships, sometimes problematical, approximate, even to the most impartial, in proportion to their respectability. In addition to this, we must remember that such evidence " is from its nature very much exposed to fraud and fabrication ; and even assuming the declaration, inscription, &c., correctly reported by the medium of evidence used, many instances have shown how erroneous is the assumption, that all the members of a family, especially in the inferior walks of life, are even tolerably conver- sant with the particulars of its pedigree." * In any view the dec- laration must not be in the declarant's own interest. Thus a statement by a deceased person, who had been married twice, tending to invalidate his first, and thus establish his second mar- riage, has been rejected.* But it is no objection that the decla- rant was in pari oasu with the party tendering the evidence.® § 208. Pedigree, if we are to understand it as coextensive with the facts to prove which evidence of the class before us g^^,,^ ^^^ is admissible, includes not merely the relationships of a larations . ^ may ex- familv, but the dates of the births, deaths, and mar- tend to ds.t6S flnd riages of its members, when the object of such evidence 1 Figg V. Wedderburne, 6 Jur. 218. and, particularly, Cockburn, C. J.'s " See R. V. Erith, 8 East, 539. commeDts on Lady Tichborne's dec- ' Davis V. Wood, 1 Wheat. 6 ; Da- larations in the Tichborne prosecu- vis V. Forrest, 2 Cr. C. C. 23. tion. * Best's Ev. § 498, citing the judg- « Plant v. Taylor, 7 H. & N. 211. ment of the master of the rolls in ^ Monkton v. Att. Gen. 2 R. & M. Crouch V. Hooper, 16 Beav. 182; 159; Powell's Evidence, 4th ed. 182. Webb V. Haycock, 19 Beav. 342. See Infra, § 214. State V. Green well, 4 Gill & J. 407; 201 § 208.] THE LAW OF EVIDENCE. [book I. places of is to trace relationship.^ For this purpose the declara- d'eath' and *i°"S of deceased relatives are admissible.^ Legitimacy marriage, jg necessarily involved in the scope of such declarations,^ if the declarations come from relatives.* It has been however doubted vphether the place of birth can be proved by such decla- rations.^ But the better opinion now is that declarations are admissible to show such place where genealogical questions only are concerned.® It is conceded, however, that in settlement cases hearsay proof of this class is inadmissible.^ 1 That a man's statement of his age is not hearsay, see Cheever v. Cong- don, 34 Mich. 296. But it has been held that the rec- ord book of an Odd Fellows' Society, setting forth the age of a deceased per- son, is inadmissible to prove such age in an action on a life insurance. Con- necticut Ins. Co. V. Schwenk, 94 U. S. 593. ^ See cases cited supra, § 202; and see Herbert v. Tuckel, T. Raym. 84; Betty V. Nail, 6 Ir. Law R. (N. S.) 17; Roe V. Kawlings, 7 East, 290; Shields v. Boucher, 1 De Gex & S. 51 ; Plant v. Taylor, 7 H. & N. 226; Kidney v. Cockburn, 2 Russ. & M. 170; qualifying S. C. 2 Russ. & M. 168; Scott V. Ratcliffe, 5 Pet. 81 ; Se- crist V. Green, 3 Wall. 744; Morrill V. Foster, 33 N. H. 379; Jackson u. Boneham, 15 Johns. R. 226; Alexan- der V. Chamberlin, 1 Thomp. & C. 600; Watson v. Brewster, 1 Penn. St. 881 ; American Life Ins. v. Rosenagle, 77 Penn. St. 507 ; Du Pont v. Davis, 70 Wis. 1 70 ; Clements v. Hunt, 1 Jones L. 400; Carter v. Buchanan, 9 Geo. 539; Saunders v. Fuller, 4 Humph. 516; Primm v. Stewart, 7 Tex. 178. But see, as limiting the operation of such declarations to the mere fact of relationship, excluding times of birth, Albertson v. Robeson, 1 Dall. 9 ; Roe V. Neal, Dudley (Ga.), 15. That dec- larations or memoranda by others than relations are inadmissible, see Con- 202 necticut Ins. Co. v. Schwenk, 94 U. S. 593. » Gaines v. New Orl. 6 Wall. 642; Barnum v. Barnum, 42 Md. 251. Su- pra, §§ 202, 203. * Tyler v. Flanders, 57 N. H. 618; Carter v. Montgomery, 2 Tenn. Ch. 216. ^ Wilmington v. Burlington, 4 Pick. 174; Hall v. Mayo, 97 Mass. 416; Shearer v. Clay, 1 Litt. (Ky.) 260; Robinson «. Blakely, 4 Rich. (S. C.) 586. ^ Hood V. Beanchamp, Hubb. Ev. of Success. 468 ; Shields v. Boucher, 1 De Gex & S, 50; Rishton u.Nesbitt, 2 M. & Rob. 554 ; Londonderry v. An- dover, 28 Vt.416 ; Union v. Plainfield, 39 Conn. 563. See Adams v. Swan- sea, 116 Mass. 591. ' R. V. Eriswell, 7 T. R. 707; R. v. Abergwilly, 2 East, 63 ; R. v. Erith, 8 East, 539. The case of R. v. Erith, 8 East, 539 (says Mr. Taylor, § 582), has been cited as an authority for the proposi- tion, that, the declarations of deceased persons respecting the places where their relatives were born, and where they married, resided, came from, went to, or died, cannot be received; but certainly, as was once pointed out by Vice-Chancellor Knight Bruce (Shields v. Boucher, 1 De Gex & Sra. 50, 60), the case decides no such point, since Lord Ellenborough carefully rested his judgment on the fact, that no question whatsoever of relationship CHAP. IV.] PEDIGREE. [§ 209. § 209. Particular facts, thougli not, as we have seen, admis- sible in cases of boundaries, are admissible, from the necessity of the case, to prove pedigree. " In cases of general right, which depend upon immemorial usage, living witnesses can only speak of their own knowledge to what passed in their own time ; and to supply the deficiency, the law receives the declarations of per- sons who are dead. There, however, the witness is only allowed to speak to what he has heard the dead man say respecting the reputation of the right of way, or of common, or the like. A declaration with regard to a particular fact, which would sup- port or negative the right, is inadmissible. In matters of pedi- was involved in the inquiry. Had, therefore, the evidence tendered in that case been required for any genea- logical purpose, it is very possible that the Court of King's Bench -would have arrived at a different conclusion ; and, indeed, this may be considered as a highly probable hypothesis, inasmuch as hearsay evidence of locality has on several occasions been admitted to elucidate matters of strict pedigree. Thus, in Hood v. Lady Beauchamp, ■where the question was, whether A. B., an ancestor of the declarant C, was the same person as A. B., a black- smith, who had resided at X., a decla- ration by C. that his ancestor was a blacksmith, and that he resided at X., was received in evidence by Vice- Chancellor Shadwell. In Shields v. Boucher, De Gex & Sm. 40, where this question was fully discussed, an issue had been directed out of chancery to ascertain the rela- tionship of certain parties; and on the trial all the questions put in the text, except the last, had been rejected by Wilde, C. J. On a motion for a new trial, K. Bruce, V. C, expressed his opinion that the chief justice was wrong in rejecting the evidence, but it ultimately became unnecessary to decide the point. In this case, Vice-Chancellor Knight Bruce argued that, in a controversy merely genealogical, declarations made by a deceased person as to where he or his family came from, "of what place " his father was designated, and what occupation his father followed, would be admissible, and might be most material evidence for the pur- pose of identifying and individualiz- ing the person and family under dis- cussion. Again, if it be necessary to show that a family had relations who lived at a particular place, declara- tions by a deceased member of the family, that "he was going to visit his relatives at that place," will be evidence; not, indeed, that he went there, or that any person of his name lived in that neighborhood ; but as proving a tradition in the family, that they once had relations living in the place in question, which tradition, in the event of its being shown by other evidence that persons of the same name had resided there, might be important as a mode of identifying those persons with the branch of the family alluded to. Eishton v. Nes- bitt, 2 M. & Kob. 554, per Kolfe, B. So, evidence has been received of a family tradition, that a particular in- dividual died in India, for the purpose of connecting that individual with the family of the claimant. Ibid. 666, cit- ing Monkton v. Atty. Gen. 2 Russ. & Myl. 147-151. 203 § 210.] THE LAW OF EVIDENCE. [BOOK I. gree, it being impossible to prove by living witnesses the re- lationships of past generations, the declarations of deceased members of the family are admitted ; but here, as the reputa- tion must proceed on particular facts, such as marriages, births, and the like, from the necessity of the thing, the hearsay of the family as to these particular facts is not excluded. General rights are naturally talked of in the neighborhood ; and the family transactions among the relations of the parties. There- fore, what is thus dropped in conversation upon such subjects may be presumed to be true." ^ § 210. Solemn written declarations, when not self-serving, are admissible for the reasons thus stated. Among such writings Writings we may notice a provision in a will by a deceased per- relatwTad- ^°" recognizing or ignoring certain persons as his chil- missibie to dren ■ 2 a description in a will ; ^ an acknowledgment of gree. a deed by certain persons styling themselves heirs at law ; * a recital in a family settlement ; ^ recitals of consistent antecedent deeds and wills ; ^ and generally a recital in a deed executed by a member of the family.'^ The letters of deceased 1 Mansfield, C. J., 4 Camp. 415. phy v. Lloyd, 3 Whart. 838; Bowser 2 Tracy Peer. 10 CI. & F. 100; v. Cravener, 56 Penn. St. 142; Car- Kobson V. Atty. Gen. 10 CI. & P. 498; ter v. Fishing Co. 77 Penn. St. 310; Hungate v. Gascoigne, 2 Phil. 414; Scharff v. Keener, 64 Penn. St. 376. S. C. 2 Coop. 414; De Roos Peer. 2 " That recitals in ancient deeds are Coop. 540; Gaines v. New Orleans, evidence of pedigree, is undoubtedly 6 Wallace, 642; Shuman v. Shuman, the law of this state. It was so held 27 Penn. St. 90; CaujoUe o. Ferrie, in Paxton v. Price, 1 Yeates, 500, 23 N. Y. 91 ; Pearson o. Pearson, 46 and Morris's Lessee v. Vanderen, 1 Cal. 609; Cowan v. Hite, 2 A. K. Dallas, 67. The question arose again Marsh. 238. See infra, § 221. in Murphy v. Lloyd, 3 Wharton, 538; ' Vulliamy v. Huskisson, 3 Y. & and the deed was excluded only on C. Ex. Ch. 82 ; De Koos Peer. 2 Coop, the ground that the grantor in it was 540. See Doe v. Pembroke, 11 East, not shown to have had any connec- 504. tion with the land, possession or oth- * Jackson u. Cooley, 8 Johns. R. 128. erwise, previous to the date of the ^ Neal u. Wilding, 2 Str. 1151; De deed. But Bowser v, Cravener, de- Roos Peer. 2 Coop. 541. cided in 1867, 6 P. F. Smith, 132, ° Doe V. Phelps, 9 Johns. R. 169; may be said to run on all-fours with Doe V. Camplell, 10 Ibid. 475; Fuller this case, and there the same doctrine V. Saxton, 20 N. J. L. 61. was held. In citing Paxton v. Price, ' Hungate v. Gascoigne, 2 Coop, supra, it is not intended to assert the 407; De Roos Peer. 2 Coop. 541; principles there decided, as applicable Little V. Palister, 4 Greenl. 209; to every case, modern in its circum- Paxton II. Price, 1 Yeates, 500; Mur- stances. In that case the deed was 204 CHAP. IV.] PEDIGREE. [§ 212. members of the family are also admissible for the same purpose ; ^ and so of answers in chancery, ante litem motam ; but not so of the recitals in bills in chancery .^ As evidence of peculiar weight in this relation may be noticed entries proved to be made by a deceased parent or near relative as to a family birth, death, or marriage.^ That reputation with cohabitation is admissible to prove marriage is elsewhere distinctively discussed.* § 211. Evidence of the conduct of deceased relatives is receiv- al^le on such issues ; and especially of the manner in „ ,., ,, 1, -, ,, Conduct as which a person has been brought up and treated by well as his family. " If the father," says Mansfield, C. J., "is tionsso" proved to have brought up the party as his legitimate »^'°'^^''''^- son, this is sufficient evidence of legitimacy till impeached ; and indeed it amounts to a daily assertion that the son is legiti- mate." fi § 212. Even supposing we limited declarations to the mere statement of relationship, yet this relationship neces- Declara- sarily involves the facts necessary to its constitution. gototoT Legitimacy, for instance, involves the marriage of the ^hioh re" parents ; succession, the death of the ancestor. For the lationship ..,.,. . ™*y be in- reason, therefore, that the admissibility of a conclusion f erred, of law involves the admissibility of the facts on which it depends, we must hold that declarations of the class before us are receivable but nine years old when it was re- i Kidney v. Cockburn, 2 Rus. & ceived in evidence, and the recitals Myl. 168 ; Butler v. Mountgarret, 6 held to be evidence of pedigree. It Ir. Law Rep. N. S. 77 ; 7 H. of L. may be that in matters of very re- Cas. 633. cent occurrence, where the evidence " Boileau v. Ratlin, 2 Ex. R. 678. of pedigree is easily attainable, cases » See infra, § 219 ; Berkeley Peer, may arise where the recitals in such 4 Camp. 401, 418; Suss. Peer. 11 CI. a recent deed would not be entitled & F. 85 ; Clara v. Ewell, 2 Cr. C. to the weight given to them in Paxton C. 208 ; Carskadden v. Poorman, 10 r. Price. But the present case is one Watts, 82; Watson v. Brewster, 1 far remote from the border line of Penn. St. 381; and see infra, § 654. controversy. On the point of execu- * See supra, §§ 84, 205. tion, Bowser v. Cravener may also be ' Berkeley Peerage case, 4 Camp, referred to, and to it we may add Mc- 416 ; cf. Khajah Hidayut OoUah v. Reynolds v. Longenberger, 7 P. F. Rai Jan Khanum, 3 Moo. Ind. App. Smith, 13, in which the admissibility 295; Shrewsbury Peerage case, 7 H. of ancient documents in evidence is L. Cas. 1 ; Powell's Evidence (4th discussed at length." Agnew, J., ^d.), 181. And see supra, § 201. ScharfE v. Keener, 64 Penn. St. 378. 205 § 213.] THE LAW OF EVIDENCE. [BOOK I. to prove the facts by which relationship is constituted. Hence, as we have just seen, it is admissible, in order to prove relation- ship, to adduce declarations of deceased relatives as to marriages and deaths. Any other family incidents, calculated to fix points of pedigree, will be in like manner admissible. Thus, in an Eng- lish case, where it was important to settle the seniority of three sons, born at the same birth, it was held admissible to prov^ the father's declarations, that he named them Stephanas, Fortunatus, and Achaicus, following the order in the seventeenth verse of the sixteenth chapter of St. Paul's First Epistle to the Corinthians, to mark their succession, and to prove also the aunt's declara- tions, that she tied strings around the arms of the second and third children, for the same purpose.^ § 213. In the cases cited above it is sometimes said that such declarations must be ante litem motam ; and so has it tion must been expressly ruled in the English court of last re- ' ante litem sort.^ Yet, especially in view of the recent statutes motam. admitting parties as witnesses, it is hard to see why the suspicion of concoction, imputable to declarations post litem motam, should not be left to the determination of the jury. There are some pedigree cases so old, that if declarations of de- ceased persons concerning them be received at all, such declara- tions must be post litem motam, nor is it always possible to de- termine where the suspicion in question begins. A dispute about legitimacy, for instance, often agitates and divides a family as effectively before suit brought as afterwards ; and if conflicts of this class should exclude evidence in any case, it should exclude it in all cases. Nor should it be forgotten that even where the declaration is ante litem motam, the- person who undertakes to recollect and repeat it does so post litem motam ; and the evi- dence takes shape, therefore, under the influences which are declared fatal to its reception. The better view is to apply the test ante litem motam leniently, even if under the new statutes it still exists ; for the reason that while it may shut out much re- 1 Yin. Abr. Ev. T. b. 21. See Cas. 633. See, also, Ellicott v. Pearl, Isaac V. Gompertz, Hubb. Ev. of Sue- 10 Pet. 412; Banert v. Day, 3 Wash, cession, 650; and remarks in Taylor's C. C. 243; CoujoUe v. Ferrie, 26 Barb. Ev. § 580. 177; S. C. 23 N. Y. 91 ; Morgan v. ' Butler V. Mountgarret, 7 H. of L. Purnell, 4 Hawks, 95. 206 CHAP. IV.] PEDIGREE. [§ 214. liable evidence, it does not shut out much that is unreliable ; and to increase the scrutiny to which, on the question of credibility, we should subject the declarations of deceased relatives, declara- tions which in many cases are steeped in family pride, and in few cases are made free from the prejudices of family contention, if not litigation. Hence, where in a case of disputed descent from a lunatic one of the claimants was allowed to give in evidence a deposition, made by a deceased relation of the lunatic before a master in chancery, on an injunction to discover who was entitled by consanguinity to become committee, it was urged that the deposition was inadmissible as being made post litem motam ; but the court held that it was not so,i but that it could be received or what it was worth, the objection going to credibility. On the other hand, on a petition for a declaration of legitimacy, it was proved that A., the petitioner's grandfather (whose legitimacy was in issue), had claimed some property in the possession of his reputed maternal uncle, but the latter said that he should de- fend any action which A. might bring, and communicated the circumstances to A.'s maternal uncle, and A. replied by letter that he wished to establish his legitimacy, but took no further proceedings. Sir J. Hannen held that there was proof of the commencement of a controversy, so as to exclude subsequent declarations by any member of the family as to the marriage of A.'s father and mother. ^ § 214. But even though declarations after litigation has be- gun should be held to be inadmissible, they will not be excluded on account of their having been made with the express view of preventing disputes,^ or in direct support of the declarant's title,* or from the declarant being in the same situation, touching the matter in contest with the party relying on the declaration.^ 1 Gee V. Good, 29 L. T. 123; S. C. M. 160 ; Powell's Evidence, 4th ed. under name of Gee v. Ward, 7 E. & 165. See, also, Shedden k Atty. Gen. B. 509. 2 Sw. & T. 170 ; Reilly v. Fitzgerald, 2 Frederick v. Atty. Gen. 44 L. J. 1 Drury Chan. 120-140, overruling P. & M. 1; L. K. 3 P. & D. 196 ; 22 Walker v. Beauchamp, 6 C. & P. 562; W. R. 416 ; Powell's Evidence, 4th Davies v. Lowndes, 7 Scott N. R. 198; ed. 183. S. C. 6 M. & Gr. 517; and see Butler 8 Berkeley Peerage case, 4 Camp. v. Mountgarret, 7 H. of L. Cas. 633 ; 401. Elliott «. Peirsol, 1 Pet. 328. * Doe V. Davies, 10 Q. B. 325. In the Sussex Peerage case, where ' Monkton v. Att. Gen. 2 Russ. & the claimant, Colonel d'Este, was re- 207 § 216.] THE LAW OF EVIDENCE. [BOOK I. § 215. If the declarant is living, he must be produced ; for if within the process of the court, his declarations, like Declarant , i , . » . , . . must be the declarations oi persons against their interest, are inadmissible.! Yet such declarations, if the declarant be deceased, are not excluded by the fact that living members of the same family could be examined on the same point.^ But in a remarkable case in Ireland, vrhere, in order to establish a Scotch marriage, a relative of the supposed husband had been asked at the trial what she had heard on the subject from mem- bers of the family, her answer was held by the court of error to have been rightly rejected, on the ground that the question had not been limited to statements made by deceased relatives.^ § 216. It is not, however, every relation who is entitled to be regarded as a proper authority for ex parte declarations must be de of this class. Although a more liberal test may be ap- laiedui plied when no other evidence is attainable, yet strictly, amiy- declarations as to a family, in order to be received, must emanate from deceased persons connected with such family by blood or marriage.* So closely has this line been pursued, that the declaration of an illegitimate son, to the effect that a quired to prove that his parents, the ^ Taylor's Ev. § 577; 1 Ph. Ev. Puke of Sussex and Lady Augusta 212. Murray, were legally married, decla- * 6 Ir. Law. R. N. S. 77; 7 H. of L. rations contained in the duke's will Cas. 633, S. C. in Dom. Proe. and affirming most solemnly the fact * Johnson v. Lawson, 2 Bing. 86 ; of marriage, also statements to the Gee u. Ward, 7 E. & B. 509 ; Davies same effect made by his royal high- u. Lowndes, 7 Scott N. R. 188; Shrews- ness in conversation, were rejected; it bury Peer. 7 H. of L. Cas. 23 ; Monk- appearing that some years previously ton v. Atty. Gen. 2 Rus. & M. 159; to such declarations and statements EUicott v. Pearl, 10 Pet. 412 ; Stein being made, a suit had been instituted t. Bowman, 13 Pet. 209; Jewell v. by the crown to annul the prince's Jewell, 17 Pet. 213; 1 How. S. C. marriage, and it not being shown, as 231; Mooers v. Bunker, 29 N. H. in truth it could not be, that that mar- 420; Tyler v. Flanders, 57 N. H. 613- riage was not the very marriage on Chapman v. Chapman, 2 Conn. 347; which the claimant relied. 11 CI. & Armstrong v. McDonald, 10 Barb. Fin. 85-99. 300; Carnes v. Crandall, 10 Iowa, 377; 1 Pendrell v. Pendrell, 2 Str. 924 ; State v. Waters, 3 Ired. L. 455 ; Green- Butler V. Mountgarret, 6 Ir. Law R. wood v. Spiller, 3 111. 502 ; Speed v. N. S. 77; 7H.of L. Cas. 633; Stegall Brooks, 7 J. J. Marsh. 119; Carter V. Stegall, 2 Brock. 256 ; White v. v. Montgomery, 2 Tenn. Ch. 216. Strother, 11 Ala. 720. 208 CHAP. IV.] PEDIGREE. [§ 219. natural brother died without issue, has been rejected,^ and so of the declaration of one brother, that another brother had an ille- gitimate son ;2 though these cases might be rested on the ground that the facts being so recent, better evidence than declarations could be secured.^ But if we carry out the above rule logically, a bastard cannot in any case be a witness as to the pedigree of his putative family, since to suppose him to have a pedigree supposes him not to be a bastard.* § 217. The declarations of a deceased 'person who is related to a family by marriage are, as we have seen, admissible Diggoiution to prove the pedigree of the familv, including those °^ ™'"'- '■ 1 o ^ J ' o riage con- who compose it ; nor does it operate to exclude such nection by . Tin death does declarations that they were made by a husband, as to not ex- the family of a deceased wife, unless, it would seem, it should appear that the information detailed was received after the wife's death.^ § 218. Before such declarations, however, can be admitted, the relationship of the declarant to the family must be Relation- proved by other evidence than his declarations ; for it le'proved would be a petitio principii to say that his declarations »'«»'«'f- are receivable because he is a member of the family, and he is a member of a family because his declarations are receivable.* Such preliminary proof, however, need establish only a primd facie case.'' § 219. For the same purpose may be received an ancient fam- ily record or memorial, provided, always, that there is ^^jf"' evidence that it has been treated as authoritative by ords and the family, and the parties making the record are dead.^ admissible. 1 Doe V. Barton, 2 M. & Rob. 28. ^ Vowles v. Young, 13 Ves. 140; 2 Ibid.; Doeu. Davies, lOQ. B.3U; Doe k. Harvey, Ry. & M. 297. See, Crispin v. Doglioni, 3 Sw. & Tr. 44. also, cases cited supra, §§ 202, 216. See supra, § 203. ° R. v. All Saints, 7 B. & C. 789 ; 8 See Cooke v. Lloyd, Pea. Ev. Davies v. Morgan, 1 C. & J. 591 ; App. xxviii ; Hitchins v. Eardley, L. Atty. Gen. v. Kbhler, 9 H. of L. Cas. R. 2 P. & D. 248. 660 ; Dyke v. Williams, 2 Sw. & Tr. ^ See Taylor's Ev. § 573, citing R. 491 ; Doe v. Randell, 2 M. & P. 24; V. Rishworth, 2 Q. B. 487; Dyke v. Blackburn v. Crawford, 3 Wall. 175. Williams, 2 Sw. & Tr. 491; Doe v. ' Vowles v. Young, 13 Ves. 147; Davies, 10 Q. B. 314. See, however, Monkton v. Atty. Gen. 2 Rus«. & M. contra, Jewell v. Jewell, 17 Pet. 213; 157. 1 How. 219, and cases cited supra, ^ Hood v. Beauchamp, 8 Sim. 26; § 203. Tracy Peer. 10 CI. & F. 154; Green- voL. I. 14 209 § 219.] THE LAW OF EVIDENCE. [book I. So a family bible or testament proved to be such, and contain- ing entries of family incidents, will be so received, and this without proof of the handwriting of the entries.^ A family bible, to prove age, need not be shown to belong to the family, as such. It is enough if it be the property of and recognized as authentic by a member of the family.^ Armorial bearings, also, leaf f. E. R. 30 Iowa, 301. Infra, § 660. In the Berkeley Peera^ case, 4 Camp. 401, on an issue as to the legit- imacy of the petitioner, the three questions referred by the House of Lords to the judges were substan- tially, — 1. Whether the depositions made by A.'s reputed father, in a suit by A. against B., were evidence of pedigree for A., in a suit by A. against C. 2. Whether, in a similar case, en- tries made by A.'s reputed father in a bible, that A. was his son, born in wedlock on a certain day, were inad- missible. 3. Whether such entries were inad- missible, if made with the express ■ purpose of establishing A.'s legiti- macy, in case it should ever be called in question. The point in the first question in- volved the question whether hearsay declarations of pedigree, made after a judicial controversy has arisen, are ad- missible. The point in the second question was whether an entry in a book, made by a deceased relation, ia evidence; and in the third, whether such an en- try, if otherwise admissible, continues to be so when made with an express purpose of providing against a con- templated or impending controversy. It was held that the evidence in the first case was inadmissible, as having been made after an actual and not merely a judicial controversy had arisen ; that in the second it was strictly admissible, whether the entry 210 was made in a bible or any other book, or on any other piece of paper ; and that in the third case it was also admissible, but with strong objections to its credibility, on account of the particularity, and perhaps the pro- fessed view with which it was made. The doctrine in this important case has been followed up by the Sussex Peerage case, 11 CI. & Fin. 85. There an entry made in her prayer-book, by Lady Augusta Murray, of her mar- riage at Home to the Duke of Sussex, was received, not as conclusive proof, but as a declaration made by one of the parties. In the same case, as we will see, evidence of declarations by a deceased clergyman that he had cele- brated the marriage was rejected. Powell's Evidence, 4th ed. 179. 1 Hubbard v. Lees, L. R. 1 Ex. 255; S. C. 4 H. & C. 418; Sussex Peerage case, 11 CI. & F. 85; Monk- ton V. Atty. Gen. 2 Rus. & M. 162; Clara v. Ewell, 2 Cr. C. C. 209; Carskadden v. Poorman, 10 Watts, 82; Watson v. Brewster, 1 Penn. St. 381 ; Jones v. Jones, 48 Md., S. C. 4 Am. L. T. R. 489; Greenleaf v. R. R. 30 Iowa, 301 ; Southern Life Ins. Co. V. Wilkinson, 53 Ga. 535 ; though see Union V. Plainfield, 39 Conn. 563. ^ Southern Life Insurance Co. v. Wilkinson, 53 Ga. 535 ; but see Union V. Plainfield, 39 Conn. 563. In Davics v. Lowndes, 6 M. & G. 625 ; 7 Scott N. R. 213, where a paper purporting to be an old geneal- ogy having been offered as evidence of pedigree, Lord Denman said: " A pedigree, whether in the shape of a CHAP. IV.] PEDIGREE. [§ 220. as will be seen,^ whether carved on wood, painted on glass, en- graved on monuments or seals, or otherwise emblazoned, are admissible in cases of pedigree ; not only as tending to prove that the person who assumed them was of the family to which they of right belonged, but as illustrating the particular branch from which the descent was claimed, or as showing, by the em- palings or quarterin'gs, the nature of the blazonry, or the shape of the shield, what families were allied by marriage, or what members of the family were descended from an illegitimate stock, or were maidens, widows, or heiresses.^ When a fam- ily record is lost, secondary evidence of its contents is admis- sible.^ § 220. With this class of evidence may be mentioned inscrip- genealogical tree, or map, or con- tained in a book, or mural or monu- mental inscription, if recognized by a deceased member of the same family, is admissible, however early the period from which it purports to have been deduced. On what ground is this ad- mitted ? It may be because the sim- ple act of recognition of the docu- ment, and consequent acknowledg- ment of the relationship stated in it by a member of the family, is some evidence of that relationship, from whatever sources his information may have been derived, because he was likely, from his situation, both to in- quire into the truth of such matters, and, from his means of knowledge, to ascertain it But the rea- son why a pedigree, when made or recognized by a member of the fam- ily, is admissible, may be that it is presumably made or recognized by him in consequence of his personal knowledge of the individuals therein stated to be relations; or of informa- tion received by him from some de- ceased members, of what the latter knew or heard from other members who lived before his time. And if 60, it may well be contended that if the facts rebut that presumption, and show that no part of the pedigree was derived from proper sources of information, then the whole of it ought to be rejected; and so, also, if there be some, but an uncertain and undefined, part derived from ref- erence to improper sources. But where the framer speaks of individ- uals whom he describes as living, we think the reasonable presumption is that he knew them, and spoke of his own personal knowledge, and not from registers, wills, monumental in- scriptions, and family records or his- tory ; and consequently to that extent the statements in the pedigree are derived from a proper source, and are good evidence of the relationship of those persons.'' Powell's Evidence, 4th ed. 178. 1 Infra, § 22 ; Taylor's Ev. § 692. ''■ Taylor's Evidence, ut supra; Her- vey V. Hervey, 2 W. Bl. 877; Chandos Peer. Pr. Min. 6, 24, 37, 40, 49 ; Hunt- ingdon Peer, by Bell, 280; Att. Gen.'s Rep. 359, S. C; Hastings Peer. Pr. Min. 313; Co. Lit. 27 a; Shrewsbury Peer. 7 H. of L. Cas. 10; Fitzwalter Peer. Pr. Min. 49; Camoys Peer. Pr. Min. 58 ; 1 Sid. 354. 8 Holmes v. Marden, 12 Pick. 169; White V. McLaughlin, 115 Mass. 167. 211 § 223.J THE LAW OF EVIDENCE. [book I. tions on tombstones, and also inscriptions on rings and on por- traits, which, if preserved in a family, may be regarded scriptions as giving a family tradition, to be received for what stonerand it is worth.^ Where the original monument cannot "°^^" be brought into court, then a copy will be permitted .^ § 221. We have already seen that charts of pedigree, and ar- So of pedi- morial bearings, have in like manner been received, ^rmoriai* when it is proved they have been kept as family rec- bearings. ords ; though they must be regarded as showing rather what the family claimed to be than what it was.^ § 222. But when a pedigree is offered without proof of the loss of the documents of which it is made up, or when on its face it shows that it is made up from vague^traditions, uttered long after the events to which they refer, it is inadmissible.* § 223. Death may be proved by the continuous and abiding Death may general reputation of the community to which the party by rep™a- belongs, as Well as by general family belief.^ But to tion. make such reputation or belief admissible it must be 1 Vowles V. Young, 13 Ves. 144; Camoys Peer. 6 CI. & F. 801; Da- vies V. Lowndes, 7 Scott N. R. 193 ; Perth Peer. 2 H. of L. Cas. 847; Boyle V. Burnett, 9 Gray, 251; North Brookfield ». Warren, 16 Gray, 171; Ewell V. State, 6 Yerg. 364; Slaney V. Wade, 1 Myl. & C. 338; De Roos Peer. 2 Cowp. 544. Parke, J. (in Davies v. Lowndes, 6 M. & G. 525 ; 7 Scott N. R. 193), said: " The ground upon which the inscription on a tomb- stone or a tablet in a church is ad- mitted is, that it is presumed to have been put there by a member of the family cognizant of the facts, and whose declaration would be evi- dence; where a pedigree hung up in the family mansion is received, it is on the ground of its recognition by the members of the family." 2 Wain V. Bailey, 10 A. & E. 616; Clay V. Crowe, 8 Ex. R. 298 ; Slany I). Wade, 1 Myl. & C. 338; Tracy Peer. 10 CI. & Fin. 154; Jones w. 212 Tarleton, 9 M. & W. 675. Supra, § 82. "In the case of tombstones, no doubt the publicity of the inscription gives a sort of authenticity to it, and if it remains uncontradicted for a great many years, it would, in the ab- sence of every other fact in the case, be taken to be true ; but you cannot put it higher than that." Bacon V. C, Haslam v. Crow, 19 W. R. 969; Powell's Evidence, 4th ed. 181. ' Supra, § 219; Hervey u. Hervey, 2 W. Bl. 877; Shrewsbury Peerage, 7 H..of L. Cas. 10; Hubb. Ev. of Sue. 698. See Banert v. Day, 3 Wash. C. C. 243, where a genealogical table, certified under the seal of a foreign officer, was excluded. * Davies v. Lowndes, 7 Scott N. R. 213; 6 M. & Gr. 527; quoted supra, § 219; State v. Joest, 51 Lid. 287. 6 Infra, § 1277; Doe o. Griffin, 1 East, 293; Jackson v. Etz, 5 Cow. 314; Pancoast u. Addison, 1 Har. & J. CHAP. IV.] REPUTATION AS TO FAMILY FACTS. [§ 225. general, not limited or special.^ Elsewhere is noticed the pre- sumption of death to be drawn from the issue of letters of ad- ministration.2 § 224. Reputation in a community, we have "already seen,^ is, when accompanied by cohabitation, among the facts by g^ ^ which a marriage can be proved. marriage. § 225. In suits for damages to the husband against a third party for adultery with the wife, a peculiar modifica- j^ ^^^i_ tion is accepted of the rule excluding hearsav. In such '^''^ 9°"®- '■ , . , . ° . •' spondence cases, where it is material, with the view of increasing may be or diminishing the damages, to have information as to show rela- the relations of the husband and wife before the adul- parties, tery, it is admissible to put in evidence, not only their ^y ^° conversation with each other, but their conversation tation. with third persons.* It is necessary, however, as a prerequisite to the admission of letters between the parties, that it should be shown by evidence, independent of the date appearing on the face of the letters,^ that they were written prior to any suspicion of misconduct.^ Reputation of adulterous relations, it has been held, though not admissible as primary proof, is admissible as subsidiary.^ 350; Raborg v. Hammond, 2 Har. & ' Trelawney v. Coleman, 2 Stark" G. 42; Kinghouse v. Keever, 49 111. R. 193, per Holroyd, J.; Houliston v. 470; Scheel v. Eidman, 77 111. 301; Smyth, 2 C. & P. 24, per Best, C.J. Buntin v. Duchane, 1 Blaekf . Ind. 26 ; This last case was an action for board Tisdale v. Ins. Co. 26 Iowa, 170; An- and lodging supplied to a wife, while derson v. Parker, 6 Cal. 197; Eaton living separate from her husband in u. Talmadge, 24 Wis. 217; Ewing u. consequence of his cruelty ; and letters, Savary, 3 Bibb, 235. See Hall, in re, purporting to be written by the wife, L. R. 4 Eq. 415. were tendered by the husband to rebut 1 Morton v. Barrett, 19 Me. 109; this charge, but were rejected on the Eastman v. Martin, 19 N. H. 152; ground that no proof was given, be- Morrillu. Foster, 33 N. H. 379; Jack- yond their date, of the time when son V. Boneham, 15 Johns. 226; Keech they were sent. See Wilton v. Web- V. Rinehart, 10 Penn. St. 240; Hum- ster, 7 C. & P. 198. mel V. Brown, 24 Penn. St. 310. See ° Edwards v. Crock, 4 Esp. 39, per infra, § 1277. Ld. Kenyon; Trelawney v. Coleman, a Infra, § 1278. 1 B. & A. 90; Wilton v. Webster, 7 » Supra, §§ 84, 205. C. & P. 198, per Coleridge, J. See * Trelawney v. Coleman, 2 Stark. Wyndham's Divorce Bill, 3 Macq. Sc. R. 191; 1 B. & A. 90, S. C; Willis Ca. H. of L.-54. V. Bernard, 8 Bing. 376; Winter u. ' "The evidence of reputation was Wroot, 1 M. & Rob. 404, per Lord not admissible as substantive proof to Lyndhurst; Taylor's Ev. § 520. show the adultery. It can be con- 213 § 226.] THE LAW OF EVIDENCE. [book I. VI. EXCEPTION AS TO SELF-DISSERVING DECLARATIONS OF DECEASED PERSONS. § 226. Another exception to the rule excluding hearsay is to Declara- be found in the reception of the declarations of deceased deceased persons made against their interest, although such dec- persons larations are offered in suits in which neither such against their inter- deceased persons, nor those claiming under them, were est receiv- . iit i- rv able. or are parties.* In the leading case to this eftect,^ to prove the time of a birth, evidence was given that the man- midwife, who attended the birth, was dead ; and the books of the latter, who had kept them regularly, were offered in evi- dence. They contained an entry in the handwriting of the de- ceased, of the circumstances of the birth, and the date. There was also a charge for attendance, against which the word " Paid" was marked. It was held that the entry was evidence of the time of the birth. Lord Ellenborough, C. J., said : " The entry made by the party was to his own immediate prejudice, when he had not only no interest to make it, if it was not true, but he had an interest the other way, not to discharge a claim, which sidered only as subsidiary and subor- dinate evidence, as matter in aid of, and incidental to, the substantive proof, and going to explain and ac- count for the conduct of the parties towards each other ? " Graves, J., Marble v. Marble, 36 Mich. 386 ; cit- ing Clement v. Kimball, 98 Mass. 535. But see Pollock v. Pollock, 71 N. Y. 137. ' Higham v. Ridgway, 10 East, 109; S. C. 2 Smith's Lead. Cas. 5th ed. 271; Middleton v. Melton, 10 B. & C. 817; R. V. Birmingham, 1 B. & S. 768; R. V. Exeter, 10 B. & S. 433; Davies v. Humphreys, 6 M. & W. 153; Doe v. Coulthred, 7 A. & E. 235; De Bode's case, 8 Q. B. 208; Musgrave o. Em- merson, 10 Q. B. 326; Short v. Lee, 2 Jac. & W. 464 ; Sussex Peer, case, 11 CI. & F. 103; Prescott v. Hayes, 43 N.H. 593; Hicks o. Cram, 17 Vt. 449; Litchfield Co. v. Bennett, 7 Cow. 234; White t'. Chouteau, 1 E. D. Smith, 214 493 ; Livingston v. Arnoux, 56 N. Y. 518, quoted infra, § 239 ; St. Clair v. Shale, 20 Penn. St. 108 ; Stair v. Bank, 55 Penn. St. 364 ; Taylor v. Gould, 67 Penn. St. 152; Bird v. Hueston, 10 Ohio St. 418 ; Blattner v. Weis, 19 111. 246 ; Pease v. Jenkins, 10 Ired. L. 355 ; Coleman v. Frazier, 4 Rich. 146 ; Foster v. Brooks, 6 Ga. 287 ; Ringo v. Richardson, 53 Mo. 385. A deed in which a party mortgaged his life interest in real estate under the will of a person therein named has been held admissible after the death of the mortgagor to show the existence of the will ; the ground being that as the declaration limited the declarants estate it was against his interest. Sly V. Sly, L. R. 2 P. D. 91. See, for other cases of this class, § 237. ^ Higham v. Ridgway, 10 East, 109, ui supra; 2 Smith, L. C. 287; cf. Glea- dow V. Atkin, 1 C. & M. 410. CHAP. IV.] DECLARATIONS OF DECEASED PERSONS. [§ 227. it appears from other evidence that he had." And Bayley, J., added : " All the cases agree, that a written entry by which a man discharges another of a claim which he had against him, or charges himself with a debt to another, is evidence of the fact which he so admits against himself ; there being no interest of his own to advance by such entry The principle to bb drawn from all the cases is, that if a person have peculiar means of knowing a fact, and make a declaration of that fact which is against his interest, it is clearly evidence after his death, if he could have been examined to it in his lifetime." The same court subsequently ^ received evidence of entries of charges made by a deceased attorney, who had prepared a lease, to show that the lease was executed at a time later than its apparent date ; the charges for preparing the lease appearing to have been paid, but not upon the face of the entries. In conformity with these authorities, Lord Penzance has admitted,^ as evidence of the execution of a will, an entry made by a deceased solicitor in his ledger admitting payment of his charges for drawing it, and at- tending its execution.* § 227. Such declarations against interest are admissible against third parties, even though the declarant himself re- j^-^ objeo- ceived the facts on hearsay, provided the person from ^jjj,'jj'^g^' whom the hearsay springs was competent to speak.* larations > 11 'n p • Pi' ^^® based " An entry in an attorney s bill of a service ot notice on hear- on A. B. would be evidence of a service, although ^*^' such notice being generally served by an attorney's clerk, the attorney probably had no personal knowledge of such service." ■> " So if an accoucheur puts down in his book the name of a lady whom he had delivered, and debits himself with the payment, such entry would be evidence of the name, although he may have known nothing of her name except from the information of others." * It is essential to prove either directly or circumstan- tially that the person whose declarations are offered is dead ; ^ 1 Doe V. Robson, 15 East, 32. « Percival v. Nanson, 7 Ex. 1, Al- 2 In re Thomas, 41 L. J. P. & M. derson, B. 32. 6 Pollock, C. B.,in S. C; Powell's 8 Powell's Evidence, 4th ed. 195. Evidence, 4th ed. 200. * Crease v. Barrett, 1 C, M. & K. ' Phillips v. Cole, 10 A. & E. 106 ; 919. Doe V. Michael, 17 Q.B. 276; Spargo V. Brown, 9 B. & C. 935; Rand v. 215 § 228.] THE LAW OF EVIDENCE. [BOOK I. though in Virginia the admissibility has been extended to cases where the declarant cannot be compelled to testify.^ That the declarant had a competent knowledge of the subject matter of his declaration is necessary in order to entitle his declaration to weight. But a want of knowledge goes not to admissibility but to credibility.^ § 228. It is essential, however, that such declarations, when Deolara- made, should have been self-disserving ; i. e. that they be'seiMU- should have been, when made, against the pecuniary serving. or proprietary interests of the declarant.^ Thus in a case argued with conspicuous ability in the House of Lords,* dec- larations as to the marriage of Lady Augusta Murray with the Duke of Sussex, made by the deceased clergyman who performed the ceremony, were tendered on the ground that they were dec- larations of a person who knew the facts, who was not interested in misrepresenting them, and who had an interest in being silent concerning them, because the unlawful celebration of the mar- riage might have subjected him to a prosecution. But all the judges concurred in holding that the declaration must be ad- verse to some pecuniary interest in the declarant ; and that even the fear of a prosecution was not a sufficient interest to let in a declaration as contrary to it. Lord Campbell said: "As to the point of interest, I have always understood the rule to be, that the declaration, to be admissible, must have been one which was contrary to the interests of the party making it in a pecuniary point of view. I think it would lead to most inconvenient con- sequences, both to individuals and the public, if we were to say that the apprehension of a criminal prosecution was an interest which ought to let in such declarations in evidence." ^ Dodge, 17 N. H. 343; Coit r. Howd, B. 8e S. 159; Orrett v. Corser, 21 1 Gray, 547 ; Currier v. Gale, 14 Gray, Beav. 52 ; Richards v. Gogarty, I. R. 504; Lowry v. Moss, 1 Strobh. 63. 4 C.L. 300; Alleghany Co. v. Nelson, 1 Harriman v. Brown, 8 Leigh, 697. 25 Peun. St. 332; Cruger v. Daniel, 1 Contra, Stephen «. Gwenap, 1 M. & R. McMul. Eq. 167 ; Ward v. Ward, 37 120. Mich. 453; Bass v. R. R. 42 Wis. » Crease v. Barrett, 1 C, M. & R. 654; Poorman v. Miller, 44 Cal. 269. 925. See Sussex Peerage case, 11 CI. * Sussex Peerage case, 11 C. & F. & F. 112. 85. 8 R. u. Worth, 4 Q. B. 132; R. v. » Powell's Evidence, 4th ed. 196. Birmingham, 1 B. & S. 768; Smith u. See, to same effect, Davis v. Lloyd, 1 Blakey, L. R. 2 Q. B. 326; S. C. 8 C. & K. 276. 216 CHAP. IV.] DECLARATIONS OF DECEASED PERSONS. [§ 230. § 229. That an entry which debits the writer with an amount received and then credits him with the same amount paid out, can be regarded as made against his interest, has been denied in England at nisi prius ; ^ but the admissibility of such evidence is sustained by the high authority of Lord Denman and Lord Wens- leydale,^ and may be successfully defended on the ground that if there be a suspicion that the whole entry is a fiction (and on this assumption only can admission be refused), this goes to credit and not to admissibility.^ If the entry is false, it can be con- tradicted, as it is orAj primd facie proof. But as the portion of it which charges the party is admissible, all statements of correlative matters contained in the same writing, or in other writings re- ferred to in such writing, are receivable for what they are worth.* § 230. It may be fairly argued that an entry cannot be re- jected, which charges the person making it with receiving money from another, on the ground that such entry forms only a part of a general debtor and creditor account, the balance of which is in favor of the receiver ; ^ for, if an action were brought against the receiver by his employer, that part of the account which charged the receiver would be evidence against him, while the entries which showed his discharge, though not absolutely inad- missible for him, would, as compared with the entries against his interest, be entitled to very little weight ; ^ and even if it were otherwise, the admission of the receipt of money would still be against his interest, as the balance in his favor would thereby be diminished to the extent of the sum admitted.'^ 1 Doe V. Vowles, 1 M. & Rob. 261; B. 326; Eudd v. Wright, 4 Y. & C Doe V. Burton, 9 C. & P. 254. Ex. 294. » R. V. Hendon, cited 9 C. & P. To this eflfect may be cited the re- 255; R. V. Lower Heyford, cited 2 marks of Jessel, M. R., in the Eng- Smith's Lead. Cas. 283. lish High Court, Chancery Division, » See Taylor's Ev. 609 et seq., cit- June, 1876, Taylor v. Witham, L. R. 3 ing Higham v. Ridgway, 10 East, CD. 605; 24W. R.877; S. P.,Briggs 109 ; Doe v. Robson, 15 East, 32 ; v. Wilson, 5 De Gex, M. & G. 12. Thomas, in re, 41 L. J. Pr. & Mat. « Rowe v. Brenton, 3 M. & R. 267, 32. 268; Williams v. Geaves, 8 C. & P. * Stead V. -Heaton, 4 T. R. 669; 592, per Patteson, J.; R. v. Worth, Davies v. Humphreys, 6 M. & W. 153; 4 Q. B. 134, per Coleridge, J. ; Clark Marks v. Lahee, 3 Bing. N. C. 408; v. Wilmot, 1 Y. & C. Ch. R. 53. Mayor of Exeter v. Warren, 5 Q. B. « See 2 Smith's L. C. 286. 773 ; Musgrave v. Emmerson, 10 Q. ' See 8 C. & P. 594, per Ludlow, 217 § 232.] THE LAW OF EVIDENCE. [BOOK I. § 231. The fact that the declaration of a deceased person was, Independ- taken as a whole, against his interest, does not make canMtTe^ evidence all that it incorporates in the way of incidental so proved, statements, not in themselves self-disserving.^ We have an illustration of this rule in a case in which the accounts of a deceased steward were tendered in evidence, for the purpose of showing that former lords of the manor had been liable to pay poor rates on the tithes. On one side of these accounts the steward acknowledged the receipt of rent for tithes from a ten- ant ; and on the other side was an entry in discharge of the former item, by allowing the tenant a certain sum for poor rates on the tithes. Mr. Baron Alderson, before whom the case was tried, rejected the second entry, on the ground that it was not directly connected with the first item, though made about the same time ; but he added that, if the amount charged had been stated to be a sum less by the deduction of the opposite side of the account, it might have been admissible.^ § 232. The fact that better evidence could be had does not exclude such admission. Thus, entries by a deceased larations' person, against interest, have been admitted, although though'''* it appeared that persons were living, and not called, dence ''^'' ^^'^ ^^^^ acquainted with the fact. Hence, entries by could be a deceased collector, charging himself with the receipt of taxes, were received as evidence against a surety that the money had been paid ; although the persons who paid it were living, and might have been called, and although the entries were contained in a private note-book, and not a public account-book.3 Oral as well as written declarations are receiva- ble in this category.* Nor is it necessary that the declarant should have been competent, if living, to testify to the facts stated in the declaration.^ Sergt., arguendo; Taylor's Ev. § 609, « Middleton v. Melton, 10 B. & C. from which this section is derived; 317; Powell's Evidence (4th ed.), 201. and see infra, § 247. See, also, Rowe v. Brenton, 8 M. & E. 1 Kudd V. Wright, 1 Ph. Er. 314; 268. 4 Y. & C. Ex. 294; Doe v. Beviss, 7 * Stapylton v. Clough, 2 E. & B. C. B. 456; Taylor's Ev. § 614. 933; Fursdon v. Clogg, 10 M. & W. 2 Knight V. Waterford, 4 Y. & C. 572; R. v. Birmingham, 1 B. & S. 763. Ex. 283. See Marks u.Lahee, 3 Bing. « Doe v. Beviss, 7 C. B. 456; Wha- ^- C. 408. ley V. Carlisle, 17 Ir. Law R. (N. S.) 218 792. CHAP. IV.] DECLARATIONS OF DECEASED PERSONS. [§ 235. § 233. The declarations of the declarant cannot be received to prove their own admissibility. It is necessary that ... . T 1 1 T 1 • , , , Position of extrinsic evidence should be given to show that the per- declarant son making the entry or declaration was in the situa- Pove/ tion in which he purports to be. The character of the ''''"'"^''■ party making the entry or declaration must be established before the entry is read, unless it be made by a person in a public char- acter, in which case due appointment will be presumed.^ § 234. So, where the writing purports to have been by an agent, agency, as we will further see, must be first shown.^ But entries over thirty years old, produced from the proper custody, prove themselves.^ And books, coming from the proper deposi- tary may in themselves exhibit primd facie proof of the author- ity of the person by whom they are made.* § 235. The question now before us becomes of interest in con- nection with the entries of agents when brought into Declara- view for the purpose of charging principals. So far as be"bronght this touches admissions by agents, it is reserved for dis- |)JJ™y(g4 cussion in other sections.^ It is enough, at present, to deciaraut. say that where an account is sought to be put in evidence as the self-disserving declaration of a deceased person, it cannot be re- ceived unless it be proved that the account was either written, or signed, or authorized, or adopted, by the deceased person made chargeable thereby ; and, therefore, where a rental, in which a deceased steward was debited with the i-eceipt of certain payments, was written by a party since dead, styling himself clerk to such steward, the court refused to receive it as a declara- tion against the interest of the steward, as no parol evidence had been given to show that he ever employed the writer to make the entries ; and it was equally inadmissible as made against the interest of the clerk, because it did not purport to charge the clerk.® 1 Davies v. Morgan, 1 C. & J. 587; * Doe v. Thynne, 10 East, 206 ; Powell's Evidence, 4th ed. 202. Atty. Gen. v. Stephens, 1 Kay & J. 2 De Rutzen v. Farr, 4 Ad. & El. 724; Mayor v. Warren, 5 Q. B. 773. 53. See Short v. Lee, 2 Jac. & W. See Brune v. Thompson, C. & Marsh. 467. 36. Supra, §§ 194-5. = Supra, §§ 194-95; infra, § 703; ^ See infra, § 1183. Doe V. Michael, 17 Q. B. 276 ; Wynne « De Rutzen v. Farr, 4 A. & E. 53; V. Tyrwhitt, 4 B. & Aid. 376. 6 N. & M. 617, S. C. 219 § 237.] THE LAW OF EVIDENCE. [BOOK I. § 236. But it is not necessary that the accounts should be in the handwriting of the alleged deceased declarant, or should bear his signature ; they will be received in evidence, if they were written by him either wholly ^ or in part,^ though they were not signed ; or if they were signed by him, though they were writ- ten by a stranger.^ Nor is it essential that they should be writ- ten or signed by the deceased, if either direct proof can be fur- nished that they were written by his authorized agent,* or if that fact can be indirectly established, as, for instance, by showing that the deceased subsequently adopted the accounts as his own, and exhibited them at an audit.^ The extreme length has even been reached of holding that it does not exclude such evidence that the person who wrote accounts was alive at the time of the trial, though, in such case, his non-production may be matter of observation to the jury.^ § 237. Statements by a deceased possessor of real estate, to Statements ^^^ effect that he held but a limited interest therein, in dispar- are admissible, not only against his successors in title or agementof . ^ . title re- possession,' but against strangers. It is not within the against range of probability that a man should make a false strangers., mi(Jerstatement of his title ; and such admissions, there- fore, are receivable not only against those claiming under him, but against those in no manner of privity with him.^ But a dis- tinction has here been taken between the admissions of a pos- sessor as to the limited extent of his title, and admissions made by him as to incumbrances or claims against the estate. It is 1 Rowe V. Brenton, 3 M. & R. 268- ' Supra, § 226 ; infra, §§ 1156 et seq. 270. Gery u. Redman, L. R. 1 Q. B. D. 161 2 Doe V. Colcombe, C. & Marsh. « Davies v. Pierce, 2 T. R. 53 155, per Coleridge, J. Peaceable v. Watson, 4 Taunt. 18 8 Doe V. Stacey, 6 C. & P, 139, per Came v. Nicoll, 1 Bing. (N. C.) 430 Tindal, C.J. Doe p. Jones, 1 Camp. 367; Doe v. * Bradley v. James, 13 Com. B. Langfield, 16 M. & W. 497; Garland 822. Supra, § 235. v. Cope, 11 Ir. L. R. 514; Mount- 6 Doe V. Hawkins, 2 Q. B, 212; 1 noy v. Collier, 1 E. & B. 630; Beedy G. & D. 551, S. C; Doe o. Mobbs, v. Macomber, 47 Me. 451; Blake v. C. & Marsh. 1 ; May. of Exeter v. Everett, 1 Allen, 248 ; Marcy v. Warren, 5 Q. B. 773; Att. Gen. v. Stone, 8 Cush. 4; Spaulding v. Hal- Stephens, 1 Kay & J. 740, per Wood, lenbeck, 35 N. Y. 204 ; °Horn v. ^- C. Brooks, 61 Penn. St. 407. See for « 2 Q. B. 217, per Patteson, J. other cases fully infra, §§ 1156-7. 220 CHAP. IV.] BUSINESS ENTRIES OF DECEASED PERSONS. [§ 238. very improbable, so has it been argued, that a man will untruly disparage his own title ; but it is not at all unlikely that a ten- ant for years, or a life tenant, would untruly admit that a right of way or other easement incumbered the land.^ Hence it has been held that admissions by a deceased possessor of land going merely to incumber or restrict the enjoyment of an estate (as distinguished from those limiting the title), cannot be received to affect strangers, though receivable against the declarant's privies.^ VII. EXCEPTION AS TO BUSINESS ENTRIES OF DECEASED PERSONS. § 238. An accountant, or other business agent, may be re- garded as a member of a well adjusted business ma- Entries by chine ; noting, in the proper time, and in the proper ^^"g^f^g"' way, what it is his duty to note. If he has no personal sons in the ,.,.. ., ,, course of motive to swerve him, the inference is that what he their busi- does in this way he does accurately ; and his evidence, brevi^*^ if there be nothing to impeach it, rises in authority pre- '^^°°°" cisely to the extent to which he is to be regarded as a mechanical and self-forgetting register of the events which his accounts are offered to prove. Hence it is that the memoranda, or book en- tries, of an oflBcer, agent, or business man, when in the course of bis duties, become evidence, after his decease, or after he has passed out of the range of process,^ of the truth of such entries ; subject, however, to be excluded if it appear that in making the entries he was not registering, but manufacturing, current facts ; and provided such entries were original, contemporaneous,* and in the line of the writer's duty.^ 1 Infra, §1161; supra, §226. after a collision, by the mate, and ^ R. V. Bliss, 7 A. & E. 550 ; Dan- signed by him and the captain, are iel V. North, 11 East, 375; Scholes not evidence on behalf of the ship's V. Chadwick, 2 M. & Rob. 507; Tickle owners after the death of the mate. V. Brown, 4 A. & E. 378 ; Papen- Henry Coxon, The, 38 L. T. 319 ; S. dick V. Bridgewater, 5 E. & B. 166 ; C. under name of Harry Coxon, 27 Hill V. Roderick, 4 Watts & S. 221 ; W. R. 263. Pool V. Morris, 29 Ga. 374. Infra, ^ Best's Ev. § 501 ; Webster v. § 1161. Webster, 1 F. & F. 401 ; Price v. ■ 3 See New Haven, &c. Co. v. Good- Earl of Torrington, 1 Salk. 285 ; 2 win, 42 Conn. 230. Infra, §§ 240, 688. Ld. Ray. 873 ; S. C. 1 Smith's Lead. * Immediaten ess is necessary. Thus Cas. 5th ed. 277; Doe v. Turford, 3 entries made in a ship's log, three days B. & Ad. 890; Rawlins v. Rickards, 221 § 239.] THE LAW OF EVIDENCE. [book I. § 239. Receipts of a deceased public officer have been held ad- missible, by force of this rule, although such receipts are not en- tered in the course of business in a book kept by the officer, i 28 Beav. 370 ; Bright v. Legerton, 2 De Gex, F. & J. 606 ; Nichols v. "Webb, 8 Wheat. 326 ; James v. "Wharton, 3 McLean, 492; Beale v. Pettit, 1 "Wash. C. C. 241 ; Cass v. Bellows, 31 N. H. 501; State v. Phair, 48 "Vt. 366 ; Welsh v. Barrett, 15 Mass. 380 ; Union Bank v. Knapp, 3 Pick. 96; Porter v. Judson, 1 Gray, 175 ; Walker v. Curtis, 116 Mass. 98 ; Chenango i'. Lewis, 63 Barb. Ill; Livingston v. Arnoux, 56 N. Y. 518; Fisher v. Mayer, 67 N. Y. 73 ; Phila. Bank v. Officer, 12 S. & R. 49; Kidg- way V. Bank, 12 S. & R. 256; Calla- way V. McMidan, 11 Heisk. 557; Bland v. Warren, 65 N. C. 372; Field V. Boynton, 33 Ga. 239 ; Clemens v. Patton, 9 Porter, 289 ; Stewart v. Conner, 9 Ala. 803 ; Mayson v. Beaz- ley, 27 Mi.ss. 106. Under Connecticut Statute see Craft's- App. 42 Conn. 146. 1 "Entries and memoranda, made by persons since deceased, in the ordi- nary course of professional and official employment, are competent second- ary evidence of the facts contained in them, where they had no interest to misrepresent or misstate them. 1 Greenl. Ev. § 115 ; Nichols v. Webb, 8 Wheat. 326. They are admitted from necessity. In Leland v. Cam- eron (31 N. Y. 115), the entry by an attorney in his register, in the pro- ceedings in the action, of the issuing of an execution which could not be found, was held, the attorney being dead, to be competent evidence of the fact that the execution was issued. Nor is it necessary, as the defendant claims, that the entry should have been made in a book, to make the ev- idence admissible. No cases have been cited which proceed upon this distinction, and there is no principle 222 upon which it can be supported. See Porter v. Judson, 1 Gray, 175 ; Doe V. Turford, 3 B. & Ad. 898. . " The receipt given by the sheriff in this case related to a fact known to him, and to which, if living, he would have been competent to testify. It was given in conformity with the usual practice in transactions involv- ing the payment of money, and all the parties concerned in the matter to which it relates are dead. The gen- eral fact of redemption shown by the receipt is corroborated by the other facts in the case. The long delay of the purchaser in procuring a deed from Westervelt, who was living as late as 1860 ; the small amount for which the land was sold, compared with its real value ; the holding under Price's title of these and the other premises sold on the execution, for eighteen years, no claim at any time, so far as it appears, having been made that the other parcels of land sold at the same time had not been redeemed, nor any assertion of right to these premises by the purchaser until the sheriff's deed was executed, are cir- cumstances supporting the conclusion that a redemption was made. It is not necessary to hold that receipts of public officers for money paid to them, which they are authorized to receive, are primary evidence of the fact of payment ; but they are compe- tent secondary evidence, after the pffi- cer's death, within the general pi'inc- iple upon which entries and memoran- da of persons, since deceased, are admitted. Harrison v. Blades, 3 Camp. 457; Jones i). Carrington, 1 C. & P. 327; Ibid. 497; Lessee of Cluggage v. Swan, 4 Binn. 150. See other cases supra, § 226. CHAP. IV.J BUSINESS ENTRIES OF DECEASED PERSONS. [§ 241. § 240. The book entries of a deceased clerk have on this prin- ciple been constantly admitted ; the fact that they are made as original entries in the course of business being first shown. i The rule has been extended to the entries of a clerk out of the juris- diction of the court,^ though if the witness is procurable, the en- try is of course inadmissible.* § 241. As illustrations of the rule may be mentioned the re- ception (not merely because it was a business entry, but because, as we have already seen, it was against interest) of the entry by a deceased solicitor, in his diary, of a note stating his attendance on a client on a certain day for the purpose of executing a deed, " The receipt was admissible on within the year, and the true date of another ground. The officer thereby- charged himself with the money, and rendered himself accountable for it to the creditor. It was an admission against his interest, made in respect to a matter pertaining to his official duty. Written memoranda, made un- der such circumstances, may reason- ably be assumed to be truthful, and are evidence after the death of the party who made them, as well of the fact against his interest, as of the other incidental and collateral facts and circumstances mentioned, and are admissible, irrespective of the fact whether any privity exists between the person who made them and the party against whom they are ofiered. Doe V. Robson, 15 East, 32 ; Davies V. Humphreys, 6 M. & W. 153; Per- cival V. Nanson, 7 Exch. 1 ; Marks v. Colnaghi, 3 Bing. N. C. 408 ; Hig- ham V. Ridgway, 1 East, 109. The general presumption is that an instru- ment was made at its date. Costigan V. Gould, 5 Den. 290. Some excep- tions exist which it is not now mate- rial to notice. Houliston v. Smyth, 2 C. & P. 22 ; Roseboom v. Bellington, 17 Johns. 182. The date of the pay- ment in the receipt was not collateral to the main purpose for which it was given. The time of payment was mate- rial, as the redemption must be made the transaction would naturally be stated in it." Andrews, J., Livingston V. Arnoux, 56 N. Y. 518. See, as to presumption from date, infra, § 977. And see Kennedy u. Doyle, 10 Allen, 165, quoted infra, § 654. 1 R. V. St. Mary's, Warwick, 22 L. J. M. C. 109 ; Pritt v. Fairclough, 3' Camp. 305; Doe u. Langfield, 16 M. & W. 497 ; Fendall v. Billy, 1 Cranch C. C. 87; Owen v. Adams, 1 Brock. 72; Beaver v. Taylor, 1 Wall. 637 ; Gale v. Norris, 2 McLean, 469 ; James v. Wharton, 3 McLean, 492 ; Bacon v. Vaughn, 34 Vt. 73 ; Lap- ham 11. Kelly, 36 Vt. 195 ; Jones v. Howard, 3 Allen, 223 ; Halliday v. Martinet, 20 Johns. R. 168 ; Brews- ter V. Doane, 2 Hill, 537 ; Nichols v. Goldsmith, 7 Wend. 160; Clarke v. Magruder, 2 Har. & J. 77 ; Lewis v. Norton, 1 Wash. (Va.) 76; Ereeland V. Field, 6 Call, 12; Bland v. Warren, 65 N. C. 372 ; Batre v. Simpson, 4 Ala. 305 ; Everly v. Bradford, 4 Ala. 371; Grant v. Cole, 8 Ala. 519. 2 James v. Wharton, 3 McLean, 492; Hodge u.Higgs, 2 Cranch C. C. 652; Coolidge v. Brigham, 5 Met. 68; New Haven, &c. Co. v. Goodwin, 42 Conn. 230. Contra, Brewster v. Doane, 2 Hill (N. Y.), 537. » Nichols V. Webb, 8 Wheat. 326. 223 § 242.] THE LAW OF EVIDENCE, [BOOK I. the object being to prove the due execution of the deed ; ^ and for the purpose of proving the sending a letter, of an insertion, in the plaintiff's letter book, by a deceased clerk, of a memo- randum stating the sending of the letter in question, which was duly copied in the letter book.^ § 242. In the case which Mr. Smith has selected as leading on this topic,^ as reported in Salkeld, the plaintiff, being a brewer, brought an action against the Earl of Torrington for beer sold and delivered ; and the evidence given to charge the defendant was, that the usual way of the plaintiff's dealing was, that the draymen came every night to the clerk of the brew-house and gave an account of the beer they had delivered out, which he set down in a book kept for that purpose, to which the draymen set their names ; that the drayman was dead, but that this was his hand set to the book. This was held good evidence of a delivery, but otherwise of the shop-book itself singly, without more.* In a modern case, of high authority,^ the lessor of the plaintiff (the suit being ejectment) had instructed A. to serve the defendant with notice to quit. A. intrusted the commission to his partner B., who had not served such notices before. B. prepared three notices to quit (two of them being for service on other persons), and as many duplicates. He then went out, and on his return delivered to A. three duplicate notices (one of which was a duplicate of the notice to the defendant), indorsed by B. It was proved that the two other notices had been served on the ptersons for whom they were intended ; that the defendant had subsequently requested A. that he might not be compelled to leave, and that it was the invariable practice for A. and B.'s clerks, who usually served the notices to quit, to indorse, on a duplicate of such notice, a memorandum of the fact and time of service. It was held, on these facts, that the third duplicate was admissible to prove that the notice had been served on the de- fendant. Parke, B., said : " It was proved to be the ordinary 1 Rawlins v. Rickards, 28 Beav. jected the entry of circumcision by a 370. See Bright v. Legerton, 2 De deceased chief rabbi in the book kept Gex, F. & J. 606 ; modifying S. C. 20 for such purpose. Beav. 60. See as to maps, § 665. s Price v. Torrington, 1 Salk. 285 ; ^ Pritt V. Fairclough, 3 Camp. 305. 2 Ld. Ray. 893; 1 Smith L. C. 277. See, however, Davis v. Lloyd, 1 C. & < Powell's Kvidence, 4th ed. 207. Kir. 275, in which Lord Denman re- ^ j)oe v. Turford, 3 B. & Ad. 890. 224 CHAP. IV.] BUSINESS ENTRIES OF DECEASED PERSONS. [§ 245. course of this oflBce, that when notices to quit were served, in- dorsements lilfe that in question were made ; and it is to be pre- sumed that the principal observed the rule of the office as well as the clerks." And Taunton, J., added : " A minute in writing like the present, made at the time when the fact it records took place, by a person since deceased, in the ordinary course of his business, corroborated by other circumstances, which render it probable that that fact occurred, is admissible in evidence." ^ § 243. But such entries must be made under a sense of busi- ness responsibility. If the mere private memoranda of the writer, they cannot, unless self-disserving, be received.^ Thus in a case before the Queen's Bench,^ to prove a settlement by hiring and service, the following document, made, according to personal custom, in the memorandum book and handwriting of the pauper's deceased master, was tendered : " April 4, 1824. W. W. (the pauper) came, and to have for the half year 40s. September 29. Paid this £2. October 27. Ditto came again ; and to have Is. per week ; to March 1825, is 21 weeks 2 days, £1 Is. 6d. 25th. Paid this." The court held this evidence to have been rightly rejected. Lord Denman said : " In a case of this kind the entry must be against the interest of the party who writes it, or made in the discharge of some duty for which he is responsible. The book here does not show any entry oper- ating against the interest of the party. The memorandum could only fix upon him a liability on proof that the services referred to had been performed ; and whether, on dispute, a jury would have found him liable for the sum so entered, or more or less, we cannot say." * § 244. So, more recently, it has been held that the entry must not only be made at once, but confined to the matters which it is the duty of the writer to record.^ § 245. Originality in respect to such entries is requisite, as it is in all cases in which book entries are offered as pri- mary proof.® Thus, in an action for good's sold, where must be the only evidence of delivery was an entry made by a °"S"'°' " 1 Powell's Evidence, 4tli ed. 20^. ^ gniith v. Blakey, L, R. 2 Q. B- 2 Avery v. Avery, 49 Ala. 193. 326;. 36 L.. J,. Q, B. 160 | 15 W. R. ' R. V. Worth, 4 Q. B. 133. 492 ; Powell's Evidence, 4th. ed. 209. * Powell's Evidence, 4th ed. 214. " See- inira^§§ 682; 688. VOL. I. 15 225 must be contempo- raneous and to the § 246.] THE LAW OP EVIDENCE. [BOOK I. witness, by the direction of a deceased foreman, who was not present when the goods were delivered. But who, in the course of business, had himself been informed of the delivery by the per- son whose duty it was to deliver the goods, and who was also dead, the entry was rejected.^ Nor can such entries be varied by proof of subsequent facts, for this would be not only to vary them, but to destroy their originality.^ § 246. We shall have occasion hereafter to see that the orig- Entries inal entries of deceased parties in their own books are held, in several jurisdictions of the United States, ad- missible, even though self-serving, when contempora- point. neous, and when confined to a transaction within the business of the party making the entry .^ The same limitation is applicable to the class of entries now specifically before us. " It is to be observed," said Parke, B., when arguing this point, in a case just cited,* " that in the case of an entry against in- terest, proof of the handwriting of the party, and his death, is enough to authorize its reception ; at whatever time it is made, it is admissible ; but in the other case [sei7. in declarations in the course of business] it is essential to prove that it was made at the time it purports to bear date : it must be a contempora- neous entry." So it is said by Tindal, C. J., " If there were 1 Brain v. Preece, 11 M. & W. missibility. But to deduce from this 773. doctrine that whatever is said subse- " Thus where, in order to prove quently to the time of making the service of a notice to quit; Stapylton entry respecting the transaction may t>. Clough, 2 E. & B. 933 ; a duplicate be admitted in evidence, would lead notice, indorsed with the day of ser- to the greatest injustice. How can it vice, and signed in the course of duty be said that the verbal declaration of by a deceased agent, was tendered | Jackson was made in the course of and it was also sought to explain and his duty? What he did in discharg- vary the particulars of the indorse- ing his duty was signing the written ment by evidence of subsequent oral entry. What he may babble during declarations made by the deceased, the rest of his life on the subject But the court held that the indorse- cannot be admitted in evidence, con- ment must be received as it stood; tradicting, as it does here, what he and Lord Campbell said: "I agree has before written." Powell's Evi- with what I am reported to have said dence, 4th ed. 213. As to maps, see in the Sussex Peerage case, that there § 665. is no distinction between verbal and » See infra, §§ 678 et seq. written declarations made in the course * Doe«. Turford, 3 B. & Ad. 890. of a duty, so far as regards their ad- 226 CHAP. IV.] BUSINESS ENTRIES OF DECEASED PERSONS. [§ 248. any doubt whether the entry were made at the time of the trans- action, the case ought to go down to trial again." ^ § 247. In a case argued in the Exchequer Chamber, where an entry of a deceased under sheriff was offered to prove But cannot an arrest,^ Lord Denman, in delivering judgment, said : de°Indent " We are all of opinion that, whatever effect may be """e"'. due to an entry made in the course of any office, reporting facts necessary to the performance of a duty, the statement of other circumstances, however naturally they may be thought to find a place in the narrative, is no proof of those circumstances. Ad- mitting, then, for the sake of argument, that the entry tendered was evidence of the fact, and even of the day when the arrest was made (both which facts it might be necessary for the officer to make known to his principal), we are all clearly of opinion that- it is not admissible to prove in what particular spot within the bailiwick the caption took place, that circumstance being merely collateral to the duty done." In submission to this view, an entry by a deceased steward of a matter not in the course of his duty, but only important, in his opinion, to his master's in- terest, has been rejected.^ Mere collateral observations are to be shut out as hearsay. § 248. So the declaration of a deceased surveyor, with regard to lines run by him in discharge of his official duties, are So of sur- admissible ; * and so of the field notes and other memo- note's!^ 1 Poole V. Dicas, 1 Bing. (N. C.) particular facts in Chambers v. Ber- 649. See, to same effect, Short v. nasconi, has been much criticised by- Lee, 2 Jac. & W. 475; Doe v. Beviss, learned judges and other authorities; 7 C. B. 456; Doe v. Skinner, 3 Ex. but the principle on which it was given, R. 88 ; Cass v. Bellows, 31 N. H. 501; namely, that the act was not in the . Porter v. Judson, 1 Gray, 175; Walker course of a duty, but collateral to it, is V. Curtis, 116 Mass. 98; Livingston v. recognized as settled. Poole v. Dicas;, Arnoux, 56 N. Y. 518; Forsythe v. 1 Bing. (N. C.) 649; Smith v. Blakey, Norcross, 5 Watts, 432; Ray ... Cas- L. R. 2 Q. B. 326; 36 L. J. Q. B. tie, 79 N. C. 580. 160; 15 W. R. 492." And see Perci- ^ Chambers v. Barnasconi, 1 C, val u. Nanson, 7 Ex. R. 3; Powell's M. & R. 368; 1 Tyr. 335; 4 Tyr. Evidence, 4th ed. 211. See supra, 631. § 231. * Doe u. Skinner, 2 Ex. 384; Doe ^ Birmingham u. Anderson, 40 Penn. V. Whittcomb, 6 Ex. 601. " It is right St. 506. See Bonnet v. Devebaugh, 3 to observe that the decision on the Binn. 175. 227 § 251.J THE LAW OF EVIDENCE. [book I. So of coun sel and other offi- cers. randa of a deputy surveyor.^ Such entries, howeTer, must be identified in order to be admitted.^ § 249. So notes of deceased counsel of a former trial are ad- missible,^ and so of counsel or other officers who are out of the reach of the process of the court ; * or have become insane ; ^ and so of deceased counsel, in rela- tion to office business, in order to corroborate other witnesses.® § 250. The rule has been extended so as to admit a bank mes- senger's entries in his book, recording notices given him as mes- senger, after he has absconded, or is from any cause out of reach of process.'^ § 251. The entries in the books of deceased notaries are ad- missible, under the general rule, when made in the course of their business ; ^ and so of entries made in notaries' books by deceased clerks.^ So of nota- ries' en- tries. 1 AValker i.. Curtis, 116 Mass. 98 ; McCormick v. McMurtrie, 4 Watts, 192; Goddard v. Gloninger, 5 Watts, 209 ; Russell v. Werntz, 24 Penn. St. 337; McCausland v. Fleming, 63 Penn. St. 36. See EUicott v. Pearl, 1 Mc- Lean, 206; Ayer v. Sawyer, 32 Me. 163 ; Eoss v. Rhoads, 15 Penn. St. 163; Ijams v. Hoffman, 1 Md. 423; Richardson v. Carey, 2 Rand. (Va.) 87; Free r. James, 27 Conn. 77. '^ Free U.James, 27 Conn. 77; Bla- den V. Cockey, 1 Har. & M. 230; Mee- han V. Williams, 48 Penn. St. 238. 3 Supra, § 180. * Alter V. Berghaus, 8 Watts, 77; Hay V. Kramer, 2 Watts & S. 137; Flanagin v. Leibert, Bright. (Penn.) 61; though see Love v. Pay ton, 1 Cfvert. 255. * Union Bank v. Knapp, 3 Pick. 96. Moffat V. Moffat, 10 Bosw. (N. Y.) 468. ' Welsh V. Barrett, 15 Mass. 380 ; North Bank v. Abbot, 18 Pick. 465 ; Shove V. Wiley, 18 Pick. 558; Wash- ington Bank u. Prescott, 20 Pick. 339. " Sutton V. Gregory, Pea. Add. Cas. 180 ; Poole v. Dicas, 1 Bing. (N. C.) 228 649; Homes v. Smith, 16 Me. 181 Halliday v. McDougall, 20 Wend. 81 264 ; Gawtry v. Doane, 51 N. Y. 90 Bank v. Cooper, 1 Har. (Del.) 10 Wetherall v. Claggett, 28 Md. 465 Bodley «. Scarborough, 6 Miss. 729 Duncan v. Watson, 10 Miss. 121 ; but see Williamson v. Patterson, 2 Mc- Cord, 132. Supra, § 123. ^ " The entries of the deceased clerk in the register of the notary, made in the ordinary and usual course of busi- ness, were properly received in evi- dence. The entries were made in a book kept for the notary for that pur- pose by the clerk, whose duty it was to transact the particular business and to make the entries. It is not ques- tioned that the clerk was competent to make presentment and demand of the note, so as to charge the indorser. The entries made by a deceased clerk under such circumstances are the best attainable evidence. They are made under such circumstances as to furnish a strong presumption that they are true, and they are received to prevent a failure of justice, and because pub- lie convenience and the interest of trade and commerce demand it. In CHAP. IV.] GENERAL REPUTATION ADMISSIBLE. [§ 253. Tin. EXCEPTION AS TO GENERAL REPUTATION WHEN SUCH IS MATERIAL. § 252. To prove cognizance of a particular fact, it has been held admissible, under circumstances to be hereafter q^^^^^i noticed, to show that such fact was at the time gen- reputation ° admiasible erally known and talked about in the neighborhood t" bring where the party in question resided, or was a matter of knowledge common reputation in the business community to which '° ^ ''"'^' both parties belonged.^ It is on this ground that proof of noto- rious usage has been received,^ as well as evidence of character, when character is introduced as infecting another with notice.^ § 253. But evidence of general reputation must be in such cases received only as one among other cumulative But inad- modes of proving the condition of a particular person's ^^g^^^^ '" mind as to a certain issue, as general reputation is in- facts. Welch V. Barrett (15 Mass. 379), the book of the messenger of a bank, not a notary, who was dead, in which, in the course of his duty, he entered memoranda of demands and notices to the promisors and indorsers upon notes lefl in the bank for collection, was received as evidence of a demand of the maker and notice to the de- fendant as indorser of a note so left for collection. In Nichols v. Gold- smith, 7 Wendell, 162, the memoran- dum of a deceased cashier of a bank who frequently notified indorsers of non-payment of notes in the name of the acting notary of the bank, that on a certain day he sent notice by mail to an indorser, was held to be compe- tent, and prima facie sufiicient evi- dence to charge the indorser. In Sheldon v. Benham, 4 Hill, 129, it was held that the memorandum of a deceased teller of a bank, made in the usual course of his employment, is competent evidence in proving a de- mand by him of the maker of a note and notice to the indorsers, and this whether he attended to the business on the retainer of a notary or as part of his duty to the bank. But it is claimed that the common law rule, which admits this species of evidence, is abrogated by the provisions of the Revised Statutes (2 R. S. 284, §§ 46, 47), which, relate to the proof of en- tries made by deceased, insane, or ab- sent notaries. It is a sufKcient answer to this claim that the entries proved in this case were not those of a de- ceased notary, and hence were in no way affected by the statute. They were competent common law evidence, and were received as such." Earl, C, Gawtry v. Doane, 57 N. Y. 90. 1 Sheen v. Bumpstead, 2 H. & C. 193; Lee v. Kilburn, 3 Gray, 594; Adams v. State, 25 Ohio St. 584 ; Be- noistu. Darby, 12 Mo. 196; Ward v. Herndon, 5 Port. 382 ; Jones v. Hatch- ett, 14 Ala. 743 ; Stallings v. State, 33 Ala. 425; and cases cited infra, § 254. See, however, Bradbury v. Bar- din, 34 Conn. 452; and Lockhardt v. Jelly, 19 L. T. N. S. 659. Comp. Merwin v. Arbuckle, 81 111. 501. " Infra, § 962. a Supra, § 49. 229 § 254.] THE LAW OF EVIDENCE. [BOOK I. admissible to prove any objective fact.^ But when the ques- tion is whether B. had reasonable grounds to believe A. to be in- solvent, it is admissible to prove, as one among other links, that it was generally reputed that A. was insolvent.^ The reputation of a person, as a notorious thief, may be on the same reasoning put in evidence against a party charged as a receiver, the object being to prove the scienter.^ But to prove such insolvency, or to prove any other objective fact, general reputation cannot be received.* So evidence of a rumor is inadmissible to justify a slander.^ On the other hand, in trespass for destroying a pict- ure, when the ple,a was not guilty, and the defence that the picture was a libel on the defendant's sister and brother-in-law, and that he had therefore destroyed it. Lord EUenborough held, "that the declarations of the spectators while they looked at the picture "in the exhibition room were evidence to show that the figures portrayed were meant to represent the defendant's sister and brother-in-law." ^ § 254. It may happen that a question at issue is whether cer- tain things were said at a particular time, independently admissible of the truth of what is thus said. If so, proof that issue is such things were said is admissible, though hearsay, earsay. rj,^^ question, for instance, is, whether certain acts of violence are excusable ; and on such an issue it would be admis- sible, for the reason here given (if for no other), to prove certain exclamations of terror or of threat, without calling the persons by whom such exclamations were uttered.' So when the issue 1 An exception is to be noticed in Wheeler, 1 Allen, 162; Baldwin v.'R. cases of disorderly houses, or houses R. 4 Gray, 333 ; Dunbar v. Mulry, 8 of " ill fame," where the ill fame is di- Gray, 163 ; Martin u. Good, 14 Md. rectly at issue. U. S. v. Gray, 2 398; Graff v. Brown, 85 111.89 ; Moly- CranchC. C. 675; State v. Morgan, neaux i;. Collier, 13 Ga. 406; Phil- 40 Conn. 44. lips v. BuUard, 58 Ga. 256 ; Blevins "Lee u. Kilburn, 3 Gray, 594; M.Pope, 7 Ala. 371 ; Walker u. Forbes, Bartlett u. Decreet, 4 Gray, 111; Hey- 25 Ala. 139; Mosser v. Mosser, 32 wood u. Keed, 4 Gray, 574; Ward u. Ala. 551; Vaughan v. Warnell, 28 Herndon, 5 Port. 382; Angell «. Ro- Tex. 119. senbury, 12 Mich. 241. 6 Lockhardt v. Jelly, 19 L. T. N. ' Com. V. Gazzolo, 123 Mass. 220. S. 659. * Heath v. West, 26 N. H. 191 ; e ])„ Bost v. Beresford, 2 Camp. State u. Foley, 45 N. H. 466 ; Hicks 511; Powell's Evidence (4th ed.), V. Cram, 17 Vt. 449; Goddard v. 148. Pratt, 16 Pick. 412; Trowbridge v. ' See Com. v. Daley, Appen. to 230 CHAP. IV.J HEARSAY : REPUTATION. [§ 255. is whether a railroad officer acted prudently at the time of a collision, there can be no question that cries of alarm uttered at the time, or even telegrams delivered an hour or two before, could be received, if relevant, without calling the persons from whom either cries or telegrams issued. So when the issue is whether a bankrupt has denied himself, answers given at his door, deny- ing him, can be proved, without calling the persons who gave the answers.^ It is often important, also, to ascertain the condition of a party's mind at a particular time. The claimant in the Tich- borne case, to take another illustration, when in Australia, con- ceived the idea of coming to England to claim the Tichborne estates ; and it became material, therefore, to put in evidence the statements made to him, by attorneys and others, as to the condition of the Tichborne family ; the belief of the mother in the recovery of her lost son ; and the peculiar characteristics which this son was expected, should he return, to exhibit. A collision occurs in a hotel in New York, in which two men, each armed, exchange shots. One is killed ; and the question comes up as to who was the aggressor. It is admissible, both as to the defendant and the deceased, to prove that statements had been made to each of a character making it prudent for him to go armed.^ In fine, any facts, hearsay or not, which go to explain the condition of a person's mind, when such condition is at issue, may be received.^ § 255. As value, in its business sense, consists largely of the opinions of persons familiar with a market, and as these vaiue may opinions are made, up in a measure of what is said by by Sear-** others, hearsay is a primary evidence of value. In ^^y- proving value, therefore, it is admissible to resort to hearsay.* Whart. on Homicide ; R. v. Vincent, Bost v. Beresford, 2 Camp. 511, cited 9 C. & P. 275; Bedford v. Birley, 3 supra, § 253; Bartlett v. Decreet, 4 Stark. 88. Gray, 113; Adams v. State, 25 Ohio 1 Crosby v. Percy, 1 Taunt. 364. St. 584 ; Sheen v. Bumpstead, 2 H. & See Key v. Shaw, 8 Bing. 320. C. 193 ; and see cases cited supra, " See this topic discussed in Whart. § 234. on Homicide, §§ 493, 694. * See infra, §§ 447-450 ; though see 8 See supra, § 252; infra, § 672; supra, § 175. Whart. on Horn. §§ 693-4. See Du 231 § 258.] THE LAW OF EVIDENCE. [BOOK I. S 256. Whenever character is at issue, then, as is Character " may be elsewhere more fully seen, evidence oi general reputa- genlral ^ tion is admissible. Reputation is in such sense the only reputation. ^^^^ j^ which character can be exhibited to us.^ IX. HEARSAY TO REFRESH MEMORY. § 257. It may be that a witness's memory is uncertain as to Collateral the date or place of an incident he narrates, to which admSible date and place are material. To refuse to permit him memory'as *° recall Conversations with others by which such cir- toinoi- cumstances would be fixed, might prejudice the truth, chief. not only by leaving his testimony without a definite impression, but by precluding his recollections from being either verified or contradicted. Hence, conversations with third per- sons have been sometimes held not inadmissible, when introduced for the purpose of identifying facts or dates. It is scarcely neces- sary to observe that such conversations are not evidence of the truth of facts which they state. They are evidence only on the single point of fixing particular dates, places, or other extrinsic incidents of the facts testified to by the witness.^ X. EXCEPTION AS TO RES GESTAE. § 258. The area of events covered by the term res gestae depends Bes gestae upon the circumstances of each particular case. When though'' * ^ business man, coolly and disengagedly, completes half hearsay. ^ dozen distinct negotiations in the course of an hour, the sweep taken by the res gestae in each case is limited to what is done in the time of the particular negotiation.^ When, how- ever, one man, of high parts and great energy, is employed in a single protracted negotiation of great importance, then we can conceive of his whole time for weeks being absorbed in the nego- tiation, and of its so tinging with its chai-acteristics everything that he does and says, that for all this period the things which he does and says become rather the incidents of the negotiation 1 See supra, § 49 ; Fountain v. Boo- " Phil. R. R. v. Stimpson, 14 Pet. die, 3 Q. B. 5; Humphrey u. Hum- 448; Hill w. North, 34 Vt. 604 ; Brown- phrey, 7 Conn. 116 ; Anderson v. Long, Ing v. Skillman, 24 N. J. L. 351 ; State 10 S. & R. 55; Atkinson v. Graham, v. Fox, 25 N. J. L. 566. See infra, 5 Watts, 411 ; Vicksburg R. R. Co. § 519. V. Patton, 81 Miss. 156. a Miles v. Knott, 12 Gill & J. 442. 232 CHAP. IV.] HEARSAY : RES GESTAE. [§ 259. than of himself. 1 So if in one of our streets there is an unex- pected collision between two men, entire strangers to each other, then the res gestae of the collision are confined within the few moments that it occupies. When, again, there is a social feud, in which two religious factions, as in the case of the Lord George Gordon disturbances, or of the Philadelphia riots of 1844, are arrayed against each other for weeks, and so much absorbed in the collision as to be conscious of little else, then all that such parties do and say under such circumstances is as much part of the res gestae, as the blows given in the homicides for which par- ticular prosecutions may be brought.^ § 259. The res gestae may be therefore defined as those circum- stances which are the undesigned incidents of a particular liti- gated act, and which are admissible when illustrative of such act.^ These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned, whether participant or by-stander ; they may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary inci- dents of the litigated act ; necessary in this sense, that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to the act, — a relation not broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associ- ated with an act, whether such incidents are doings or declara- tions, become in this way evidence of the character of the act.* 1 Fifield u. Richardson, 34 Vt. 410; v. Colvin, 4 Drew. 366; U. S. v. Cunningham v. Parks, 97 Mass. 172; O'Meara, 1 Cranch C. C. 165; Jewell Muscoigne v. Radd, 54 Ga. 33. v. Jewell, 1 How. 219; Flint v. Trans. ^ See rulings substantially to this Co. 7 Blatchf. 536; Clark, in re, 9 effect in Com. v. Sherry and Com. v. Blatchf. 379 ; Corinth v. Lincoln, 34 Daley, reported in the Appendix to Me. 310; Cornvilleu. Brighton, 39 Me. Whart. on Homicide. See, also, R. 333; Plumer w. French, 22 N. H. 450; V. Gordon, 21 How. St. Tr. 542. Newman v. Bean, 21 N. H. 93; Ather- 8 See Nutting v. Page, 4 Gray, 584. ton v. Tilton, 44 N. H. 452; Fifield * Bateman v. Bailey, 5 T. R. 512; v. Richardson, 34 Vt. 310; Lund v. Rawson v. Haigh, 2 Bing. 99 ; Smith Tyngsborough, 9 Cush. 36; Boston R. V. Kramer, 1 Bing. N. C. 585 ; Lord R. v. Dana, 1 Gray, 83; Blake v. Da- 233 § 259.] THE LAW OF EVIDENCE. [book I. They are admissible, though hearsay, because in such cases, from the nature of things, it is the act that creates the hearsay, not the hearsay the act. Thus, in an action for false imprisonment, the defendant justified on the ground that he had given the plaintiff in custody for forging a bill of exchange, which had been dishonored on presentment to the drawee. A witness stated that he had accompanied the defendant to the drawee, who re- fused to pay. He was then asked what the drawee had said at the time of the refusal. The question was objected to, but the court held that the evidence was part of the res gestae. There were peculiar circumstances in the case, but Tindal, C. J., said : " Even if the inquiry before us had depended on the determina- tion of the point, whether evidence by the defendant of the dis- honor of the bill, and of the circumstances attending such dis- honor, was relevant to the question then before the jury, it would mon, 103 Mass. 199; Parker u. Steam- boat Co. 109 Mass. 449; Com. v. Vos- burg, 112 Mass. 419; Russell v. Fris- bie, 19 Conn. 205; Haight u. Haight, 19 N. Y. 464; Voltz v. Blaokmar, 64 N. Y. 440 ; Twomley v. R. R. 69 N. Y. 158 ; Jones v. Brownfield, 2 Penn. St. 55; Rees v. Livingston, 41 Penn. St. 113 ; Henry v. Warehouse Co. 2 Notes of Cases, 389; Handy v. John- son, 5 Md. 450; Curtis v. Moore, 20 Md. 93 ; Amick v. Young, 69 111. 542; Paul V. Berry, 78 111. 158 ; Caldwell V. Evans, 85 111. 88 ; Thorp v. Goe- wey, 85 111. 611 ; Beardstown v. Vir- ginia, 81 111. 841 ; Boone Bankw. Wal- lace, 18 Ind. 82 ; Hamilton v. State, 36 Ind. 281 ; Simmons v. Rust, 39 Iowa, 241 ; Sorenson, v. Dundas, 42 Wis. 642; Bass v. R. R. 42 Wis. 654; Felt v. Amidon, 43 Wis. 467; Pridoaux v. Mineral Point, 48 Wis. 513; State o. Rawles, 65 N. C. 334; Mitchum v. State, 11 Ga. 615; Print- up w. Mitchell, 17 Ga. 558; Clayton V. Tucker, 20 Ga. 452 ; Southwest R. R. V. Rowan, 43 Ga. 411; Stiles v. State, 57 Ga. 183; Flanders v. May- 234 nard, 58 Ga. 56 ; Powell v. Olds, 9 Ala. 861 ; Sanford v. Howard, 29 Ala. 684 ; Autauga v. Davis, 32 Ala. 703 ; Bragg V. Massie, 38 Ala. 89 ; Mobile R. E. V. Ashcraft, 48 Ala. 15; Mann V. Best, 62 Mo. 491 ; People v. Ver- non, 35 Cal. 49; Sill v. Reese, 47 Cal. 294; Rollins v. Strout, 6 Nev. 150; State V. Garrand, 5 Oregon, 216. In Felt V. Amidon, 43 Wis. 242, which was a suit for enticing plain- tiff's unmarried minor daughter from his house, carrying her to Milwaukee, and there placing and leaving her in a brothel, it was held error to ex- clude declarations of the daughter at a hotel in Milwaukee before she was taken by defendants to the house where they left her, these declara- tions being part of the res gestae. And it was also held error to admit in evidence her declarations at the latter place after they had left her there, the act of enticing charged having terminated when she was thus left. The declarations at Milwaukee were part of the act; those made af- terwards were merely narrative. CHAP. IV.] HEARSAY : RES GESTAE. [§ 261. have been difficult altogether to exclude such evidence on the score of its irrelevancy." ^ § 260. Another phase of illustration may be found in a Mas- sachusetts case decided in 1872, in which, the suit being against a steamboat company for injuries to a passenger by the fall of a gangway leading from a wharf to the defendant's boat, evi- dence was admitted that men working at the gangway were warned, immediately before the accident, that the plank was unsafe.^ So, also, it was held in the same year in Alabama, in a suit against a railroad company for injury to a passenger, where the plaintiff received his injury in leaping from a car, while others who remained inside were not hurt, that the plaintiff could put in evidence the declarations of such other persons giving their reasons for so remaining.^ § 261. A narrative of past events, however, cannot be intro- duced as part of the res gestae.^ Yet again must it be remem- bered that continuousness is not always to be measured by time. A transaction, in which the parties are absorbed, may last for weeks, so as to make, as has just been said, what is said and done in connection with it part of the res gestae. In this view we can understand the comments of Lord Denman,^ concurring 1 Perkins e. Vaughan, 4 M. & G. currences, they are incompetent. 1 988. Greenl. Ev. § 110. That is precisely ^ Parker w. Steamboat Co. 109 Mass. this case. The declarations given in 449. evidence were a mere statement of ' Mobile R. R. v. Ashcraft, 48 Ala. what had been done at the doctor's 15. See Indianapolis R. R. v. An- office, and not any part of what was thony, 43 Ind. 183; and see, as to ad- then done, and therefore no part of missions by agents, infra, § 1173. the res gestae. See Insurance Com- * Hyde v. Palmer, 3 B. & S. 657; pany «.Moseley, 8 Wallace, 397, where Peacock v. Harris, 5 A. & E. 449; a somewhat elaborate review of the Com. V. Jaques, 99 Mass. 438 ; Rock- authorities upon this point will be well u. Taylor, 41 Conn. 55; Cieve- found in the opinions of the judges, land R. R. w. Mara, 26 Ohio St. 185; and where the doctrine as to what Cross V. People, 47 111. 152 ; Dickes may be regarded as part of the res V. State, 11 Ind. 557; Riggs v. State, gestae was certainly carried to its ut- 6 Cold. 517; Chaney v. State, 31 Ala. most limit by a majority of the court." 342; State v. Schneider, 35 Mo. 533; Grover, J., People v. Davis, 66 N. Y. Whitney u. Durkin, 48 Cal. 462. See 102. See Lees v. Martin, 1 M. & cases cited infra, §§ 265, 1180. Rob. 210. " But when the declarations of- ' Rouch v. R. R. 1 Q. B. 51. fered are merely narratives of past oc- 235 § 262.] THE LAW OF EVIDENCE. [book I. in a prior remark of Parke, B.,i " that it is impossible to tie down to time the rule as to the declarations " that may be made part of the res gestae in cases of bankruptcy ; to which Lord Denman added, " that if there be connecting circumstances, a declaration may, even at a month's interval, form part of the whole res gestae." ^ § 262. It is in any view clear that declarations which are the immediate accompaniments of an act are admissible as Coincident ^ , . , . business part of the res gestae ; remembering that immediate- tions re- ness is tested by closeness, not of time, but by causal ceiva e. relation as just explained.* Coincident business dec- larations are hence to be received to qualify the acts to which they relate.* Thus, A.'s declarations in paying money, that he pays as agent of P., or in order to show the application of the money, are admissible ; ^ and so are declarations of a party, in receiving money, that more is still due him;^ and declarations of a party accepting service of process.'^ And so of declarations of officers at the time of making levy ; ^ of declarations of a married woman, objecting to the acknowledgment of a deed, which she acknowledges under protest ; ^ of declarations of pub- lic officers generally when such declarations are part of the dis- charge of their official duties, the acts being admissible ; ^"^ of ' Rawson v. Haigh, 5 Bing. 104 ; ;S. C. 9 Moore, 217. ^ See, also, Ridley «. Gyde, 9 Bing. 349. 8 Bateman v. Bailey, 5 T. R. 512; Vacher v. Cocks, 5 M. & M. 353; Doe V. Arkwright, 5 C. & P. 575; Sharp V. Newsholme, 5 Bing. N. C. 517; Bank V. Kennedy, 17 Wall. 19; Ses- sions V. Little, 9 N. H. 271; Allen v. Duncan, 11 Pick. 308; Kelly v. Camp- bell, 2 Abb. (N. Y.) App. 492 ; Reed V. R. R. 56 Barb. 493; Peppinger v. Low, 1 Halst. 384; Devling v. Little, 26 Penn. St. 502; Custar v. Gas Co. 63 Penn. St. 381; Smith v. Cooke, 31 Md. 174; Taylor v. Lusk, 9 Iowa, 444; Blake v. Graves, 18 Iowa, 312; Eastman v. Bennett, 6 Wis. 232; Bra- zier V. Burt, 18 Ala. 201 ; Jennings v. 236 Blocker, 25 Ala. 415; Sayre v. Dur- wood, 35 Ala. 247; Patterson u. Flan- agan, 37 Ala. 513; Weaver v. Lapsley, 42 Ala. 601; Criddle v. Criddle, 21 Mo. 522; Rogers v. Broadnax, 27 Tex. 238; Brazelton v. Turney, 7 Coldw. 267; Tevis v. Hicks, 41 Cal. 123. * Bank v. Kennedy, 17 Wall. 19; Purkiss V. Benson, 28 Mich. 538; Kimball v. Vroman, 35 Mich. 310. 6 Carter v. Beals, 44 N. H. 408 ; Bank of Woodstock I). Clark, 25 Vt. 308. " Dillard v. Scruggs, 36 Ala. 670. See Webster w. Canraann, 40 Mo. 156. ' Feagan v. Cuneton, 19 Ga. 404. 8 Arnold v. Gore, 1 Rawle, 283; Grandy u. McPherson, 7 Jones L. 347; Dobbs V. Justice, 17 Ga. 624; Morgan V. Sims, 26 Ga. 283. » Louden ti. Blythe, 16 Penn. St. 532. 1° Maher v. Chicago, 38 111. 266; CHAP. IV.] HEARSAY : EES GESTAE. [§ 263. declarations of a party, taking possession of land, as to the boundaries.! As has been already noticed, however, such dec- larations, to be admissible, naust be made during the transaction. If made after its completion, they are too late.^ It is no objec- tion to such declarations that they are self-serving, if they are part of the res gestae.^ § 263. On the same principle declarations coincident with torts are receivable.* Thus, in an action against an insur- go of de&- ance company for the loss of a ship burned by the mill- 'a^'iops tary authorities, evidence was received as to the orders ^i"» '"'s. set up by the persons destroying the vessel.^ So it has been held^ that a husband, in defending an action against him for the board of his wife, is entitled to show her declaration confess- ing adultery, made immediately before he turned her off, and also letters from men found about that time in her desk. Again, in an action for enticing away the plaintiff's wife, the declara- tions of the wife, made immediately before or at the time she left her husband, of his cruel treatment of her, have been held com- petent evidence for the defendant.'^ So in a suit against a rail- road company for the killing of a person whose representatives claim damages, the deceased's declarations immediately after the injury can be received.^ So evidence of the declarations of a party taking possession of property may be received as explain- ing the nature or limitations of such possession.^ George v. Thomas, 16 Tex. 71. In * See infra, § 1110, and cases under Steele v. Thompson, 3 Pen. & W. 34, next section. where a husband was sought for at his * See cases cited to § 258 ; infra, §§ own house, for the purpose of making 1173-7 ; R. v. Foster, 6 C. & P. 325; a tender to him, and his wife refused Courtney v. Baker, 34 N. Y. Sup. Ct. to give information where he could be 29 ; Indianapolis R. R. v. Anthony, found, and declared that her husband 43 Ind. 183 ; Harriman v. Stowe, 57 would not accept the tender ; these Mo. 93. declarations were given in evidence. ° Marcy v. Ins. Co. 19 La. An. 388. 1 Potta V. Everhart, 26 Penn. St. ' Walter v. Green, 1 C. & P. 621. 493. See Norton v. Pettibone, 7 Conn. ' Gilchrist v. Bale, 8 Watts, 355. 319 ; Flagg v. Mason, 8 Gray, 556 ; ' Entwhistle v. Peighner, 60 Mo. Davis V. Campbell, 1 Ired. L. 482 ; 214 ; Harriman v. Stowe, 57 Mo. 93 ; Brewer v. Brewer, 19 Ala. 481. Elkins v. McKean, 79 Penn. St. 493. 2 Supra, §261; infra, § 265; Rock- » Hall v. Young, 37 N. H. 134; well u. Taylor, 41 Conn. 56 ; People J?. Blood v. Rideout, 13 Met. (Mass.) Davis, 56 N. Y. 102; Whitney v. Dur- 237; Stetson v. Howland, 2 Allen, 591 ; kin, 48 Cal. 462. Happy v. Mosher, 47 Barb. 501 ; York 237 § 265.] THE LAW OF EVIDENCE. [book I. What i3 done or ex- hibited at the time, may be so proved. § 264. What is done is part of the res gestae as much as is what is said ; and on this additional ground is explained a famous ruling, elsewhere noticed, that without pro- ducing flags exhibited at seditious meetings the inscrip- tions on such flags could be proved ; ^ for such inscrip- tions used on such occasions are the public expression of the sentiments of those who bear them, and have rather the character of speeches than of writings.^ So a foreign proclamation, con- tained in a printed placard, is treated as an inscription or act done, and may be proved by oral evidence or an examined copy. In such a case, Pollock, C. B., said : " Hearsay evidence is ad- missible when it is part of a transaction ; and in this way the exclamations of a crowd may be received as evidence. But there is, generally speaking, this distinction between what is said and what is done : in order to admit the former it is necessary that the authority of the speaker should be shown in order to affect the parties ; but if it be something done that is to be proved, no authority is required, because there is no danger of being misled ; and I regard a placard or proclamation on a wall rather as some- thing done. In a case before me at Guildford, where the plain- tiff sought to recover the expenses of an election, I would not allow orders given by third parties by word of mouth to be ad- mitted in evidence against the defendant, but I admitted inscrip- tions on coaches." ^ § 265. Such declarations, however, are inadmissible if so far prior to the act as to give opportunity for their con- coction in way of preparation,* or so far afterwards as to leave an interval of cooling time (to be measured by the circumstances of the case), in which excuses or explanations could be got up. Hence all declarations which are in the nature of a narrative of past events are inad- Declara- tions inad- missible if there be opportu- nity for concoctioa. Bank u. Carter, 38 Penn. St. 446 ; Lloyd V. Farrell, 48 Penn. St. 73; Black V. Thornton, 30 Ga. 361; Sto- vall V. Bank, 16 Miss. 305 ; State r. Schneider, 35 Mo. 533. 1 Supra, § 81. 2 R. 17. Hunt, 3 B. & Aid. 674. * Bruce v. Nicolupolo, 11 Ex. 129. * Supra, § 261. Bangor \>. Bruns- 238 wick, 27 Me. 351; Stone v. Segur, 11 Allen, 568 ; Rowellu. Lowell, 11 Gray, 420; Walrod v. Ball, 9 Barb. 271; Smith w. Betty, 11 Grat. 752; Wads- worth V. Harrison, 14 Iowa, 272; Lee r>. Hester, 20 Ga. 588 ; Rosenbaum v. State, 33 Ala. 354 ; Gamble v. John- son, 9 Mo. 605; State v. Dominique, 30 Mo. 586. CHAP. IV.J HEARSAY: RES GESTAE. [§ 266. missible.i So proof of deliberation excludes such declarations ; and for this reason a letter written to a party is inadmissible for him, though written immediately after the transaction.^ But this limitation as to time does not apply to instinctive excla- mations to a physician or other attendant as to the party's bodily or mental state.^ § 266. A declaration, also, is inadmissible for the purpose of explaining an unexecuted intent, unless the subjective Dedara- condition of the party's mind is at issue.* And when tions >aad- ^ -J missible .to the quality or tone of an overt act is at issue, declara- explain in- _ admissible tions as to such act cannot be proved, unless proof of acts; nor the act itself is admissible, and the act is itself proved.^ rations ad- So the fact of insolvency must be established, before ™thout statements of the insolvent will be admitted to show **^'^- that he was aware of his embarrassed circumstances.^ It is true that when simply the belief of a party is in issue, such belief may be independently proved by his declarations. Thus, if the act of bankruptcy relied upon be an absenting with intent to de- lay creditors, a declaration by the bankrupt, that he left home to avoid a writ, will be admissible, though no evidence be given that any writ was actually out against him, because, in order to con- stitute this act of bankruptcy, neither writ nor pressure is in fact 1 Supra, § 260; infra, § 1180 ; Doe V. Webber, 1 Ad. & El. TS,"); Wilson V. Sherlock, 36 Me. 295; Battles v. Batchelder, 39 Me. 19 ; Banfield v. Parker, 36 N. H. 353; Banium v. Hackett, 35 Vt. 77 ; Boyden v. Moore, 11 Pick. 362 ; Salem v. Lynn, 13 Met. 544 ; Johnson v. Sherwin, 3 Gray, 374; Osborn v. Robbins, 37 Barb. 481; Spatz v. Lyons, 55 Barb. 476; Reed c;. Dick, 8 Watts, 479; Young V. Com. 28 Penn. St. 501 ; Stewart v. Redditt, 3 Md. 67 ; Hopkins v. Rich- ardson, 9 Grat. 485 ; Gardner v. Peo- ple, 4 111. 83; State v. Black, 6 Jones L. 510 ; Raiford «. French, 11 Rich. 367 ; Hart v. Powell, 18 Ga. 635 ; Rut- land V. Hathorn, 36 Ga. 380; Harri- son V. Harrison, 9 Ala. 73; Webb w. Kelly, 37 Ala. 333; Mc Adams v. Beard, 35 Ala. 478 ; Hall v. State, 40 Ala. 698 ; Brand v. Abbott, 42 Ala. 499 ; Simmons v. Norwood, 21 La. An. 421; State v. Jackson, 17 Mo. 544; Parkey v. Yeary, 1 Heisk. 157. ^ Small V. Gillman, 48 Me. 506. » Infra, § 268. 4 Hale V. Taylor, 45 N. H. 405 ; Lund V. Tyngsborough, 9 Cush. 36. 6 Carleton v. Patterson, 29 N. H. 580 ; Morrill v. Foster, 32 N. H. 358 ; Comins v. Comins, 21 Conn. 413; People V. Williams, 3 Parker C. R. 84 ; Gilbert v. Gilbert, 22 Ala. 529 ; Fail V. McArthur, 31 Ala. 26. « Thomas v. Connell, 4 M. & W. 267, 269, 270; Craven v. Halliley, cited Ibid. 270, per Parke, B. ; Vacher V. Cocks, M. & M. 353. 239 § 268.] THE LAW OF EVIDENCE. [BOOK I. necessary. 1 But, even in this case, the departure from home is a substantive act, which must be proved by evidence independent of the declaration.^ § 267. Nor, ordinarily, is it admissible to prove the narration Narration of a witness as part of the res gestae, if the witness is of a witness ^ .no mi ■ ... inadmissi- himself obtainable on trial." Thus in a suit arising the witness from a collision of carriages on a highway, the declara- selfbepro- tions of the defendant's servant, immediately after the duced. collision, that the plaintiff was not to blame, were ex- cluded.* The opinions of a by-stander, if admissible, must be proved by calling him as a witness.^ XI. EXCEPTION AS TO DECLARATIONS CONCERNING PARTY'S OWN HEALTH AND STATE OF MIND. § 268. It is well settled that the character of an injury may Declara- ^^ explained by exclamations of pain and terror at the tion of time, the iniury is received, and by declarations as to party as to _ ■' ■' , 'J his own its cause.^ So when the nature of a party's sickness or injuries. ..... . ■• ■ ■ • • ii. hurt IS in litigation, his instinctive declarations to his physician, or other attendant, during such sickness, may be re- ceived.'^ Immediate groans and gestures are in like manner ad- 1 Rouch V. R. R. 1 Q. B. 51,62, boat Co. 13 Conn. 319; Spatz v. 63 ; 4 P. & D. 686, S. C. ; Newman Lyons, 55 Barb. 476 ; Matteson v. R. V. Stretch, M. & M. 338, per Parke, R. 62 Barb. 364 ; Frink v. Coe, 4 J.; Ex parte Bamford, 15 Ves. 449; Greene (Iowa), 555; Brownell v. R. Robson V. Rolls, 9 Bing. 648. R. 47 Mo. 239; Harriman u. Stowe, 2 Roucb. V. R. R. ut supra. 57 Mo. 93; Entwhistle v. Feigner, 60 8 Allen V. Denstone, 8 C. & P. 760; Mo. 214. Great West. R. R. v. Willis, 18 C. B. ' Aveson v. Kinnaird, 6 East, 188 ; (N. S.) 748; Brown ij. Mooers, 6 Roberts u. Graham, 5 Wall. 578; Ins. Gray, 451 ; Luby v. R. R. 17 N. Y. Co. v. Mosley, 8 Wall. 397; Howe «. 131 ; Anderson v. R. R. 54 N. Y. 334; Plainfield, 41 N. H. 185 ; Perkins v. Williams v. Kelsey, 6 Ga. 365 ; How- R. R. 44 N. H. 223 ; Towle v. Blake, ell V. Howell, 37 Mo. 124. 48 N. H. 92 ; Taylor v. R. R. 48 N. H. * Lane v. Bryant, 9 Gray, 245. 304 ; Stiles v. Danville, 42 Vt. 282 ; See Robinson u. R. R. 7 Gray, 92. Earl v. Tupper, 45 Vt. 275; Com. 6 Detroit R. R. v. Van Steinburg, „. McPike, 3 Cush. 181 ; Caldwell 17 Mich. 99.But see § 260. v. Murphy, 11 N. Y. 416; People v. » Aveson w. Kinnaird, 6 East, 188; Williams, 3 Parker C. R. 84; Baker R. V. Blandy, 18 How. St. Tr. 1135; v. Griffin, 10 Bosw. 140; Caldwell v. R. J). Guttridge, 9 C. &P. 472;Green Murphy, 1 Duer, 233; Dabbert v. V. Bedell, 48 N. H. 546; Bacon v. Ins. Co. 2 Cincin. 98 ; Johnson i'. Mc- Charlton, 7 Cush. 581 ; Hall v. Steam- Kee, 27 Mich. 471; Elliott v. Van Bu- 240 CHAP. IV.] party's declaration OF STATE OF MIND. [§ 268. missible.^ But declarations made after convalescence, or when there has been an opportunity to think over the matter in refer- ence to projected litigation, are inadmissible.^ Thus in an action for carnally knowing the plaintiff, a girl of ten years, by force, and giving her the venereal disease, the plaintiff's statements made to a physician, three months after the event, have been ruled out.^ But where such subsequent declarations are part of. the case on which the opinion of the physician, as an expert, is based, they have been received.* When the patient is not a party, his declarations, being hearsay, are inadmissible.^ Ex- cept, however, for the purpose of indicating symptoms, declara- tions of this class are not evidence.® They have, however, been received to prove the condition of a party's health prior to an alleged poisoning.' In prosecutions for rape, as is well known, it is admissible to prove that the prosecutrix made complaint shortly after the outrage, though the particulars of the com- plaint are, it seems, inadmissible.^ The same rule has been applied in civil suits for indecent assaults.^ Such declarations must be given in their substance, and cannot be interpreted by the witness. Of this position we have an extreme illustration in a New York case, in which the defendant being on trial for the murder, and a witness having testified that he heard cries is- ren, 33 Mich. 49 ; Gray v. McLaugh- Laughlin, 26 Iowa, 279 ; Lush v. Mc- lin, 26 Iowa, 279; State v. Glass, 5 Daniel, 13 Ired. L. 488. See Murphy Oregon, 73 ; Illinois R. R. v. Sutton, v. R. R. 66 N. Y. 125. 42 111. 438; Looper v. Bell, 1 Head, " Morrissey i;. Ingham, 111 Mass. 373; Johnson v. State, 17 Ala. 618; 63. Phillips V. Kelly, 29 Ala. 628; Har- * Barber «. Merriam, 11 Allen, 322; riman v. Stowe, 57 Mo. 93; Brown Rogers v. Grain, 30 Tex. 289. See I). R. R. 66 Mo. 538. See, however, Filer v. R. R. 49 N. Y. 42. See, gen- Witt V. Witt, 3 Swab. & Tr. 143, erally, Rowell v. Lowell, 11 Gray, where letters written by a patient, de- 420 ; Moody v. Sabin, 9 Gush. 505. scribing his situation to his physician, ' Ashland v. Marlborough, 99 Mass. were rejected. 47; though see Rogers v. Grain, 30 1 Bacon v. Gharlton, 7 Gush. 681; Tex. 289. Hyatt V. Adams, 16 Mich. 180. « Collins v. Waters, 54 111. 485. 2 Kennard v. Burton, 25 Me. 39; ' R. v. Johnson, 2 G. & Kir. 354; Bacon v. Charlton, 7 Gush. 581; Gha- R. ui Blandy, 18 How. St. Tr. 1135. pini). Marlborough, 9 Gray, 244; Hunt « See cases in Wharton Cr. Law, V. People, 3 Parker G. R. 569; Mat- tit. "Rape." teson V. R. R. 35 N. Y. 847; Spatz » Gardner v. Kellogg, 23 Minn. V. Lyons, 55 Barb. 476 ; Gray v. Mc- 463. VOL. I. 16 241 § 269.] THE LAW OF EVIDENCE. [BOOK I. suing from the house on the night of the killing, it was held that the witness could not be asked what the cries indicated.^ § 269. What has just been said applies to cases in which it is When con- important to determine a party's mental condition at a persm^a * particular time. We have just seen ^ that, for the pur- mind is at pQgg jjf exhibiting such condition of mind, statements statements made to such party by third persons may be admissible, proved. We have now to recognize the position that, to deter- mine such condition of mind, it is admissible to put in evidence such expressions of the party as may be shown to have been in- stinctive, and not to have been uttered for the purpose of produc- ing a particular effect.^ Thus, where two persons are sued for an assault, in seizing a runaway apprentice, it is admissible, as showing the purpose, to prove that one of them told the other, at the moment of the collision, not to hurt the runaway ; * and where the question is whether a defendant had absconded, his declara- tions when leaving are evidence in his favor.^ So, in an action for enticing away a runaway servant, are the declarations of the ser- vant at the time of leaving.® So, when the extent of a mental disease is in controversy, are the declarations of the person so affected,'^ though not as to prior transactions.* So, when the bona fides of a transaction is in question, are instinctive and unpremed- itated declarations of parties or their agents, during the negoti- ations, as touching such hona fides? So where a married woman sets up duress and coercion to avoid a deed executed by her, she 1 Messner v. People, 45 N. Y. 1. 89 ; People v. Shea, 8 Cal. 538. See " Supra, § 254 ; and see supra, Whart. Cr. Law, 7th ed. 50 a. §§ 33-5. •« Williams v. Jarrot, I Gilrtian, 120. • See cases cited in last section, ' U. S. v. Penn, 13 Bk. Reg. 4. and see Cora. v. O'Connor, 11 Gray, « Hadley v. Carter, 8 N. H. 40. 94 ; Howe v. Howe, 99 Mass. 88 ; '1 Whart. & St. Med. Jur. § 286 Goodwin v. Harrison, 1 Root, 80; (3d ed.) ; R. «. Johnson, 3 C. & K. Kearney v. Farrell, 28 Conn. 317; 854; Perkins v. R. R. 44 N. H. 223; Roach V. Lehring, 59 Penn. St. 74; Howe v. Howe, 99 Mass. 88; 111. Cent. Knowlton v. Clark, 25 Ind. 895; Wil- R. R. v. Sutton, 42 111. 488; State v. Hams V. Jarrot, 1 Gilman, 120; Welsh Kring, 64 Mo. 591. V. Louis, 31 111. 446; 111. Cent. R. R. « Chapin v. Marlborough, 9 Gray, V. Sutton, 42 111. 438; Buttram v. 224; Stewart «. Redditt, 3 Md. 67. Jackson, 82 Ga. 409; Edgar w. Mo- » Banfield v. Parker, 86 N. H. 353; Am, 22 Ala. 796; Liles v. State, SO Zabriskie ». Smith, 13 N. Y. 322. A.la. 24 ; State v. Hays, 22 La. An. See supra, § 35. 242 CHAP. IV.J party's declaration OP STATE OF MIND. [§ 269. may prove her husband's threats and her consequent terror.^ On the same principle, in actions for adultery, what the husband and wife had said to each other, or letters written by either party to the other, when there was no ground to suspect collusion, were received in evidence to show the terms on which they lived.^ In life insurance cases the party's views as to his condition may be thus shown. Thus in an English action on a policy of insur- ance,^ the defendants offered evidence that, a few days after it was made, the deceased, who had previously represented herself to the defendants as being in good health, had given a totally different account of her health to a witness. It was held that the witness might relate her conversation with the deceased; and that the statements of the latter, as so related, would be evidence in the same way as the answers of patients to the in- quiries of their medical attendants are evidence as to their state of health.* But statements by a deceased party, some time prior to his application for a policy of life insurance, and not, there- fore, part of the res gestae, are not admissible to show that he had diseases which he negatived in the application ; ^ though when such diseases are otherwise proved, the statements are ad- missible to show that he had notice of them.® 1 Central Bank v. Copeland, 18 Md. * See Witt v. Klind worth, 3 S. & T. 305. 143. = Trelawney u. Coleman, 1 B. & » Edington «. Ins. Co. 67 N. Y. 185. Aid. 90; cf. Willis v. Bernard, 8 Bing. « Dilleber v. Ins. Co. 69 JST. Y. 256 ; 376. Supra, §§ 34, 225. Swift v. Ins. Co. 63 N. Y. 186. ' AveBon v. Einuard, 6 East, 188. 243 BOOK II. MODE OF EEOEIYI^G PEOOF. CHAPTER V. JUDICIAL NOTICE. I. Genebal Rules. Court cannot take notice of evidential facts not in evidence, § 276. Non-evidential facts may be judi- cially noticed, § 277. Reason a coordinate factor with evi- dence, § 278. Judge may on his own motion inter- rogate witness, § 281. May consult other than legal litera- ture, § 282. May of his own motion take notice of law, § 283. Law of God, natural and revealed, §284. Law of nations, § 285. Domestic law, § 286. II. Codes ahd theik Pkoof. Federal laws not "foreign" to the states, nor state laws to the fede- ral courts, § 287. Particular states foreign to each other, §288. State laws may be proved from printed volume, § 289. Court may determine whether stat>- ute has passed, § 290. Judicial notice taken of laws of prior sovereign, § 291. Private laws not noticed by court, §292. Distinction between public and pri- vate laws, § 293. Court takes notice of mode of authen- ticating laws ; and herein of legis- lative action generally, § 295. Subsidiary systems noticed, § 296. Equity, § 296. Military law, § 297. 244 III. Law merchant and maritime, § 298. Ecclesiastical law, § 299. Foreign law must be proved, § 300. Proof must be by parol, § 302. Experts admissible for this purpose, §305. Experts may verify books and au- thorities, § 308. Foreign statutes may be proved by exemplification, § 309. Printed volumes are prima facie proof, § 310. Judicial construction of one state is adopted by another, § 311. Statute must be put in evidence, §312. Foreign elementary jurisprudence can be noticed, § 313. Foreign law presumed not to differ from lex fori, § 314. But not so as to local peculiarities, §315. Lex fori determines rules of evidence, §316. Executive and Judicial Docu- ments. Court takes notice of executive docu- ments, § 317. Public seal of state self-proving, §318. So of seals of notaries, § 320. So of seals of courts, § 321. So of handwriting of executive, § 322. So of existence of foreign sovereign- ties, § 323. So of judicial officers and practice, § 324. CHAP. V.J JUDICIAL NOTICE. [§ 278. So of proceedings in particular case, §325. So of records of court, § 326. IV. Notoriety. Notoriety in Roman law, § 327. Canon law, § 328. General characteristics of notoriety, § 329. Of notoriety no proof need be ofEered, § 330. Notorious customs need not be proved, § 331. Instances : Course of seasons, § 332. Limitations of human life as to age, §333. Limitations of human life as to gesta- tion, § 334. Conclusions of science and political economy, § 335. Ordinary psychological and physical laws, § 336. Leading domestic political appoint- ments, § 337. Leading public events, § 339. Leading features of geography, § 340. I. GENERAL RULES. § 276. As a general rule, a court in making up its conclusions is to take no notice of facts not in evidence. In the Court to Roman law this maxim, as held by the classical jurists, notfoe of is understood as precluding the judex from allowing his fjcts^notin judgment to be influenced by any facts which are the evidence. proper objects of evidence, but which were not put in evidence.* In the same sense this maxim has been accepted by our own courts.^ § 277. Certain facts, or conclusions from facts, however, may be noticed, which may be styled non-evidential, from the „ fact that they are not the proper objects of evidence, dential 1 , 1 , 1 • T • 11 -1 facts may and that consequently they may be judicially noticed bejudicial- by the courts. These facts will be presently considered. ^ "^ '°* ' § 278. Reason is to be treated as a coordinate factor with evidence. The adjudicating tribunal must determine : . . . Reason a (1.) Whether a particular piece of offered testimony is coordinate admissible as evidence ; (2.) What it is to be inter- -^wi^ evi- preted as meaning ; ^ (3.) How far it is to be modified ^^°°®' 1 See Endemann's Beweislehre, §21. " Mayor of Beverley v. Atty. Gen. 6 H. of L. Cas. 333; Bradstreet v. Potter, 16 Pet. 317; Mills v. Brown, 16 Pet. 525 ; Bell v. Bruen, 1 How- ard, 169 ; Providence v. Babcock, 3 Wall. 240; Wheeler v. Webster, 1 E. D. Smith (N. Y.), 1; Anderson v. R. R. 54 N. Y. 331; Bain v. Wilson, 10 Ohio St. 18; Odom v. Shackleford, 44 Ala. 331. See particularly supra, §§ 1-4. » Of this duty one of the most strik- ing illustrations is the right to inter- pret words. See R. v. Woodward, 1 Moo. C. C. 323, and cases cited in Wh. Cr. Law, § 377 ; dementi v. Golding, 2 Camp. 25; Shubrick v. State, 2 S. C. 21 ; State v. Abbott, 20 "Vt. 537; Com. v. Kneeland, 20 Pick. 229. 245 § 279.] THE LAW OF EVIDENCE. [book II. by other evidence in the case ; (4.) How far it is to be modified by natural and other phenomena, of which, as we will hereafter see, the court is bound to take notice.^ § 279. The policy of scholastic jurisprudence was to treat the judge as a mere automaton, destitute of any prior knowledge whether legal or lay, his sole office being to determine whether or no the case in court comes up to a hypothetical case laid down in the books. By the gldssators and post-glossators, copious commentaries were prepared, in which a positive legal character 1 See this developed by Hooker, ■when discussing the interdependent relations of reason and revelation. " If only those things be necessary, as surely none else are, without the knowledge and practice whereof it is not the will and pleasure of God to make any ordinary grant of salvation; it may be notwithstanding, and often- times hath been demanded, ho,w the books of Holy Scripture contain in them all things necessary, when of things necessary the very chief is to know what books we are bound to es- teem holy, which point is confessed impossible for the Scripture itself to teach. Whereunto we may answer with truth, that there is not in the world any art or science, which, pro- posing unto itself an end (as every one doth some end or other), hath been therefore thought defective, if it have not delivered simply whatsoever is needful to the same end ; but all kinds of knowledge have their cer- tain bounds and limits ; each of them presupposeth many necessary things learned in other sciences and known beforehand. He that should take upon him to teach men how to be eloquent in pleading causes, must needs deliver unto them whatsoever precepts are requisite unto that end; otherwise he doth not the thing which he taketh upon him. Seeing, then, no man can plead eloquently unless he be able first to speak, it followeth 246 that ability of speech is in this case a thing most necessary. Notwithstand- ing every man would think it ridicu- lous, that he which undertaketh, by writing, to instruct an orator, should therefore deliver all the precepts of grammar, because his profession is to deliver precepts necessary unto elo- quent speech, yet so that they which are to receive them be taught before- hand so much of that which is there- unto necessary, as comprehendeth the skill of speaking." . . . . "It sufficeth, therefore, that nature and Scripture do serve in such full sort, that they both jointly, and not sev- erally either of them, be so complete, that unto everlasting felicity we need not the knowledge of anything more than these two may easily furnish our minds with on all sides." Hooker's Ecclesiast. Pol. Book I. ch. xiv. See, also, authorities cited in Sir J. F. Stephen's argument in defence of Dr. Williams, London, 1862. In Boswell's Johnson (Croker's ed. IV. 350), we have the following from Johnson : " There is a beautiful image in Bacon upon this subject : Testimony is like an arrow shot from a long- bow ; the force of it depends upon the strength of the hand that draws it. Argument is like an arrow from a cross-bow, which has equal force though shot by a child." A note, however, ascribes the quotation to Boyle, not Bacon. CHAP, v.] JUDICIAL NOTICE. [§ 280. was assigned to every case which they could imagine. In the framing of such cases, in fact, the canonists, who were trained in the casuistical studies requisite for a proper use of the confes- sional, were peculiarly skilled ; and few things, in the litera- ture of those days, are so remarkable as the extraordinary and sometimes abnormal combinations of contingencies which thpy devised. Those combinations were intended to anticipate every future event ; to each combination a certain legal judgment was assigned ; and when a new case did not exactly reproduce one of these norms, then such new case was to be ruled by the law of the norm that was nearest. Nothing was to be left to the convic- tions of the judge ; there was no appeal to his learning or expe- rience ; everything was to be determined by the law adjudicating the particular case in advance. " Quamvis falsum probatur, pro- batio esse non desinit, ut recta sit probatio, satis est, ut in forma non peccet, licet in materia deficiat." ^ The judge had nothing to do with the distinctive merits of the case. He was to deter- mine solely secundum allegata et probata ; the allegata consisting only of the points to which a subtle system of special pleading narrowed the issue ; the probata, frequently of arbitrary legal as- sumptions, a few relics of which have come down to us under the titles of presumptions of law. The use, by the judge, of reason in the application of law to fact was considered as mon- strous, as was the use of reason by the individual in the interpre- tation of the dogmas of the church. The judge was required to take that decision, given by the casuists, which best fitted his case; to seek for a decision which the justice of the case might distinctively demand was not within his power. He was not to act propria eonscientia, except when as papa et imperator, supe- riorem judicem non recognovit? § 280. So far as concerns law, this is well enough, as an in- ferior judge must be bound by what is the settled law. But as far as concerns the value to be attached to evidence, the practice worked great injustice. Certain kinds of evidence had assigned to them certain effective valuations; and when such evidence was introduced, these valuations were to rule the case, no matter 1 Masc. qu. 2, nr. 13. " See citations to this point in En- demann's Beweislehre, 27. 247 § 281.J THE LAW OF EVIDENCE. [BOOK II. what might be the merits. And as almost every item of evi- dence after a while had thus attached to it a peremptory proba- tive force, scarcely a case could arise in which, even when the issue was fairly presented, it could be fairly tried. No doubt in many cases right results were reached, but this was by wrong processes. A will made under the influence of a child, for in- stance, would primd facie be ruled void, for the reason that it is a presumption of law that a will made under the influence of another is not the testator's free act. It would not be within the judge's power to go into the merits of the case, and to in- quire whether the influence exerted was such as really destroyed the testator's moral freedom. When witnesses differed, prepon- derance in number was to decide ; and consequently the Judex, on a question of fact, had to rule in favor of three whom he knew spoke falsely, against two whom he knew spoke truly. So it was that by a series of rules, first determining competency, and then credibility, the scholastic jurists decided in advance not only what witnesses were competent, but to what extent each was to be believed. The last of these restrictions (those determining credibility) the English common law never received. The first (those excluding persons interested) we have now by statute re- moved. § 281. Whether a judge can, on his own motion, put to a wit- Judge ness questions independently of counsel, so as to bring "wn'mo-'' out points counsel either designedly or undesignedly rogate"wit- overlook, is much disputed by modern commentators ness. on the Roman law. On the one side it is urged, in conformity with the scholastic view, that the judge is confined to the proof adduced by the parties. On the other side it is in- sisted that it is absurd for a judge, with a witness before him, not to do what he can to elicit the truth. So far as concerns the abstract principle, writers on the English common law repeatedly affirm the scholastic view that the judge must form his judgment exclusively on the proofs brought forward by the parties. So far as concerns the practice, judges, both in England and in the United States, do not hesitate to interrogate a witness at their own discretion, eliciting any facts they deem important to the case. For this purpose not only may a witness be recalled by 248 CHAP, v.] JUDICIAL NOTICE. [§ 282. the judge,! but new facts may be brought out by the judge's per- sonal interposition.^ § 282. It will be presently noticed that the judge not only may, but should, have recourse, in making up his opin- ion of the law of the case, to the literature of his profes- consult ^ sion even in matters not referred to by counsel ; though ugd/it*" if he make any new point, it is proper for him to state ^'"''^' it to counsel, so as to open it to their criticism. But he is not limited in his researches to legal literature.^ He may consult works on collateral sciences or arts, touching the topic on trial.* He may draw, for instance, on mythology, in order to determine the meaning of similes in an ambiguous writing.^ He may refer to almanacs ; ^ he may appeal to his own memory, for the mean- ing of a word in the vernacular ; "^ he may, as to the meaning of terms, refer to dictionaries of science of all classes;^ he may de- termine the meaning of abbreviations of Christian names and offices, and of other common terms ; ^ as to a point of political history (e. ff. the recognition of a foreign government) he may consult the executive department of the state ; i" he may cause inquiry to be made as to the practice of other courts ; ^^ and Lord Hardwicke went so far as to inquire of an eminent conveyancer as to a rule of conveyancing practice.!^ And so the court may 1 R. V. Watson, 6 C. & P. 653; 25; Mouflet v. Cole, L. R. 7 Exch. Middleton v. Earned, 4 Exch. R. 243 ; 70; Com. v. Kneeland, 20 Pick. 229; Com. V. Galavan, 9 Allen, 271; Epps though see as to local or class idioms, V. State, 19 Ga. 102. Infra, § 496. Bodmin Mines Co. in re, 23 Beav. 370. ^ See a curious illustration of this ' Clementi v. Golding, 2 Camp. 25. by Sir John Jervis, given infra, § 347, As an illustration of this, see Brown note. V. Piper, infra, § 335. ' See Willoughby u. Willoughby, 1 ' Stephen v. State, 11 Ga. 225; T. R. 772; U. S. u. ^Teschmaker, 22 Moseleyu.Mastin, 37 Ala. 216; though How. 392; and infra, § 335. see Russell v. Martin, 15 Tex. 238; * As illustrating this, see rulings on Weaver v. McElhenon, 13 Mo. 89. insanity, cited in Whart. & St. Med. " Taylor v. Barclay, 2 Sim. 221. Jur. §§ 108, 303; and also infra, § 655. " Doe v. Lloyd, 1 M. & Gr. 685, re- ' Hoare v. Silverlock, 11 Ad. & El. lying on Worsley v. Fillisker, 2 Roll. N. S. 624. R. 119; and see Chandler v. Grieves, ^ Page V. Faucet, Cro. El. 227 ; 2 H. Bl. 606, n. a, where the Common Sutton V. Darke, 5 H. &. N. 649; All- Pleas directed an inquiry of the Ad- man V. Owen, 31 Ala. 167; Sprowl v. miralty Court as to a point of admi- Lawrence, 33 Ala. 674. ralty law. ' R. V. Woodward, 1 Mood. C. C. " Willoughby v. Willoughby, 1 T. 823; Clementi v. Golding, 2 Camp. R. 772. 249 § 284."] THE LAW OF EVIDENCE. [BOOK II. have recourse to the legislative rolls to determine the construc- tion of a statute.' § 283. While it is the duty of the parties to bring before the Court of court the law on which they rely, the court is bound to motion Verify their statements, and to determine on its own may take responsibility what the law really is. Even points of law. law omitted by counsel may be taken up by the court. Thus judges have repeatedly refused to try frivolous wagers ; ^ and in one notorious instance Lord Loughborough, against the protest of both parties, refused to try a wager as to a game of cards.^ And a judge will dismiss an action on a transaction vio- lating the revenue laws, though the point be not taken by the defence.* So a judge may of his own motion prevent the dis- closure of confidential professional communications.^ The clas- sical Roman law (as distinguished from the scholastic) has em- phatic injunctions to this effect. " Non dubitandum est, judi- cem, si quid a litigatoribus vel ab his, qui negotiis adsistunt, minus fuerit dictum, id supplere, et proferre, quod sciet legibus et juri publico convenire." ^ Yet this is on the supposition that the point to be decided is one of principle, submitted as such by the parties, on which the judgment of the court is invoked ; and even in such case, it is proper for a judge, before deciding the case on the special points supplied by himself, to state such points to counsel, and call for a reargument if desired. But giving this prerogative its widest range, it is held not to justify a judge in interposing of his own motion technical objections, which interfere with a decision of the case on the merits, and which a party may intentionally decline to invoke. " Non quid- quid judicis potestati permittitur, id subjicitur juris necessi- tati." ^ In such cases, that which is in this respect within the judge's power is not laid on him as a necessity of law. § 284. So far as concerns the revealed law of God, the courts 1 E. V. Jeffries, 1 Str. 2146; Spring * Kessel v. Albetis, 56 Barb. 362. V. Eve, 2 Moo. 240. Infra, § 295. 6 gee infra, § 538; People „. At- ' See Da Costa v. Jones, 2 Cowp. kinson, 40 Cal. 284. 729 ; Ditchburn v. Goldsmith, 4 Camp. " L. xi. C. ut desunt Advocat. We- 152 ; Brown v. Leeson, 2 H. Black, ber, Heffter's ed. 20. 43. ' L. 40, pr. D. de judiciis. ° See Campbell's Life of Lord Loughborough, passim. 250 CHAP, v.] JUDICIAL NOTICE. [§ 286. take judicial notice of Holy Scriptures in three distinct rela- tions. First, certain portions of the Bible are adopted g^ ^j pj_ as a normal rule by the ecclesiastical law, which, in the vi°e law. United States, lies at the base of our common law of marriage. Secondly, Christianity in its general incideiits has been declared to be part of the common law of the land ; a proposition which, with its due qualification, it is not intended here to discuss, but which presupposes an acquaintance by the courts with the au- thoritative records of Christianity.^ Thirdly, Christianity in its ethical relations is, apart from its divine authority, a constituent element in modern ethics, of whose laws the courts are supposed to be judicially cognizant. In addition to the revealed laws of God, we must also assume the knowledge by the court of His natural laws, such as are ordinarily admitted by experience, or demonstrated by science.^ § 285. The law of nations, being coextensive with civilization, must also be judicially noticed. This has been extended , ^ •■ _ •' _ _ And so of to include the English rules of navigation adopted by law of orders in council, of January 9, 1863 (prescribing the sorts of lights to be used on British vessels), and by our Act of Congress of 1864 ; these rules having, before the close of the year 1864, been accepted as obligatory by more than thirty of the principal commercial states of the world, including most of those having any shipping on the Atlantic Ocean.^ § 286. So, on the same principle, each court is bound to take judicial notice of the domestic laws to which it is sub- , , ject. As component parts of such we may notice the domestic common law ; and the statute law, both as' to its char- acter and the time when it goes into operation.* 1 See Whart. Cr. Law, tit. " Chris- Md. 138; State v. Jarrett, 17 Md. tianity," where the cases are grouped. 309; Springfield v. Worcester, 2 2 Infra, § 355. Cush. 52 ; State v. Bailey, 16 Ind. ' The Scotia, 14 Wallace, 171. 46 ; Pierson v. Baird, 2 Greene (la.), * Cassiday v. Stewart, 2 M. & G. 235; Berliner v. Waterloo, 14 Wis. 457; Sims v. Maryett, 17 Q. B. 292; 878; Howard Co. in re, 15 Kans. R. V. Sutton, 4 M. & S. 542; Wason 194; Dolph v. Barney, 5 Oregon, V. Walter, 8 B. & S. 671; S. C. L. 191; State v. O'Conner, 13 La. An. E. 4 Q. B. 73; Marbury u. Madison, 486. The federal courts take judi- 1 Cranch, 103; Jones v. Hays, 4 cial notice of the sessions of the state McLean, 521; Canal Co. u.'R. R. 4 courts. Cheever v. Wilson, 9 Wall. Gill & J. 1; Hammond v. Inloes, 4 108. 251 § 288.] THE LAW OF EVIDENCE. [book II. § 287. Federal laws not foreign to the states ; nor the state laws to the federal courts. II. CODES AND THEIR PROOF. An ordinance or statute of the United States is not " foreign," so far as concerns the particular states. Hence it has been held that a state court will take ju- dicial notice of the federal Constitution and its amend- ments ; ^ and of federal public statutes.^ And it has been held that a state court will recognize without proof state statutes incorporated in acts of Congress.^ The state courts, under this rule, take cognizance of federal statutes ; and the federal courts take cognizance of state statutes.* § 288. So far, however, as concerns the international relations Statutes of °^ *^^ states of the American Union, since these states, u^'t°d"'^ under the Constitution of the United States, are foreign States are to each other in all cases except those in which the fed- "forsiffn" , . as to other eral Constitution or separate compact provides other- states, ^.^g . j^ follows that the courts of one state will not take judicial notice of the statutes of another state. If such statutes are different from the domestic law, they must be proved.^ At the same time, when the courts of one state recog- Hempstead v. Reed, 6 Conn. 480 Chanoine v. Fowler, 3 Wend. 173 1 Graves v. Keaton, 3 Coldw. 8. = Kessel v. Albetis, 56 Barb. 362; Bayly v. Chubb, 16 Grat. 284; Dick- enson V. Breeden, 30 111. 279; Gooding V. Morgan, 70 111. 275; Semple v. Hagar, 27 Cal. 163; Morris v. David- son, 49 Ga. 361; Papin v. Eyan, 32 Mo. 21 ; Rice's Succession, 21 La. An. 614; Wright v. Hawkins, 28 Tex. 452; Mimsu. Swartz, 37 Tex. 13. 8 Flanigen v. Ins. Co. 7 Penn. St. 306. * Course V. Stead, 4 Dal. 27 n.; Ow- ings V. Hull, 9 Peters, 607; Penning- ton V. Gibson, 16 How. 65; Cheever V. Wilson, 9 Wall. 108; Griffing v. Gibb, 2 Blatch. 519; Gordon v. Ho- bart, 2 Sum. 402; Jones v. Hays, 4 McL. 521; Mewster u. Spalding, 6 McL. 24; Merrill v. Dawson, Hemp. 663; Smith f. Tallapoosa, 2 Woods, 574. s Territt v. Woodruff, 19 Vt. 182; Taylor v. Boardman, 25 Vt. 581; 252 Hosford V. Nichols, 1 Paige, 220 Miller v. Avery, 2 Barb. Cli. 582; "Van Buskirk v. Mulock, 3 Harris. (N. J.) 184; Ripple v. Ripple, 1 Eawle, 386; State V. Hinchman, 27 Penn. St. 479; Baily v. McDowell, 2 Harring. (Del.) 34;Irwingu. McLean, 4 Blackf. 52; Billingsley v. Dean, 11 Ind. 331; Johnson v. Chambers, 12 Ind. 112; Davis t!. Rogers, 14 Ind. 424; Mason V. Wash, 1 Breese, 16 ; Carey v. R. R. 5 Iowa, 357; Taylor v, Runyan, 9 Iowa, 522; Rape v. Heaton, 9 Wis. 828; Brimhall v. Van Campen, 8 Minn. 13; Hoyt v. McNeil, 18 Minn. 390; Beauchamp v. Mudd, Hard. (Ky.) 163; Cook V. Wilson, 1 Litt. Cas. (Ky.) 437; Dorsey v. Dorsey, 5 J. J. Marsh. 280; Stephenson v. Bannis- ter, 3 Bibb, 369; State v. Twitty, 2 Hawks, 248; Whitesides v. Poole, 9 Rich. S. C. 68; Stanford v. Pruet, 27 CHAP, v.] JUDICIAL NOTICE. [§ 289. nize the statute of another state as law in such state, this recog- nition may be permanently maintained by the courts of the for- mer state, until there is proof of the change of such statute.^ And it has been held by the Supreme Court of the United States that when the laws of one state recognize oflBcial acts done in pursuance of the laws of another state, the courts of the former state may take judicial cognizance of the laws of the latter state, so far as it is necessary to determine the validity of the acts done in conformity with such laws.^ Hence the prevalent opinion is that when a suit is brought, under the federal Constitution, in one state on a judgment of another state, the former state will take judicial notice of the law of the latter state.^ § 289. In the federal courts, the statutes of the several states of the American Union may be read from the official printed volume, with the seal or other authentication may be of the state, without further proof, as primd facie an- \ll^ thentic,* and in some states this is permitted at com- ^Xml mon law,^ in others by statute.^ At common law, how- Ga. 243; Simms v. Ex. Co. 38 Ga. 129; Drake v. Glover, 30 Ala. 382; Mobile R. K. V. Whitney, 39 Ala. 468; An- derson V. Folger, 11 La. An. 269; Hemphill v. Bank, 6 Sm. & M. 44; Jones V. Laney, 2 Tex. 342; Anderson V. Anderson, 23 Tex. 639 ; Newton v. Cocke, 10 Ark. 169. See, however, Foster v. Taylor, 2 Overton, 191; Herschfeld v. Dexel, 12 Ga. 582; Butcher v. Brownsville, 2 Kans. 70; Shed V. Augustine, 14 Kans. 282. 1 Graham v. Williams, 21 La. An. 594. " Carpenter v. Dexter, 8 Wall. 513. 8 Paine v. Ins. Co. 11 R. L 411; State V. Hinchman, 27 Penn. St. 479; Rae V. Hulbert, 17 111. 572, 678; Butcher v. Bank, 2 Kans. 70. Infra, § 300 ; though see, contra, Rape v. Heaton, 9 Wis. 328-41. * Craig V. Brown, Pet. C. C. 352; Hinde v. Vattier, 5 Pet. 398 ; Owinga V. Hull, 9 Pet. 607 ; Pease v. Peck, 18 How. U. S. 595. See Commerc. Bank V. Patterson, 2 Cranch, 846. = Emery v. Berry, 26 N. H. (8 Fos- ter) 486; State v. Abbott, 29 Vt. 60; Mullen V. Morris, 2 Penn. St. 85 ; Hunter v. Pulcher, 5 Rand. Va. 126; Wilson V. Lazier, 11 Grat. 477; Bark- man V. Hopkins, 11 Ark. (6 English) 157; Charlesworth v. Williams, 16 111. 338; Com. Ins. Co. v. Labuzan, 15 La. An. 295 ; Stewart v. Swanzy, 23 Miss. 502. 8 Merrifield v. Robbins, 8 Gray, 150; Cutler v. Wright, 22 N. Y. 472; Toulandou v. Lachenraeyer, 6 Abb. Pr. N. S. 215; Heberd v. Myers, 5 Ind. 94; Crake v. Crake, 18 Ind. 156; Paine v. Lake Erie, 3i Ind. 283; Lat- terett v. Cook, 1 Iowa, 1 ; State v. Check, 13 Ired. L. 114; Hanrick v. Andrews, 9 Port. (Ala.) 9 ; Clanton V. Barnes, 50 Ala. 260; Bright v. White, 8 Mo. 421 ; Biesenthall w. Wil- liams, 1 Duvall, 329. That the seal of the state is a sufficient authentica- tion, see U. S. V. Johns, 4 Dall. 412 ; Robinson v. Gilman, 10 Me. 299; State V. Carr, 5 N. H. 367. 253 § 290.] THE LAW OF EVIDENCE. [book II. ever, in strict practice, such statute should be certified either by the secretary of state, or by the clerk of a supreme judicial court, with a certificate of the governor of the state as to the official capacity of the secretary or clerk.^ To a judicial notice of domestic statutes it is a pre- requisite that the court should determine what statutes are in force. For this purpose the court may refer to the authentic records of the proceedings of the legis- lature.2 Has a bill, for instance, received a constitu- § 290. Court may determine as to whether statute has been actu- 1 U. S. V. Johns, 4 Ball. 412 ; Rob- inson V. Gilman, 10 Me. 299; State v. Carr, 5 N. H. 367; Kice's Succession, 21 La. An. 614. See infra, §§ 303, 309. ^ See Sedgwick on Statutory Law, 2d ed. 55. The point in the text is discussed at large in South Ottawa v. Perkins, S. C. U. S. 1876, reported in 4 Cent. L.J. 132, with a note thereto, and in the subsequent ruling in the same case, 94 U. S. 261; 4 Cent. L.J. 441, in which the following conclusion is stated : — " When once it became the settled construction of the Constitution of Illinois, that no act can be deemed a valid law unless, by the journals of the legislature, it appears to have been regularly passed by both houses, it be- came the duty of the courts to take judicial notice of the journal entries in that regard. The courts of Illinois may decline to take that trouble, un- less parties bring the matter to their attention ; but, on general principles, the question as to the existence of a law is -a, judicial one, and must be so regarded by the courts of the United States. " This subject was fully discussed in the case of Gardner v. The Collec- tor, 6 Wall. 499. After examining the authorities, the court in that case lays down this general conclusion, ' that whenever a question arises in a court of law of the existence of a stat- 254 ute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to re- sort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satis- factory answer to such question ; al- ways seeking first for that which in its nature is most appropriate, unless the positive law has enacted a diflfer- ent rule.' " Of course, any particular state may, by its Constitution and laws, prescribe what shall be conclusive evi- dence of the existence or non-exist- ence of a statute ; but, the question of such existence or non-existence being a judicial one in its nature, the mode of ascertaining and using that evi- dence must rest in the sound discre- tion of the court, on which the re- sponsibility rests in any particular case." Bradley, J., South Ottawa v. Perkins, 94 U. S. 261. " Each house keeps a journal of its proceedings which is a public record, and of which the courts are at liberty to take judicial notice. If it should appear from these journals that any act did not receive the requisite ma- jority, or that in respect to it the leg- islature did not follow any require- ment of the Constitution, or that in any other respect the act was not constitu- tionally adopted, the courts may act upon this evidence and adjudge the CHAP, v.] JUDICIAL NOTICE. [§ 290. tional majority? Has it been passed over the gov- ally and ernor's veto ? Did it pass in a constitutional shape ? 1°°^^^' Does it, for instance, as is required by the constitutions passed. of several states, relate to but one subject, v^hich is expressed in the title ? Questions of this kind are vital when a court has to determine whether a statute exists ; but questions of this kind cannot be solved without resort to the records of the legislature. It is for the court, with such aid, to determine whether the stat- ute in dispute has passed. For this purpose the original record is the best evidence, unless the printed journals be made so by statute ; and of the original record, or of the printed jour- nals when such are made evidence by statute, the court is bound to take judicial notice.^ It is scarcely necessary to say that a statute void." Cooley's Const. Lim. 135. " It is settled that judges may, and, if they deem it necessary, should look beyond the printed statute book, and examine the original engrossed bills on file in the office of the secre- tary of state; and it seems that the journals of the two houses may be also consulted." Sedgw. Stat. & Const. Law, 2d ed. § 55. ^ Sedgwick's Stat. Law, 2d ed. 55; Cooley's Const. Lim. 135 ; Gardner V. Collector, 6 Wall. 499 ; Opinion of Judges, 35 N. H. 579 ; Opinion of Justices, 52 N. H. 622; Thomas v. Dakin, 23 Wend. 9; Warner i;. Beers, 23 Wend. 103 ; People .;. Purdy, 2 Hill, 31 ; Purdy v. People, 4 Hill, 384; Commercial Bank v. Sparrow, 2 Denio, 97; People v. Briggs, 50 N. Y. 553; People v. Board, 52 N. Y. 556 ; People V. Commissioners, 54 N. Y. 276; Harris v. People, 59 N. Y. 599; Com. V. Dickinson, 9 Phil. (Pa.) 561 ; Berry v. R. E. 41 Md. 446 ; Osburn v. Staley, 5 W. Va. 85 ; Pordyce v. God- man, 20 Ohio (N. S.), 1 ; People v. Ma- honey, 13 Mich. 481; People v. Hurl- burt, 24 Mich. 55 ; Turley v. Logan, 17 111. 151 ; Prescott v. Canal, 19 111. 324; Holcomb «. Davis, 56 111. 413; People V. De Wolf, 62 III. 253; Cole- man «. Dobbins, 8 Ind. 158; State u. Young, 47 Ind. 1 50;' Williams u. State, 48 Ind. 306 ; Clare v. State, 5 Iowa, 509; Watertown v. Cady, 20 Wis. 501 ; State V. Dousman, 28 Wis. 541; State u. Piatt, 2 Rich. (N. S.) 150; Morton 17. Comptroller, 4 S. C. 430; Allen v. Tison, 50 Ga. 374; Conner, ex parte, 51 Ga. 571; Jones v. Hutchinson, 43 Ala. 721 ; Moody v. State, 48 Ala. 115; Walker v. State, 49 Ala. 429; Bledsoe v. State, 5 Miss. 13; State v. McBride, 4 Mo. 303 ; Smith v. Com. 8 Bush, 108; Hind v. Rice, 10 Bush, 528; Logan v. State, 3 Heisk. 442 ; Burr V. Ross, 19 Ark. 250; Martin v. Francis, 13 Kans. 220; Antonio v. Gould, 34 Tex. 49 ; State v. Shadle, 41 Tex. 404; State v. McCracken, 42 Tex. 883. Infra, §§ 295, 296. As holding that the courts will not go behind the official certificate of the passage of the law, see Louisiana v. Richoux, 23 La. An. 743. As to Con- necticut, see Eld v. Gorham, 20 Conn. 9. In Missouri it is said the objection cannot be raised in error if not taken in the trial court. Bradley v. West, 60 Mo. 83. In Illinois it is now held that the statute book is primd facie proof of the existence of a statute, and that this can only be disputed by put- 255 § 290.] THK LAW OF EVIDENCE. [book II. statute duly certified is presumed to have been duly passed until the contrary appear.^ It has been stated above that it is within the province of a court to determine whether a statute conforms to a constitutional limitation, requiring that no statute shall be operative whose title does not give notice of its contents. Ordi- narily, however, it is enough if the title, under such a limitation, gives such notice of the subject matter of the statute as to lead to an examination of its clauses.^ ting in evidence the legislative journal showing that the statute did not pass. The court, it is said, will not of its own motion take notice o£ the journal or original rolls. 111. Cent. v. Wren, 43 111. 77; Grob v. Cushman, 45 111. 424; People v. De Wolf, 62 111. 253. The authorities are analyzed in a learned note in 4 Cent. L. J. 137. 1 People V. Highways, 54 N. Y. 276; Hensoldt v. Petersburg, 63 111. 157. See, also, as to admissibility of legislative journals, infra, § 637. In New York it is held that " when it is n,ecessary to inquire by what vote a law was passed, the judges are to determine from the printed statutes, or from the laws on file in the secre- tary of state's office, whether the requi- site vote was received. Upon such an inquiry the printed volume is presump- tively correct, and the original act is conclusive. See chap. 306, Laws of 1842. How such a question was to ' be investigated was much considered in the earlier cases arising under the Free Banking Act of 1838; and the discussions which then took place led the way to the subsequent determina- tion of the courts that it belonged to the functions of the judges to inves- tigate for themselves and to declare what is the law, whether common or statute. People v. Purdy, 2 Hill, 31 ; S. C. in error, 4 Hill, 384 ; De Bow V. The People, 1 Den. 9 ; Commercial Bank v. Sparrow, 2 Den. 97 ; People «;. Devlin, 33 N. Y. 269. The law in question does not appear either upon 256 the printed statute book or upon the original act to have been passed by a two third vote, and consequently it never had the effect of law." John- son, C, People V. Com'rs, 54 N. Y. 279. In this case it was held that no issue could be framed upon an alle- gation as to the existence of a law, and that, " when it is necessary to in- quire by what vote a law was passed, the judges are to determine from the printed statutes, or from the laws on file in the secretary of state's office, whether the requisite vote was receiv- ed," and that, "upon such inquiry the printed volume is presumptively cor- rect, and the original act is conclusive." As qualifying above, see Pangborn v. Young, 32 N. J. L. 29 ; Speer v. Plank Road, 22 Peun. St. 376; Duncombe v. Prindle, 12 Iowa, 1; Green v. Weller, 32 Miss. 650. In R. V. Knollys, Ld. Raym. 10, the court declined to take judicial notice of parliamentary journals. = In Mauch Chunk v. McGee, 81 Penn. St. 434, Agnew, C. J., in deliv- ering the opinion of the court, thus speaks: "It is settled in this state that a part of an act not within the subject stated in the title may be de- clared to be unconstitutional, leaving the portion within the title to stand. Dorsey's Appeal, 22 P. F. Smith, 192; Allegheny Home's Appeal, 27 P. F. Smith, 77; Smith ti. McCarthy, 6 P. P. Smith, 359; Com'th v. Green, 8 P. F. Smith, 234; Cooley's Consti- tutional Limitations, 178. The first CHAP. V.J JUDICIAL NOTICE. [§ 290. A court cannot resort to the legislative rolls and records for the purpose of examining as to whether the bill as passed is the same as the bill certified,^ nor for the purpose of determining whether the statute passed in conformity with the rules adopted by the legislature for its own goTernment.^ Nor is extrinsic evi- dence admissible to show that an act printed in the official vol- section is conceded to be constitu- tional. The real question then is, whether the second section is germane to the same subject, giving to the second section the interpretation it may reasonably have. We think it falls within the general subject of the title. It is the duty of the court to reconcile the different parts of a law, if it can be reasonably done, rather than to declare any part void, and thus frustrate the legislative action. "Upon the whole section we can- not, in view of its evident purpose, say it is not substantially germane to the subject of the title. It will not do to defeat useful and honest legislation by too rigid an adherence to the letter of the Constitution. As remarked by C. J. Gibson, following C. J. Tilgh- man, a constitution is not to be in- terpreted as articles of agreement at common law; and where multitudes are to be affected by the construction of an instrument, great regard should be paid to the spirit and intention. Monon. Nav. Co. v. Coons, 6 W. & S. 114. 'It is a cardinal rule,' said the late C. J. Thompson, ' that all statutes are to be construed so as to sustain rather than ignore them; to give them operation, if the language will permit, instead of treating them as meaningless,' and, I may add, or treating them as invalid. Howard's Appeal, 20 P. F. Smith, 344. It is not the purpose or the duty of the court to catch at pretexts to avoid legislation, when it can be fairly rec- onciled with the Constitution. This has been the current of decision in VOL. 1. 17 this state in many cases. Blood v. Mercelllott, 3 P. F. Smith, 391; Case of Church St. 4 P. F. Smith, 353; Com'th V. Green, 8 P. F. Smith, 226; Allegheny Home's Appeal, 27 P. F. Smith, 77; State Line v. Juniata P. R. Co. App. Ibid. 429. In The Com- monwealth V. Green, Justice Shars- wood remarked that the intention of the constitutional amendment was to require that the real purpose of a bill should not be disguised or covered by the general words ' and for other pur- poses,' which was formerly so common, but should be fairly stated; and it must be a clear case to justify a court in pronouncing an act, or any part of it, void on this ground. So it was said in Allegheny Home's Appeal, ' If the title fairly gives notice of the sub- ject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary.' An ex- ception to this general rule is, when the title tends to mislead, and to draw off intention from a covert purpose contained in the body of the bill. Such was the case of the Union Pass. Railway Co.'s Appeal (29 Legal In- telligencer, 1872, p'. 380). The case before us has no such features. We think the court below erred in hold- ing the second section of the act to be unconstitutional." 1 Pangborn v. Young, 32 N. J. L. 29; Coleman o. Dobbins, 8 Ind. 156; Grob !'. Cushman, 45 111. 119; Green ... Weller, 32 Miss. 650. « Coleman v. Dobbins, '8 Ind. 156: Grob V. Cushman, 55 111. 119.. 257 § 292.] THE LAW OF EVIDENCE. [BOOK II. ume, and certified to by the proper officer of state, varies from the law actually passed.^ The published statute, however (un- less it be made by law final authority), can be corrected by the enrolled bill, as actually passed and signed by the speakers of the two houses.^ § 291. The courts of a state which has been carved out of Judicial another state take judicial notice of the statutes of the notice latter state prior to the separation.^ On the same prin- takenof -^ .,,,...., . . , law of prior ciple our courts Will take judicial notice or the statutes of^same of Great Britain enacted prior to the separation ; * the country. g^ates ceded by Spain will recognize the Spanish law as existing prior to the cession ; ^ and, generally, the laws of a prior will be judicially noticed by the courts of a subsequent sovereign.^ § 292. By the Roman law, the judge is not bound to take Private notice of private statutes granting special privileges to noticed' individuals ; nor of local customs warranting such priv- by court, ileges. In such cases comes up the question of fact, whether the law establishes such privileges. This fact must, by the Roman law, be proved as is any other fact ; though when proved, the applicability of the law so accepted remains with the court, acting on the whole evidence in the case.'^ In England, by the Documentary Evidence Act (adopted in 1845), " all copies of private and local and personal acts of parliament not public acts, if purporting to be printed by the queen's printers, and all copies of the journals of either house of parliament, &c., shall be admitted as evidence thereof by all courts, judges, jus- tices, and others, without any proof being given that such copies were so printed." ^ By Anglo-American common law, private statutes must be proved on trial.^ As to what distinguishes » Annapolis v. Harwood, 32 Md. a. Eslava, 11 Ala. 1028 ; Chouteau v. 3'1- Pierre, 9 Mo. 3; Ott v. Soulard, 9 Mo. ' Clare v. State, 5 Iowa, 509; 681. Buncombe v. Prindle, 12 Iowa, 1. 6 gtokes r. Macken, 62 Bavb. 145 ; Infra, § 980 a. Prell v. McDonald, 7 Kans. 426. « Delano v. Jopling, 1 Litt. (Ky.) ' Muhlenbruch, Doct. Pandect, § 39, 417- notes 8, 9, ca. 3; Weber, Heffter's * Ocean Ins. Co. v. Fields, 2 Story, ed. 17. 59- « See Taylor's Ev. § 7. « U. S. V. Turner, 1 How. 663; » Leland v. Wilkinson, 6 Peters, Fremont v. U. S. 1 7 How. 542 ; Doe 317 ; Soo. Prop. Gospel v. Young, 2 N. 258 CHAP, v.] JUDICIAL NOTICE. [§ 294. private from public statutes, however, questions have arisen which remain to be discussed. ^ § 293. As public statutes have been regarded statutes relative to particular public officers ; ^ statutes establishing or pigji^^^- defining municipal corporations ; ^ statutes in respect between to roads in general ; * statutes in respect to navigation and public in general ; ^ statutes regulating the sale of liquor ; ^ statutes giving jurisdiction to a particular court ; '^ and statutes affecting all classes of persons in the state.^ Municipal ordi-. nances are private laws when brought before the superior judi- ciary of a state,^ but not when brought before a city court.i" So the laws of a school board are private laws.^^ § 294. The legislature may directly or by implication require that certain statutes shall be regarded by the courts as public.^^ Much diversity of opinion exists as to whether statutes incorpo- rating companies for banking, railroad, or manufacturing pur- poses, are public or private statutes. It has been sometimes held that such statutes are private statutes, which must be averred and proved.^* On the other hand, it may be properly argued H. 310; Pearl v. Allen, 2 Tyler (Vt.), 315 ; Alleghany v. Nelson, 25 Penn. St. 332; State v. Jarrett, 17 Md. 309; Legrand v. College, 5 Munf. 329; Ellis V. Eastman, 32 Cal. 447; Horn V. K. K. 38 Wis. 463 ; Atchison R. K. V. Blackshire, 10 Kans. 477. 1 See Somerville v. Wimbish, ' 7 Grat. 205 ; Collier v. Baptist Soc. 8 B. Mon. 68 ; Bevens v. Baxter, 23 Ark. 387. 2 Bretz V. Mayor, 6 Roberts (N. Y.), 325; State v. Jarrett, 17 Md. 309; State v. Delesdenier, 7 Texas, 76. ' Winooski v. Gokey, 49 Vt. 282 ; Koss V. Reddick, 1 Scammon, 73 ; Fauntleroy v. Hannibal, 1 Dill. 118; Stier V. Orfkaloosa, 41 Iowa, 353 ; Prell V. McDonald, 7 Kans. 426. It is otherwise when the charter is under a general statute. Hard v. Decorah, 43 Iowa, 313. * Griswold V. Gallop, 32 Conn. 208. 6 Hammond v. Inloes, 4 Md. 138. « Levy u. State, 6 Ind. 281. ' Bretz V. Mayor, 6 Roberts (N. Y.), 325. 8 Levy V. State, 6 Ind. 281. » Porter v. Waring, 69 N. Y. 250 ; Garvin v. Wells, 8 Iowa, 286 ; Winona V. Burke, 23 Minn. 254 ; State v. Jarrett, 17 Md. 309; Somerville v. Wimbish, 7 Grat. 205 ; Case v. Mobile, 30 Ala. 538 ; Fuhrman v. Huntsville, 54 Ala. 263 ; Hazzard v. Municipality, 7 La. An. 495 ; Mooney v. Kennett, 19 Mo. 551. 1° State V. Leiber, 11 Iowa, 407. " Boyers v. Pratt, 1 Humph. 90. ' " Baring I). Harmon, 13 Me. 361; Hawthorne v. Hoboken, 32 New J. L. 172; Cicero Draining Co. v. Craig- head, 28 Ind. 274; Bowie v. Kansas City, 51 Mo. 554; Hart v. R. R. 6 W. Va. 336 ; Walker v. Armstrong, 2 Kans. 198. i» Soc. Prop. Gospel v. Young, 2 N. 259 § 294.] THE LAW OF EVIDENCE. [book II. that a grant of sovereignty is always a public act ; interesting as well those (the remaining portion of the community) whose rights are thereby contracted, as those (the persons receiving the franchise) whose rights are thereby enlarged.^ Charters, how- ever, not involving any diminution of rights to the body of citi- zens, or granted by subordinate bodies in pursuance of general laws, require to be proved.^ And so, it has been held, must be charters granted under general statutes, the parties chartered not being enumerated in the statute.^ H. 310; Pedicaris v. Road Co. 29 N. J. L. 367; Bank v. Wollaston, 3 Harr. (Del.) 90; Carrow u. Bridge Co. Phill. N. C. L. 118; City Council v. Plank Road, 31 Ala. 76; Drake v. Flewel- len, 33 Ala. 106 ; Perry v. R. R. 55 Ala. 414 ; King v. Doolittle, 1 Head (Tenn.), 77. 1 Beatty v. Knowler, 4 Pet. 152 ; Carington Co. v. Shepherd, 20 How. 227 ; State v. McAIister, 24 Me. 139 ; Jones V. Fales, 4 Mass. 245 ; Durham V. Daniels, 2 Greene (Iowa), 518; Bank of Newbury v. R. R. 9 Rich. S. C. 495 ; Douglass v. Bank, 19 Ala. 659 ; Case v. Mobile, 30 Ala. 538; Burdine v. Lodge Co. 37 Ala. 478; Davis V. Bank, 31 Ga. 69 ; State v. Sherman, 42 Mo. 210; Shaw v. State, 3 Sneed (Tenn.), 86; People v. Tread- well, 16 Cal. 220. 2 State v.. Wise, 7 Ind. 645 ; Dan- ville Co. V. State, 8 Blackf. 277; Cic- ero Draining Co. v. Craighead, 28 Ind. 274. In most of the English personal acts it was customary, prior to the year 1851, to insert a clause, declar- ing that the act should be deemed public, and should be judicially no- ticed; and the effect of this clause was to dispense with the necessity, not only of pleading the act specially, but of producing an examined copy, or a copy printed by the printer for the crown. Woodward v. Cotton, 1 C, M. & E. 44, 474 Beaumont v. Mountain, 260 10 Bing. 404. These cases explain, and partially overrule, Brett v. Beales, M. & M. 421. Since the commence- ment of the year 1851, this clause, however, has been omitted, the legis- lature having enacted that every act made after that date shall be deemed a public act, and be judicially noticed as such, unless the contrary be ex- pressly declared. The simplest mode of proving those acts, whether they be local and personal, or merely pri- vate, which, being passed before the year 1851, contain no clause declaring them to be public, or which, being passed since that date, contain an ex- press clause, declaring them not to be public, is by producing a copy, which, if it purports to be printed by the queen's printer, need not be proved to be so ; or the act may be proved by means of an examined copy, shown on oath to have been compared with the parliament roll. B. N. P. 225. Where the acts have not been printed by the printers for the crown, as is sometimes the case with respect to acts for naturalizing aliens, for dis- solving marriages, for inclosing lands, and for other purposes of a strictly personal character, an examined copy, of a certified transcript into chancery, if there be one, furnishes the regular proof. Roos Barony, Min. Ev. 145, cited Hubb. Ev. of Sue. 613. Tay- lor's Ev. § 1368. ' Hard v. Decorah, 43 Iowa, 313. CHAP, v.] JUDICIAL NOTICE. [§ 298. § 295. So by like reasoning, the courts will take judicial no- tice of the modes by which domestic laws are authen- courts ticated. Hence an English court is supposed to be o^moX'r* judicially acquainted with the rules, practice, and pre- of authen- rogatives of parliament ; ^ an American court, with the laws. rules, practice, and prerogatives of the federal and state legis- latures to which it is subject. So, as we have seen,^ a court will take judicial notice of the journals of a legislature to determine whether an act is constitutionally passed ; ^ or whether it has passed by reason of not having been returned in proper time by the governor.* But as sources of collateral information such journals will not be noticed.^ § 296. Notice of domestic law involves notice of all the sys- tems of jurisprudence by which such domestic law is subsidiary limited or otherwise affected. Hence a court is bound ^oti^^'. «. to take notice of such subsidiary codes or systems of 9- equity. law as may enter into the law by which it is governed. In sub- mission to this principle, judicial notice will be taken, by com- mon law courts, of equity practice, when this is distinct from common law.^ § 297. Notice, on the same reasoning, will be taken of the arti- cles of war binding the forces employed by the home go „f min. authority.'^ This, however, is not to be so construed as '^'^^ '*^' to extend such notice to orders issued by a military commander during a civil war ; ^ though the fact that the orders of such commander are authoritative will be judicially noticed.^ § 298. So the courts will take judicial notice of the law mer- chant, so far as the same is a general custom, or is part of pri- 1 Stockdale v. Hansard, 7 C. & P. * Wabash R. R. v. Hughes, 38 111. 731; 9 A. & E. 1; 2 P. & D. 1; Sims 176. See fully supra, § 290. V. Marryatt, 17 Q. B. 392; Cassidy v. ^ Shipman v. State, 42 Wis. 377. Stewart, 2 M. &. Gr. 437; Sheriff of ' Maberley v. Robbins, 5 Taunt. Middlesex, case of, 11 A. & E. 273. 625; Elliott v. Evans, 3 B. & P. 181; See supra, § 290. Neeves v. Burrage, 14 Q. B. 504; 2 Supra, § 290. - Westoby v. Day, 2 E. & B. 624. 8 Gardner v. Collector, 6 Wall. 499; ' Taylor's Ev. § 5; Bradley v. Ar- Albertson v. Robeson, 1 Ball. 9; For- thur, 4 B. & C. 304. dyce V. Godman, 20 Ohio (N. S.), 1; « Burke v. Miltenberger, 19 Wall. Turleyy. Logan, 17 111. 151;. Prescott 519. See infra, § 638. V. Canal, 19 111. 324; Coleman v. Dob- » Gates v. Johnson Co. 36 Texas, bins, 8 Ind. 156. See fullycases cited 144. supra, § 290. 261 § 300.] THE LAW OF EVIDENCE. [book II. vate international law.^ " Those customs which have befen uni- So of the versally and notoriously prevalent amongst merchants, chanTand ^"*^ have been found by experience to be of public use, maritime, have been adopted as part of it " (the law merchant), " upon a principle of convenience, and for the benefit of trade and commerce ; and when so adopted it is unnecessary to plead and prove them. They are binding on all without proof. Ac- cordingly we find that usages affecting bills of exchange and bills of lading are taken notice of judicially." ^ It is accordingly held that judicial notice will be taken of the general lien of bankers.^ Judicial notice, also, will be taken of the rules of maritime law, so far as recognized by maritime nations.* Ecclesiasti- § 299. So the courts will take notice of the ecclesi- Christen- astical law of Christendom, for the purpose of deter- dom. mining how far it makes part of the common law.^ § 300. A judge is bound to know the laws of his own state, but not those of a foreign country ; nor can he, without laws must proof , Ordinarily take cognizance of the laws of such e prove . ^^^.^^^^ country, so far as they differ from his own.^ 1 Wharton on Ag. § 678; Edie v. East Ind. Co. 2 Burr. 1226; Young V. Cole, 3 Bing. N. C. 724; Sutton v. Tatham, 10 Ad. & El. 27 ; Bayliffe v. Butterworth, 1 Ex. 445; Bank of Met. V. Bank, 1 Howard, 234; Schuehardt V. Allen, 1 Wall. U. S. 359; Jones v. Tales, 4 Mass. 245 ; Jewell v. Center, 25 Ala. 498 ; Bradford v. Cooper, 1 La. An. 325 ; Goldsmith v. Sawyer, 46 Cal. 209. See infra, §331. " Denman, C. J., Barnett v. Bran- dao, 6 M. & G. 630. s Ibid. ; aff. on this point in House of Lords, Brandao v. Barnett, 12 CI. & F. 787. See, as to noticing custom of conveyances, Kowe v. Grenfel, Ry. & Moo. 398 ; 3 Sugd. V. & P. 28 ; for other authorities, infra, § 331. * Chandler t). Grieves, 2 H. Bl. 606, n. See supra, § 285; infra, § 331. 5 Whart. Confl. of Laws, § 171, and cases there cited; Sims v. Marryatt, 17 Q. B. 292. And see supra, § 284. 262 « Weber, Heftter's ed. 11; Borst, Bewesilast, 2 ; Di Sora v. Phillips, 10 H. L. Cas. 624 ; Bremer v. Freeman, 10 Moore P. C. 306 ; Hyde v. Hyde, 1 Prob. & Div. 133 ; Church v. Hubbart, 2 Cranch, 187; Strother v. Lucas, 6 Peters, 763; Ennis v. Smith, 14 How. 400; Dainese v. Hale, 91 U. S. (1 Otto) 13 ; Owen v. Boyle, 15 Me. 147; Woodrow v. O'Conner, 28 Vt. 776 ; Frith v. Sprague, 14 Mass. 455; Holman v. King, 7 Met. 384; Kline V. Baker, 99 Mass. 254; Dyeru. Smith, 12 Conn. 884; Ludlow u. Van Rensse- laer, 1 Johns. R. 94 ; Champion v. Kille, 15 N. J. Eq. 476 ; Baptiste v. DeVolunbrun, 5 Har. & J. 86; Bait. & O. R. R. V. Glenn, 28 Md. 287; Ingraham v. Hart, 11 Ohio, 255; Peo- ple V. Lambert, 5 Mich. 349; Davis v. Rogers, 14 Ind. 424; Bean v. Briggs, 4 Iowa, 464 ; Chumasero v. Gilbert, 24 111. 293 ; Moore v. Gwynn, 5 Ired. 187; State v. Jackson, 2 Dev. 563 ; CHAP. V.J JUDICIAL NOTICE. [§ 302. In England, even colonial laws and the laws of Scotland must be proved as facts.^ Thus, when an action is brought on a con- tract on its face valid, and the defence claims that the contract was avoided by a statute which was part of the lex loci con- tractus, the contract having been made in another state, the judex fori will require such statute to be proved.^ But in re- spect to those matters in which the states, under the federal Con- stitution, are not foreign to each other (e. g. under the provision as to the reciprocal credit to be given to judgments), the courts of one state will take notice of another's statutes.^ And it has been recentty said that a federal court will permit the law of England to be proved by volumes of statutes and reports and the works of text writers.* § 301. Where the seat of an obligation is in another state («. g. in a state where prevails the Roman common law as distin- guished from the English common law, or the converse), the judex fori will be bound to accept such foreign law if proved.^ If it is contrary to the principles of natural justice, or if its rec- ognition would militate against the policy of the state of which he is an officer, he may refuse to accept it as interpretative of a contract on which he has to act. But whatever it may be, it must be proved to him, as would be any other fact in issue, to be the law of , the foreign state from which it proceeds. And when proved, it must be accepted as would any other fact duly put in evidence. § 302. It is sometimes said that foreign laws must be proved Hooper v. Moore, 5 Jones (N. C), Jones v. Palmer, 1 Dougl. Mich. 379; 130 ; Syme v. Stewart, 17 La. An. 73; Martin v. Martin, 1 Sm. & M. 176. Hemphill v. Bank, 6 Sm. & M. 44 ; » Paine v. Ins. Co. 11 R. I. 411; Chouteau v. Pierre, 9 Mo. 3 ; Shed v. State v. Hinchman, 27 Penn. St. 479. Augustine, 14 Kans. 282; Cooke v. See Carpenter u. Dexter, 8 Wall. 513. Crawford, 1 Tex. 9. A party who Supra, §§ 96, 288. desires to use a foreign law by way of * The Pawashick, 2 Low. 142. defence must ordinarily plead it. Dai- ^ See cases in Wharton Confl. of nese v. Hale, 91 U. S. (1 Otto) 13. Laws, §§ 771 et seq. ; and see Copley ' Dalrymple v. Dalrymple, 2 Hagg. v. Sanford, 2 La. An. 335 ; Kling w. Conn. 54; Prowse u. Shipping Co. 13 Sejour, 4 La. An. 129; Young v. Mood. P. C. R. 484 ; fireman's case, Templeton, 4 La. An. 254 ; Nimmo 10 Q. B. 498; Taylor's Ev. §§ 5, 40, v. Davis, 7 Tex. 26; but see Brad- 1280. shaw v. Mayfield, 18 Tex. 21. !" See Whart. Confl. of Laws, § 771; 263 § 303.] THE LAW OF EVIDENCE. [BOOK II. by parol. It is clear that of such laws the judex fori, as we have already seen, will not take judicial notice. But it must be is not true that to the proof of foreign laws the testi- ^"^ ' . mony of experts is always essential. Foreign statutes may be proved by exemplifications under the great seal of the sovereign ; and by statute, if not by common law, the pamphlet laws issued by one state of the American Union are ordinarily received in evidence in the courts of the other states.^ But be this as it may, it forms no exception to the general rule, that of a foreign law (whether statute or otherwise) the judex fori takes no notice until it is proved.^ And when a foreign legislative act is submitted to the interpretation of the court, the act must be itself produced.^ § 303. Some conflict of opinion, however, exists as to whether foreign laws are to be proved as facts, to the jury. Judge Story is decided in declaring that the issue is for the court. " The court are to decide what is the proper evidence of the laws of a foreign country ; and, where evidence is given of those laws, the court are to judge of their applicability, when proved, to the case in hand." * The same view is maintained in New Hampshire ^ and Massachusetts.^ But the rule, that the fact of a foreign law must be proved to the jury like any other fact, while questions iSupra,§289. See infra, §§ 309,310, nold, 17 Ark. 164; Martin v. Payne, 2 Bremer v. Freeman, 10 Moore P. 11 Tex. 292. C. 306 ; Di Sora o. Phillips, 10 H. L. » Smith v. Potter, 27 Vt. 304 ; Hoes Cas. 624 ; Hyde v. Hyde, L. R. 1 P. v. Van Alstyne, 20 111. 201; McDeed & D. 133; Church v. Hubbart, 2 v. McDeed, 67 111. 545; Leonard v. Cranch, 187 ; Ennis v. Smith, 14 Peeples, 30 Geo. 61 ; Kermott v. How. 400; Owen v. Boyle, 15 Me. Ayer, 11 Mich. 181 ; Tryon v. Ran- 147 ; Holman o. King, 7 Met. 384 ; kin, 9 Tex. 595. Cragin v. Lamkin, 7 Allen, 396; * Confl. of Laws, § 638; De Sobry Knapp V. Abell, 10 Allen, 485 ; Kline v. De Laistre, 2 Har. & Johns. 219, V. Baker, 99 Mass. 254 ; Ely v. James, and Trasher v. Everhart, 3 Gill & 3 23 Mass. 36; Dyer ... Smith, 12 Johns. 234, &c., which are cited as Conn. 384; Diez, in re, 56 Barb. 591; authorities, do not sustain, in whole, Leayenworth v. Brockway, 2 Hill, the position of the text. 201; Robert's Will, 8 Paige, 446; » Hall v. Costello, 48 N. H. 179. Ingraham v. Hart, 11 Ohio, 255 ; See, also, Munroe v. Douglass, 5 N. Trasher v. Everhart, 3 Gill & J. 234; Y. (1 Selden) 447. Merritt v. Merritt, 20 III. 65 ; Mc- " Holman v. King, 7 Met. 284; Deed v. McDeed, 67 III. 545 ; Char- Backus v. Chapman, 111 Mass. 886; lotte u. Chouteau, 25 Mo. 465; Moore Ames v. McCamber, 124 Mass. 85. V. Gwynn, 5 Ired. 187; McNeil v. Ar- See Kline v. Baker, 99 Mass. 254. 264 CHAP, v.] JUDICIAL HOTICE. [S 306. of competency and of construction are for the court, is that which elsewhere obtains.^ § 804. In the proof of foreign laws, the best attainable evi- dence will be required ; but no species of verification, incompat- ible with the laws and usages of such foreign country, will be ex acted. 2 § 305. Parol proof, therefore (except in those cases in which by international comity or otherwise the statutes of Experts one state are treated in another state as self pro vine") ?dm[s8'We , . , 1 1 • , ,. for this being the agency by which foreign law is to be proved, purpose. it is usual to call experts by whom such proof is to be made.^ A mere certificate of a foreign expert, no matter how authorita- tive his office, will not be enough. The witness must be exam- ined under oath.* § 306. But what is necessary to constitute an expert in this sense ? In England it was once held that an expert in law need not be a practising lawyer of the country whose laws were to be proved ; and it was considered sufficient if he should occupy a position which would familiarize him with the law as to which he was to testify. In conformity with this view, an hotel-keeper in London, a native of Belgium, who stated that he had formerly carried on the business of a merchant or commissioner of stocks in Brussels, was permitted to prove the law of Belgium on the ^ See Judge Kedfield's comments tem of jurisprudence will be hereafter in the 6th edition of Story's Confl. of discussed. Infra, § 313. Laws, § 638 a. Diez, in re, 56 Barb. » Hyde v. Hyde, L. E. 1 P. & D. (N. Y.) 591; Leavenworth v. Brock- 133; Brown v. U. S. 6 Ct. of Claims, way, 2 Hill (N. Y.), 201; Robinson v. 171; Dauphin v. U. S. 6 Ct. of CI. Dauchy, 3 Barb. (N. Y.) 20; Dyer v. 221; Church w. Hubbart, 2 Cranch, Smith, 12 Conn. 384; Ingrahara v. 187; Stein v. Bowman, 13 Pet. 209; Hart, 11 Ohio, 255. That the cons^rwc- Pickard v. Bailey, 26 N. H. 152; tion of a foreign statute is for the court, Barrows w. Downs, 9 R. I. 447 ; Dyer see Ely u. James, 123 Mass. 26. v. Smith, 12 Conn. 284; Gardner v. ^ Whart. Confl. of Laws, §773; Story Lewis, 7 Gill, 377; Consolidated Real Confl. of L. § 639, citing Church v.. Est. Co. v. Cashow, 41 Md. 59; Smith Hubbart, 2 Cranch, 187; Isabella v. u., Bartram, 11 Ohio St. 690; Grea- Pecot, 2 La. An. R. 391. On the sons v. Davis, 9 Iowa, 219; Crafts question of the existence of a foreign v. Clark, 38 Iowa, 237; Walker v. law it is held competent to read to the Forbes, 31 Ala. 9; People v. Lam- jury from printed books of decisions bert, 5 Mich. 349. and history. Charlotte v. Chouteau, * Church v. Hubbart, 2 Cranch, 33 Mo. 194. Whether a court can 187; Ennis v. Smith, 14 Howard, take judicial notice of a foreign sys- 400. See Wilson u. Carson, 12 Md. 54. 265 § 307.] THE LAW OF EVIDENCE. [BOOK H, subject of presentment of a promissory note, made in that coun- try, payable at a particular place.^ So a Jewess has been per- mitted to give parol evidence that her own divorce in a foreign country was in conformity with the laws of her church as sanc- tioned in that country.^ In 1875, however, when in the Court of Probate and Divorce the object was to prove the Italian law of succession, an affidavit of a " certified special pleader," who stated that he was " familiar with Italian law," was produced, the court rejected an application for administration with the will annexed, based on this affidavit, and held that " the law of a foreign country cannot be proved even by a jurisconsult, if his knowledge of it be derived solely from his having studied it in a foreign university."^ And it was afterwards held in the same court that an English barrister, not practising in Canada, but residing in London, and there practising in Canadian appeals be- fore the Privy Council, is not admissible as an expert to testify to the validity, according to Canadian law, of a marriage solem- nized in Canada.* § 307. In the United States a more liberal practice obtains. A layman has been permitted to prove Chinese commercial law ; ^ and officiating clergymen the law of marriage under which they officiated.^ So far as concerns the canon law, this would not be disputed in England, where it has been held that a Roman Catholic bishop, holding the office of coadjutor to a vicar-apos- tolic in England, is, by virtue of his office, a person so skilled in the Roman Catholic law of marriage, as to be an expert capable of proving that law.'^ 1 Vander Donckt v. Thellusson, 8 son v. Lord Bridport, 8 Bl. 527; Perth C. B. 812. Peerage case, 2 H. L. Cas. 865, 873; " Ganer v. Lanesborough, Peake, Duchess di Sora v. Phillips, 33 L. J. 18, explained, however, by Lord Lynd- Ch. 129, quoted in The Steavine, hurst in 11 C. & Fin. 124, to rule &c., Company v. Heintzmann, 17 C. only that a witness familiar with a B. N. S. 60, overruling K. v. Dent, 1 foreign custom could prove such cus- C. & Kir. 97. to™- * Cartwright v. Cartwright (1878), = Bonelli's case, L. K. 1 P. D. 69 ; P. & D. 26 W. R. 684. following Bristow v. Sequeville, 5 « v^Hcocksu. Phillips, 1 Wall. Jr. 47. Ex. 275; 3 CI. & K. 64. See, also, ' State v. Abbey, 29 Vt. 60; Amer. Dalrymple v. Dalrymple, 2 Hagg. Life Ins. Co. v. Kosenagle, 77 Penn. Cons. R. 54 ; Sussex Peerage case, 11 St. 507; Bird v. Com. 21 Grat. 800. CI. & F. 85, 114-117; Baron de Bode's ' Sussex Peerage, 11 CI. & Fin. 84. case, 8 Q. B. 208, 250-67; Lord Nel- In Am. Ins. Co. v. Rosenagle, ut 266 CHAP, v.] JUDICIAL NOTICE. [§ 308. § 308. An expert thus called is competent to prove that a book ofEered in evidence contains the statutes of the foreign Experts state whose law is in controversy.^ The expert may bookJa"? not only verify the statutes, but state the construction authorities. given to them, refreshing his memory by references.^ To admit supra, Woodward, J., said: "The witness said lie was the Catholic dean and parson at Odenheim; that 'these records have already existed many centuries, and each parson receives the church books from his predeces- sor, which altogether form one con- tinued series;' and that he was the proper keeper and custodian of the records. The law of a foreign coun- try on a given subject may be proved by any person, who, though not a lawyer, or not having filled any public office, is or has been in a position to render it probable that he would make himself acquainted with it. Vander Donekt V. Thellusson, 8 C. B. 812. Here the witness was the custodian of records which had existed for centu- ries, and which he swore had been kept in accordance with the laws in force when the enrties were made. It was his duty to know, and he testified that he did know, the law relating to the records in his charge. His knowl- edge was just that which the respon- sible head of a public office would be assumed to have of the law which had controlled the past operations of his department; just that which would be imputed to a surveyor general in the year 1875, of the law that gov- erned the land office in the year 1800. His position, and the facts to which he testified, made the rejected evi- dence competent." 1 Dairy mple v. Dalrymple, 2 Con- sist. R. 81; Barrows v. Downs, 9 K. I. 447 ; Brush v. Wilkins, 4 Johns. Ch. 606 ; Jones v. MafEet, 5 Serg. & R. 523; People v. Calder, 30 Mich. 87. ° Ibid. "In the Sussex Peerage case, A. D. 1844, 11 Clark & Fin- nelly, 85, Dr. Wiseman was called as a witness to prove the laws of mar- riage at Rome, and referred to a book containing the decrees of the Council of Trent, as regulating them. The judges of the committee of the House of Lords expressed their opinions sev- erally. Lord Brougham : ' The wit- ness may refresh his recollection by referring to authorities,' &c. Lord Lyndhurst, Lord Chancellor : ' The witness may thus correct and confirm his recollection of the law, though he is the person to tell us what it is.' Lord Brougham agreed with the Lord Chancellor: 'The witness may refer to the sources of his knowledge ; but the proper mode of proving a law is not by showing a book: the house re- quires the assistance of a lawyer who knows how to interpret it.' Lord Chief Justice Denman: ' There does not appear to be in fact any real dif- ference of opinion; there is no ques- tion raised here as to any exclusive mode of getting at this evidence, for we have both materials of knowledge ofEered to us. We have the witness, and he states the law, which he says is correctly laid down in these books. The books are produced, but the wit- ness describes them as authoritative, and explains them by his knowledge of the actual practice of the law. A skilful and scientific man must state what the law is, but may refer to books and statutes to assist him in doing so. This was decided after full argument on Friday last (June 20), in the Court of Queen's Bench (Baron de Bode's case). There was a difference 267 § 308.] THE LAW OF EVIDENCE. [BOOK II. a statute it is not necessary that there should be proof that it of opinion, but the majority of the judges clearly held, on an examina- tion of all the cases, and after full discussion, that proof of the law itself in a case of foreign law could not be taken from the book of the law, but from the witness who described the law. If the witness says : "I know the law, and this book truly states the law," then you have the authority of the witness and of the book. You may have to open the question on the knowledge or means of knowledge of the witness, and other witnesses may give a different interpretation to the same matter, in which case you must decide as well as you can on the con- flicting testimony ; but you must take the evidence from the witness.' " Lord Campbell concurred, saying : ' The foreign law is matter of fact. . . . . You ask the witness what the law is ; he may, from his recollec- tion, or on producing and referring to books, say what it is,' &c. Lord Langdale, master of the rolls : - For- eign law is matter of fact. A witness more or less skilled in it is called to depose to it. He may state it from his own knowledge, or refer to text- books or books of decisions.' " Dr. Wiseman went on to testify that, by virtue of his office as Roman Catholic bishop and coadjutor to the vicar-apostolic in England, 'he had jurisdiction of the subject of Catholic marriages.' " The Lord Chancellor: 'He comes within the description of a person peritus virtute officii.' Lord Langdale: ' His evidence is in the nature of that of a judge.' " It was admitted. " Mr. Westlake (Conflict of Laws, § 414, note) seems to think that Lord Denman has overstated the result of the decision in the Baron de Bode's 268 case. It might well be supposed that the chief justice ought to know what his own Court of King's Bench had decided, and on looking at the case in 8 Adolphus & Ellis N. S. 208, we find his statement supported. A witness was offered, who testified that the feu- dal system in Alsace had been abol- ished by a decree of the French Na- tional Assembly of 1789. The decree itself was not produced. Lord Den- man, chief justice, said that the rule admitting testimony of persons of science applied not only to unwritten but to written law. The question was not only the contents but the state and effect of the written law. The mere contents of the law might often mislead. He then criticised the deci- sions in 3 Esp. 58; 3 Camp. 166; 4 Camp. 155, and refers to Lacon v. Higgins, 3 Starkie, 178; Picton's case, 30 State Trials, 225, 491; Mid- dleton V. Janverin, 2 Hagg. Cons. 437, 442, and says he 'can perceive no distinction between proof from a copy of the law, as we find it ten- dered and received, and the proof now tendered.' Justices Coleridge and Williams concurred, and gave their reasons at length. The written law itself, they say, would be of little use, compared with the opinion of a scientific person who could give the exact state of the law and its con- struction. Justice Patterson dis- sented, and held it necessary to pro- duce the written law. The reasons given for his dissent go far to show the effect of the decision. " It is thus decided that an expert may state the written law without pro- ducing it. Lord Denman says that they decided that the proof of the law was to be not from the book, but from the witness; and the reasons given bear out his statement. CHAP. V.J JDDICIAL NOTICE. [§ 308. has not been repealed or modified down to the period when it is offered in evidence.^ " And« it is but one step farther to decide, as was held in the Sussex Peerage case, that the witness may- refer to the book to refresh his mem- ory, &c. " It is true that in the Sussex Peer- age case the judges were not sitting as a court ; but they were acting as a committee of privilege, to whom it had been referred by the House of Lords to inquire into the validity of a foreign marriage, and the House of Lords confirmed their decision. " And in the last edition of Phil- lipps on Evidence (2428, ch. 5, § 4), the law is stated substantially in the words of that decision. See, also. Lord Nelson v. Bridport, 8 Beavan, 527, 535, 537, 539, &e. " Besides, in the case of the Span- ish colonies, it is difficult to ascertain what their law is without the aid of an expert. Their law is composed, partly of the various codes of Spain, and partly of the various decrees, &c., contained in the Kecopilacion de In- dias, and the various decrees of later date. Some laws are in force in Spain only I some in the colonies only ; and some are general. Schmidt's Civil Law of Spain and Mexico. Histor- ical Summary. "In the matter of Robert's Will, A. D. 1849, 8 Paige, 446, Chancellor Kent relied on the evidence of an ex- pert in relation to the laws of Cuba, for the reasons we have stated above. "In the case of Vander Donokt v. Thellusson (8 Manning, Granger & Scott, 812, A. D. 1849), the court, after argument, admitted a person not a lawyer to prove the law of Belgium as to bills of exchange. In this case it is stated in the note, that the old French Code of Commerce (without the subsequent French modifications) was in force in Belgium." Potter, J., in Barrows v. Downs, ut supra. 1 " By the positive law of this state, printed copies of the statutes and re- solves of any of the United States, if purporting to he published under the authority of the proper government, are required to be admitted in all pro- ceedings in our courts as prima facie evidence. § 5935, Comp. L. The same rule is laid down in New Hamp- shire without the aid of statute. Em- ery II. Berry, 8 Fos. 473. " In the present case, Mr. Romeyn, an attorney and councillor of this court, produced upon the stand a. printed volume, purporting to be one of the Revised Statutes of New York, and dated in 1852, and he identified it as such. " The book purported to contain the statutory regulations of the state on the solemnization of marriage, as such regulations existed in 1852, and the counsel for the defendant objected to the introduction of the volume on the ground that it was not competent, and for the reason that Mr. Romeyn was not shown to have any special knowledge on the subject. " The import of this objection is not very clear, but we shall notice the grounds of it, as we understand them. " It is said that this publication of 1852 was not proper to show what the law was in 1869. ' ' The witness, Mr. Romeyn, before the book was admitted, was interro- gated at considerable length as to his knowledge whether the legislature of New York had made any change be- tween 1852 and 1869, and he testified that he could not state positively that none had occurred. The fair infer- ence, however, from his evidence, was, that if any change had been made he 269 § 309.] THE LAW OF EVIDENCE. [book II. Foreign statutes may Jie proved by exemplifi- cations. § 309. The usual mode of authenticating foreign statutes is " by oath, or by an exemplification of a copy under the great seal of a state, or by a copy, proved to be a true copy by a witness who has examined and compared it with the original, or by a certificate by an officer, prop- erly authorized by law to give the copy ; which certificate must be duly proved. But such modes of proof as have been men- tioned are not to be considered exclusive of others, especially of codes of laws, and accepted histories of the law of a country." ^ It is necessary that only the pertinent parts of a statute contain- ing several topics should be certified.^ By a convention between the United States and Italy, in 1868, copies of papers authenti- cated by official seals are to be received as legal evidence, in the courts of both countries.^ The same provision is made in the treaty of December 5, 1868, between the United States and Belgium,* and in other treaties. When there is an authorized interchange of statutes, then the volumes of the statutes received may be proved ; or the statutes may be proved by exemplifica- tion, or by parol.^ The Federal Supreme Court has accepted as sufficiently proved a copy of the French Civil Code, bearing the imprint of the French royal press, and received in international exchange, with the indorsement, "Les Garde des Sceaux de France &- la Cour Supreme des Etats Unis." ^ would have been likely to have known of it, and that he was not aware of any alteration. " The court admitted the volume, and the defendant's counsel excepted. "I am of the opinion that the rul- ing was correct. It would seem that the book, as it stands described in the record, was within the provision be- fore cited. It appeared to be a vol- ume of New York statutes, published by authority of the state, and pos- sessing this character of identity and authenticity, it approved itself as an item which was admissible. People v. Lambert, 5 Mich. 349 ; Merrificld v. Robbins, 8 Gray, 150; Inhabitants of Woodstock V. Hooker, 6 Conn. 35 ; Hale V. N. J. Steam Navigation Co. 270 15 Conn. 539; Emery v. Berry, 8 Fos- ter (N. H.), 473." Graves, Ch. J., People V. Calder, 30 Mich. 87. ^ Wayne, J., Ennis v. Smith, 14 Howard, 400 ; Story, Confl. of Laws, § 641. See De Bode v. R. 2 Q. B. 217. The Pawashick, 2 Low. 142. 2 Grant v. Coal Co. 80 Penn. St. 208. ' 15 Stats, at Large, 609. * Stats, at Large, 1870, 535. « De Rothschild v. U. S. 6 Ct. of CI. 204 ; Dauphin v. U. S. 6 Ct. of CI. 221. See Grant v. Coal Co. 80 Penn. St. 208. ' Ennis v. Smith, 14 Howard, 400. See, however, Munroe v. Guilleaume, 3 Keyes (N. Y.), 30. CHAP, v.] JUDICIAL NOTICE. [§ 312. § 310. By statutes existing in many of the United States, the volumes of statutes of a sister state, printed by the au- printed thority of the state, are primd facie proof of the authen- 1°^^^ ticity of the statutes,^ and so of volumes of reports, as ■''""X , to the decisions contained therein.^ And in some juris- statutes. dictions such statutes are judicially noticed, from the printed volume, without an enabling statute.^ § 311. When the statute of a state has received an authorita- tive construction by the courts of such state, such con- judicial struction will be accepted extra-territorially by other ti'°nof°' courts.* Hence it is that the reports of adiudged »"'' state J^ •> o adopted by cases in another state are always worthy of considera- another. tion as indicating the law of such state,^ and may be received on an argument before a court, as exhibiting such extra-territorial law.^ Even the construction given in one state to an agreement of arbitration entered into in such state will be regarded as au- thoritative in other states.^ § 312. With the limitations which have been just ex- statute pressed, an appellate court will not take notice of a 3un''evl- statute of another state unless it is put in evidence in dence. the court below.^ 1 Story Confl. of Laws, § 644; Paine V. Ins. Co. 11 K. I. 411; Hunt v. Johnson, 44 N. Y. 40; People v. Cal- der, 30 Mich. 87, quoted supra, § 308; Paine v. Lake Erie, 31 Ind. 283; Bradley v. West, 60 Mo. 84. " For- eign laws are to be proved as facts; and by the Gen. Sts. c. 131, § 64, the books of reports of cases adjudged in the courts of any other of the United States are admissible as evidence, in the courts of this state, of the un- written or common law of those other states." Metealf, J., Cragin v. Lam- kin, 7 Allen, 396. Supra, §§ 289, 303. ^ Cragin v. Lamkin, 7 Allen, 395; Ames V. McCamber, 124 Mass. 85. » Lord 1). Staples, 3 Foster N. H. 449; Emery v. Berry, 8 Foster N. H. 486; Barkman v. Hopkins, 6 English Ark. 157. * Whart. Confl. Laws, §§ 430, 776; Elmendorf v. Taylor, 10 Wheat. 159; Blanchard v. Kussell, 13 Mass. 1; Botanico Med. Coll. v. Atchinson, 41 Miss. 188; Saul v. His Creditors, 17 Martin, 587. ^ Kilgore i'. Buckley, 14 Conn. 362; Lockwoodu. Crawford, 18 Conn. 361; Donald w. Hewitt, 33 Ala.' 534; Marguerite v. Chouteau, 3 Missouri^ 375. °. Penobscot K. R. u. Bartlett, 12 Gray, 244; Cragin v. Lamkin, 7 Al- len, 395. ' Green v. R. R. 37 Ga. 456. 8 Hunt V. Johnson, 44 N. Y. 40; Bradley v. West, 60 Mo. 34. " The appellants made a further point, that the deed is invalid by the laws of Iowa, both upon the general principles heretofore discussed, and for the fur- ther alleged reason that a deed is not valid in that state until it is acknowl- 271 § 313.] THE LAW OF EVIDENCE. [BOOK II. § 313. Whether a court can take judicial notice of a foreign iurisprudence, or, in other words, whether a court can Foreign J i' . ' . . , ■ • i i i elementary receive any information oi such jurisprudence, beyond i'encrcan what is put in evidence as a matter of fact, is a question be noticed. ^^ j.^ which theory and practice conflict. On the one side we have the theory of the law forcibly stated by Lord Brougham, in his Life of Lord Stowell.^ On the other side, it is almost the universal practice of courts, in determining questions edged by the grantor as his ' volun- tary act.' We have no knowledge that such is the law of Iowa. A statute is offered to be read before us on this appeal, which was not offered to the jury. The amended Code (sec- tion 426) declares that the printed statutes of another state ' shall be ad- mitted by the courts and officers of this state on all occasions, as pre- sumptive evidence of such laws, and that the unwritten or common law of every other state may be proved as facts by parol evidence, and the books of i-eports of cases adjudged in their courts may be admitted as presump- tive evidence of the law.' The statutes o£ other states, it has always been held, are to be proved as matters of fact. The Code simplifies the mode of proof by enacting that it may be made by producing a printed volume, purporting to be by authority of the state government, in which the stat- utes are contained. This is made pre- sumptive evidence of its existence. It is, however, proof to be produced on the trial like other proof. It can- not be produced in the appellate court any more than the respondent could produce counter testimony before this court, that such is not the law of Iowa. The Court of Appeals does not sit for that purpose. The point is not before this court, and we are not competent to pass upon it." Hunt, C, Hunt v. Johnson, 44 N. Y. 40. 1 " It is possibly hypercritical to re- 272 mark that one inaccurate viewpervades a portion of this judgment (in Dalrym- ple V. Dalrymple). Although the Scot- tish law was of course only matter of evidence before Sir W. Scott, and as such for the most part dealt with by him, he yet allowed himself to examine the writings of commentators and to deal with them as if he were a Scottish lawyer. Now, strictly speaking, he could not look at those text writers, nor at the decisions of the judges, except only so far as they had been referred to by witnesses, the skilful persons, the Scottish lawyers, whose testimony he was entitled to consider. For they alone could deal with either dicta of text writers or decisions of courts. He had no means of approaching such things, nor could avoid falling into errors when he endeavored to under- stand their meaning, and still more when he attempted to weigh them and to compare them together. This, at least, is the strict view of the matter, and in many cases the fact would bear it out. Thus we constantly see gross errors by Scottish and French lawyers of eminence, when they think they can apply an English authority. But in the case to which we are referring, the learned judge certainly deals as hap- pily, and as safely, and as successfully with the authorities, as with the con- flicting testimonies which it was his more proper province to sift and to compare." Statesmen of the Time of Geo. HI. 2d ser. 76. CHAP, v.] JUDICIAL NOTICE. [§ 314. of foreign jurisprudence involving Roman or canon law, to re- sort to standard Roman and canon law authorities as supple- mentary to and explanatory of the testimony of experts.^ The conflict, however, may be reconciled by remembering that the testimony of experts to a foreign law is, like the testimony of an ordinary witness to any objective fact, subject to correction by recurring to such general laws (e. g. laws of general and primary jurisprudence, as well as laws physical and psychological) of which a court, from the nature of things, takes judicial notice.^ A court also, as we have seen, takes notice of prior jurisprudences which lie at the basis of the local law ; ^ and as such, in many if not all relations, the Roman and canon laws may be classed. A witness testifies to a physical fact, and the court, in construing and applying the testimony, avails itself of an ordinary knowledge of the laws of physics.* So, when an expert testifies to a fact of a foreign jurisprudence based on the Roman or canon law, the court may resort to treatises on Roman or canon law, in order to construe and apply the testimony of the expert. § 314. But ordinarily, in one state in the American Union, which accepts the English common law, the law of an- ^^^^ ^^ other state will be presumed to be the same as the lex "^^^^ ^'*'^ fori, in all matters not involving local statutory idiosyn- not to dif- crasies ; and this presumption continues until rebutted the te by proof of a difference.^ Yet, as is elsewhere seen, •'""■ ^ See, also, cases cited supra, § 411. Smith v. Smith, 19 Grat. 545 ; Crake 2 Supra, §§ 282, 299. See infra, u. Crake, 18 Ind. 150 ; Davis u. Rog- § 336. ers, 14 Ind. 424; Crane v. Hardy, 1 8 See supra, § 291. Mich. 56 ; Ellis v. Maxson, 19 Mich. * Infra, §§ 335-6. 186 ; Bean v. Briggs, 4 Iowa, 464 ; 5 Mostyn v. Fabrigas, 1 Cowp. 174; Crafts v. Clark, 38 Iowa, 237 ; Cooper Smith V. Gould, 4 Moore P. C. 21 ; v. Reaney, 4 Minn. 628 ; Brimhall v. Territtw. Woodruff, 19 Vt. 182; Lang- Van Campen, 8 Minn. 13; Rape v. don W.Young, 33 Vt. 182; Chase v. Heaton, 9 Wis. 328; Walsh v. Dart, Ins. Co. 9 Allen, 311; Clufi' v. Ins. 12 Wis. 635; Hickman v. Alpaugh, Co. 13 Allen, 308; Robinson v. Dau- 21 Cal. 226; Hill v. Grigsby, 32 Cal. chy, 3 Barb. 20; Pomeroy !/. Ains- 55 ; State u. Patterson, 2 Ired. (N. C.) worth, 22 Barb. 118; Huth v. Ins. Co. L. 346; Atkinson v. Atkinson, 15 La. 8 Bosw. 538 ; Wright c;. Delafleld, 23 An. 491 ; Thomas v. Beekman, 1 B. Barb. 498 ; City Bank v. Bidwell, 29 Monr. 29 ; Cox v. Morrow, 14 Ark. Barb. 325 ; Bradley u. Ins. Co. 3 Lan- 603; Sharp v. Sharp, 35 Ala. 574; sing, 341 ; Savage v. O'Neil, 44 N. Y. Warren v. Lusk, 16 Mo. 102 ; Hough- 298°; ConoUy v. Riley, 26 Md. 402 ; taling v. Ball, 19 Mo. 84; Lucas v. La- voL. I. 18 273 § 315.] THE LAW OF EVIDENCE. [book II. when there are two conflicting laws, that will be accepted which will best sustain an obligabion.^ Hence the presumption of identity will not be applied when the effect is to defeat the in- tention of the contracting parties.^ It has been said that it will not be presumed that the law of a British colony is the common law of England.^ And certainly it will not be presumed that the English common law exists in any state not settled by Eng- lish colonists,* nor in an Indian community, such as the Creek Nation.^ § 315. The exception just noted, as to local idiosyncrasies, is based on a sound principle. So far as concerns the leading principles of the English common law, as mod- ified by American use, it is natural for the courts of one state, which adopts these principles, to assume that the conclusions it draws from them are the same as those drawn from the same premises by courts of other states.^ But this conclusion will not be made, as we have already seen, as to those states (e. g. Louisiana) in which the Roman law is accepted as a basis. Nor can a judge, as to a notoriously pecul- iar domestic rule, assume without absurdity that such rule ob- tains in a sister state.'^ Presump- tion of identity- Hot attach- able to lo- cal pecul- iarities. dew, 28 Mo. 342 ; Bundy u. Hart, 40 Mo. 403.; Hydriok u. Burke, 30 Ark. 124; Hall v. Pillow, 31 Ark. 32; Bemis u. McKenzie, 13 Fla. 553; Green u. Kugely, 23 Tex. 539. See other cases supra, § 300; infra, § 315. In Indiana a promissory note made in another state will be presumed to have been made subject to the com- mon law, and not to the law merchant. Altord V. Baker, 53 Ind. 279. > Infra, § 1250. 2 See Whart. Confl. of Laws, § 780 ; Cutler D.Wright, 22 N. Y. 472; Smith V. Whitaker, 23 111. 367. 8 Owen V. Boyle, 15 Me. 147. « Whitford v. R. R. 23 N. Y. 465 ; Savage v. O'Neil, 44 N. Y. 298, Ker- mott V. Ayer, 11 Mich. 181. s Duvall V. Marshall, 30 Ark. 230. ^ Thurston v. Pereival, 1 Pick. 415; Cutter V. Wright, 22 N. Y. 472; Whit- 274 ford V. R. R. 23 N. Y. 465; Menden- hall V. Gately, 18 Ind. 149; Bucking- house V. Gregg, 19 Ind. 401; Griffin i'. Carter, 5 Tred. (N. C.) Eq. 413; Good- man V. Griffin, 3 Stew. (Ala.) 160; Averett v. Thompson, 15 Ala. 678; Reese v. Harris, 27 Ala. 301 ; Connor V. Trawick, 37 Ala. 289; Kermott v. Ayer, 11 Mich. 181; Gordon «. Ward, 16 Mich. 360; Smith y. Whitaker, 23 111. 367; Thompson v. Monroe, 2 Cal. 99; Spann u. Crummerford, 20 Tex. 216; Locke v. Huling, 24 Tex. 311; and cases cited supra, § 814. ' McCuUoch V. Norwood, 58 N. Y. 563; Hull v. Augustine, 23 Wis. 383. " It seems to me to be conceded, on the part of the appellant, that, there being no proof of the law of Ohio on the subject, it is to be presumed that the law of Ohio is the same as our own. That such a presumption exists CHAP, v.] JUDICIAL NOTICE. [§ 317. § 316. While the interpretation of a contract, as is elsewhere seen, is usually to be settled, so far as concerns its for- Lexfm mal parts, by the lex loci contractus, and so far as its ruiTof'evf- substance, by the lex loci solutionis, the admissibility of li^ce. the evidence by which the contract is to be enforced is to be ad- judicated according to the lex fori} The mode of solemnizing in- struments adopted by a state will be, as to instruments executed in its territory, extra-territorially respected, on the principle locus regit actum? III. EXECUTIVE AND JUDICIAL DOCUMENTS. § 317. Judicial notice will be taken of domestic executive de- crees and ordinances of state ; when these are issued in ^^^^^ ^.jj authentic public documents they- need not be proved.^ take notice . . •£ IS 1 • • ot execu- But a proclamation or other decree, if ottered m evi- tive docu- dence, must be in some way verified ; * though the copy of a public document, as printed by order of the Senate of the United States, is competent evidence of a document commu- nicated to the Senate by the President.^ Among public docu- ments so admissible may be noticed : proclamations of peace or war ; ^ government surveys of public lands ; ^ orders of a military governor, or other commanding officer, during civil war, so far as in respect to statute law is a proposi- tion by no means so clear as appears to be supposed. Expressions are con- tained in some of the opinions which have been cited favoring the position that the presumption exists with ref- erence to purely statutory regulations, but there is no authoritative decision to that effect. It is difficult to find any reason upon which such a rule can rest, and when the question is distinct- ly presented we regard it as still open to examination." Rapallo, J., 58 N. Y. 567, McCulloch V. Norwood. 1 British Lin. Co. v. Drummond, 10 B. & C. 903; Clark v. MuUick, 3 Moo. P. C. 299; Trimbey v. Vignier, 1 Bing. N. C. 151 ; Bain v. R. R. 3 H. of L. Cas. 19; Yates v. Thomson, 3 CI. & F. 577; Brown v. Thornton, 6 Ad. & E. 185 ; Donn v. Lippman, 5 CI. & F. 1; Lawson v. Pinckney, 40 N. Y. Sup. Ct. 187. See Wharton Confl. of L. §§ 756 et seq. ; Story Confl. of L. §§ 556, 629. 2 Infra, §§ 689, 697. ' See Dupays u. Shepherd, 12 Mod. 216. * Van Omeron v. Dowick, 2 Camp. 44. 6 Whiton V. Ins. Co. 109 Mass. 24. See supra, § 127; infra, § 638. ^ Dodder v. Huntingfield, 11 Ves. 292 ; U. S. V. Ogden, Trial of Smith & Ogden, 287. See infra, § 338. ' Mossman v. Forest, 27 Ind. 233 ; Hill V. Bacon, 43 111. 477; Atwater V. Schenck, 9 Wis. 160; Wright v. Phillips, 2 Greene (Iowa), 191. And so as. to abbreviations of land descrip- tions. Paris V. Lewis, 85 111. 597. 275 § 319.] THE LAW OF EVIDENCE. [BOOK II. bearing on judicial prouedure,i though otherwise when such orders come up collaterally ; ^ the amnesty proclamations of the chief executive,^ and treaties with foreign powers, of the date of whose ratification notice will also be taken.* Unless a statute requires evidence of a specific character to accompany the official acts which it authorizes, no such evidence will be re- quired by the court.^ § 318. But a state court will not take notice of the practice of the several departments of the federal government ; ^ nor will a state court take notice of federal executive acts partaking of a private character.^ Nor will notice be taken of the regulations adopted by particular branches of state service even by courts of the state,^ nor of the postal arrangements at particular towns,^ nor of a letter of the secretary of the navy addressed to the clerk of the court of the judex fori.^'^ § 319. In the United States it has been held that the public Public seal Seal of a state proves itself in the courts of such state, self-proV ^^^ '° ^^^ courts of the United States.^^ The same rule '°s- has been extended, and with reason, to the seals of such subordinate executive officers as are entitled to use seals.^^ The seal of a foreign sovereign has also been held to be self-proving, so far as to constitute a primd facie case.^^ 1 Chapman v. Herold, 58 Penn. St. " Church v Hubbart, 2 Crauch, 106; Lanfear v. Mestier, 18 La. An. 187; U. S. v. Amedy, 11 Wheat. 392; 497; New Orleans Canal Co. v. Tern- Kobinson v. GUman, 20 Me. 299; Lin- pleton, 20 La. An. 141; Gates v. John- coin u. Battelle, 6 Wend. 475; Jones son Co. 36 Tex. 144. v. Gale, 4 Mart. 635; Wood v. Fitz, 2 Burke v. Miltenberger, 19 Wall. 10 Mart. 196; Garnet, ex parte, 7 519. Supra, § 297. Leg. Int. 174. See U. S. v. Wagner, 8 Armstrong v. U. S. 13 Wallace, L- R- 2 Ch. App. 585. Infra, § 695. 154. " People v. John, 22 Mich. 461. * United States v. The Peggy, 1 ^^ U. S. v. Wiggin, 14 Pet. 834; U. Cranch, 103; United States u. Reynes, S. v. Rodman, 15 Pet. 130; Watson 9 How. 127; Carson v. Smith, 5 Minn. i>. Walker, 23 N. H. 471; Spaulding 78. V. Vincent, 24 Vt. 501; Griswold v. 5 Carpenter t). Dexter, 8 Wall. 513. Piteairn, 2 Conn. 85; Thompson v. " Hensley y. Tarpey, 7 Cal. 288. Stewart, 3 Conn. 171; Mumford v. ' Dole V. Wilson, 16 Minn. 525. Bowne, Anth. (N. Y.) 40; Hadfield ' Palmer v. Aldridge, 16 Barb. (N. ». Jameson, 2 Munf. 53; Stanglein v. Y.) 131. State, 17 Ohio St. 453; Steward v. " Wiggins V. Burkham, 10 Wall. Swanzy, 23 Miss. 502. See, however, 129. Beach v. Workman, 20 N. H. 379. " Mason's case, 4 Ct. of CI. 495. See infra, § 695. 276 CHAP, v.] JUDICIAL NOTICE. [§ 322. § 320. The seal of a notary public is judicially noticed, both infra and extra-territorially, by international courts, he §„ ^f seals being an officer recognized as such for commercial pur- °* notaries, poses by international law.i His acts are acta publica, and as such must be noticed, subject, however, to impeachment, either as to validity or verity, by the contesting party.^ But strictly, a court subject to the English common law requires proof of the seal of a foreign notary.^ A fortiori, must proof of authenticity be given where there is no seal, and where the test is handwrit- ing ; as is frequently the case with German notarial certificates.* § 321. In England the common law in this relation has been so much modified by statute that the more recent ad- so of seaia judications are mostly without common law authority. °* <«>»rts. It may, however, be generally stated, that a judge will notice ex officio the seals of all infra-territorial courts which are author- ized to have seals.^ So, with us, a federal judge will notice the seals of the several state courts.^ It is otherwise as to foreign courts.'!' But courts acting under the provisions of the Consti- tution or laws of the United States are not, as to a state court, foreign courts in this sense. ^ § 822. Where handwriting, and not seal, is employed to attest genuineness, there is no reason why the signature of an executive officer should not in like manner be judicially writing of noticed. It is at least as distinctive as a seal ; it is 1 Supra, § 123; Bayl. Bills, 490; » Earl's Trusts, in re, 4 Kay & J. Furnell v. Stackpoole, Milv. Ecc. Ir. 300; Davis's Trusts, L. E. 8 Eq. 98; R. 485; Hutcheon v. Mannington, 6 Nye v. Macdonald, L. R. 3 P. C. Ves. 823; Wilson v. Stewart, 1 Cranch 331. C. C. 128; Yeaton v. Fry, 5 Cranch, * Endemann, ut supra. See infra, 335; Orr v. Lacy, 4 McLean, 243; §. 692. Denmead v. Maack, 2 McArth. 475; ^ Foggassa's case, 24 Edw. 3, 23, Porter v. Johnson, 1 Gray, 1 75 ; Brown cited Olive v. Gain, 2 Sid. 146 ; Mel- V. Bank, 6 S. & R. 484; Fellows v. ville's case, 29 How. St. Tr. 707; Menasha, 11 Wis. 558. A court will Green v. Walker, 2 Ld. Ray. 893; not determine the title of a de facto Kempton v. Cross, Rep. temp. Hard, sovereign. State i'. Dunwell, 3 R. I. 108 ; State v. Snowden, 1 Brewster, 127. 218. ' See Endemann's Beweislehre, p. ^ Garnet, ex parte, 7 Leg. Int. 268; Durant L c. No. 15; Masc. 920. 174. That the seal must give the name of ' De Sobry v. De Laistre, 2 Har. the state, see Stephens v. Williams, & J. 191. 46 Iowa, 540; and see infra, § 695. « Mangun v. Webster, 7 Gill, 78. 277 § 324.] THE LAW OF EVIDENCE. [book II. Judicial notice taken of the exist- ence of foreign sovereign- ties. equally the subject of a prosecution for forgery; and when accepted as a mode of solemn verification should be equally re- spected by the courts.^ § 323. As courts take judicial notice of laws binding them- selves, it is essential that they should take judicial notice of the lines of demarcation which separate other sovereignties from that to which they are themselves subject. Hence a court is bound to take such notice of the existence and jurisdiction of all independent sov- ereignties, if recognized as such by the sovereignty to which the court is subject.'^ But where a foreign state is unacknowledged by the home sovereign, then the existence and jurisdiction of such state must be proved by evidence.^ And it; would seem that a court is bound to take judicial notice of the fact that a foreign state has not been recognized by the home sovereign.* § 324. A court takes judicial notice of the judges of other courts in the same state.^ Under the provision of the Constitution of the United States, giving extra-terri- torial force to state judgments, the courts of one state will take notice that courts of record of another state have appropriate civil functions,^ and that the clerks of such Notice talcen of judicial of- ficers and practice. 1 See, to this effect, Alcock v. Wliat- more, 8 Dowl. 615; Short v. Williams, 4 Dowl. 357; R. v. Miller, 2 W. Bl. 797; R. V. Gully, 1 Leach, 98; Jones V. Gale, 4 Mart. 635; Wood v. Fitz, 10 Mart. 196; Scott v. Jackson, 12 La. An. 640. 2 City of Berne v. Bk. 9 Ves. 347; Un. States v. Wagner, L. R. 2 Ch. Ap. 585; Gilston v. Iloyt, 1 Johns. R. 543. " Yrisarri u. Clement, 11 Moore, 314; 3 Bing. 432; 2 C. & P. 225. See Taylor v. Barclay, 2 Sim. 213. * Taylor v. Barclay, 2 Sim. 213. See, Iwwever, Bolder v. Bank, 10 Ves. 354, where Lord Eldon declared, and witli some reason, that he could not judicially take notice of the non- recognition by England of the then Swiss revolutionary oi'ganization. 5 Buford 1), Hickman, 1 Hempst. 278 232; Follain v. Lefevre, 3 Rob. (La.) 13; Hawks v. Kennebec, 7 Mass. 461; Ripley v. Warren, 2 Pick. 592; Des- pau V. Swindler, 3 Mart. N. S. 705; McKinney v. O'Connor, 26 Tex. 5; though this is doubted in England, as to inferior courts. Van Sandau v. Turner, 6 Q. B. 773; Skipp v. Hooke, 2 Str. 1080. See Taylor's Evid. §'19. " Dozier v. Joyce, 8 Port. (Ala.) 303. See Vassault v. Seitz, 31 Cal. 225; though see Fellows v. Menasha, 11 Wis. 558. In England, it was for some time open whetlier or not the judges of one of tlie superior courts are bound to no- tice who are the judges in the other superior courts. In Skipp v. Hooke, 2 Str. 1080; Andr. 74, S. C, the ques- tion appears to have arisen; but, though reported by Strange, as well as Andrews, it does not appear from CHAP, v.] JUDICIAL NOTICE. [§ 324. courts act according to statute law.^ A court must take notice of its own practice,^ and of that of other coordinate courts in the same state ; ^ but not of that of inferior courts, unless brought up on writ of error, or proved on trial.* Where, however, the prac- tice of an inferior court is governed by statute, this involves judi- cial notice by a superior court.^ So the prerogatives of other either report whether this particular point was actually determined by the court. Probably at the present day, Mr. Taylor argues, the question would be answered in the affirmative; on the ground that the appointment of the judges is a fact of general noto- riety, and as, moreover, their signa- tures, when attached to judicial or official documents, must be judicially noticed by 8 & 9 Vict. c. 113, § 2. Taylor's Ev. § 19. It may, however, be noticed, on the other side, that the Queen's Bench has refused to notice who was judge of the then Court of Keview. Van Sandau v. Turner, 6 Q. B. 773, 786. It is, however, set- tled that the superior courts will not, unless when called upon to review inferior courts of limited jurisdiction, (Chitty V. Dendy, 3 A. & E. 324 ;i N. & M. 842, S. C), take cognizance of the customs and proceedings therein, unless such proceedings are statutory. R. V. U. of Cambridge, 2 Ld. Ray. 1334. In that case the court refused to notice that the University Court in Cambridge proceeded according to the rules of the civil law. See, also. Lane's case, 2 Rep. 16 6, note d ; Peacock v. Bell, 1 Wms. Saund. 75 ; and Dance V. Robson, M. & M. 296. Judicial notice, however, will be taken of the proceedings of courts, which, as in the case of the Court of the V. Ch. of Oxford, under the act of 17 & 18 Vict. 0. 81, § 45, must now, in all matters of law, be governed by the common and statute law, and not by the rules of the civil law. Tay- lor, § 19. Thus, it is an undoubted r^le of pleading, that nothing shall be in- tended to be out of the jurisdiction of a superior court but that which is so expressly alleged; and, consequently, the records in the courts of counties palatine, they being superior courts, need not state the cause of action to have arisen within the jurisdiction. Peacock v. Bell, 1 Wms. Saund. 74, recognized in Gosset v. Howard, 10 Q. B. 453; Taylor's Ev. § 72. 1 Morse v. Hewett, 28 Mich. 481. = Pugh V. Robinson, 1 T. R. 118; Bethune v. Hale, 45 Ala. 522; Gilli- land V. Sellers, 2 Ohio N. S. 223. » Tregany v. Fletcher, 1 Ld. Raym. 154 ; Caldwell v. Hunter, 10 Q. B. 85 ; Newell V. Newton, 10 Pick. 470; Tuck- er V. State, 11 Md. 322. Though the common law courts would not take judicial notice of chancery practice. Dicas V. Brougham, 1 M. & Rob. 309; Sims V. Marryatt, 1 7 Q. B. 288. * Chitty V. Dendy, 3 A. & E. 324; 4 N. & M. 842; R. v. Cambridge, 2 Ld. Raym. 1334; March v. Com. 12 B. Mon. 25 ; Cutter v. Caruthers, 48 Cal. 178; Keeler, ex parte. Hemp. 306. See Cherry v. Baker, 17 Md. 75. 6 Hunter v. Neck, 3 M. & Gr. 181; Lindsay v. Williams, 17 Ala. 229; Pe- terson, ex parte, 33 Ala. 74; Rodgers V. State, 50 Ala. 102; Kilpatrick v. Com. 31 Penn. St. 198; Tucker v. State, 11 Md. 322; Chambers v. Peo- ple, 5 111. 351 ; Graham v. Anderson, 42 111. 514 ; Williams v. Hubbard, 1 Mich. 446 ; Gilland v. Sellers, 2 Ohio St. 223; Buckinghouse v. Gregg, 19 Ind. 401; McGinnis v. State, 24 Ind. 500, and cases cited in next note. 279 § 327.] THE LAW OF EVIDENCE. [BOOK II. courts and their oflScers and attorneys will be iVtlie same extent judicially noticed.^ The jurisdiction of such courts is necessarily matter of judicial notice.^ § 325. A court will take, in each case, judicial notice of all the proceedings and pleadings in such case ; ^ and hence, even after „ . .„ an appeal and reversal, and remander of the proceed- Notice will ^^ .,, , • !• ii 11. be taken of ings, the court Will take notice trom the record wno mgsin " were the original attorneys,* though not of non -record "*^®' facts.^ So a court will recognize the professional signa- tures of the attorneys to a suit.^ So a court takes cognizance of the subordinate officers of its own, though not of other courts.'^ § 326. While a court takes notice of its own records, it cannot Exceptions travel for this purpose out of the records relating to taken by ^^^ particular case. Thus in one case the court cannot courts of take notice of the proceedings in another case, unless their own . records. guch proceedings are put in evidence.^ Nor will a court take notice of the signatures of parties, unless such signa- tures be admitted or proved.^ How far a court takes notice of the seals of courts has been already discussed. i" IV. NOTORIETY. § 327. Of notoriety, the Roman law gives no direct limitation. In the standards, the word " notorium " is used ; but in Eoman in a Sense which is undefined.^-^ It was assumed, in- deed, by the jurists, that it was not necessary to prove to the jjidex quod omnes soiunt ; but we have no rules given as to the extent of this scientia omnium. The judge was left to 1 Ogle V. Norcliffe, 2 Ld. Ray. 869; * Symmes v. Major,. 21 Ind. 443. Chatland v. Tliornley, 12 East, 544 ; « Banks v. Burnam, 61 Mo. 76. Hunter v. Neck, 3 M. & Gr. 181 ; " Masterson v. Le Claire, 4 Minn. Whitaker v. Wisbey, 12 C. B. 56; 163. Buford V. Hickman, Hemp. 232; Mc- ' Norvel v. McHenry, 1 Mich. 227; Kinney v. O'Connor, 26 Tex. 5. Dyer v. Last, 51 111. 179. " Doe V. Caperton, 9 C. & P. 116; s People v. De la Guerra, 24 Cal. Spooner v. Juddow, 6 Moore P. C. 73; Lake Water Co. v. Cowles, 31 257. Cal. 215; State v. Edwards, 19 Mo. « U. S. V. Erskine, 4 Cranch C. C. 674 ; Baker v. Mygatt, 14 Iowa, 131. 299; Pagetti). Curtis, 15La. An.451; ^ Alderson v. Bell, 9 Cal. 315; State V. Schilling, 14 Iowa, 455; Masterson «. Le Claire, 4 Minn. 163. Brucker v. State, 19 Wis. 539; Leav- " See supra; § 321. itt V. Cutler, 37 Wis. 46; State v. " SeeL. 6, § 3, De poen. xlviii. 19; Bowen, 16 Kans. 475. L. 7, Cod. De. accus. ix. 2. 280 CHAP. V.J NOTORIETY. [§ 329. his own consciaitious judgment of the facts submitted to or elicited by him ; and among these were numbered the ordinary phenomena of natural and of social life. On the other hand, fama opinio publica, or rumor, was not evidence, unless it should be notorious to the great body of men, including the judex. § 328. The canon law, which found its way into our earlier procedure much more thoroughly than did the Roman, j„ ^^^^^ took in theory the position quod non in actis, non in '^^• mundo. Even when the parties threw themselves on the per- sonal knowledge of the judge, this knowledge was limited to matters juridical. That which the judge knew in matters non- juridical could not be used for evidential purposes.^ What, how- ever, the judge officially knew, as judge, need not be proved. In this sense it was said that facta notoria non indigent proba- tione.^ He was held to have official knowledge of all generally recognized facts, of which he, with many others, was cognizant. The force to be attached to notorium, in other words, the ques- tion, quid notorium probet, was much discussed. It was con- ceded that notorium facti transeuntis, interpolatum, et Juris, must, if denied, be proved.^ But the settled rule was finally imposed, that notoriety, when unchallenged, was proof on which the judgment of the court could rest. The notorium makes pro- bationem probatam ; * it is equivalent to manifestum or liqui- dum ; ^ it is distinguishable from fama in that notorium gives complete proof, while /ama gives incomplete proof. Much sub- tle thought was given to the question as to what degree of ex- tension was necessary to constitute notorium ; but like the soph- ists' puzzle as to what is the number of grains of sand which when reached make a heap of that which was not a heap before, the question was one which was never satisfactorily settled.® Ultimately it was agreed that quod publioe constet must be re- garded as notorious ; and that as to whether this standard is reached must be determined by the discretion of the court.'' § 329. Our own law, as we have already shown,^ adopts the 1 Gloss. Veritas in L. 6, § 1, De off. * Bald, in L. : Cod. vii. 75. praes. i. 18; Durant, II. 2, De prob. § ' Masc. conclu. 1105. 1, nr. 27. See Masc. qu. I. nr. 7. ° See Masc. concl. 1105, nr. 16. 2 Endemann, 75. ' Endemann's Beweislehre, 77. 8 Masc. c. 1107, nr. 9, 14. ^ Supra, §§ 1-15. 281 § 331.] THE LAW OF EVIDENCE. [BOOK II. position that reason and evidence are the coordinate factors General which go to make up proof; and that a judge, in trying JfcoT' * ''^s^' ^^^^ not only exercise his own logical faculties notoriety, jjj construing and applying evidence, but must draw on his own sources of knowledge for such information as is common to all intelligent persons of the same community. Such infor- mation, however, must not only be thus common, but must be of indisputable truth. When it becomes disputable it ceases to fall under the head of notoriety. § 830. Hence evidence is not needed to establish that which is so notorious to persons of ordinary intelligence that Notoriety . . , , . . ■, , , , i , needs no it either admits of no doubt, or could at the moment ^"^ ■ be established by a profusion of indisputable testimony. The Roman law does not use this specific term in this relation, but it receives as juridical evidence those conditions of which, as part of ordinary experience, every one is cognizant, — quod omnes sciunt ; ^ or as to which, as matters of every day knowl- edge, there is no possibility of dispute.^ The canon law gives a wider course to this notoriety, when it speaks of an evidentia ret ; quae nulla tergiversatione celari potest.^ § 331. When a custom is general and notorious, it will be Judicial noticed by the courts without proof. This rule has notice been held to include such customs of merchants as are talten of local cus- general and notorious,* or as have been sanctioned by the courts ; ^ provided such customs are intelligible without extrinsic proof. ^ So judicial notice will be taken of the custom of the road, when such is notorious, e. g. as to passing to right or left ; '' the customs of the sea, even though not estab- lished by statute law, or executive ordinance, or judicial decision, when such customs are general and notorious ; ^ the custom of 1 L. 213, § 2, 223, pr. D. de V. S. ' Leame v. Bray, 3 East, 593^ Tur- " Hefter's Appendix to Weber, 250. ney v. Thomas, 8 C. & P. 104. » C. 10, X. De cohab. cler. s ggg Zugasti v. Lamer, 12 Moore * Barnett v. Brandao, 6 M. & Gr. P. C. 331 ; Maddox v. Fisher, 14 630 ; Manny v. Dunlap, 8 West. Jur. Moore P. C. 163 ; Tuff v. Warman, 2 329; S. C. 17 Pitts. L. J. 11. See C. B. N. S. 740; Chadwick v. City of supra, § 298. London, 6 E. & B. 771; Smith v. 6 See fully supra, § 298. Voss, 2 H. & N. 97 ; Morrison v. Gen. « Bodmin Mines Co. in re, 23 Beav. St. Nav. Co. 8 Exch. 783; Gen. St. 370. Nav. Co. V. Morrison, 13 C. B. 681; 282 CHAP. V.J NOTORIETY. [§ 334. conveyancers, so far as such custom is one of the uniform inci- dents of ordinary conveyancing ; ^ the custom of lavyyers, so far as it is in like manner uniform and familiar ; ^ and the general custom to observe holidays.^ But recognition will not extend to customs which are simply the practices of a trade with which the court cannot be supposed to be familiar.* In England it has been ruled that a custom of London, to be judicially noticed without proof, must be certified to by the recorder ; ^ though when a custom, as a matter of local usage, is noticed in a city court, such custom will be noticed before a court to which such case is removed in error.^ § 332. So notice will be taken of the ordinary course of the seasons, with their general effects on agriculture ; ' but Qg^^.^^ „{ not of special alternations of weather.^ seasons. § 338. Judicial notice will also be taken of the ordinary limi- tations of human life as to age,^ so as to determine Limita- that children of a parent, who died twenty-one years ^an'ilfe'as previously, were at the particular time of age;^" or toage; that a person living a hundred years ago would not be living now.^i § 334. So the court will take notice of the ordinary periods of gestation, so as to 'assume the non-legitimacy of chil- ^^^ ^^ ^^ dren born ten months after intercourse, or, when prior gestation. non-intercourse is proved, five months after the act of inter- The Spring, L. R. 1 Ad. & Ec. 99; Doug. 880; Bruce v. Wait, 1 M. & The Concordia, L. R. 1 Ad. &Eo. 93; Gr. 39; Crosby u. Hetherington, 4 Gen. St. Nav. Co. v. Hedley, L. R. 3 M. & Gr. 933. See Taylor on Evi- P. C. 44. dence, § 5. 1 Willoughby v. Willoughby, 1 T. " Bruce v. Wait, 1 M. & Gr. 41, R. 772 ; Rowe v. Grenfel, Ry. & M. n. a. 398 ; Doe v. Hilder, 2 B. & A. 793 ; ' Patterson v. McCausland, 3 Bland Howard v. Ducane, 1 Turn. & R. 86; (Md.), 69; Floyd v. Ricks, 14 Ark. Suo-d. V. & P. 78. 286 ; Tomlinson v. Greenfield, 31 Ark. » See Whart. on Agency, § 596. 557. See Hoyle v. Cornwallis, 1 Stra. » Sasscer v. Bank, 4 Md. 409. See 387; Hanson v. Shackleton, 1 Dowl. infra, § 335. Q. C. 48. * Johnson v. Robertson, 31 Md. » Dixon ;;. NiccoUs, 39 111. 372. 476. ° Allen v. Lyons, 2 Wash. 475. 6 Lyons u. De Pass, 11 A. & E. i" Floyd v. Johnson, 2 Litt. (Ky.) 826 ; 9 C. & P. 68 ; Bruin v. Knott, 109. 12 Sim. 452; Stainton v. Jones, 1 " Infra, § 1274. 283 § 335.] THE LAW OF EVIDENCE. [book II. course;^ and the same notice will be taken when the object is to determine questions of conflicting paternity.^ So a court of equity, in distributing trust funds, assumes that women, after the age of fifty-three, are incapable of child-bearing.^ § 335. So the courts will take notice of the demonstrable con- clusions of science. Thus a court will take notice of Bions of the movements of the heavenly bodies ; * of the grada- poUticaf" tions of time by longitude ; ^ of the magnetic variations economy, from the true meridian ; ^ of the coincidence of days of the month with days of the week,^ of the order of the months,^ of the coincidence of the year of the sovereign's reign with the common notation ; ^ of the days on which fall Sundays and holi- days ; 1° of the public coin and currency ,^i though not of a foreign currency ; ^^ of the existence of " Confederate " currency, and its large depreciation during the civil war,^^ though not of the exact fluctuations of any particular kind of currency ; i* of the stand- ard weights and measures ; ^^ of distances as calculated by a map ; ^^ of the ordinary time of voyages,^^ of the habits of men in masses, and of animals ; ^^ of the effect of dams in swelling 1 See L. 5 D. (ii. 4.) ; K. v. LufEe, 8 East, 202 ; Heathcote's case, 1 Macq. Sc. C. 277; Whitman v. State, 34 Ind. 360. See infra, § 1298. 2 Bowen V. Reed, 103 Mass. 46. See Paull v. Padelford, 16 Gray, 263. Infra, § 1298. » Widdow's Trusts, L. R. 11 Eq. 408 ; Haynes v. Haynes, 35 L. J. Ch. 303. Infra,. § 1300. * Infra, § 665. See Bury v. Blogg, 12 Q. B. 877; though see Collier v. Nokes, 2 C. & K. 1012. « Curtis H. Marsh, 1 C. B. (N. S.) 153. « Bryan v. Beckley, 6 Litt. (Ky.) 91. Infra, § 665. ' Allman v. Owen, 81 Ala. 167; Sprowl V. Lawrence, 83 Ala. 674; Page V. Faucet, Cro. El. 227 ; Tutton V. Darke, 5 H. & N. 649 ; Hoyle v. Cornwallis, 1 Str. 887; Hanson v, Shaekelton, 4 Dowl. 48. 8 R. V. Brown, M. & M. 164. 284 ° Holman v. Buri-ow, 2 Ld. Ray. 795 ; R. V. Pringle, 2 M. & Rob. 276. 1" Sassceru.*Bank, 4Md. 409; Han- son V. Shaekelton, 4 DowlJ 48; Pear- son V. Shaw, 7 Ir. L. R. 1 ; Rodgers v. State, 50 Ala. 102. '1 Glossop V. Jacob, 1 Stark. R. 69; Kearney v. King, 2 B. & Al. 801 ; Lampton v. Haggard, 3 T. B. Monr. 149 ; Jones v. Overstreet, 4 T. B. Monr. 547; U. S. v. Burns, 5 McL. 23 ; Daily v. State, 10 Ind. 536. 12 Kermott v. Ayer, 11 Mich. 181. 18 Keppel V. R. R. Chase Dec. 167; Buford V. Tucker, 44 Ala. 89. See infra, § 948. " Modawell v. Holmes, 40 Ala. 391. 16 Hockin v. Cooke, 4 T. R. 814. 18 Mouflet V. Cole, L. R. 7 Exc. 70. 1' Oppenheim v. Leo Wolf, 3 Sandf. N. Y. Ch. 571. " Infra, § 1295. CHAP. V.J NOTORIETY. [§ 335. streams ; ^ of the general characteristics of photography ; ^ of the various meanings of the term " month," whether calendar or lu- nar ; ' and of the value of ordinary labor.* So a court, when a lottery prosecution is on trial, will take notice, without evi- dence, of the peculiar nature and character of lotteries.^ Yet conclusions dependent on inductive proof, not yet accepted as necessary, will not be judicially noticed. Thus it has been held, that judicial notice will not be taken of the alleged conclusion that each concentric layer of a tree notes a year's growth.^ As we have already seen, a judge may draw either on his own mem- ory, or on works of science or art, to determine the meaning of words.'' ' Tewksbury v. Schulenberg, 41 Wis. 584. 2 Luke V. Calhoun Co. 52 Ala. 115. 5 Johnston v. Hudleston, 4 B. & C. 932; Turner v. Barlow, 3 F. & F. 946 ; Bluck V. Rackman, 5 Moo. P. C. 308; Simpson v. Margitson, 11 Q. B. 28. * Bell V. Barnet, 2 J. J. Marsh. 516. See Seymour v. Marvin, 11 Barb. 80. s BouUemet v. State, 28 Ala. 83. " Patterson v. McCaupland, 3 Bland (Md.), 69. ' Supra, § 282. An authoritative and interesting exposition of the law in this relation is given by Mr. Justice Swayne, in a case decided by the Supreme Court of the United States, in 1876. Brown V. Piper, 91 U. S. (1 Otto) 37. The question before the court re- lated to the infringement of a patent "for a new and improved method of preserving fish and meats." The in- vention is alleged to consist " in a method of preserving fish and other articles in a chamber, and cooling the latter by means of a freezing mixture, so applied that no communication shall exist between the interior of the pre- serving chamber and that of the ves- sels in which the freezing mixture is placed." The specification contin- ues : "I do not profess to have in- vented the means of artificial conge- lation, nor to have discovered the fact that no decay takes place in animal substances so long as they are kept a few degrees below the freezing point of water, but the practical application of them to the art of preserving fish and meats, as above described, is a new and very valuable improvement. The apparatus for freezing fish and keeping them in a frozen state may be constructed in various ways and of different shapes. The apparatus shown in the drawing, however, will suffice to illustrate the principle .and mode of operation.'' The patent closes with the following claim: — " Having described my invention, what I claim as new, and desire to secure by letters-patent, is, preserving Jish or other articles in a close chamber by means of a freezing mixture, having no contact with the atmosphere of the preserving chamber, substantially as set forth." The court held that the patent was void on its face, on the ground that the specifications contain no novelty. In the course of his opinion Judge Swayne quotes as authority, Ure's 285 336.] THE LAW OF EVIDENCE. [book II. § 336. So judicial notice will be taken of the familiar prin- ciples of psychological laws. The usual effects of the psycholog- passions of jealousy, of avarice, of hatred, and of re- ical and y^^^Q ^jn b^ therefore taken for granted ; ^ as well as the instincts which impel to the preservation and prop- Dictionary of Arts, and Watts' Dic- tionary of Chemistry; and, after say- ing that " evidence of the state of the art is admissible in actions at law, under the general issue, without a special notice, and in equity cases without any averment in the answer touching the subject," declares that such evidence "consists of proof of what was old and in general use at the time of the alleged invention;" and is received for three purposes and none other: to show what was then old; to distinguish what was new; and to aid the court in the construction of the patent. " He then proceeds as fol- lows : — " Of private and special facts, iii trials in equity and at law, the court or jury, as the case may be, is bound carefully to exclude the influence of all previous knowledge. But there are many thin s of which judicial cognizance may be taken. ' To re- quire proof of every fact, as that Cal- ais is beyond the jurisdiction of the court, would be utterly and absolutely absurd.' Gres. Ev. in Eq. 294. Facts of universal notoriety need not be proved. See Taylor's Ev. § 4, note 2. Among the things of which judical no- tice is taken are : The law of nations; the general customs and usages of merchants; the notary's seal; things which must happen according to the laws of nature; the coincidences of the days of the week with those of the month; the meaning of words in the vernacular language; the custom- ary abbreviations of Christian names; the accession of the chief magistrate to office and his leaving it. In this country such notice is taken of the appointment of members of the cab- inet, the election and resignations of senators, and of the appointment of marshals and sheriffs, but not of their deputies. The courts of the United States take judicial notice of the ports and waters of the United States where the tide ebbs and flows ; of the boun- daries of the several states and ju- dicial districts, and of the laws and jurisprudence of the several states in which they exercise jurisdiction. Courts will take notice of whatever is generally known within the limits of their jurisdiction; and if the judge's memory is at fault, he may refresh it by resorting to any means for that purpose which he may deem safe and proper. This extends to such matters • of science as are involved in the cases brought before him. See 1 Green- leaf's Evidence, 11; Gresley's Evid. supra; and Taylor's Evid. § 4, and post. " In The Ohio L. & T. Co. v. De- bolt, 16 How. 435, it was said to be ' a matter of public history, which this court cannot refuse to notice, that almost every bill for the incorporation of companies,' of the classes named, is prepared and passed under the cir- cumstances stated. In Hoare v. Sil- verlock, 12 Ad. & Ellis N. S. 624, it was held that, where a libel charged that the friends of the plaintiff had ' re.ilized the fable of the frozen snake,' the court would take notice 1 See Whart. Cr. Law, §§ 3461-64. 286 And see intra, §§ 1258-61 etseq. CHAP. V.J NOTORIETY. [§ 337. agation of human life.^ The same recognition will be given to ordinary and well established physical laws.^ The court, for in- stance, will take notice that distilled liquors are intoxicating ; though it is otherwise as to beer and wine.^ So it will be left to a jury, without calling in experts, to determine, from their own knowledge, whether vaccination is a proper precaution for persons exposed to small-pox.* § 337. The courts will of their own motion take notice of the political appointments of the land, — so far as concerns Leading the names and tenure of its principal political agents appohTt- and their constitutional powers and limitations.^ This ments. includes the sheriffs of the several counties in the same state.^ that tlie knowledge of that fable ex- isted generally in society. This power is to be exercised by courts with cau- tion. Care must be taken that the requisite notoriety exists. Every rea- sonable doubt upon the subject should be resolved promptly in the nega- tive. " The pleadings and proofs in the case under consideration are silent as to the ice-cream freezer. But it is a thing in the common knowledge and use of the people throughout the coun- try. Notice and proof were, there- fore, unnecessary. The statute re- quiring notice was not intended to apply in such cases. The court can take judicial notice of it, and give it the same effect as if it had been set up as a defence in the answer and the proof was plenary. See M. & A. Glue Co. V. Upton, 6 Patent Office Gazette, 843 ; and Needham v. Wash- burn, 7 Ibid. 651, both decided by Mr. Justice Cliffijrd upon the circuit. We can see no substantial diversity be- tween that apparatus and the alleged invention of the appellee. In the for- mer, as in the apparatus of the appel- lee, ' the freezing mixture ' has ' no contact with the atmosphere ' of the chamber where the work is to be done." 1 Allen V. Willard, 67 Penn. St. 374. 2 See infra, § 1271. 8 Com. t). Peckham, 2 Gray, 514; Klare v. State, 43 Ind. 483 ; Egan v. State, 53 Ind. 162. " Minor v. Sharon, 112 Mass. 487, citing Carleton v. Iron Co. 99 Mass. 216; French v. Vining, 102 Mass. 132. ' Weber, Heffter's ed. 250; Hol- man v. Burrow, 2 Ld. Ray. 794; Grant v. Bagge, 3 East, 128; Whaley V. Carlisle, 17 Ir. Law R. 792; R. v. Jones, 2 Camp. 131 ; York R. R. v. Winans, 17 How. 30 ; Chapman v. Herrold, 58 Penn. St. 106 ; Bank of Augusta V. Earle, 13 Pet. 590; Ben- nett V. State, Mart. & Y. 133 ; Hizer V. State, 12 Ind. 330; Thielmann v. Burg, 73 111. 293; State v. Williams, 5 Wis. 308 ; Lindsay v. Atty. Gen. 3 Miss. 568 ; Stubbs v. State, 53 Miss. 437 ;■ Fancher v. De Montegre, 1 Head, 40; Himmelmann v. Hoadley, 44 Cal. 213; Burnett v. Henderson, 21 Tex. 588 ; Dewees v. Colorado Co. 32 Tex. 570. « Ingram v. State, 27 Ala. 17; Thompson v. Haskell, 21 111. 215; Alexander v. Burnham, 18 Wis. 199. See Holman v. Burrow, 2 Ld. Ray. 794. 287 § 338.] THE LAW OF EVIDENCE. [book II. So a court will take notice of the officers to be elected at the stated elections in its own state.^ But the existence of deputy and subordinate officers, though in the same state, must be proved.^ It is otherwise as to such officers of the county, where the court sits, as come in official connection with the coijrt.^ § 338. A court will also take judicial notice of the leading public events of its own country ; * and will permit public works of history (though not by living authors) to be even s. cited to this effect.^ Thus it has been held that a court will take notice of the origin of the land titles in its own state ; * of an ordinance of its own state abolishing slavery ; "^ of the fact that a certain period was one of great business distress ; ^ of lead- ing public proclamations ; ^ of the periods at which elections are held ; ^^ of the result of an election as to dividing a county ; ^^ of the division of the Methodist Episcopal Church in 1844, into two churches, north and south ; ^^ of the suspension of specie pay- ments ; 1^ of the existence of war ; ^* of the nature of Confederate currency during the war ; ^^ of the nature and limits of block- ^ State V. Minnick, 15 Iowa, 123; though not so as to other states. Tay- lor V. Kennie, 35 Barb. 272. 2 R. V. Jones, 2 Camp. 131; Brough- ton V. Blackman, 1 D. Chip. 109; State Bank v. Curran, 10 Ark. 142; Land v. Patteson, Minor (Alab.), 14. 8 Dyer v. Flint, 21 111. 80; Gra- ham V. Anderson, 42 111. 514; Thiel- mann v. Burg, 73 111. 293 ; Wether v. 'Dunn, 32 Cal. 106; Templeton v. Morgan, 16 Le^. An. 438. 4 Weber, Heffter'sed. 250;Holman V. Burrow, 2 Ld. Raym. 791; R. v. Pringle, 2 M. & Rob. 276; Colder v. Huntingfield, 11 Ves. 292; R. v. De Berenger, 3 M. & S. 67; U. S. u. Un. Pac. R. R. 91 U. S. 79; U. S. v. Coin, 1 Woolw. 217; Ohio L. & T. Co. V. Debolt, 16 How. 416; Bank of Augusta V. Earle, 13 Pet. 590; Key- ser V. Coe, 87 Conn. 597; Henthorn V. Shepherd, 1 Blackf. 159; Hart v. Bodley, Hard. (Ky.) 98; Bell v. Bar- net, 2 J. J. Marsh. 516 ; Lewis v. Har- ris, 31 Ala. 689 ; Ferdinand v. State, 288 39 Ala. 706; Buford v. Tucker, 44 Ala. 89; Smith v. Speed, 50 Ala. 276; Ashley v. Martin, 50 Ala. 537; Lind- sey V. Atty. Gen. 33 Miss. 508; Payne V. Treadwell, 16 Cal. 220. ' Morris v. Harmer, 7 Peters, 554. See infra, § 664; and see McKinnon V. Bliss, 21 N. Y. 206. « Smith i;. Stevens, 82 111. 554. ' Ferdinand v. State, 39 Ala. 706. * Ashley v. Martin, 50 Ala. 537; Foscue 1/. Lyon, 55 Ala. 440. See infra, § 948. 8 Taylor v. Barclay, 2 Sim. 213. 1" Ellis V. Reddin, 12 Kans. 306. " Andrews v. Knox, 70 III. 65. '^ Humphreys v. Burnside, 4 Bush, 215. But see Sarahess v. Armstrong, 16 Kans. 192. " U. S. u. Coin, 1 Woolw. 217. " R. V. De Berenger, 3 M. & S. 67; U. S. V. Ogden, Trial of Smith & Og- den, 287; Jones v. Walker, 2 Paine, R. 697; Cuyler v. Ferrill, 1 Abb. U. S. 169; Rice u. Shook, 27 Ark. 137. " Keppel V. R. R. Chase, Dec. 167 ; CHAP, v.] NOTORIETY. [§ 339. ading during the war ; ^ of the non-secession of a particular state ; ^ of the closing of the courts in a particular county through war, and the substitution of military authority ; ^ of the cessation of war ; * and the reestablishment of federal au- thority .^ But notice will not be judicially taken of precise de- tails of only local interest ; ® as, for instance, the exact local limit of the depreciation of Confederate currency ; '' the general character of such currency ; ^ or the position of the armies at particular periods of the war ; ^ or the specific orders issued by a military commander ; ^^ or the cession of certain tracts of land from another state.^^ § 339. A court is bound to take judicial notice of the leading geographical features of the land, the minuteness of the ^ j- knowledge so expected being in inverse proportion to domestic distance. ^2 Thus a court sitting for a particular city is fcal feat- bound to know the general scenery of such city, and its division into streets and wards ; ^^ the courts of a particular state Stinson, 63 Mo. 268. V. Murphy, 3 HeUk. Johnson Co. 36 Tex. Hart V. State, 55 Ind. 599 ; Buford v. Tucker, 44 Ala. 89 ; Lumpkin v. Mur- rell, 46 Tex. 51. Infra, § 948. 1 The Mersey, Bl. Pr. Cas. 187; The William H. Northrop, Bl. Pr. Cas. 235. '^ Douthill V ' Killebrew 546; Gates v. 144. * U. S. V. Bales of Cotton, 10 Int. Kev. Bee. 52. * Ashley v. Martin, 50 Ala. 537. « McKinnon v. Bliss, 21 N. Y. 206; Morris v. Edwards, 1 Ohio, 189. See Bishop V. Jones, 28 Tex. 294 ; Gregory V. Baugh, 4 Rand. (Va.) 611. In The Minne, Bl. Pr. Cas. 333, the court went so far as to take judicial notice (without proof) that a particu- lar shipper at Nassau was a notorious blockade runner. ' Modawell v. Holmes, 40 Ala. 391. « Keppel V. R. R. Chase's Dec. 167. 9 Kelley v. Story, 6 Heisk. 202. " Burke v. Miltenberger, 19 Wall. 519. VOL. I. 39 11 Howard v. Moot, 64 N. Y. 262. ^^ See U. S. V. La "Vengeance, 3 Dall. 297; Peyroux v. Howard, 7 Pet. 342; Treuier v. Stewart, 55 Ala. 458. Smith, J., in his opinion in Mc- Donald V. R. R. 34 N. Y. 397, thus speaks: "The defendants were inter- mediate carriers. Their line of trans- portation was one of several, which together formed a continuous route, over which goods were transported for hire. We may judicially take notice of the fact that the vast business of inland transportation of goods in this country is carried on mainly upon similar routes, formed by successive connecting lines of transit belonging to different owners, each of whom car- ries the goods over his own line and delivers them to the next, who in his turn takes them on till they reach the place of final destination." 1' Montgomery v. Plank Road, 31 Ala. 76. See Money v. Turnipseed, 50 Ala. 499. 289 § 339.] THE LAW OF EVIDENCE. [book n. to know the boundaries of the state, and its division into towns and counties, and the limits of such divisions ;^ and of its judi- cial districts ; ^ the position of leading cities and villages in such state ; ^ and the natural boundaries of the state.* So it has been held in Wisconsin that the court would take notice that Prairie du Chien and McGregor are separated only by the Missis- sippi River ; and that in the winter, when the river is frozen, these places are so contiguous as to make prices in them sub- stantially the same.^ So the court of a state is expected to know judicially whether certain rivers in such state are navigable ; ^ and the general characteristics of the rivers and streams travers- ing such state ; ^ and of domestic tide waters in general.^ But the distance from each other of places in the same county, and ^ their actual boundaries, if essential, must be proved ; ® and so must such subdivisions of counties as are established by munici- pal ordinance ; ■^^ and so must the time taken to travel from place 1 Harris v. O'Loghlin, 5 Irish R. (Eq.) 514; Whyte v. Rose, 4 P. & D. 199; 3 Q. B. 495; Deybel's case, 4 B. & A. 242 ; R. V. Isle of Ely, 15 Q. B. 827; R. V. Maurice, 16 Q. B. 908; Lyell V. Lapeer Co. 6 McLean, 446 ; IT. S. V. Johnson, 2 Sawyer, 482; Gooding v. Morgan; Goodwin v, Ap- pleton, 22 Me. 453 ; Ham v. Ham, 39 Me. 363 ; Keyser v. Coe, 37 Conn. 597 ; Winnipiseogee Lake Co. v. Young, 40 N. H. 420; State v. Powers, 25 Conn. 48; Commissioners v. Spitler, 13 Ind. 235 ; Buckinghouse v. Gregg, 19 Ind. 401; Buchanan w. Whitham, 36 Ind. 257; Hinckley v. Beckwith, 23 Wis. 328; Wright v. Hawkins, 28 Tex. 462; Brown v. Elms, 10 Humph. 135; King V. Kent, 29 Ala. 542. In Illinois the court will take judicial notice of divisions of counties into townships, and of the numbering of particular townships. Kite v. Yellowhead, 80 III. 208. ^ People V. Robinson, 17 Cal. 363. •Martin w. Martin, 51 Me. 366; Vanderwerker v. People, 5 Wend. 530; State v. Tootle, 2 Harring. 541; 290 Indianapolis R. R. v. Case, 15 Ind. 42; Indianapolis R. R. v. Stephens, 28 Ind. 429; Harding v. Strong, 42 111. 148 ; Smitha v. Eloumoy, 47 Ala. 345; Montgomery v. Plank Road, 31 Ala. 76 ; though see Kearney v. King, 2 B. & A. 301. * Price V. Page, 24 Mo. 65; Bell v. Barnet, 2 J. J. Marsh. 516. ' Siegbert v. Stiles, 39 Wis. " Neaderhouser v. State, 28 257. ' Cash V. Clark Co. 7 Ind. Mossman v. Forrest, 27 Ind. Cummings v. Stone, 13 Mich, Tewksbury v. Schulenberg, 41 584. ' The Jefferson, 10 Wheat. Peyroux v. Howard, 7 Pet. 342. ' Goodwin v. Appleton, 22 Me. 433; Pazakerley v. Wiltshire, 1 Str. 469 ; R. V. Burridge, 3 P. Wms. 497; Dey- bel's case, 4 B. & A. 242 ; Kirby v. Hickson, 1 L., M. & P. 364. 10 Bragg V. Rush Co. 34 Ind. 406 ; Winona v. Burke 23 Minn. 254. Su- pra, § 294. 538. Ind. 227; 233; 70; Wis. 428; CHAP, v.] NOTORIETY. [§ 340. to place ;i nor will judicial notice be taken by a state supreme court of the fact that particular streets are in particular cities or counties, or in particular vicinities,^ nor of the width of streets.^ § 340. So a court is bound to take notice of the leading geo- graphical features of foreign lands; remembering the caution already given, that the exactness required in foreign such notice diminishes with distance.* It is said, how- wai feat- ever, that the courts of one of the United States will ^^^^' not take judicial notice of the existence of the cities of another state ; ® though this may be doubted, so far as concerns well known centres of business.® Courts, also, may take judicial notice of the tidal character of rivers in foreign lands.'' 1 Rice V. Montgomery, 4 Biss. 75 ; « Porter v. Waring, 69 N. Y. 250. though see Hipes v. Cochrane, 13 Ind. * See Richardson v. Williams, 2 175. In Oppenheim v. Wolf, 3 Sandf. Porter (Ala.), 239. Ch. 571, it was held that the length ^ Riggin f- Collier, 6 Mo. 568; of steam voyages across the Atlantic Woodward v. R. K. 21 Wis. 309 ; would be judicially noticed. Whitlock v. Castro, 22 Tex. 108. 2 R. V. Simpson, 2 Ld. Ray. 1379; ^ Rice v. Montgomery, 4 Biss. 75. Grant v. Moser, 5 M. & Gr. 129; Kir- ' Whitney v. Gauche, 11 La. An. by V. Hickson, 1 L., M. & P. 364. 482 ; The Peterhoff, Blatchf. Prize In Brune v. Thompson, 2 Q. B. 789, Cas. 463, in which the court (admi- the court went to the absurd extreme ralty) went so far as to take notice of of nonsuiting the plaintiff because he a bar in a foreign river which vessels did not prove that the Tower of Lon- of a specific draught could not cross, don was in the city of London. 291 CHAPTER VI. INSPECTION. Inspection is a substitution of the eye for the ear in the reception of evidence, § 345. Is valuable when an ingredient of circum- stantial evidence, § 316. Kot to be accepted when better evidence is , to be had, § 347. Inspection of documents under order of the court, infra, § 745. § 345. Inspection is to be regarded rather as a means of dis- inspection pensing with evidence than as evidence itself. That tutVfor^'^ vrhich the court or jury sees need not be proved. The proof. appearance of a defendant, for instance, so as to make up a basis of comparison in- cases of identity, need not be proved by testimony, v^hen the defendant appears in person at the trial. By the Romans this method of proof is frequently noticed.^ By the glossarists the evidentia facti is spoken of as a species pro- hationis adeo clara, ut nihil magis, nee judex aliud quam illam requirat? Under the title " probatio per aspectum," it is men- tioned as one of the most effective modes of conviction.^ Nor is it only the immediate object presented to the eye that is thus proved. Inferences naturally springing from such appearances are to be accepted ; age, bodily strength, being thus inferred.* Yet the inference is not to be regarded as certain, nam aspectus facile decipit.^ A footprint, inspected by the judge, is an in- dicium.^ Whether the court, at its own motion, could direct an inspection, or, as we call it, a view, was much discussed, and by the later practice, conceded.' Inspection, it should be remem- > See Cic. top. c. 2, § 29; L. 32 De minor, iv. 4; L. 3. Cod. fin. reg. iii. 39; Endemann, 82. ' See Masc. I. qu. 8. ■ Durant. II. 2, De prob. § 4, nr. 9, who extends proof by inspection to include the logical consequences of inspection e. g. ex eo quod cleri- cus parvam habet filiam, probatur non diu continuisse. See Endemann, 83. 292 * Alciat. De praes. ii. 14, nr. 3 I Henoch. De praes. ii. 50, nr. 38, 39. ' Bart. Const. I. 92, nr. 3 ; Henoch. II. 51, nr. 61 ; Endemann, 83. ^ Masc. I.e. nr. 21. . ' See Endemann, 84 ; Schmid, p*. 309, note 5 ; Seuflfer, Archiv. IV. nr. 88. CHAP. VI.J INSPECTION. [§ 346. bered, includes perception by any of the senses : quae cerni tan- give possunt;^ though it was intimated, as a speculative opinion, ooulis major fides, quam auribus Tiahenda? § 346. Where a thing is offered for the inspection of the court, it is obvious that in most cases this is primary evidence ^ r J Inspection of such thing ; and proof by inspection is therefore valuable as !• 1. . ■,-,.. an ingre- received in preference to pictures or oral descriptions, dientofcir- whenever it is material to the jury to know what the tiaUvl"' thing is.3 The most common illustration of this prin- *°'"'°' ciple is to be found in cases where juries are taken to view the scene where the events of the litigation octurred.* So all instru- ments by which an offence is alleged to have been committed ; * all clothes of parties concerned,' from which inferences may be drawn ; all materials in any way part of the res gestae, may be produced at the trial of the case.^ In questions of forgery, in particular, the production of the paper alleged to have been forged is an essential without which we can scarcely conceive of a case proceeding.^ Injury to the person may be so proved. Thus in an action to recover damages for an injury to a limb, the injured limb may be exhibited on trial, to be inspected by the court and jury, while the surgeon who was employed to set it testifies as to the injury.^ An inspection in such cases may be ordered to be made by expert surgeons appointed by the court.^ When the issue is infancy, on an indictment, the court and jury may decide by inspection,^" and so as to whether one of 1 Cic. top. c. 2, § 27. utes, see Stones v. Menhem, 2 Ex. R. » Hercul. De prob. neg. nr. 247; 382 ; Morley v. Gaz. Co. 2 P. & F. Endemann, 84. As to force of proof 373. by inspection, see Ingram v. Flasket, * See Wynne v. State, 56 Ga. 113. 3 Blackf. 450. ° See Whart. C. L. §§ 3468 et seq. ' See Ingram v. Flasket, 3 Blackf. See, also, La Beau v. Feople, 34 N. Y. 450. As to inspection of documents 223; Feople v. Gonzales, 35 N. Y. 49; by jury, see Howell v. Ins. Co. 6 Biss. Gardner v. People, 6 Park. C. R. 155. 436. See, however, supra, § 81. As to notice to produce a dog, see * See Whart. Cr. L. § 3160; Mos- Lewis v. Hartley, 7 C. & F. 405. earn w. Ivy, 10 How. St. Tr. 562; ' See infra, §§ 705, 711. State V. Knapp, 45 N. H. 148; Ruloff s Mulhado v. R. R. 30 N. Y. 370. i». People, 18 N. Y. 179 ; Eastward v. See State v. Garrett, 71 N. C. 85; Feople, 3 Parker C. R. 25 ; Chute v. Wiener v. State, 66 Mo. 13. State, 19 Minn. 271; State v. Bertin, » Walsh v. Sayre, 52 How. N. Y. 24 La. An. 46 ; R. t. Martin, L. R. 1 Pr. 334. C. C. 378. Under the English stat- " State v. Arnold, 13 Ired. L. 184. 293 § 346.J THE LAW OF EVIDENCE. [book II. the parties is a " colored person." ^ On an issue of bastardy, the jury may judge of likeness by inspection ;^ and so on an is- sue of adultery, for the purpose of connecting a child with a pu- tative father.3 It is, however, doubted whether it is admissible, on questions of legitimacy, to prove such likeness by witnesses ; * and it has been held inadmissible to resort, in such issues, to the inspection of pictures.^ On an issue of pregnancy, a jury of matrons is empanelled to decide the issue by inspection.^ When A fortiori with regard to the color of the child. Warlick v. White, 76 N. C. 89 ; Garvin v. State, 52 Miss. 207. 1 Garvin v. State, 52 Miss. 207. " State V. Woodruff, 67 N. G. 89. See State v. Britt, 78 N. C. 439. * Stumm V. Hummel, 39 Iowa, 478. * Jonest). Jones, 45 Md. 144; 48 Md. ; S. C. 4 Am. L. T. R. 489. In this case we have the following from Alvey, J. : " In the celebrated Douglas cause, decided by the House of Lords in 1769, Lord Mansfield said that he had always considered likeness as an argument of a child's being the son of a parent. In other cases, if there should be a likeness of features, there might be a discriminable voice , a dif- ference in the gesture, the smile, and various other things ; whereas, a fam- ily likeness ran generally through all these ; for in everything there was a resemblance, as in features, size, atti- tude, and action. He accordingly al- lowed a weight to the proved resem- blance of the appellant in that case and his brother to Sir John Stewart and Lady Jane Douglas, and to their dis- similitude to the other persons whose children they were alleged to be. And the same sort of evidence was admit- ted by Mr. Justice He^th, in the case of Day V. Day, at the Huntingdon assizes, in 1797, upon the trial of an ejectment, where the question was one of partAs suppositio. These cases are stated by Hubback in his work on the Evidence of Succession, page 884 ; 294 but the author states them with strict limitation, and with apparent doubt whether such evidence be safe and re- liable. And as we do not find the principle of these cases stated in other works on the law of evidence of ap- proved authority, we think it fair to conclude that the cases mentioned have not been regarded as establish- ing a rule upon the subject. Indeed, Mr. Justice Heath, in the case of Day V. Day, just referred to, admitted that resemblance is frequently exceedingly fanciful, and he therefore cautioned the jury as to the manner of consider- ing such evidence ; and we all know that nothing is more notional in the great majority of cases. What is taken as a, resemblance by one is not per- ceived by another, with equal knowl- edge of the parties between whom the resemblance is supposed to exist. Where the parties are before the jury, and the latter can make the compari- son for themselves, whatever resem- blance is discovered may be a circum- stance, in connection with others, to be considered. But to allow third persons to testify as to their notions of the resemblance supposed to exist between parties, would be allowing that to be given as evidence upon which no rational conclusion could be based, but which might readily serve to mislead the jury." ' Beers v. Jackman, 103 Mass. 192. ' Baynton's case, 14 How. St. Tr. 630; R. V. Wycherly, 8 C. & P. 262. CHAP. VI.] INSPECTION. [§ 347. comparison of hands is resorted to, the court, if not the jury inspects the document as a mode of determining genuineness.^ Animals are sometimes brought into court when their identity or character is in controversy.^ § 347. When, however, more exact proof can be produced, inspection does not afford a sufficient basis on which . '■ . Inspection to rest a ludgment. Thus in- Indiana, where under a not to be accepted statute it was necessary to prove that the defendant when bet- was fourteen years old, it was held that in a case open dence could to doubt this proof must be, if possible, supplied by ''^''^'l- witnesses or records, and cannot be determined by inspection alone.^ But it is one of the necessary incidents of the bringing 1 Infra, §§ 711 e< seq. " Line v. Tayler, 3 F. & F. 731; Wood V. Peel, cited Tyalor's Ev. § 600; Lewis v. Hartley, 7 C. & P. 405. In an English case passing through the English daily papers, in the spring of 1876, it is stated that " Mrs. Priscilla Wolfe, a widow lady of independent means, residing at Kilsby, near Rugby, sued Richard Jones, butcher, of the same place, for £5 damages, for ille- gally killing a cockatoo parrot belong- ing to the plaintiff. The defence was that the defendant shot the cockatoo mistaking it for an owl. The fellow- bird of the deceased cockatoo was brought into court, and afforded great amusement by strongly recommending the parties to ' Shake hands,' ' Shut up,' and asking for 'sugar.'" In Brown v. Foster, 113 Mass. 136, the action was by a tailor to recover the price of a suit of clothes which he had made, and guaranteed to be " satis- factory." The defendant pronounced them unsatisfactory, and returned them. They were produced in court, and at the plaintiflf s request the de- fendant put them on and exhibited them to the jury. On the part of the plaintiff it was claimed that they needed only a few trifling alterations, which he was willing to make, but that the defendant had refused to allow them. Evidence was received of a custom among tailors of having garments tried on after they were finished, and then making necessary alterations. A new trial was granted on account of the reception of this evidence. ' Stephenson v. State, 28 Ind. 272. In Ihinger v. State, 53 Ind. 251, it was held error to permit a jury to determine a disputed question of in- fancy by inspection. In a suit for injury to chattels, the plaintiff, it has been ruled in Mary- land, is not entitled to produce the chattel in court in order to prove the injury by inspection. The injury, it has been said, must be proved by wit- nesses. Jacobs V. Davis, 34 Md. 204. So it is said in North Carolina that the qualities of a stallion for foal-get- ting cannot be judged by inspection, but may be proved by reputation. McMillan v. Davis, 66 N. C. 539. Experiments not applicable to con- ditions existing on the trial cannot be proved by experts. Hawks v. Charle- mont, 110 Mass. 110; Com. v. Piper, 120 Mass. 185. In patent cases, it should be remem- bered, experiments before the jury are constantly resorted to. 295 § 347.] THE LAW OF EVIDENCE. [book II. into court of the instruments by. whicli an act is alleged to have been done, that such instruments should be tested in open court. It is only when this is done by the jury, after retiring, when the parties have no opportunity of revising the process, that objec- tion can be made. When the process is conducted openly, as part of the trial of the case, it is a valuable auxiliary in the dis- covery of truth. ^ Whether a witness can be called upon to write his name in court, on questions of identity of hands, is else- where considered. Infra, § 706. 1 The late Rev. F. W. Robertson, in a letter printed by his biographer (Life and Letters of F. W. Robert- son, ii. 139), gives the following vivid sketch of a trial before Sir John Jer- vis : " One was a very curious one, in which a young man of large property had been fleeced by a gang of black- legs on the turf, and at cards. Noth- ing could exceed the masterly way in which Sir John Jervis untwined the web of sophistries with which a very clever counsel had bewildered the jury. A private note-book, with ini- tials for names, and complicated gam- bling accounts, was found on one of the prisoners. No one seemed to be able to make head or tail of it. The chief justice looked it over and most ingeniously explained it all to the jury. Then there was a pack of cards which had been pronounced by the London detectives to be a perfectly fair pack. They were examined in court ; every one thought them to be so, and no stress was laid upon the circumstance. However, they were handed to the chief justice. I saw his keen eye glance very inquiringly over them while the evidence was going on. 296 However, he said nothing, and quietly put them aside. When the trial was over, and the charge began, he went over all the circumstances till he got to the objects found upon the prison- ers. ' Gentlemen,' said he, ' I will engage to tell you, without looking at the faces, the name of every card upon this pack ! ' A strong exclamation of surprise went through the court. The prisoners looked aghast. He then pointed out that on the backs, which were figured with wreaths and flowers in dotted lines all over, there was a small flower in the right-hand J** corner of each like this: ,* " The number of dots in this flower was the same on all the kings, and so on, in every card through the pack. A knave would be perhaps marked thus: • • . ' • • An ace thus: • . • and so on ; the diflference being so slight, and the flowers on the back so many, that even if you had been told the general principle, it would have taken a considerable time to find out which was the particular flower which differed. He told me afterwards that he recollected a similar expedient in Lord De Ros's case, and therefore set to work to discover the trick. But he did it while the evidence was going on, which he himself had to take down in writing." CHAPTER VII. BURDEN OF PROOF. Prevalent theory is that burden of proof is on affirmative, § 353. True view is tliat burden is on party under- taking to prove a point, § 354. Roman law is to this effect, § 355. Negatives are susceptible of proof, § 356. Burden is properly on actor, § 357. Party who sets up another's tort must prove it, § 358. So as to negligence, § 359. So in suit against railroad for firing, § 360. Contributory negligence to be proved by de- fence, § 361. In a suit of non-performance of contract, plaintiff must prove non-performance, § 362. Kule altered when plaintiff sues in tort, §363. In a contract against bailees, it ia sufficient to prove bailment, § 364. Burden of proving cams is on party setting it up, § 365. Burden is on party assailing good faith or legality, § 366. Burden is on party to prove that which it is his duty to prove, § 367. License to be proved by the party to whom such proof is essential, § 368. Burden of proving formalities is on him to whom it is essential, § 369. Importance of question as to burden, § 370. Court may instruct jury that a presump- tion of fact makes a primd facie case, §371. Burden when crime is charged calls for only preponderance of proof, § 1245. § 353. In the trial of a judicial issue, the first point to be de- termined is, by whom is the evidence in the case to be offered, and to what extent this evidence is to proceed. Various the- ories on this point have been advanced. That which in Eng- land is generally accepted is, that on the party maintaining the affirmative the burden is always imposed. Among the most authoritative exponents of this view is Mr. Best, in his treatise on Evidence.^ " The general rule," he de- theory Is clares, " is, that the burden of proof lies on the party burfen^is who asserts the affirmative of the issue, or question in ™ ">«. »*■ ' ■*• nrmative. dispute, — according , to the maxim, Hi ineumbit pro- batio qui dicit, non qui negat ; and to this effect he cites Mr. Starkie and Mr. Phillipps, sustaining his views by a copious ex- position.2 A distinguished German jurist and statesman, Beth- 1 Best's Evidence, 5th ed. 369. Pick. 39; Costigan v. R. R. 2 Denio, ^ See, to same effect, Phelps I). Hart- 609; Pusey v. Wright, 31 Penn. St. well, 1 Mass. 71; Phillips v. Ford, 9 387; Nash v. Hall, 4 Ind. 444; Mo- 297 § 354.J THE LAW OF EVIDENCE. [BOOK II. man-Hollweg, has given his adhesion to the same view.'^ The question of the burden of proof, he argues, is not confined to merely juridical relations. We will not err, therefore, if in such a discussion we turn for illustration to the analogies of ordinary life. How is it, for instance, in a controversy as to a historical fact, or a natural phenomenon? When a third person asserts such fact or phenomenon, on such person, we declare, lies the burden of proof, if the assertion be denied. We refuse assent until proof of the truth of the assertion is brought. This, how- ever, is identical with the rule that he Who affirms, not he who denies, must prove. It is true that this is not applicable to many cases ; as, for instance, where there is a double hypothesis, of which the first party asserts one alternative and the second party asserts the other alternative. But by such case, as on neither party lies a burden of proof, the rule as above given is not affected. In the relations of common life, therefore, we ap- ply the rule, Affirmanti incumhit prohatio, non neganti. It is admitted, he proceeds to say, that we dispense practically with this rule in common life in cases where there is not a direct issue of affirmation or denial. But this is not the case in civil process, where such an issue always exists, for in such case one party nec- essarily claims a right which another resists. Whoever claims a right affirms such right, and must prove it, for the reason that it cannot be admitted by the judge without proof. § 354. But to this it has been well replied,^ that the very ex- ception made by Bethman-HoUweg shows that the rule he advo- cates can have only a limited application to judicial investiga- tions. He admits that the rule does not apply when there are two or more conflicting interests ; but rare are the lit- Correct • . i • • i • i view is that igated issues in which two or more interests do not is on a conflict. Nor is this all. In many cases each party dertaising i^iites, with an affirmation on his part of his own 'omt°^° * rights, a denial of the rights of his opponent ; and the affirmation and denial are so blended as to be incapable Clure V. Pursell, 6 Ind. 330; Steven- 66. So, also, Greenleaf's Evid. § 74, son V. Marony, 29 III. 532; Grims v. and Taylor's Ev. § 837. Tidmore, 8 Ala. 746; Kyle v. Calmes, i Versuche, p. 337. 1 How. (Miss.) 121 ; Thompson v. Lee, » Heffter, Appendix to Weber, 259. 8 Cal. 275; People v. Murray, 41 Cal. 298 CHAP. VII.J BURDEN OF PROOF. [§ 355. of severance in proof. Nor can we agree that the investig9,tions of common life can give a rule decisive of those in a court of jus- tice. Every trial is a public contest,, in which a litigant appears to advance a right. If this right is denied by an opponent, then the decision is referred to a court duly constituted as the organ of the state. The court, when the case comes before it, is bound to know nothing as to the merits of the issue, and must, there- fore, before a decision be made, be, advised as to such merits by the party making such claim, whether the claim consist in es- tablishing a right for himself, or in releasing himself from the right of another. On the party putting forth such right this duty is incumbent. Jura socordibus non succurrent. The de- fendant, on the other hand, seeks to relieve himself from the plaintiff's case, either by a direct traverse, infioiatione, or through a plea of avoidance, in which he sets up a conflicting claim to bar the plaintiff's demand. If he take this second attitude, he is in the same attitude as the plaintiff ; and he must assume the burden of proof in making good his defence. Whenever, whether in plea, or replication, or rejoinder, or surrejoinder, an issue of fact is reached, then, whether the party claiming the judgment of the court asserts an affirmative or negative propo- sition, he must make good his assertion. On him lies the bur- den of proof.^ § 355. The conclusion thus announced is affirmed in more than one emphatic ruling of the Roman jurists, when p,,jj,^jj,^^ dealing with this very topic. Semper necessitas pro- is to this bandi inoumbit illi qui agit? Whoever undertakes the office of advancing a claim, whether that claim be maintenance or release, must make good his case. A defendant, who seeks to relieve himself from the established right of another, is in this respect in the same position as the plaintiff, by whom a right is to be established. Reus excipiendo fit actor. So far as concerns pleas (exceptionibus), Ulpian tells us^ that the defend- 1 Thus, as we will presently see plaintiff. "West v. Irwin, 74 Penn. more fully, when the defendant in an St. 258. action of debt pleads payment, the » L. 21, D. de probat. See same burden is on himself ; when he pleads point in L. 19, pr. L. 21, C. de probat ; non est factum, the burden is on the L. 9, C. de except. = L. 19, D. probat. xxii. 3. 299 § 355.] THE LAW OF EVIDENCE. [BOOK II. ant may take the part of the actor, in which case he must prove his claim ; e. g. if he sets up a countervailing contract (^pactum conventum), he must prove, that such contract was actually exe- ■ cuted. Celsus^ applies the rule as follows: A legacy of five hundred gold pieces is left to you, and to the same will is attached a codicil giving you the same amount. The question arises whether the testator meant to double the amount, or only to affirm in the codicil that which he had forgotten he had stated in the body of the will. On which party, the legatee or the rep- resentatives of the testator, in a suit for the double sum, is the burden of proof ? At the first view, so concludes Celsus, it seems more equitable (aequius) that the burden should be on the lega- tee, to make good his claim. But if there be avoiding evidence, this must be adduced by the defendant. If, for instance, I sue for money lent, and the defendant answers that the money has been paid back, this defence it is incumbent on him to prove (ipse hoc prolare cogendus esi). In the case of the will before us, therefore, if the plaintiff proves both will and codicil, and the defendant undertakes to show the codicil is inoperative, the bur- den is on him to prove this to the court. The theory of the Roman law in this relation is, that the part of an actor is under- taken only by him whose rights are either denied or doubted. In this category falls not only the plaintiff, who claims a right, but the defendant, who undertakes to defeat by his own claim another's right ; and it is incumbent therefore on the latter, ^x- ceptionem velut intentionem implere? On the other hand, the reus, or defendant, who quietly and silently waits the plaintiff's attack, interposing only a plea in bar, has no burden in respect to proof. Actore non probante, qui convenitur, etsi nihil ipse praestiterit, ohtinehit,^ So far as concerns the Roman maxim, on which Mr. Best, and those whom he cites, rely as of first au- thority, little need be said. Ei incumbit probatio qui dioit, non qui negat, is undoubtedly of classical origin ; * and with this may be coupled, Negantis naturali ratione nulla est probatio.^ But to affirm that these maxims were set forth as containing a complete theory as to the burden of proof, is to affirm, as Heffter remarks,® 1 L. 12, id. 4 L. 2, D. de probat. » L. 19, pr. D. id. B L. 23, C. eod. iv. 19. « L. 4, C. de edendo. ii. 1. « Weber, Heffter's App. 264. 300 CHAP. VII.] BURDEN OF PROOF. [§ 356. that the jurists, on a question of high importance, to which they gave peculiar thought, announced two theories in direct .conflict. We must, therefore, treat the maxim, Hi ineumhit prohatio qui dicit, non qui neffat, as equivalent to Actori incumbit probatio, and if we do not subordinate the second maxim to the first, we must subordinate the first to the second. That the jurists regarded the first maxim simply as a formal variation of the second, there is good exegetical reason to assert. Dicere, like adseverare,^ may well mean, to claim? § 356. It is asserted, in defence of the rule here contested, that a negative cannot be proved, and hence, as only Negatives an affirmative is provable, on the affirming party alone ^We^oF^''" can rest the burden of proving. To this the follow- P™"*- ing qualifications may be made : The inquiry is, not for mathe- matical certainty, but for such probability, higher or lower, as is obtainable in judicial proceeding. High probability is the best we can obtain in any case ; high probability may be reached as to the non-existence of many things which are claimed to exist. Arguments drawn from non-juridical fields do not here apply. It may be difficult for me to prove that a thing does not exist in all space, or that certain occult intents may not lurk in the undisclosed recesses of a particular person's heart. But juris- prudence has to do with no such vague domains. Its territory is limited. It inquires whether, in a particular spot, at a particular time, open to human observation, a particular thing existed ; or whether, by the small range of witnesses to whom a party at a particular time was visible, he gave signs of the suspected intent. It is possible, within such limited range, to call all witnesses who were likely to have been at the given spot, or observed the given person, at the particular time, and so to approach a negative by gradually exhausting the affirmative. In fact, as is well argued,^ what is counter-proof, in most cases (e. g. in an 1 See L. 19, C. de probat. " ' Contradictory opposition ' is the 2 See authorities to this point in kind most frequently alluded to, be- HefEter's App. to Weber, 265. cause (as is evident from what has ' See Meier, CoUeg. Argent, tit. been just said) to deny — or to disbe- de prob. § 7; Weber, HeflFter's ed. lieve — a proposition is to assert, or to 135. believe, its contradictory, and, of course, So in the following well known pas- to assent to, or maintain a proposition, sao-e by Archbishop Whately: — is to reject its contradictory. Belief, 301 § 356.] THE LAW OF EVIDENCE. [book II. aliW), but proof of a negation ? We may prove a negative indi- rectly, by proving conditions incompatible with the alleged fact, showing, for instance, that a party charged was in another place . than that necessary to the opposing case ; or we may do it di- rectly, by calling a witness present at the latter place, and prov- ing that the party was not there. So, also, where a plaintiff sues for a debt ; if the defendant can produce an admission from the plaintiff that the debt was never incurred, this is proving a negative, but a negative which, if believed, will defeat the plaintiff's case. How often is the question put, " Could such a thing have b^en done without your seeing it ? " and how conclu- sive has sometimes been held a negation based upon the hypoth- esis that without the witness seeing an event it could not have happened. In actions for malicious prosecution, if the plaintiff does not in some way approach to proof of a negation of his guilt, his case is not made.^ So, to take one more illustration : therefore, and disbelief, are not two dif- ferent states of the mind, but the same, only considered in reference to two contradictory propositions. And, con- sequently, credulity and incredulity are not opposite habits, but the same; in reference to some class of propositions, and to their contradictories. " For instance, he who is the most incredulous respecting a certain per- son's guilt is, in other words, the most ready to believe him not guilty; he who is the most credulous as to cer- tain works being within the reach of magic, is the most incredulous (or ' slow of heart to believe ') that they are not within the reach of magic; and so in all cases. " The reverse of believing this or that individual proposition is, no doubt, to disbelieve that same proposition; but the reverse of belief, generally, is not disbelief; since that implies belief; but doubt. I " And there may even be cases in which doubt itself may amount to the most extravagant credulity. For in-' stance, if any one should ' doubt 302 whether there is any such country as Egypt,' he would be in fact believing this most incredible proposition ; that ' it is possible for many thousands of persons, unconnected with each other, to have agreed, for successive ages, in bearing witness to the existence of a fictitious country, without being de- tected, contradicted, or suspected." Whately's Logic, book ii. chap. ii. §3. To the same effect, Trendelenberg, a great German logician, argues, de- claring that " an absolute negation is a real impossibility.'' Logische Un- tersuchungen, 3d ed. II. 168; as quoted by Bar, Causalzusammenhange, 77. * The plaintiflF must show that the proceeding was entirely groundless, and it is not sufficient for him to prove the dismissal of the charge. Per the Judicial Committee of the Privy Coun- cil, Baboo Gunesh Dutt v. Mugnee- ram Chowdry, 11 Beng. L. R. 321; Powell's Evidence, 4th ed. 291 ; Mitch- ell V. Jenkins, 5 B. & A. 588 ; Porter V. Weston, 5 Bing. N. C. 715; Kingw. Colvin, 11 K. I. 582; Ames v. Snider, CHAP. VII.J BURDEN OF PROOF. [§ 356. Suppose upon a suit by A. against B., B. sets up as a defence that A. is dead, how is B. to prove such defence in cases in which A., .if he were living, would be over one hundred years old ? If A. had died fifty years back, it might be difficult to find witnesses who saw him die, and the best that the defendant could do would be to prove that A. had not for years been seen or heard of alive. If we did not rely on negative proof, or on negative presumptions, which are the same thing, those who died out of the memory of man would have to be juridically treated as permanently alive.^ 69 111. 376 ; Smith v. Kent, 79 Ind. 362. ' In support of the proposition that wherever the plaintiff hases his action on a negative allegation, the burden is on him to prove such allegation, see Doe V. Johnson, 7 M. & Gr. 1047, 1060; Mills V. Barber, 1 M. & W. 425; Elkin v. Janson, 13 M. & W. 655; Fitch u. Jones, 5 E. & B. 238; Com. V. Bradford, 9 Met. 268; Cen- tral Bridge Co. v. Butler, 2 Gray, 130; Com. v. Locke, 114 Mass. 288; Baldwin v. Buffalo, 35 N. Y. 375; Strickler v. Burkholder, 47 Penn. St. 476; Barton v. Sutherland, 5 Rich. 57; Conyers v. State, 50 Ga. 103; Adams v. Field, 25 Mich. 16; Per- sons V. McKibben, 5 Ind. 261; West V. State, 48 Ind. 483 ; Duffield v. De- lancey, 36 Jll. 258; Beardstown v. Virginia, 76 111. 44; Kerrw. Freeman, 33 Miss. 202. In all suits brought for failures on part of a carrier, the plaintiff begins by proving or inferring a negative; i. e. that the goods were not delivered. See infra, § 362. So, also, the party making the alle- gation is bound to prove that certain goods were not legally imported; Sis- sons V. Dixon, 5 B. & C. 758; and that a, certain theatre is not duly li- censed ; Rodwell v. Redge, 1 C. & P. 220; or that certain essential notice was not given. Williams v. E. Ind. Co. 8 East, 193. The following may be of use as ad- ditional illustrations of the proposi- tion of the text, that a negative alle- gation must be proved by the party making it, whenever such allegation is essential to such party's case. Where in an action against a tenant the breach assigned is that the prem- ises were not kept in repair, and this allegation be traversed by the plea, the plaintiff must prove his negative averment. Seward v. Leggatt, 7 C. & P. 613; Doe v. Rowlands, 9 C. 8f P. 734, per Coleridge, J. ; Belcher v. M'Intosh, 8 C. & P. 720, per Alder- son, B. For though according to the grammatical construction of the issue, the affirmative lies on the defendant, yet the substantial merits of the case must be proved by the plaintiff; and if no evidence were given, or if the allegation on which issue was joined were struck from the record, the de- fendant would clearly be entitled to a verdict. Taylor's Ev. § 338. It has been also ruled that where the plaintiff, in an action on a life pol- icy, after averring that the insurance was effected on a statement made by the plaintiff, that the insured was not subject to habits or attacks of illness tending to shorten life, but was in good health, — should proceed to aver that this statement was true, and the defendant were to plead that it was false in these respects; that the insured was subject to habits and attacks tend- 303 § 356.] THE LAW OF EVIDENCE. [book II. The true solution of the question is that which has been stated, — that he who in a court of justice undertakes to establish a ing to shorten life, to wit, habits of intemperance and attacks of erysipe- las, and was ill at the time the state- ment was made, — in such case the burden of proof would lie upon the plaintiff, though the plea should con- clude with a verification, and be met by a replication offering a general denial ; because to entitle the plaintiff to a verdict, some evidence must be given to show that, at the time when the policy was effected, the life was insurable. Huckman v. Fornie, 3 M. & W. 505, 510; Ashby v. Bates, 15 M. & W. 589; 4 Dowl. & R. 33, S. C; Geach v. Ingall, 14 M. & W. 95; Rawlins v. Desborough, 2 M. & Rob. 70, per Ld. Denman; 8 C. & P. 321; S. C; Craig v. Fenn, C. & Marsh. 43, per Ibid. See Poole v. Rogers, 2 M. & Rob. 287. As we have seen, non-license of a theatre, when averred, must be proved. Rodwell V. Redge, 1 C. & P. 229. Infra, § 368. It has been further ruled that the underwriter, in an action on a marine "policy, who sets up that certain mate- rial facts, known to the assured, had been concealed from him, has on him the burden of proving the non-com- munication of these facts, on a repli- cation traversing the whole plea; for although the allegation contained in his plea may be negative in its terms, still, as it was the duty of the assured to make the communication, — either upon the principle that every policy is based on the supposed existence of a certain state of facta, or on the ground that insurance is a contract uberrimae Jidei, — some evidence should be given by the underwriter to rebut the pre- sumption that the assured had dis- charged his duty. The amount of the proof required will, indeed, vary ac- 304 cording to the circumstances of the case, and very slender evidence will often be sufficient; for suppose a ship was known by the assured to have been burned at the time when the assurance was effected, proof of this fact would in itself be reasonable evi- dence to show that it had not been communicated, because no underwriter in his senses, had he been aware of such a circumstance, would have exe- cuted the policy. Elkin v. Janson, 13 M. & W. 655, 663, 665, per Parke and Alderson, BB. ; Taylor's Ev. § 339. So, to use another of Mr. Taylor's illustrations, where a plaintiff avers that A. was, at a specified time, of sound mind, and this averment is trav- ersed by the defendant, the latter is bound to prove the negative allegation of incompetency, because every man may reasonably be presumed to be sane till the contrary is shown, and consequently this presumption of fact, in the absence of evidence to the con- trary, would equally serve the plain- tiff's purpose, as though he had given express evidence of the sanity. See Sutton ». Sadler, 26 L. J. C. P. 284; 3 Com. B. N. S. 87, S. C; Dyce Som- bre V. Troup, 1 Deane Ec. R. 38, 49. On the other hand, if such an issue were to come from the Court of Chan- cery, it is held that the plaintiff would be called upon to prove the sanity of the party, because the court in such case would presume that the judge di- recting the issue had considered that a prim& facie case of madness had been made out, and by ordering the party who relied upon the sanity to be the plaintiff, had intended that the burden of proof should devolve upon him. Frank u. Frank, 2 M. & Rob. 314. See fully infra, § 1252. A failure to comply with the uni- CHAP. VII.] BURDEN OF PROOF. [§ 356. claim against another, or to set up a release from another's claim against himself, must produce the proof necessary to make formity statutes, under the old law, if alleged, must be proved. Powell v. Milburn, 5 B. & C. 758. See K. v. Hawkins, 10 East, 216; S. C. Dom. Proc. 2 Dow, 124. If to an action brought by an in- dorsee against the acceptor of a bill of exchange the defendant plead that the bill was accepted by him for the accommodation of the drawer, and was indorsed to the plaintiff without value, and the plaintiff reply that it was in- dorsed to him for a valuable consider- ation, the burden of proving this issue will be on the defendant, because the mere possession of the bill raises a prima facie presumption of due consid- eration having been given for it. Mills V. Barber, 1 M. & W. 425; Tyr. & Gr. 835; 5 Dowl. 77, S. C. ; Whit- taker V. Edmunds, 1 M. & Kob. 366, per Patteson, J.; Fitch v. Jones, 5 E. & B. 238. So, in a case already frequently cited, where a defendant was charged, in an action on the case, with a fail- ure to give notice to the ship's officers of certain explosive compounds deliv- ered by him to them, which resulted in the burning of the ship, it was held that, as the omission to give notice would have been a criminal neglect of duty on the part of the defendant, the law presumed that notice had been given, and threw upon the plaintifif the burden of proving the negative. Williams v. E. India Co. 3 East, 192. It is also ruled that an omission to insure must be proved by a plaintiff, in an action by a landlord against a tenant, based on such omission. See Toleman v. Portbury, 39 L. J. Q. B. 136, per Ex. Ch. Had the landlord, it is said, wished to have been relieved from the necessity of establishing this negative proof, he might easily have VOL. I. 20 inserted a clause to that effect in the lease. Doe v. Whitehead, 8 A. & E. 571. Where, also, to a suit for not exe- cuting a contract in a workmanlike manner, the defendant pleads that the work was properly done; Amos v. Hughes, 1 M. & Rob. 464; or where a declaration alleges that a horse sold under a warranty was unsound, and this fact be traversed by the plea; Os- born V. Thompson, 9 C. & P. 337, per Erskine, J.; 2 M. & Rob. 254, S. C; Cox V. Walker, cited 9 C. & P. 339, per Lord Denman ; S. P., ruled per Tindal, C. J., as cited Ibid. 338 ; the onus, in either case, will lie on the plaintiff, and the same rule will pre- vail in an action brought against an attorney for not using due diligence ; Shilcock V. Passman, 7 C. & P. 291, per Alderson, B. ; or against a mer- chant for not loading a sufficient cargo on board a ship, pursuant to a charter party; Ridgway v. Ewbank, 2 M. & Rob. 217, per Alderson, B.; or against an architect for not building houses according to a specification. Smith v. Davies, 7 C. & P. 307, per Alderson, B. Were a defendant to plead that he had accepted the bill for his own ac- commodation, and that the drawer, instead of getting it discounted for the use of the defendant, had indorsed it to a stranger, who had fraudulently indorsed it to the plaintiff, after it be- came due, or without consideration, and the plaintiff were to traverse this last allegation, the burden of proving that the bill was overdue at the time of indorsement, or that no value was given for it by the holder, would de- volve on the defendant, because the plea does not contain such an allega- tion of fraud as would counteract the 305 § 357.] THE LAW OF EVIDENCE. [book II, good his contention. This proof may be either affirmative or negative. Whatever it is, it must be produced by the party who seeks forensically either to establish or to defeat a claim. § 357. It makes no difference, therefore, whether the actor is The bur- plaintiff or defendant, so far as concerns the burden of on"the^ proof. If he undertake to make out a case, whether actor. affirmative or negative, this case must be made out by him, or judgment must go against him.^ Hence it may be stated, as a test admitting of universal application, that whether the proposition be affirmative or negative, the party against whom judgment would be given, as to a particular issue, sup- posing no proof to be offered on either side, has on him, whether he be plaintiff or defendant, the burden of proof, which he must satisfactorily sustain.^ If there is a case made out against a de- presumption arising from the posses- sion of the instrument. Lewis v. Par- ker, 4 A. & E. 838; Jacob v. Hun- gate, 1 M. & Rob. 445, per Parke, B.; Brown v. Philpot, 2 Ibid. 285, per Ld. Denman. In this last case the replication was de injuria. See, also, Smith V. Martin, C. & Marsh. 58; Taylor's Ev. § 340. 1 Tlius a party alleging breach of . warranty must prove the breach. Peck V. Houghtaling, 35 Mich. 127. In Heath i'. Jaquith, 68 Me. 433, the ruling was that if a party, having the burden of proof upon an issue neces- sary to his case, introduces no evi- dence which, if true, giving to it all its probative force, will authorize the jury to find in its favor, the judge may direct a verdict to be entered against him. To sustain this ruling were cited Eyder v. Wombwell, L. E. 4 Exch. 83 ; L. R. 2 Privy Council Ap. 835; Hickman u. Jones, 9 Wall. 197 ; ■ White V. Bradley, 66 Me. 254; Dame V. Dame, 20 N. H. 28 ; Denny v. Wil- liams, 5 Allen, 1. " Judges are no longer required to submit a case to the jury merely be- cause some evidence has been intro- duced by the party having the bur- 306 den of proof, unless the evidence be of such a character that it would war- rant the jury to proceed in finding a verdict in favor of the party introduc- ing such evidence. Decided cases may be found where it is held that, if there is a scintilla of evidence in sup- port of a case, the judge is bound to leave it to the jury ; but the modern decisions have established a more rea- sonable rule, to wit: that before the evidence is left to the jury there is, or may be, in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is im- posed." Clifford, J., Commis. v. Clark, 94 U. S. 278. Infra, § 371. 2 Amos V. Hughes, 1 M. & Rob. 464; Doe v. Rowlands, 9 C. & P. 785 Osborn v. Thompson, 9 C. & P. 337 Ridgway v. Ewbank, 2 M. & Rob 218 ; Huckman v. Firnie, 3 M. & W 505; Elkin v. Janson, 13 M. & AV 655; Geach v. Ingall, 14 M. & W, 97; Ashby v. Bates, 15 M. & W. 589 Sutton V. Sadler, 3 C. B. (N. S.) 87 Bradley v. McKee, 5 Cranch C. C CHAP. VII.] BURDEN OF PROOF. [§ 357. fendant, on which, if the plaintiff should close, a judgment would be sustained against the defendant, then the defendant has on him the burden of proving a case by which the plaintiff's case will be defeated.^ Thus if a defendant answers to a contract 298; PrevoBt v. Gratz, 6 Wheat. 481 ; Huchberger v. Ins. Co. 5 Bissell, 106; Hankin v. Squires, 5 Bissell, 186 ; Ful- lerton v. Bank U. S. 1 Pet. 607; Mc- Lellan v. Crofton, 6 Me. 308; New Haven Co. v. Brown, 46 Me. 418; Goodell V. Buck, 67 Me. 514; Shack- ford V. Newington, 46 N. H. 415; Kendall v. Brownson, 47 N. H. 186; Gilmore v. Wilbur, 18 Pick. 517; Beals V. Merriam, 11 Met. (Mass.) 470 ; St. John v. R. E. 1 Allen, 544; Pratt V. Lamson, 6 Allen, 457 ; Broad- ers V. Toomey, 9 Allen, 65 ; Central Bridge v. Butler, 2 Gray, 130; Mor- gan V. Morse, 13 Gray, 150; Dorr v. Fisher, 1 Gush. 227; Pratt v. hang- don, 97 Mass. 97; Gay v. Southworth, 113 Mass. 333; New Bedford v. Hing- ham, 117 Mass. 445; Parsons v. Top- liff, 119 Mass. 245; Funcheon u. Har- vey, 119 Mass. 469; Cotheal v. Tal- madge, 1 E. D. Smith, 573 ; Heine- mann v. Heard, 62 N. Y. 448 ; Zerbe V. Miller, 16 Penn. St. 488 ; Pittsburg R. K. V. Rose, 74 Penn. St. 362; Briceland v. Cora. 74 Penn. St. 463; State V. McGinley, 4 Ind. 7 ; Spauld- ing V. Harvey, 7 Ind. 429 ; Kent v. White, 27 Ind. 390; Palmer v. Wright, 68 Ind. 486 ; Davidson v. Nicholson, 69 Ind. 411; Milk v. Moore, 39 111. 584 ; Maltman v. Williamson, 69 111. 423; Hyde v. Heath, 75 111. 381; Woodruff V. Thurlby, 39 Iowa, 344; Veiths V. Hagge, 8 Iowa, 163; Grim- mell K. Warner, 21 Iowa, 11; Burton V. Mason, 26 Iowa, 392 ; Reeve v. Ins. Co. 39 Wis. 520; Day v. Raguet, 14 Minn. 278; McCarthy v. Grace, 23 Minn. 182; Karst v. K. R. 23 Minn. 401 ; Louisville R. E. «. Brown, 13 Bush, 475 ; Johnson v. Gorman, 30 Ga. 612; Shulman ti. Brantley, 50 Ala. 81; Hill v. Nichols, 50 Ala. 336; Stoddard v. Kelly, 50 Ala. 453 Brandon v. Cabiness, 10 Ala. 155 Craig V. Perois, 14 Rich. Eq. 150 Carver v. Harris, 19 La. An. 621 Fox u. Hilliard, 35 Miss. 160; Rich- ardson V. George, 34 Mo. 104; Church V. Fagin, 43 Mo. 123; Gatewood v. Bolton, 48 Mo. 78 ; Henderson v. State, 14 Tex. 503 ; Mills v. Johnston, 23 Tex. 308 ; Luckhart v. Ogden, 30 Cal. 547. This rule applies to claim- ants in forfeiture cases. The Short Staple, 1 Gall. 104; The Argo, 1 Gall. 150; U. S. v. Hayward, 2 Gall. 499. 1 Treadwell t'. Joseph, 1 Sumn. 390; Railroad Co. v. Gladman, 15 Wall. 401 ; Briggs v. Taylor, 28 Vt. 180 ; Gray v. Gardner, 17 Mass. 188; Davis V. Jenney, 1 Met. 221 ; Attleboro v. Middleboro, 10 Pick. 378; Com. v. Daley, 4 Gray, 209; Lewis v. Smith, 107 Mass. 334; Wolcott v. Holoomb, 31 N. Y. 125; Sullivan v. R. R. 30 Penn. St. 234; Empire Trans. Co. v. Wamsutta Co. 63 Penn. St. 17; Zerbe V. Miller, 16 Penn. St. 488; Winans V. Winans, 19 N. J. Eq. 220; Freeh V. R. R. 39 Md. 574 ; Gough v. Crane, 3 Md. Ch. 119 ; Peck v. Hunter, 7 Ind. 295; Kent v. White, 27 Ind. 390; Southworth v. Hoag, 42 111. 446; Ad- ams Ex. Co. V. Stettaners, 61 111. 184; Hale V. Hazelton, 21 Wis. 620; Cas- tello V. Landwehr, 28 Wis. 522 ; Ketchum v. Ex. Co. 52 Mo. 390 ; Zemp V. Wilmington, 9 Rich. L. 84; Steele V. Townsend, 37 Ala. 247; Peck v. Chapman, 16 La. An. 366; Hutching V. Hamilton, 34 Tex. 290. 307 § 358.J THE LAW OF EVIDENCE. [book II. made by him, that he acted therein exclusively as agent for an- other, the burden is on him to prove such agency ; ^ and so if he set up non-joinder by plea in abatement ; ^ and so if he set up a prior conviction or acquittal ; ^ and so if he set up infancy ; * and so if he set up accord and satisfaction ; ^ and so if he set up con- fession and avoidance ; ^ and so if he set up illegality under the stock -jobbing act ; "^ or illegality under the liquor acts ; ^ and so if he set up usury ; ^ or other illegality or fraud ; ^^ and so if he set up payment ; ^^ and so if, to a note, he set up failure of con- sideration.^ So the burden is on a carrier, when sued on the contract of carriage, to prove that the loss was through an ex- cepted peril ; ^^ or that the goods were not in a good condition when delivered to the carrier ; ^* or did not come to the carrier.!^ § 358. It is in cases of tort that jurists, both ancient and Burden is modern, have found the greatest difficulty in the deter- sett?ng up miration of the question before us.^^ The true solution is this : the burden lies on the party seeking in a court tort. 1 Whart. on Agen. § 491 ; Vawter V. Baker, 23 Ind. 63 ; Winans v. Wi- nans, 19 N. J. Eq. 220. " Jewett V. Davis, 6 N. H. 518. 8 Whart. Cr. L. § 568 ; Com. v. Daley, 4 Gray, 209. * Stewart v. Ashley, 34 Mich. 183. ' American v. Eimpert, 75 111. 228. " Gray v. Gardner, 17 Mass. 188; Davis V. Jenney, 1 Met. (Mass.) 221 ; Attleboro u. Middleboro, 10 Pick. 378; Peck V. Hunter, 7 Ind. 295. ' Dykers v. Townsend, 24 N. Y. 57. 8 Trott V. Irish, 1 Allen, 481. 9 Cutler I). Wright, 22 N. Y. 472; Thomas v. Murray, 32 N. Y. 605 ; Da- vis V. Bowling, 19 Mo. 651. w Arthur v. Unkart, 96 U. S. 118 ; Dalrymple v. Hillenbrand, 62 N. Y. 5 ; Feldman v. Gamble, 26 N. J. Eq. 494. Infra, § 358. " Winter v. Simonton, 3 Cranch, 104; Hankin v. Squires, 5 Bissell, 186; Wetherell v. Swan, 32 Me. 247 ; Buz- zell V. Snell, 25 N. H. 474; McKinney V. Slack, 49 N. J. Eq. 164 ; Edmonds V. Edmonds, 1 Ala. 86 ; McLendon v. 308 Hamblin, 84 Ala. 86; Irwin v. Ger- non, 18 La. An. 228 ; Caulfield v. San- ders, 17 Cal. 569; Yarnell v. Ander- son, 14 Mo. 619. " Emery v. Estes, 31 Me. 155; Craig V. Proctor, 6 R. I. 547; Dresser v. Ainsworth, 9 Barb. 619. But see De- lano V. Bartlett, 6 Cush. 364 ; Cook v. Noble, 4 Ind. 221; Topper v. Snow, 20 111. 434 ; Miller v. Deal, 9 Rich. S. C. 75. 1' Steamer Niagara v. Cordes, 21 How. 7; Tarbox v. Steamb. Co. 50 Me. 339; Shaw v. Gardner, 12 Gray, 488; Byrne v. Boadle, 2 H. & C. 722; Vaughan v. R. R. 5 H. & N. 579; Freemantle v. R. R. 10 C. B. N. S. 89; McCoy v. R. R. 44 Iowa, 424; Mitchell V. Exp. Co. 46 Iowa, 214; Humphreys v. Switzer, 11 La. An. 320. See other eases in Whart. on Neg. § 128. » Illinois R. E. v. Cowles, 32 111. 116 ; Dixon v. R. R.74N. C. 538 ; Mont- gomery R. R. V. Moore, 51 Ala. 394. 15 Price V. Powell, 3 N. Y. 322. 1° See particularly Leyser, Medit. CHAP. VII.] BURDEN OF PROOF. [§ 359. of justice either to make good his claim for damages arising from the tort of another, or to establish a release from such claim, sup- posing it to be made out against himself, by imputing tort to the plaintiff. Hence, according to the Roman law, he who charges dolus or eulpa on another must prove such dolus or culpa ; while he who, on such case being made out, sets up casus, or the con- tributory agency of the plaintiff, must prove such casus, or con- tributory agency.-' In our own law, it is an elementary principle that a party setting up a tort has the burden on him to prove such tort.^ Thus, as will presently be more fully seen, when the cause of action is negligence, the plaintiff must prove the negligence ; ^ when it is deceit or fraud, the plaintiff must prove the deceit or fraud ; * when deceit is set up as a defence, the deceit must be proved by the defendant.^ If, to a tort, justifi- cation is set up by the defendant, the burden is on him to prove such justification.^ And so when the defendant, to an action for trespass, sets up probable cause on his part to believe that the land belonged to himself, he must prove such probable cause,' and when he sets up an attack by plaintiff, he must prove such attack.* § 359. The question has been sometimes put, whether, suppos- ing we have simply a case of injury produced by a B^^enon defendant, the plaintiff, on proving such mere injury, g*'''^^^®'- may not close, leaving it to the defendant to discharge negligence himself by proof of due care. The point, howeyer, is ° ^"'"''^ purely speculative, not likely ever to arise in fact, and likely, if ad Pand. sp. 176; Hbpfner, Comment, inson, v. Quarles, 1 La. An. 460. See Inst. § 761, n. 4; Gliick, Pandekt. 4, Bigelow's Cases on Torts, 1-59. As to § 324; Schmidt, Comment, von ge- presumptionof good faith, see § 1248. richt. Klagen; Endemann, Beweislast, « Huchberger v. Ins. Co. 5 Bissell, 49; Weber, Heffter's ed. 172. 106; Trenton Ins. Co. v. Johnson, 4 1 Weber, Hefifter's ed. 173. Infra, Zab. 576; New York Ins. Co. v. Gra^ fi 36i_ ham, 2 Duvall, 506. The burden of 2 See cases cited supra, § 357. proving execution of will to be fraud- 8 Infra, § 359. "lent is on party alleging fraud. Da- * Huchberger v. Ins. Co. 5 Bissell, vis v. Davis, 123 Mass. 590. 106; Holbrook v. Burt, 22 Pick. 546; « Brackett v. Hayden, 15 Me. 347 ; Strong V. Place, 4 Robt. N. Y. 385; Loring v. Aborn, 4 Cush. 608; Gaul Mutual Ins. Co. v. Wager, 27 Barb. v. Fleming, 10 Ind. 253 ; Treadwell v. 354; O'Neal v. Boone, 82 111. 589; Joseph, 1 Sumn. 390. Grimmell I'. Warner, 21 Iowa, 11; ' Walther m. Warner, 26 Mo. 143. Oaks V. Harrison, 24 Iowa, 179 ; Bob- » Gizler v. Witzell, 82 111. 322. 309 § 360.] THE LAW OF EVIDENCE. [BOOK II. discussed theoretically before a jury, to mislead. The hypothe- sis of a perfectly colorless, motiveless, isolated injury, which can be proved without necessarily proving some circumstances from which negligence or malice can be either inferred or negatived, is as absurd as is the hypothesis of an abstract killing, which the schoolmen conceived in order to justify their doctrine of abstract malice being deducible from abstract killing as a presumption of law. To take up the case immediately before us, it is impossi- ble to suppose evidence of a railway injury without evidence of how such injury was received. It is possible, of course, to im- agine a witness coming into court to say, " A. was injured by B. ; " or, " A. was killed by B. ; " but this would be a conclusion of law which would be inadmissible. The only evidence that could be received in such case would be the facts in the concrete ; and the facts could not be proved in the concrete without show- ing something as to how the hurt was inflicted. If these cir- cumstances do not indicate neligence (or malice, if the suit be for a malicious injury) on the part of the defendant, then the plaintiff must be nonsuited. The burden is on him to prove an unlawful act on the part of the defendant.^ § 360. An interesting question, as to which there have been Burden on great fluctuations of opinion, here arises as to the bur- Fn*suit den of proving negligence in a suit against a railroad K^*or fi^ company for setting fire to adjacent property by sparks '"S- from its locomotives. Supposing that the railroad com- pany is authorized to use locomotives, then it is not liable for I Cotton V. Wood, 8 C. B. N. S. Empire Trans. Co. v. Wamsutta Co. 568 ; Scott V. Docks, 8 H. & C. 596 ; 63 Penn. St. 17 ; Bait. & O. R. R. v. Haramack v. White, 11 C. B. N. S. Fitzpatrick, 35 Md. 32; Freeh v. 588 ; Toomey v. R. R. 3 C. B. N. S. R. R. 39 Md. 574; Bradley v. North- 146; Carpue v. R. R. 5 Q. B. 751; ern Nav. Co. 15 Ohio St. 553; Mc- Beaulieu v. Portland Co. 48 Me. 291 ; Mahon v. Davidson, 12 Minn. 337; Lyndsay c<. R. R. 27 Vt. 643 ; Ware Chicago v Mayor, 18 111. 349 ; City v. V. Gay, 11 Pick. 106; Lane v. Crom- Hildebrand, 61 111. 155; Comstock v. bie, 12 Pick. 177; Robinson v. R. R. R. R. 32 Iowa, 376 ; Gliddon v. Mc- 7 Gray, 92; Parrott v. AVells, l.S Wall. Kinstry, 28 Ala. 408 ; Dobbs v. Jus- 524; The Empire State, 1 Ben. 57; tices, 17 Ga. 624 ; Mitchell «. R. R. Russel Manuf. Co. u. St. Co. 60 N. Y. 30 Ga. 22 ; Tourtellot v. Rosebrook, 121 ; Losee v. Buchanan, 51 N. Y. 11 Met. (Mass.) 460. As to special 476; Gillespie v. City, 54 N. Y. 468; statute directing the contrary, see § McCully V. Clarke, 40 Penn. St. 399 ; 360. 310 CHAP. VII.] BURDEN OF PROOF. [§ 360, any injury incident to the working of the locomotives, provided it has used proper caution and skill in selecting and running them. We should hold, therefore, on principle, that a suit against a rail- road company, in cases of this class, would stand on the same footing as suits against a private individual for injuries caused by the negligent escape of fire from the latter's premises ; in other words, that the burden is on the plaintiff to prove that the escape of fire was through the negligence of the defendant. And so has it been frequently held.^ On the other hand, it has been argued that from the rapidity of movement of locomotives, and the diffi- culty of identifying them, it is peculiarly incumbent on the de- fendant in such issues to show the character of the engines by which the fire was communicated ; and for this reason (for no other is available for this purpose) it has been held that proof of fire having been communicated throws the burden of exculpation on the defendant.^ In some states this has been provided by statute.^ This, however, cannot, at common law, be sustained, as it would lead to a judgment of negligence being entered when no negligence was proved. At the same time, in view of the fact that the tests of determining the adequacy of the engines and ap- pointments of the road are almost exclusively in the power of the defendant, very slight proof of negligence offered by the plaintiff is sufficient to throw the burden of exculpation on the defendant.* 1 Vaughan v. R. R. 5 H. & N. 679; " Spaulding v. R. R. 30 Wis. 110; Jones V. R. R. L. R. 3 Q. B. 737; Galpin v. R. R. 19 Wis. 606; Burke Hammersmith v. Brand, L. R. 4 H. v. R. R. 7 Heisk. 451 ; Home v. R. R. of L. 171 ; Smith v. R. R. L. R. 5 C. 1 Cold. 72 ; Hull v. R. R. 14 Cal.387. B. 98 ; Burroughs v. B. R. 15 Conn. See Coale v. R. R. 60 Mo. 235, where 124; Shelton v. R. R. 29 Barb. 226; this conclusion is approximated. S. C. 14 N. Y. 218 ; Hinds v. Barton, « So in "Vermont, see Grand Trunk 25 N. Y. 544 ; Morris & E. R. R. v. R. R. v. Richardson, U. S. Sup. Ct. State, 36 N. J. 553 ; Phil. & Read. R. Oct. 7, 1875. In Maine, Chapman u. R. V. Yeiser, 8 Barr, 366; Hugett v. R. R. 37 Me. 92. In Maryland, Bait. R. R. 23 Penn. St. 373; R. R. v. Yer- & S. R. R. v. Woodruff, 4 Md. 242. ger, 73 Penn. St. 121 ; Jeffers v. R. R. In Illinois, Chic. & N. W. R. R. v. Me- 3 Houst. 447 ; Robinson v. R. R. 32 Cahill, 56 111. 28. As to proof of prior Mich. 322; Smith v. R. R. 37 Mo. firings to affect this burden, see supra, 287; Herring v. R. R. 10 Ired. 402; § 42. McCreedy v. R. R. 2 Strob. 356; Ma- * See this point discussed in Whart. con R. R. V. McConnell, 37 Ga. 481 ; on Neg. §§ 871-2. Flynn v. R. R. 40 Cal. 14; McCum- This argument, that the burden in mons V. R. R. 33 Iowa, 187; Kans. P. such cases is on the plaintiff, is ably R. R. Co. V. Butts, 7 Kans. 308. 311 § 361.J THE LAW OF EVIDENCE. [book II. § 361. Suppose it be alleged, on the part of the defendant, In a suit that the injury accrued through the plaintiff's negli- for negli- gent use of gence. on whom lies the burden ? No doubt we have presented by Holmes, J., in Smith v. K. R. 37 Mo. 287. Of this view, however, we have subsequently the following modifica- tion: "Firstly, the jury, in order to charge the defendant, must find affirm- atively that the fire escaped from the smoke-stacks of its engine, through the negligence of its agents or ser- vants. Smith V. R. R. 37 Mo. 287. The burning, the damage, the escape of the fire, and the negligence, are all facts to be charged and proved. But they must be proved like all other facts, by such evidence as shall satisfy a reasonable mind of their existence. It is sometimes said that negligence is presumed from the escape of the fire. 111. Cent. R. R. Co. v. Wells, 42 111. 407. But while this can hardly be called a presumption, as the term is generally used, it may be a fair and reasonable inference. The language of Judge Holmes, in Smith v. R. R. 295, is very strong, and liable to mis- construction, unless compared with the case and the rest of the opinion. If the plaintiff were required to prove affirmatively and specifically the con- dition of the particular smoke-stack from which the fire escaped, — if he were bound to show the specific neg- ligence that permitted its escape, — it would be equivalent to denying him relief altogether. The farmer, along whose field the train flies, from the nature of the case, can know noth- ing about these things. He cannot know the engine, nor can he tell the contrivances needed, used, or neglect- ed. All that he can in most cases show is that the fire escaped and de- stroyed his property. It is an infer- ence of reason that fire should not so escape. When as dangerous, as well 312 as useful, an instrument of locomotion as a steam locomotive is used, its man- agers are bound to a care and precau- tion commensurate with the danger. They have a right to use the instru- ment, but have no right to scatter fire along their track; and when it is found that this is done, with no ex- planation of the cause, the jury is war- ranted in inferring that there has been some neglect. To rebut that reason- able inference, the defendant should show that the best machinery and contrivances were used to prevent such a result, and that careful and compe- tent servants were employed. Vaughn V. TafE Vale R. R. 3 Hurlst. & N. 743; same case on review in 5 Hurlst. & N. 679; Freemantle v. London & N. W. R. R. 10 C. B. N. S. 19." Bliss, J., Fitch V. R. R. 45 Mo. 362. In 1875, the same court appears to abandon Judge Holmes's reasoning, and to hold that the scattering of fire being proved, the company must dis- prove negligence. " The law, as settled in this state, is, that where it is proved that the property was destroyed by fire escap- ing from the defendant's engine, a prima facie case of negligence is made out ; that the burden is then thrown on the defendant, by its evidence, to rebut the presumption of negligence by showing the absence of negligence. Whether this is done by the evidence is a question for the jury, which can be decided by them without shifting the burden from one party to the other, as the evidence progresses, and as seems to be contemplated by the in- struction refused. Bedford v. Hann. & St. Jo. R. R. 46 Mo. 456 ; Clemens V. R. R. 53 Mo. 366, and case cited." Vories, J., Coale v. R. R. 60 Mo. 285. CHAP. VII. 1 BURDEN OF PROOF. [§ 362. dicta to the effect that a plaintiff suing for damages al- a. legal ^ , ° ° right, oon- leged to have been sustained by him through another's tnbutory n 6£cl i £6 lie 6 negligence, should show that his own negligence was to be not the cause of the disaster ; ^ and it is clear that a the^V ^ plaintiff may be nonsuited if, on his own showing, it **"''°' appear that the disaster was brought on by himself.^ But if he makes out a case of negligence on part of the defendant, and the defendant then undertakes to prove that the plaintiff's negligence was the primary cause, this is a defence which, on the principles previously stated, the burden is on the defendant to prove.^ § 362. When a person who contracts to perform a particular duty to another person or thing is sued for negligent in a suit injury to such person or thing, then the plaintiff need f™nm- only prove the injury ; and the burden is on the de- ^^^e'c?' fendant to excuse himself by proof of the exercise of contract, .7 , ''"6 plain- due diligence. What such diligence is depends upon tiff need the nature of the contract, as elsewhere discussed, the failure That it must be proved as an excusatory defence by the «)n-"" the defendant, and that the burden is on him to do so, "'*"'■ is plain. The defendant has engaged to perform a particular duty, and the suit is for the non-performance of such duty. That the defendant failed to perform his duty through neg- ligence, is not part of the plaintiff's case. The plaintiff, it is true, in proving the non-performance of duty by the defendant, 1 Lane v. Crombie, 12 Pick. 177; Y. 54 N. Y. 468; Hays v. Gallagher, Murphy v. Deane, 101 Mass. 466 ; 72 Penn. St. 140; Central R. R. v. AUyn V. R. R. 105 Mass. 77; Birge v. Moore, 4 Zabr. 824; Langhoff w. R. R. Gardiner, 19 Conn. 507; Evansville 19 Wis. 497; Rothe v. R. R. 21 Wis. R. R. V. Hiatt, 17 Ind. 102; Galena 256. R. R. V. Fay, 16 111. 568 ; Donaldson ^ Railroad Co. v. Gladman, 15 Wall. V. R. R. 18 Iowa, 280 ; Baird v. Mor- 401 ; Sheldon v. R. R. 29 Barb. 226 ; ford, 29 Iowa, 531 ; Muldowney v. R. Oldfield v. R. R. 14 N. Y. 310; John- R. 32 Iowa, 176; Murphy v. R. R. 45 son v. R. R. 20 N. Y. 65 ; Wilds v. Iowa, 661 ; Patterson v. R. R. 38 Iowa, R. R. 24 N. Y. 430 ; Phil. & Read. R. 279; Lake Shore R. R. v. Miller, 25 R. v. Yeiser, 8 Barr, 366; Huyett ti. Mich. 274; Jones v. R. R. 67 N. C. R. R. 23 Penn. St. 373 ; Cleve. & P. 122. R. R- V. Rowan, 66 Penn. St. 393 ; Mai- 's Holden v. Liverpool, 3 C. B. 1; lory v. Griffey, 85 Penn. St. 275; Brown V. R. R. 58 Me. 384; Gaha- Freeh u. R. R. 39 Md. 674; Ohio, &c. gan V. R. R. 1 Allen, 187; Brooks R. R. «. Fowler, 85 111. 21 ; Smith w. R. V. Somerville, 106 Mass. 271; Haring R. 37 Mo. 287; Thompson v. R. R. 51 V. R. R. 13 Barb. 9; Gillespie v. N. Mo.J.90. 813 § 362.] THE LAW OF EVIDENCK. [BOOK II. may bring out such incidents as show negligence on the part of the defendant. But it is not a necessity of the plaintiff's case to do this ; and if the defendant desire to relieve himself, by showing a due performance of duty, he must do so either by directly traversing the plaintiff's case as to the fact of injury, or by proving (and the burden is on the defendant to do this) that the injury occurred without his particular fault. A creditor, for instance, receives a piece of silver plate in pawn. If this is lost, without any culpa on his part, he must prove this fact, in order to be released from liability.^ A herd of goats is taken by a herdsman to pasture. They are carried off by robbers, without the fault of the herdsman. It is not necessary for the owner to prove want of due care in the herdsman ; but the bur- den is on the herdsman to prove that the loss of the herd was not due to want of care by himself.''^ Suppose, again, goods are hired by H. from L., and when in H.'s possession are damaged, either through defects existing in the goods when in H.'s posses- sion, or through H.'s misconduct. If the views above given be correct, the burden is on H., when sued for the loss, to show either that the loss was due to causes involving no misconduct on his part, or to defects inherent in the goods at the time they were hired. If he cannot make out such a defence, he is bound to indemnify the owner. It is true, as has been argued, that it is a fraud in the owner of goods, when, knowing them to have latent defects which will cause their depreciation or loss, to with- hold notice of such defects from the hirer.^ But to this it is per- tinently replied, that business would be brought to a standstill if the owner of goods, in a suit for injuries sustained by them, was compelled to prove that which, from the nature of things, he could rarely be able to do, that the goods when they left his pos- session were free from latent faults.* Public policy, in such case, unites with juridical principle in requiring the defendant (i. e. the party undertaking by contract to do a particular thing) to show, when sued on the contract, either that the thing was done by him, or that he has good grounds of excuse.^ 1 L. 5, C. de pig. act. (iv. 24.) * See Weber, Heffter's ed. 177. 2 L. 9, § 4, D. loo. xix. 2. 6 Chicopee Bank v. Phil. Bank, 8 « See Garve's criticism on Paley's Wall. 641 ; Tlie Live Yankee, Deady, Mor. Phil. ii. 512. 420; McGregory v. Prescott, 5 Cush. 314 CHAP. VII.] BURDEN OF PROOF. [§ 863, § 363. If, in cases of bailment, the plaintiff, suing in tort, al- leges negligence in his declaration, is the burden on „ , . , . ° Eule IS al- him to prove such negligence ? The Roman law an- tered where swers this question in the negative, though it is ad- sues in mitted that, in the strict order of proof, such burden ^°^' may lie on the plaintiff in his replication. The plaintiff, for in- stance, alleges a negligent loss of goods ; under this allegation it is enough to prove that the goods were not restored , to the plaintiff on demand. Or the defendant proves casus as a de- fence. If the plaintiff desires to avoid this defence by showing that the casus was induced by the defendant's negligence, then the burden is on the plaintiff to prove such inculpatory negli- gence on the part of the defendant.^ But though this conclu- sion may be logically correct, and though it has received occa- sional approval from the courts,^ yet it must now be regarded as the better opinion, that if a bailor elects to sue a bailee in tort, and avers tort, and claims damages for tort, he must in all cases in which the evidence shows a loss for which, primd facie, the bailee is not liable, prove the tort he avers. It is true that the proof, especially when the suit is for negligence, need be but slight. The mere circumstances attending the injury, when put in proof, may be enough to throw the burden of exculpation on the defendant. But something, however slight, there must be in the plaintiff's case from which negligence may be inferred, or the plaintiff may be nonsuited.^ No doubt in such case, as in all other cases against bailees, the burden is on the bailee, when 67; Murrell d. Whiting, 32 Ala. 54. v. Bromley, 17 C. B. 372; Finucane See Whart. on Neg. § 421. v. Small, 1 Esp. 316 ; Steele v. Town- 1 See, also, Chicopee Bank v. Phil, send, 37 Ala. 247; Ketchum o. Exp. Bank, 8 Wall. 641; Patterson v. Clyde, Co. 52 Mo. 390 ; Harnden v. Nav. Co. 67 Penn. St. 500; Whart on Neg. 6 How. 344; Trans. Co. v. Downer, § 422 ; Story on Bailments (Bennett's 11 Wall. 134; Lamb v. K. R. 46 N. Y. ed.), § 410. 271 ; Russell v. St. Co. 50 N. Y. 121 ; ^ See Cass v. R. R. 14 Allen, 448; Bell v. Reed, 4 Binn. 127 ; Farnham Piatt «. Hibbard, 7 Cow. 497; West- v. R. R. 55 Penn. St. 63; Empire cott V. Fargo, 63 Barb. 349 ; and see Trans. Co. v. Wamsutta Oil Co. 63 Mackenzie v. Cox, 9 C. & P. 632. Penn. St. 17; Patterson v. Clyde, 67 » Marsh v. Home, 5 B. & C. 323 Gilbart v. Dale, 6 Ad. & El. 543 Harris v. Packwood, 3 Taunt. 267 Carpue v. R. R. 5 Q. B. 751 ; Butt v. R. R. 11 C. B. 140 ; Midland R. R, Penn. St. 500 ; Graham v. Davis, 4 Ohio St. 362. See, also, Abbott on Ship. 390; Story on Bailm. § 573; Addison on Torts (ed. of 1876), § 546. 315 § 366.] THE LAW OF EVIDENCE. [book II. In actions against bailees on bail- ment, suffi- cient for plaintiff to prove bail- ment. sued, to prove sucli a loss as would exonerate him. " The bur- den of the proof of the loss, which brings the carrier within the restriction of his contract," as has been well stated,^ "lies on him ; but, when he has proved such a loss, unattended by cir- cumstances indicating negligence, the onus of the proof of neg- ligence is cast upon the plaintiff." § 364. What has just been said applies to torts in which the case, as presented, exhibits a loss for which primd facie the bailee is not liable. It is scarcely^ necessary to add that in contracts, when no such primd facie exemption is shown, the burden of exculpation is on the bailee. A bailee, being required by the terms of his bailment to restore the bailed article, if sued for the same, when the bailment is proved, has the burden on him to prove that he is discharged from his liability .^ § 365. That impossibility or casus must be proved by the de- fendant has been already incidentally stated. A bailee, proving for instance, who is sued for damage done to his bailor's party set- property, has the burden on him of proving that the tmgitup. damage was done through casus, should he set up such a defence.^ If the defence be proved, the plaintiff, if he reply that the impossibility or casus was induced by the defendant's misconduct, must prove, as we have seen, such misconduct. § 366. So far as good' faith and legality are assumed as belong- Burden on ing to ordinary business transactions,* it may be gen- party as- ° •' . sailing erally held that the burden of proof is on the party or legality, assailing good faith or legality;^ though not as to a 1 Agnew, C. J., Patterson v. Clyde, 67 Penn. St. 500, affirming Farnham V. R. K. 55 Penn. St. 53. " Garside v. Proprietors, 4 T. B. 681 ; Chicopee Bk. v. Phil. Bk. 8 Wall. 641 ; Lamb v. R. R. 7 Allen, 98 ; Cass v. R. R. 14 Allen, 448 ; Arent v. Squire, 1 Daly, 347 ; Price v. Powell, 3 N. Y. 822 ; Illinois R. R. v. Cowles, 32 111. 116 ; Day v. Raguet, 14 Minn. 273 ; Beckman v. Shouse, 5 Rawle, 179; Humphrey v. Reed, 6 Wliart. 435 ; Whitesides v. Russell, 8 W. & S. 44 ; Gray v. Mobile Co. 55 Ala. 387. 816 = See Whart. on Neg. § 128, and cases cited supra, § 356-7. * See infra, § 1248. ^ Huchberger v. Ins. Co. 5 Bissell, 106; .Jordan v. Dobson, 2 Abb. U. S. 898 ; Cooper v. Galbraith, 3 Wash. C. C. 546 ; Rockville Co. v. Van Ness, 2 Cranch C. C. 449 ; Hager v. Thomson, 1 Black, 80; Blaisdell v. Cowell, 14 Me. 370; New Portland v. Kingfield, 55 Me. 1 72 ; Jay v. Carthage, 48 Me. 353; Winslow v. Gilbreth, 50 Me. 90; Bradish v. Bliss, 35 Vt. 826 ; Packard V. Clapp, 11 Gray, 124; Beatty v. Fishel, 100 Mass. 448 ; Davis v. Davis, CHAP. VII.] BURDEN OP PROOF. [§ 367. transaction in itself unfair.^ Thus unfairness will be inferred as to sales to a client from a counsel, or to a principal from a confidential agent; and the burden is on the party taking under such sale to prove its fairness.^ So there is no presump- tion of good faith which will sustain a concession to a wrong-doer from the party injured.' § 367. It has been sometimes said that when a fact is pecul- iarly within the knowledge of a party, the burden is on Burden is him to prove such fact, whether the proposition be af- prore'v^at firmative or negative.* Thus where proceedings were 'l^^}^i^ taken for the contravention of an order of the English prove. Privy Council under the Contagious Diseases (animals) Act of 1869, ordering that a person having in his possession animals affected with any contagious disease should with all practicable speed give notice of the fact to a police constable, it was held by the Court of Common Pleas that, on proof of the existence of 123 Mass. 590; Salmon v. Orser, 5 Duer, 511; Marsh v. Falker, 40 N. Y. 562 ; Vanderveer, in re, 20 N. J. Eq. 463; Tarden v. Davis, 5 Whart. R. 338 ; Roberts v. Guernsey, 3 Grant (Penn.), 237; Hutchinson v. Boggs, 28 Penn. St. 294 ; Horan v. Weiler, 41 Penn. St. 470; Calvert v. Carter, 18 Md. 73 ; Vathir v. Zane, 6 Grat. 246 ; Wilson V. Lazier, 11 Gratt. 477 ; Shee- han V. Davis, 17 Ohio St. 571 ; Ew- ing V. Gray, 12 Ind. 64; Mahony v. Hunter, 30 Ind. 246 ; Sutphen v. Cush- man, 35 111. 186 ; Reed v. Noxon, 48 111. 323; Bullock v. Narrott, 49 111. 62; O'Neal V. Boone, 82 lU. 589 ; Resi- dence Ins. Co. V. Hannawald, 37 Mich. 103 ; Chicago R. R. v. Bayfield, 3 7 Mich. 205 ; Thompson v. Wharton, 7 Bush, 563; Evans v. Evans, 2 Coldw. 143 ; Habersham v. Hopkins, 4 Strobh. 238 ; Sheffield v. Parmlee, 8 Ala. 889; Ross V. Drinkard, 35 Ala. 434 ; Greenwood V. Lowe, 7 La. An. 197; Martin u. Drumm, 12 La. An. 494 ; Corcoran «. Sheriff, 19 La. An. 139; Silvers v. Hedges, 3 Dana, 439 ; Sutter v. Lack- man, 39 Mo. 91 ; Waddingham v. Loker, 44 Mo. 132 ; Bumpus v. Fisher, 21 Tex. 561. 1 Loomis V. Green, 7 Greenl. 386; Short V. Staple, 1 Gall. 104; Easter V. Allen, 8 Allen, 7; Costigan v. Mo- hawk Co. 2 Denio, 609 ; Barnawell v. Threadgill, 3 Jones N. C. (Eq.) 50; Hair t>. Little, 28 Ala. 236; .Sheils u. West, 17 Cal. 324; Paxton u. Boyce, 1 Tex. 317. ^ Clarke v. Lamotte, 15 Beav. 240; Walker v. Smith, 29 Beav. 396; Low- ther V. Lowther, 13 Ves. 103 ; Dunne V. English, L. R. 18 Eq. 524 ; Wis- tar's Appeal, 54 Penn. St. 60; Brown V. Bulkley, 13 N. J. Eq. 451 ; Uhlich V. Muhlke, 61 111.499. And see cases in Whart. on Agency, § 232. ' Infra, § 1264; Loomis v. Green, 7 Greenl. 386; Costigan v. Mohawk R. R. 2 Denio, 609; Finn v. Wharf Co. 7 Cal. 25S. * Apoth. Co. V. Bentley, Ry. & M. 159; Great West. R. R. v. Bacon, 30 111. 347; Ford v. Simmons, 13 La. An. 397. See limitations of above in Chaffee v. U. S. quoted infra, § 371. 317 § 368.] THE LAW OF EVIDKNCE. [BOOK II, the disease to the defendant's knowledge, the onus |ay upon him of showing that he gave the necessary notice.^ So it is said, that where a creditor shows facts that raise a strong presumption of fraud in a conveyance made by his debtor, the history of which is necessarily known to the debtor only, the burden of proof lies on him to explain it ; his estate being insolvent.^ It has been further held that when a person who is able to exercise dominion over another takes a benefit from him, such person must prove that the transaction was a righteous one,^ and that the gift was intended to be given.* Another illustration of the rule is to be found in the practice of treating a deed or instru- ment, which is primd facie good, as what it purports to be,^ and the onus of proving that it is not what it purports to be, or that it is invalid, rests upon the party impeaching it.^ Again, " where there '\s primd facie evidence of any right existing in any person, the onus prohandi is always upon the person or party calling such right in question." "^ So on the principle that where an act is tainted apparently with illegality, the party justifying it must disprove its illegality, a defendant in libel, who pleads a fair re- port of proceedings in a court of justice, must prove the correct- ness of the report.^ § 368. Much difiiculty arises in determining as to who has the Li ns to burden of proof when the question is, whether a person be proved -^ho is sued for doing a particular thing without license party to has a license. On the one side it is argued that as proof is a license is particularly within the knowledge of the essentia . p^j-ty holding it, the burden is on him to produce such license, in all cases in which the existence of the license is in question.^ On the other hand, it is insisted that as the uon- 1 Huggins V. Ward, 21 W. R. 914; ' Banbury Peerage case, 1 S. & S. Powell's Evidence, 4th ed. 293. 155. 2 Clements v. Moore, 6 Wall. 299. » Lewis v. Levy, E., B. & E. 557. * Cooke w. Lamotte, 16 Beav. 240. » Smith v. Jeffries, 9 Price, 257; ' Walker w. Smith, 29 Beav. 396; Morton v. Copeland, 16 C. B. 517; cf. Turner w. Collins, L. R. 7 Ch. 329; Bluck v. Rackman, 6 Moo. E. C. 41 L. J. Ch. 558 ; 20 W. R. 305, and 305, 814 ; R. v. Turner, 5 M. & Sel. supra, § 366. Powell's Evidence, 4th 205; U. S. v. Hayward, 2 Gall. 485; ed. 291. State v. Crowell, 25 Me. 174; State ^ Jacobs V. Richards, 18 Beav. 303. v. McGlynn, 34 N. H. 422; Bliss v. « Niohol i;. Vaughan, 1 CI. & P. Brainerd, 41 N. H. 256; Garland ti. 49 ; Powell's Evidence, 4th ed. 292. Lane, 46 N. H. 245; Wheat v. State, 318 CHAP. VII.] BURDEN OF PROOF. [§ 369. existence of the license is essential to the case of the assailant, it is proper, if we follow the rules already announced, to hold that non-license must be proved by the party to whose case such proof' is essential.-'^ In many jurisdictions the doubt has been removed by statute. At common law it would seem that where licenses are rare and exceptional, then we may hold that the im- probability of a license in each particular case, taken in con- nection with the rule that a party must produce all evidence peculiarly within his own knowledge, may throw on the de- fendant the burden of proving license. But under such circum- stances it has been held that where a party has the burden of proving a negative, full proof " is not required, but even vague proof, or such as renders the existence of the negative prob- able, is in some cases sufficient to change the burden to the other party." 2 § 369. Questions of interest arise when suit is brought upon a document to whose validity certain formalities are Burden of requisite. Is the plaintiff required to prove such P'"^'"?. •■• _ ■*■ _ -^ '■ formalities formalities ? It is plain that when the law makes the on him to validity of the document depend upon these formali- are essen- ties, then they must be duly proved by the plaintiff.^ "* ' If a statute, for instance, makes a document inoperative unless duly registered or stamped, then the document cannot be put in evidence without proof of such registry or stamp. But a primd facie compliance with the law in this respect is sufficient for the plaintifE's case.* If the document is on its face duly exe- cuted, then it will be presumed ^ that the execution was regular, 6 Mo. 455 ; Medlock v. Brown, 4 Mo. Com. v. Curran, 119 Mass. 206, citing 379; State K. Lipscomb, 52 Mo. 32. Com. v. Kennedy, 108 Mass. 292; 1 Com. V. Thurlow, 24 Pick. 374 ; Com. v. Leo, 110 Mass. 414 ; Com. v. Kane v. Johnston, 9 Bosw. 154; State Shea, 115 Mass. 102. t>. Evans, 5 Jones N. C. 250; Mehan ^ People v. Pease, 27 N. Y. 45; u. State, 7 Wis. 670; State u. Hirseh, Commonwealth v. Bradford, 9 Met. 45 Mo. 429 ; State v. Richeson, 45 Mo. 268 ; 1 Greenl. Ev. § 80. Sheldon, 575. In Massachusetts, under the J., Beardstown v. Virginia, 76 111. statute of 1864, " if the defendant was 44. proved to have kept intoxicating liq- ' Willett v. Shephard, 34 Mich, uors for sale, the burden of proving 106. that he had a license or authority so * Weber, HefEter's ed. 192. to do was upon him." Gray, C. J., ' Infra, § 1313. 319 § 371.J THE LAW OF EVIDENCE. [BOOK II. and the burden of contesting the execution falls on the party assailing the document. § 370. As a general rule, we may hold that where a party un- importance dertaking to prove a case fails in such proof the judg- of question ment must be against him. Aetore non probante, reus as to bur- m .• n • • 1 den. ahsolvitur. The following exceptional cases may be here noticed : ^ — 1. The party on whom lies the burden may not make out his case, but the deficient proof may be collected from the evidence offered by the opposite side. The actor may have failed in his task of presenting evidence to sustain his claim ; he may be lia- ble to be nonsuited, should he be plaintiff; but if by the op- posite side the requisite proof is supplied, then the adjudicating tribunal must decide on the whole case, — JEx fide eorum quae probantur. 2. An actor in his own proof shows that there is a hindrance which per se prevents a right of action from accruing to him ; e. g. when he produces a will which on its face is that of a child under fourteen years of age. In such case the burden being on him to make out his case, and he having failed, no burden what- ever is imposed on the opposing party. 3. An actor presents a case to which there appears, on its face, a hindrance which is only good when set up by the opposite side. In such case, unless the opposite side set up the hindrance, the actor's case is proved. § 371. We shall have occasion hereafter to discuss the effect of a presumption of fact as an element of proof.^ It is Court may xc • i.- • Instruct suincient at this point to say that when a presumption ijresump- of fact exists against a party, the court may instruct makes a*°' ^^^^ W^ ^^^^ *li® burden is on the party to remove the ;«^md/a«e presumption, and that if he does not, then the case which they must, in a civil issue, go against him on such point.* are bound. _,, • c i i ihe question of burden of proof in criminal issues be- longs to an independent treatise. It may be, however, here 1 See these points made by Hefifter, Kelly v. Jackson, 6 Peters, 622; U. S. App. to Weber, 297. u. Wiggins, 14 Peters, 334. And see 2 See infra, §§ 1226-36. remarks of Clifford, J., supra, § 857, ' Crane v. Morris, 6 Peters, 598 ; note. 320 CHAP. VII.] BURDEN OF PROOF. [§ 371. generally noticed that in penal prosecutions of all classes, the doctrines above stated, however applicable, are not permitted to interfere with the cardinal principle, that the jury must acquit when they have a reasonable doubt of guilt.^ The weight of opinion, as we shall hereafter see, is, Bmden ° jr ' ' ' when crime that in civil issues it is not necessary, when crime is is charged charged, to prove it beyond reasonable doubt. A pre- only pre- 1 I. I. . 1 o ponderance ponderance of proof is enough.^ of proof. 1 In Chaffee v. U. S. 18 Wall. 516, den of proof, incases of this class is which was an action of deht for a discussed with learning and fulness, penalty, we find the question of bur- ' See infra, § 1245. VOL. I. 21 321 CHAPTER VIII. WITNESSES. I. Prooueing Attendance. Duty of all persons cognizant of liti- gated facts to testify, § 376. Subpoena the usual mode of enforc- ing attendance, § 377. Witness may decline answering un- less subpcenaed, § 378. Subpoena must be personally served, §379. Fees allowable to witness, § 380. Expenses must be prepaid, § 381. Witness refusing to attend is in con- tempt, § 382. Attachment granted on rule, § 383. Mabeas corpus may issue to bring in imprisoned witness, § 384. Witness may be required to find bail for appearance, § 385. II. Oath ahd its Incidehts. Oath is an appeal to a higher sanc- tion, § 386. Witness is to be sworn bj' the form he deems most obligatory, § 387. Affirmation may be substituted for oath, § 388. III. Privilege from Arrest. Witness not privileged as to criminal arrest, but otherwise as to civil, § 389. May waive his privilege, § 390. IV. Who aek Competeht Witnesses. Competency is for court, § 391. Competency is presumed, § 392. Ordinarily competency should be ex- cepted to before oath, § 393. Distinction between primary and sec- ondary does not apply to witnesses, §394. Atheism at common law disqualifies, §39S. Evidence may be taken as to relig- ious belief, § 396. Infamy at common law disqualifies. 322 Removal of disability by statute, §397. Admissibility of infants depends on intelligence, § 393. Deficiency of percipient powers if total excludes, § 401. The same tests are applicable to in- sanity, § 402. Witness may be examined by judge as to capacity, § 403. Credibility depends not only on ve- racity but on competency to ob- serve, § 404. Incapacity to state may aSect compe- tency, § 405. Deaf and dumb witnesses not incom- petent, § 406. Interpretation admissible, § 407. Bias to be taken into account in esti- mating credibility, § 408. And so of want of opportunities of observation, § 409. And so uncertainty of memory, §410. Want of circumstantiality a ground for discredit, § 411. FaXsum in unojjalsum in omnibttSj not universally applicable, § 412. Literal coincidence in oral statements suspicious, § 413. One witness generally enough to prove a case, § 414. Affirmative testimony stronger than negative, § 415. When credit is equal, preponderance to be given to numbers, § 416. Credibility of witnesses is for jury, §417. Intoxicated witnesses may be ex- cluded, § 418. Interest no longer disqualifies, § 419. Counsel in case may be witnesses, §420. CHAP, VIII.] WITNESSES. V. Distinctive Rules as to Hvsband AND Wife. Husband and wife incompetent in each other's suits at common law, §421. But may be witnesses to prove mar- riage collaterally, § 424. Cannot be compelled to criminate each other, § 425. Distinctive rules as to bigamy, § 426. Cannot testif}' as to confidential re- lations, § 427. Consent will waive privilege, § 428. Effect of death and divorce on ad- missibility, § 429. General statutes do not remove disa- bility, § 430. Otherwise as to special enabling stat- utes, § 431. Husband and wife may be admitted to contradict each other, § 432. In divorce cases, testimony to be carefully weighed, § 433. VI. Distinctive Kules as to Experts. Expert testifies as a specialist, § 434. May be examined as to laws other than the lex fori, § 435. But cannot be examined as to matters non-professional, or of common knowledge, § 436. Whether conclusion belongs to spe- cialty is for court, § 437. Expert may be examined as to scien- tific authorities, § 438. Expert must be skilled in his spe- cialty, § 439. Experts may give their opinions as to conditions connected with their spe- cialties, § 440. Physicians and surgeons are so ad- missible, § 441. So of lawyers, § 442. So of scientists, § 443. So of practitioners in a business spe- cialty, § 444. So of artists, § 445. So of persons familiar with a market, §446. Opinion as to value admissible, § 447. Generic value admissible in order to prove specific, § 448. Proof of market value may be by hearsay, § 449. And so as to damage sustained by property, § 450. On questions of sanity not only ex- perts but friends and attendants may be examined, § 451. Expert may be examined as to hypo- thetical case, § 452. May explain his opinion, § 453. His testimuny to be jealously scruti- nized, § 454. Especially when ex parte, § 455. He may be specially feed, § 456. VII. Distinctive Rules as to Parties. By old Roman law conscience of par- ties could be probed, § 457. By later practice examination of par- ties was permitted, § 460. Importance of such testimony, § 461. Oaths by parties have obligatory as well as evidential force, § 462. Statutes removing disability not ex post facto, § 463. Statutes to be liberally construed, §464. Cover depositions, § 465. Exception when other contracting party is deceased, § 466. Based on equity practice, § 467. Incompetency restrained, in such cases, to communications with deceased, § 468. Does not extend to contracts not exclusively with deceased, §469. Does not exclude intervening in- terests, § 470. Does not exclude executor from testifying in his own behalf, §471. Surviving partner against estate, §472. Includes real but not technical parties, § 473. Does not relate to transactions after deceased's death, § 474. Does not extend to tort-s, § 475. Opposite party may waive im- munity, § 475 a. Does not make incompetent wit- nesses previously competent, §476. Does not exclude testimony of parties taken before death, §477. Statutes do not touch common law privilege of husband and wife, §478. Or of attorney, § 479. Party is subject to the ordinary limi- tation of witnesses, § 480. May be cross-examined to the same extent, § 481. 323 THE LAW OF EVIDENCE. [BOOK II. lia.y be examined as to his mo- tives, § 482. Cannot avoid relevant questions on the ground of self-crimination, §483. May be contradicted on material point.', § 484. May be reexamined, § 485. Presumption against party for not testifying, § 486. Two witnesses not necessary to over- come party's testimony, § 487. Party is bound by his own admis- sions on the stand, § 488. Under statutes one party may call the other as witness, § 489. Where party is examined on inter- rogatories equity practice is fol- lowed, § 490. vm. Examination of Witnesses. Judge may order separation of wit- nesses, § 491. T''oir dire a preliminary examina- tion, § 492. Interpreter to be sworn, § 493. Witnesses refusing to answer pun- ishable by attachment, § 494. Witness is no judge of the materi- ality of his testimony, § 495. Court may examine witness, § 496. Witness is protected as to answers, §497. On examination cannot be prompt- ed, § 498. Leading questions usually prohib- ited, § 499. Exception as to unwilling witness, §500. And as to witness of weak memory, § 501. So when such question is nat- ural, § 5U2. So when witness is called to contradict, § 503. So when certain postulates are assumed, § 504. Court has discretion as to cumula- tion of witnesses, and of exami- nation, § 505. So as to mode and tone of exami- nation, § 506. Witness cannot be asked as to con- clusion of^ law, § 507. Conclusion of witness as to motives inadmissible, § 508. Opinion of witness cannot ordina- rily be asked, § 509. 324 Witness may give substance of conversation or writing, § 514. Vague impressions of facts are in- admissible, § 615. IX. Eefreshing Memory of Witness. Witness may refresh his memory by memoranda, § 516. Such memoranda are inadmissible if unnecessary, § 517. Not fatal that witness has no recol- lection independent of notes, §518. Not necessary that notes should be independently admissible, § 519. Memoranda admissible if primary and relevant, § 520. Notes must be primary, § 521. Not necessary that writing should be by witness, § 522. Inadmissible if subsequently' con- cocted, § 523. Depositions may be used to refresh the memory, § 524. Opposing party is not entitled to inspect notes which fail to refresh memory, § 525. Opposing party may put the whole notes in evidence if used, § 526. X. Cboss-examination. On cross-examination leading ques- tions may be put, § 527. Closeness of cross-examination at the discretion of the court, § 628. Witness can usually be cross-exam- ined only on the subject of his examination in chief, § 629. His memory may be probed by pertinent written instruments, §531. But collateral points cannot be in- troduced to test memory, § 532. Witness cannot be compelled to criminate himself, § 533. Nor to expose himself to line or forfeiture, § 534. Privilege in this respect can only be claimed by witness, § 636. Danger of prosecution must be real, § 536. Exposure to civil liability, or to police prosecution, no excuse, §537. Court determines as to danger, § 638. Waiver of part, waives all, § 539. Pardon and indemnity do away with protection, § 640. CHAP. VIII.] WITNESSES. For the purpose of discrediting wit- ness, answers will not be com- pelled to questions imputing dis- grace, § 541. Otherwise when such questions are material, § 542. Questions may be asked as to relig- ious belief, § 543. And so as to motive, veracity, and the re3 gestae, § 544. Witness may be cross-examined as to bias, § 545. Inference against witness may be drawn from refusal to answer, §546. His answers as to previous conduct generally conclusive, § 547. XI. Impeaching Witness. Party cannot discredit his own wit- ness, § 549. (As to subscribing witness, see § 500.) A party's witnesses are those whom he voluntarily examines in chief, § 550. Witness may be contradicted by proving that he formerly stated differently, § 551. But usually must be first asked as to statements, § 555. Witness cannot be contradicted on matters collateral, § 559. By old practice conflicting witnesses could be confronted, § 560. Witness's answer as to motives may be contradicted, § 561. His character for truth and verac- ity may be attacked, § 562. Questions to be confined to this is- sue, § 563. Bias of witness may be shown, §566. Infamous conviction may be proved as affecting credibility, § 567. XII. Attacking and sustaining Im- peaching Witness. Impeaching witness may be at- tacked and sustained, § 563. XIII. Sdstaining Impeached Witness. Impeached witness may be sus- tained, § 569. But not ordinarily by proof of for- mer consistent statement, § 570. May be corroborated at discretion of court, § 671. XIV. Reexamination. Party may reexamine his witnesses, §672. Witness may be recalled for reex- amination, § 674. And for re-cross-examination, § 575. XV. Privii.eged Communications. Lawyer not permitted to disclose communications of client, § 576. Not necessary that relationship should be formally instituted, §578. Nor that communications should be made during litigation, § 579. Nor is privilege lost by termination of relationship, § 580. Privilege includes scrivener and conveyancer, as well as general counsel, § 581. So as to lawyer's representatives, §682. Client cannot be compelled to dis- close communications made by him to his lawj-er, § 583. Privilege must be claimed in order to be applied and may be waived, §684. Privilege applies to client's docu- ments in lawyer's hands, § 585. Privilege lost as to instruments parted with by lawyer, § 586. Communications, to be privileged, must be made to party's exclu- sive adviser, § 587. Lawyer not privileged as to infor- mation received by him extra- professionally, § 588. Information received out of scope of professional duty not privi- leged, § 589. Privilege does not extend to com- munications in view of breaking the law, § 690. Nor to testamentary communica- tions, § 591. Lawyer making himself attesting witness loses privilege, § 592. Business agents not lawyers are not privileged, § 593. Communications between party and witnesses privileged, § 594. Telegraphic communications not privileged, § 696. Priests not privileged at common law as to confessional, § 596. Arbitrators cannot be compelled to disclose the ground of their judgments, § 599. Nor can judges, § 600. 325 § 377.] THE LAW OF EVIDENCE. [book II. Nor jurors as to their delibera- tions, § 601. Juror if knowing facts must testify as witness, § 602. Prosecuting attorney privileged as to confidential matter, § 603. State secrets are privileged, § 604. And consultations of legislature and executive, § 605. XVI. Medical attendants not privileged, §606. No privilege to ties of blood or friendship, § 607. Parent cannot be examined as to access in cases involving legiti- macy, § 608. Depositions. Depositions governed by local laws, §609. I. PROCURING ATTENDANCE. § 376. As a general rule, it is the duty of all persons cognizant Duty of of facts material to a litigated issue to testify as to the cognizant Same. In the classical Roman law, in civil cases, this facts 'tot'es^ duty was not to the court, but to parties ; and the par- t'fy- ties alone, as a rule, could proceed against a witness re- fusing to appear, or refusing to answer. In public penal prose- cutions Q'udicia publico), and in cognate civil suits involving public interests, a compulsory evocatio from the magistrate could be sued out.^ But the earlier jurists treated the duty to testify in private suits simply as a private obligation ; ^ while in Jus- tinian's time it was regarded as absolute and unconditioned.^ To the canon law we owe in this respect, in some jurisdictions the substance, in others the form as well as the substance, of our pres- ent practice. In civil suits, by the canon law, a monition may be sued out to require the attendance of a witness; in penal cases, for the monere a cogere is substituted.* To compel obe- dience to a monition, when neglected, are issued ecclesiastical censures, suspension, or excommunication ; and in foro laioo, mulctae, pignoris capio, and similar penalties.* § 377. A subpoena ad testificandum is a writ issued for the Subpcena purpose of compelling the attendance of a witness at a modrof^ judicial proceeding, whether at common law or equity. 6 enforcing When the witness is required to produce papers, these 1 See L. 26, xxviii. 1; L. iii. § 9; xliii. 5; Quinet. V. c. 7; Puchta, p. 200, note r; Endemann, 194. ' See authorities last cited. » L. 16, Cod. iv. 20; L. 19, Cod. iv. 20; Nov. 90, c. 8. * See Durant, I. 4, De test, § 13, No. 8. 326 ° Durant, I. c. § 13. A subpoena may be issued by a legislature. Briggs V. Mackellar, 2 Abb. (Pr.) 80. = Hill V. Dolt, 7 De Gex, M. & G. 897; Mercant. Co. in re, L. E. 13 Eq. 179; Contract Co. in re, L. R. 6 Ch. Ap. 146; Mourning v. Davis, 2 Hayw. 219. CHAP. VIII.] WITNESSES: SUBPCENA. [§ 377. must ordinarily be specified in the subpoena, which is attendance then styled a subpoena duces tecum?- The clerk or cus- Forp'apVrs, todian of public records cannot, indeed, be in this way ^™^°™'' compelled to produce such records, they not being within ™'" 'ssues. his power.2 But it is enough, in other cases, if the papers are in the possession of the witness, though the right to them belong to other persons. If he possess them, he may be com- pelled by subpoena to bring them into court.^ Whether he will be compelled to produce such papers is a matter to be sub- sequently determined by the court. Bring them into court he must, if they be in his possession and they are demanded by sub- poena.* But the papers must be duly designated ; a notice to pro- duce all papers relative to the issue will not be enough.^ And they must be made to appear to be under the witness's control.^ A witness neglecting to obey the writ is liable not merely to at- tachment but to a suit for damages.'' A party is open to a sub- poena,* and may be required to produce his books and papers, without a previous rule or order of court, by a subpoena duces teeum.^ So far as concerns corporations, the question depends upon local statutes.^" 1 Amey v. Long, 9 East, 473; Cent. Nat. Bank v. Arthur, 2 Sweeny, 194 ; Erie R. R. v. Heath, 8 Blatch. 413; Murray v. Elston, 23 N. J. Eq. 212; O'Toole's Est.l Tuck. (N. Y.) 39; Townshend v. Townshend, 7 Gill, 10; Martin v. Williams, 18 Ala. 190. 2 Austin V. Evans, 2 M. & Gr. 430; Thornhill v. Thornhill, 2 Jac. & W. 347. * Amey v. Long, 1 Camp. 14. * Ibid.; Bull v. Loveland, 10 Pick. 9; Burnham v. Morrissey, 14 Gray, 226; Chaplain u. Briscoe, 13 Miss. 198. See, further, as to practice, su- pra, § 150. « Atty. Gen. v. Wilson, 9 Sim. 526; Lee V. Angus, L. R. 1 Eq. 59. Where the writ is directed to an officer of a telegraph company, to produce cer- tain messages, it need only describe the messages with such practicable certainty that the witness may know what is required of him. United States V. Babcock, 3 Dillon, 566. ' Bank of Utica v. Hillard, 5 Cow. 153. f Robinson v. Trull, 4 Cash. 249; Lane v. Cole, 12 Barb. 680; Has- brouck V. Baker, 10 Johns. R. 248 ; Hurd V. Swan, 4 Denio, 75; McCall V. Butterworth, 8 Iowa, 329; Prentiss V. Webster, 2 Douglass (Mich.), 5; Connett v. Hamilton, 16 Mo. 442. ' Anderson v. Johnson, 1 Sandf. 713 ; though see Gambrill v. Parker, 31 Md. 1; Bleecker v. Carroll, 2 Abb. (Pr.) 82. » Trotter v. Latson, 7 How. Pr. 261 ; People V. Dyckman, 24 How. Pr. 222; Mott V. Lee Co. 52 How. Pr. 244; Duke V. Brown, 18 Ind. Ill, contra. See infra, § 439. As to New York practice, see further. Smith v. McDon- ald, 50 How. Pr. 519. " See Central Bank v. White, 37 327 § 380.] THE LAW OF EVIDENCE. [BOOK II. § 378. A witness in a civil case (the practice being otherwise Witness in Criminal) is entitled to have due notice in order to "me an- refresh his memory and arrange his business so as to swering enable him to testify ; and hence, if called upon with- poenaed. out notice upon his happening to be in the court, he is ordinarily entitled to decline, on the ground that he was not served with a subpoena.^ How long a notice the subpcena must give depends upon the circumstances of the particular case. If the issue allow time enough, and if the existence and residence of the witness be known to the party desiring his attendance, the courts will not issue an attachment against him for non- attendance on a subpoena served on him the day of the trial.^ If, however, he be on attendance, though without having been previously served with a subpoena, and no laches are imputable to the party summoning him, then he cannot avail himself of the shortness of the summons as an excuse for non-testifying.^ Nor where the name or residence of an important witness only be- comes known to the party on trial, can it be supposed that a court would do otherwise than sustain process for compelling such witness immediately to testify.* § 379. By the English practice it is sufficient to leave a copy Subpoena of the substance of a subpoena, which is called a sub- served per- poena ticket, with the witness. This, however, must be sonaiiy. done personally ; ^ and the original writ must be shown to the witness at the time the copy or the ticket is left with him.^ Any substantial variance between the ticket and the subpoena precludes the summoning party from obtaining an attachment.'^ § 380. By the stat. 5 Eliz. c. 9, a witness is entitled to his " reasonable costs and charges." What charges are able to reasonable is arbitrarily settled in many states by statute. In England, with greater consideration, the N. Y. Sup. Ct. 297; Central R. R. v. » Pyne, in re, 1 Dow. & L. 70S; 23d St. R. R. 53 How. Pr. 45. Doe v. Andrews, 2 Cowp. 846. 1 Bowles 1). Johnson, 1 W. Bl. 36. « Garden ii. Creswell, 2 M. & W. » Barber v. Wood, 2 M. &Rob. 172; 819; Wadsworth o. Marshall, 1 C. & Hammond v. Stewart, 1 Str. 510, and M. 87; Marshall v. R. R. 11 C. B. cases cited infra, § 381. 398. » Doe V. Andrews, 2 Cowp. 845 ; ' Chapman «. Davis, 4 Scott N. R. Jackson v. Seagar, 2 Dow. & L. 13. 819; S. C. 8 M. & Gr. 609; Doe v. * See Wisden v. Wisden, 6 Beav. Thomson, 9 Dowl. 948. 549. 328 CHAP. VIII.] WITNESSES : PROCUKING ATTENDANCE OF. [§ 382. comiTion law courts have adopted a graduated scale, suitable to the sacrifices of time made by witnesses in obeying the summons.^ But where foreign witnesses, or witnesses in any way out of the jurisdiction of the court, are brought in, special allowances to them will be sustained by the court as part of the taxable costs ; ^ and so where persons have been detained in the country at great inconvenience to themselves, but great benefit to public justice, in order to give evidence on trial.^ Extraor- dinary services, also, may justify extraordinary costs.* Even a party's fees as a witness may, when he is summoned by the op- posite party, be allowed.^ Whether an expert can refuse to at- tend unless specially feed is a question as to which there is much conflict ; though the weight of authority is that he cannot be com- pelled to deliver professional opinions even on the witness stand' without compensation.^ § 381. In civil cases, an attachment will not issue to compel attendance unless the reasonable expenses of the wit- , Expenses ness, as such expenses are legally defined, have been must be paid, or at least tendered to him in advance of trial.'' ''"P"'' The same practice exists in equity suits.^ Directly or indirectly, however, a witness may waive his claim to such remuneration.^ § 382. Wilful non-attendance by a witness, when duly sum- * See Taylor on Evidence, § 1126. experts under Iowa statute, see Sny- ' Tremain v. Barrett, 6 Taunt. 88; der v. City, 40 Iowa, 646. That ex- Lonergan v. Ass. Co. 7 Bing. 725; perts cannot be compelled to give Collins V. Godefroy, 1 B. & Ad. 950. opinions without special fees, see » Stewart v. Steele, 4 M. & Gr. Bachman b. State, 59 Ind. 1; Dille 669. V. State, 59 Ind. 15 ; Ordronaux's Jur. * Beaufort v. Ashburnham, 13 C. B. of Med. §§ 114-5 ; 2 Phill. Ev. 4th Am. N. S. 598 ; Potter u. Rankin, L. R. 5 ed. p. 828 ; and infra, § 456. See, C. P. 518; Berry v. Pratt, 1 B. & C. however, contra, Dement, ex parte, 53 276. See, as limiting this to infra- Ala. 389. territorial mileage. White v. Judd, 1 ' Brocas v. Lloyd, 23 Beav. 129 ; Met. (Mass.) 293; Howland v.lenox, Newton v. Harland, 1 M. & Gr. 956 ; 4 Johns. 311. Betteley v. McLeod, 3 Bing. N. C. ' Penny v. Brink, 75 N. C. 68. 416; Thomas, in re, 1 Dillon, 420. ' That a witness cannot be com- ' Gresl. Eq. Ev. 59 ; Cast v. Poy- pelled to give under oath a profes- ser, 3 Sm. & G. 369. sional opinion, see Webb v. Paige, 1 ' Newton v. Harland, 1 M. & Gr. C. & K. 23; Parkinson v. Atkinson, 956; Betteley u. McLeod, 3 Bing. N. 31 L. J. N. S. 199; Roelker, in re, C. 405; GofE v. Mills, 2 Dow. & L. Sprague, 276. As to provisions for 23. 329 § 383.] THE LAW OF EVIDENCE. [BOOK U. moned, is a contempt of court, being in itself an offence against „. public iustice.^ The summons, however, to constitute VVltn6SS6S refusing to such contempt, must be shown to have been regu- ?n con-°^" larly made, with due time to prepare for attendance.^ tempt. ^g j^g^g ^ggj^ stated, proof must be made of the payment to the witness of his taxable fees, or at least of the tender of such fees,3 unless such tender be waived.* Due service also requires, as we have seen, that the writ should be exhibited to the witness, and either a copy, or a ticket giving its substance, left with him.^ It has been said that it is essential, in order to obtain an attachment, to prove that the witness wilfully refused to attend.^ But wilfulness is to be assumed from the very fact of non-attendance after summons ; and ordinarily it is enough for a party to prove such summons, with payment or tender of fees, in order to obtain a rule to show cause why an attachment should not issue. If otherwise, there would be no way of bring- ing negligent witnesses into court.^ If the testimony of the wit- ness, however, is immaterial, and there be no contempt shown, the attachment may be refused.^ It is not necessary, in order to grant the attachment, that the case should have been called on.^ § 383. In this country the practice in many jurisdictions is to Attach- grant an attachment at once upon proof of due service P'anted on °^ *^® Subpoena as above expressed.^" The witness, in rttie to such case, on appearing in court, and purging his con- cause, tempt, and paying costs, is entitled to be discharged ^ Wait's Pr. 722 ; Borrow v. Hum- * See cases cited to § 381. As to phreys, 8 B. & A. 600 ; Burr's Trial, extent of fees, see supra, § 380. 354; judson, ex parte, 3 Blatch. 89, « Marshall v. R. R. 11 C. B. 398; 148 ;Roelker, ex parte, 1 Sprague, 276; Garden v. Creswell, 2 M. & W. 319; Cent. Nat. Bank v. Arthur, 2 Sweeny, Smith v. Truscott, 1 D. & L. 530. 194; Langdon, ex parte, 25 Vt. 680; ° See Scholes v. Hilton, 10 M. & Walker, ex parte, 25 Ala. 81. See W. 15; Netherwood v. Wilkinson, 17 Thompson v. R. R. 22 N. J. Eq. 111. C. B. 226. " See Scholes v. Hilton, 10 M. & W. ' Jackson v. Seager, 2 Dowl. & L. 13. 15 ; Garden v. Creswell, 2 M. & W. « Dicas v. Lawson, 1 Cr., M. & R. 819; Hill V. Dolt, 7 De Gex, M. & G. 984; Scholes v. Hilton, ut supra. If 897 ; Fricker's case, L. R. 13 Eq. there is no affidavit of materiality, the 178; Scammon v. Scammon, 33 N. H. attachment will be refused. Tinley v. 62. See, however, Chicago R. R. v. Porter, 2 M. & W. 822. Dunning, 18 111. 494. » Barron v. Humphreys, 3 B. & A. ' See supra, § 381, for cases. 598; Mullet v. Hunt, 1 Cr. & M. 752. ^° See Jackson v. Mann, 2 Caines, 92, 330 CHAP. VIII.] WITNESSES : PROCURING ATTENDANCE OF. [§ 384. from custody. In England, the course is for the summoning party to apply first for a rule to show cause, which ia granted on ex parte proof.^ Yet where the delay incident on such a rule would be pernicious to the case of the summoning party, the rule, if not dispensed with, may be shaped in such a way as to secure almost immediate attendance. When it appears, upon a rule to show cause, that the witness is too ill to attend,^ or is in any other way incapacitated,^ or has been led to believe that his attendance was not really required,* the rule will be discharged. But in other cases it will be granted at the discretion of the court, upon due proof of service, and of its disregard.^ § 384. When a witness is in prison, his attendance iliay be secured by a habeas corpus ad testificandum.^ To this Babeas writ it is ordinarily a prerequisite that the party desir- \l^^x^'^^ ing the attendance of the witness should make affidavit !"'"? '" *? ° _ ... imprisoned before a judge at chambers that the witness in question witness, is material to the case, but is in custody, whether on criminal or civil process.' In England, at common law, it has been doubted whether the writ should be granted to bring into court a pris- oner of war.' The proper course, it was thought by Lord Mans- field, was to make application to the secretary of state ; though if the latter functionary should decline to grant the desired re- lief, a rule would be granted by the court to show cause why the adverse party should not admit the facts, or, as an alternative, consent to examining the witness by commission. If this con- sent was refused, it was intimated that the court would put off the trial to enable the applicant to proceed by bill of discovery. A party to the record, who is entitled to testify in the case, if he be in prison, is entitled to use this writ in order that he may 1 Taylor's Evidence, § 1145. State v. Trumbull, 1 Southard, 139; ' Farrah v. Keat, 6 Dowl. 470; Stephens v. People, 19 N. Y. 549; Jackson v. Perkins, 2 Wend. 308 ; West v. State, 1 Wis. 209. Cutlerj). State, 42 Ind. 244; Slaughter " See K. v. Roddam, Cowp. 672; V. Birdwell, 1 Head, 341. See Pipher State v. Kennedy, 20 Iowa, 372. V. Lodge, 16 Serg. & R. 214. ' Chitty, Forms, 60; Marsden v. ' State V. Benjamin, 7 La. An. 47. Overbury, 18 C. B. 34 ; Gordon's case, * R. V. Sloman, 7 Dowl. 693 ; State 2 Maule & S. 580 ; Browne v. Gisborne, V. Nixon, Wright (Ohio), 763; Beau- 2 Dowl. N. S. 263; Graham w. Glover, lieu V. Parsons, 2 Minn. 37. 5 E. & B. 591. ' Judson, ex parte, 3 Blatch. 89; » Furly w. Newnham, 2 Doug. 419. 331 § 386.] THE LAW OF EVIDENCE. [BOOK II. himself be brought into court.^ The same writ has been issued to secure the presence in court of a person confined as a lunatic.^ But where the desired witness is out of the jurisdiction of the court, the writ will not be granted where there is an opportunity to take the witness's deposition.^ § 385. It may happen that suspicions exist that a witness Witness may disappear, or be spirited away, before trial. If so, qSred^r* i° criminal cases, and, when allowed by statute, in civil for^appear- ^^^^S' ^® ^^7) ^^ du^ ground laid, be held to bail, to ance. appear at the trial, and may be committed on failure to procure bail.* Such imprisonment does not violate the sanc- tions of the federal or state constitutions.^ By statutes in the United States and in several of the particular states, this right is affirmed;^ but in states having common law jurisdiction it exists, in criminal cases, at common law." 11. OATH AND ITS INCIDENTS. § 386. An oath is defined by Savigny to be the assurance of , the truth of an assertion by an appeal to an obiect to a higher (Gegenstand) which is regarded by the person swear- ing as high and holy.® Mr. Best^ gives a narrower '■ Cobbett, ex parte, 4 Jur. N. S. sions or to find sureties for ber appear- 145. ance, sbe could be committed, in order ^ Fennell r. Tait, 1 C, M. & R. 584. that she might be forthcoming as a ' Koecker v. Koecker, 7 Philadel. witness at the trial. Bennet i>. Wat- R. 364. son, 3 M. & Sel. 1. It is also argued * U. S. I). Butler, 1 Crancb C. C. that a recognizance to prosecute or 422; Evans v. Rees, 12 Ad. & El. 55; give evidence is binding on an infant; Ashton's case, 7 Q. B. 169; State u. and it has been held that infancy is no Zellers, 7 N. J. Law (2 Halst.), 220. ground for discharging a forfeited re- See, however, Birkley v. Com. 2 J. J. cognizance to appear at the assizes to Marsh. 672, where it is said that the prosecute for felony; Ex parte Wil- court cannot compel the witness to liams, 13 Price, 670; M'Clel. 493, give surety. S. C. ; but the better opinion is, that 5 State V. Grace, 18 Minn. 398. a justice is not authorized to commit ' The federal stat. of Aug. 8, 1846, any witness for refusing to find sure- § 7 (Brightly, 267), authorizes this in ties to be bound with him, provided " any criminal cause or proceeding in he be willing to enter into his own which the United States shall be a recognizance. Per Graham, B., as cited party or interested." 2 Burn's Just. 122 ; per Ld. Denman, ' It has been held in England, that in Evans v. Rees, 12 A. & E. 59; where a married woman, who could Taylor's Ev. § 1117. not enter into her own recognizance, ' Savigny, Rom. Recht. VIII. 48. refused either to appear at the ses- » Evidence, § 57. 332 CHAP. VIII.] WITNESSES : OATH AND ITS INCIDENTS. [§ 386. definition, holding that " an oath is an application of the relig- ious sanction ; " and that it is " calling the Deity to witness in aid of a declaration by man." To this effect he quotes Lord Coke,^ and Bonnier,'^ who declares " Le serment est I'attestation de la Divinity h I'appui d'une declaration de rhomme." Yet if we are now to regard an affirmation as equivalent, when given under the same sanction, to an oath, and if we accept the rul- ings which permit atheists to testify under affirmation, we must fall back on Savigny's definition as more fully in correspondence with the present state of the law. It is worth while, in this view, to remember that the Romans allowed a wide margin in the objects to which such appeal could be made. An oath, for instance, could be " per salutem tuam, per caput tuum, vel filiorum, per genium principis," even " propriae superstitione," though not " improbatae publics religionis," which oath was for- bidden, and was held void.^ After the establishment of Chris- tianity, and among Christians, the appeal was exclusively to God,* but in the present day, there is little doubt that even without a statute a positivist, who holds to cosmical develop- ment, excluding a Divine Providence, would be allowed to testify upon affirmation.^ But in any view, an appeal of this class, solemnly made, apart from the fact that falsehood uttered after such an appeal is indictable as perjury, gives an assurance, amounting to primd facie proof, that the assertion made by the witness corresponds with his consciousness of right and truth, — " Est enim jusjurandum affirmatio religiosa." * It is final, so far 1 3 Jnst. 165. Wil. 545; Mahometans, on the Koran; 2 Traits des Preuves, § 340. R. v. Morgan, 1 Leach, 64; and in » L. 5, pr. § 1, 3; De jur. xii. 2. England, a Chinese by breaking a * See Com. v. Winnemore, 2 Brewst. china saucer ; R. «. Entrehmann, 1 378; Savigny, ut supra. Hence we C. & M. 248, though in this country have rulino's approving the swearing the Chinese have been sworn without of Scotch covenanters by Bible with this singular ceremony, upon a state- uplifted hand ; R. v. Mildrone, 1 ment by the witness that he believed Leach, 142 ; Mee v. Reid, 1 Leach, he would be punished after death for 498 ; of a Jew on the Pentateuch, or perjury. The Merrimac, 1 Benedict, Old Testament, without kissing the 490. book, and with head covered. Gomez « See infra, § 395, and compare Mr. Serrat). Munoz, Stra. 821. Brahmins Livingston's remarks, Works (ed. of have been sworn by touching the 1873), 398. hand of priests ; Omichund v. Barker, ' Cic. de Off. iii. 29. 333 § 387.] THE LAW OF EVIDENCK. [book II. as tlie case is concerned, for an oath is administered to a witness but once in a cause, no matter how often he may be recalled.^ § 387. At common law, the ceremonies the witness deems Witness to binding on his conscience are to be adopted in the im- ''^/oTm'he position of the oath.^ But the fact that a witness "... permits himself, without objection on his part, to be sworn by an oath he does not deem binding, does not relieve him from a prosecution for perjury, if his testimony be wilfully false.' When a witness, after being sworn, states. m deems most atory. 1 Bullock V. Koon, 9 Cow. 30. In the Roman law an oath may he used to give certainty either to a promise as to the future, or a state- ment as to the past. An oath, when used for obligatory purposes to strengthen a promise to do something in the future,' is called by the jurists jusjurandum promissorium. Under this head may be mentioned oaths of public officers, of executors and administrators, and of guardians; Savigny, Kom. Kecht. VIII. 49; and the oaths of parties to be hereafter noticed. Oaths, when used by witnesses as assurances of the truth of statements as to the past (including the witness's present belief as to past circum- stances), are the ordinary prerequi- sites to the admission of witnesses to testify in courts of justice. It is true that by statute persons who consci- entiously object to oaths are permit- ted, by our practice, to affirm instead of swearing to the truth of their state- ments ; bnt the difference between the affirmation so imposed, and the oath, is merely verbal. A party could extra- judicially take for certain uses in a cause in litiga- tion a juramenium voluntarium, or vol- untary oath. To such oath he was not compelled; but be was entitled to make it in order to obtain certain pro- cessual advantages in the suit. See L. 31 ; L. 34, § 6, 9; xii. 2; L. 3-12; 334 Cod. h. t. iv. 1. To such oaths we may liken our own affidavits for the purposes of obtaining continuances and new trials on the ground of after-dis- covered evidence. In the earlier Ro- man practice, such oaths might cover such admissions as to the merits of a case as might warrant a judgment. (See citations in last note.) The term juramenium voluntarium, however, was generally used as convertible with our own voluntary non-processual affida- vits, and could not in themselves be invested with contractual force. See L. 17, h. t. xii. 2. In the same law, the imposition of the oath was originally, in civil cases, discretionary with the judex. By a decree of Constantine, the oath was obligatory in all cases, and was to be imposed before the examination. L. 9, C. iv. 20. By the canon law, which declared the oath to be an es- sential solemnity, juris gentium et ju- ris divini (with this solemnity even the Pope could not dispense, see Mascard. c. 1362; Lanfranc, de Or. L. C. No. 1 ; Endemann, 229), the witness was to be sworn as a preliminary to his exam- ination. Durant, I. 4, De test. § 4 ; Lanfranc, No. 6. " Omichund v. Barker, Willes, 538; 5. C. 1 Smith L. C. 381 ; The Merri- mac, 1 Ben. 490 ; Fuller v. Fuller, 17 Cal. 605. » Sells V. Hoare, 8 B. & B. 232; S. C. 7 Moore, 36 ; State v. Keene, 26 CHAP. VIII.] WITNESSES : OATH AND ITS INCIDENTS. [§ 388. that he considers the oath binding, he cannot afterwards be asked whether he considers another form of oath more binding.^ There is no reason why he should not be asked by the court as to his religious belief, without being sworn. His extra-judicial declarations to the same effect are admissible when pi'oved by witnesses who heard him speak; a fortiori his declarations made in the presence of the court.^ § 388. As a cumulative relief, statutes have been adopted in England and in the United States, enabling persons ^^,0,^. who are conscientiously opposed to take an oath, to tions may- testify under the form of a solemn affirmation.^ It is tuted for scarcely necessary to say that for false testimony given under an affirmation, the witness is as much exposed to a prose- cution for perjury as if he had been formally sworn.* But the right to be affirmed, in those states which make conscientious objections the test, cannot be granted to a witness who has no conscientious objection to an oath.^ Me. 33; Com. v. Knight, 12 Mass. •274; Campbell v. People, 8 Wend. 636 ; Thomas v. Com. 2 Kob. 795 ; State V. Witherow, 3 Murph. 153 ; McKinney v. People, 7 111. 540. 1 Queen's case, 2 B. & B. 284. 2 See Maden v. Catanach, 7 H. & N. 360 ; R. V. Serva, 2 C. & K. 56. See infra, § 543. ^ The English statute, passed in 1869, provides that "if any person called to give evidence in any court of justice .... shall object to take an oath, or shall be objected to as in- competent to take an oath, such per- son shall, if the presiding judge is sat- isfied that the taking an oath would have no binding effect on his con- science, make ' a solemn promise and declaration ; ' and then, if false evi- dence be wilfully and corruptly given by him, he shall be liable to indict- ment for perjury." The form adopted under the act is : "I solemnly promise and declare that the evidence given by me to the court shall be the truth, the whole truth, and nothing but the truth." Such statutes, however, as Mr. Taylor (Taylor's Evidence, § 1248) justly observes, leave the relig- ious faith of a proposed witness still open to inquiry by the courts. For, first, the person called as a witness must either object to take an oath, or be objected to as incompetent; and, next, the judge is required to satisfy himself that the taking the oath by such person would have no effect on his conscience. * See U. S. ». Coolidge, 2 Gall. 364. 5 Williamson v. Carroll, 16 N. J. L. 217. 335 § 389.] THE LAW OF EVIDENCE. [BOOK II. m. PKIVILEGE FROM AEKEST. § 389. A witness, when on attendance on a court of justice, is Witness ^°* protected from arrest on a criminal prosecution.^ not privi- From arrest on civil process a witness is protected, not leged from "■ i -i criminal only while in attendance on the court, but when going otherwise to and returning from it ; in other words, eundo, mo- as to civil. j.^^^g^ gf redeundo. The rule is the same whether the witness attends voluntarily or on compulsion, and whether the tribunal he attends be a court and jury, or a commissioner or other officer authorized to take testimony .^ A summons, by the English practice, will not be set aside because it is served on a witness during his attendance on court ; ^ though to serve such a writ on the witness, in the presence of the court on which the witness is in compulsory attendance, may be a contempt of the latter tribunal.* A summons served under such circumstances may be set aside, also, if it appears that the attendance of the witness, a resident of another state, was secured in order to bring him within the range of the summons. " It is the policy of the law," so it is said, " to protect suitors and witnesses from arrests upon civil process while coming to and attending the court, and while returning home, and their immunity from the service of process for the commencement of civil actions against them is absolute, eundo, morando, et redeundo." Accordingly, where a summons was served upon a resident of another state, while at- tending in New York in good faith as a witness, it was held that an order setting aside the summons was proper and should be affirmed.^ The privileges of witnesses attending before a com- 1 Douglas, in re, 3 Q. B. 837. Wood v. Neale 5 Gray, 588; Sanford « Meekins v. Smith, 1 H. Bl. 636 ; v. Chase, 3 Cow. 381 ; Seaver «. Rob- Rishton v. Nisbett, 1 M. & Rob. 347 ; inson, 3 Duer, 622 ; Ballinger «. El- Willingham u. Matthews, 6 Taunt, liott, 72 N. C. 596. See Rogers v. Bul- 358; Walpole v. Alexander, 3 Doug, lock, 2 Pening. 156; Marshall w. Car- 45; Temple, ex parte, 2 Ves. & B. hart, 20 Ga. 419. 395 ; Strong v. Dickenson, 1 M. & W. « Poole v. Gould, 1 H. & N. 99. 491 ; Kiinpton v. R. R. 9 Ex. R. 766; * Cole v. Hawkins, 2 Str. 1094 ; Pitt V. Coomes, 5 B. & Ad. 1078; 3 N. Poole v. Gould, 1 H. & N. 100 ; Ard- & M. 212 ; Spencer v. Newton, 6 A. ing v. Flower, 8 T. R. 534. See & E. 623 ; Persse v. Persse, 6 H. of Blight v. Fisher, 1 Pet. C. C. 41 ; L. Cas. 671; Gibbs v. Newton, 6 A. Miles v. McCuUough, 1 Binn. 77. & E. 623 ; Jewett, in re, 33 Beav. 569 ; 'Person v. Greer, 66 N. Y. 124. 336 CHAP. VIII.] WITNESSES: WHO AEE COMPETENT. [§391. mittee of Congress cover immunity from arrest, but not, it is said, from civil service.^ § 390. It has been held in this country that a witness may waive his privilege, and, by submitting to be taken -vpitneas into custody without protest, lose his right to proceed ™^y waive against those by vs^hom he is imprisoned.^ In England, i'ege from on the ground that the privilege is one belonging to the courts, and not to the individual, a witness, after an unlawful arrest of the character above mentioned, does not, by any subse- quent laches of his own, lose his right of redress for the ille- gal imprisonment.^ When, however, the interests of other par- ties are imperilled by a long delay in an application for release by a party so arrested, the courts may refuse to grant the appli- cation.* IV. WHO ARE COMPETENT WITNESSES. § 391. While credibility is for the jury, under the instruc- tions of the court, competency is properly for the court. Whatever may be the objection to the competency of tency u a witness, whether interest, insanity, infancy, or pub- lic policy, if it goes to incompetency for the purpose for which the witness is called, it must be determined by the judge. Or- dinarily, as we will presently sefe, the objection must be taken, when known, before the witness is sworn. In order to substan- tiate the objection, the witness, as we will see, may be exam- ined, according to the old practice, on the voir dire ; or being sworn in chief, his examination may be arrested by interroga- tions from the opposite party, as to his competency.^ But by the court must the objection, whenever it is made, be deter- mined,^ though in some jurisdictions, when the question depends See M'Neil, ex parte, 6 Mass. 264 ; 1193; Webb v. Taylor, 1 Dowl. & L. Norris v. Beach, 2 Johns. R. 294; Cole 684. V. McClellan, 4 Hill, 59; Sanford v. * Andrews v. Martin, 12 C. B. (N. Chase, 3 Cow. 381; Dixon o. Ely, 4 S.) 372; Greenshield v. Pritchard, 8 Edw. Ch. 557; Seaver v. Robinson, 3 M. & W. 148. Duer, 622 ; Merrill v. George, 23 ^ geg infra, § 492. How. Pr. 331. " See cases cited infra ; and see 1 Wilderu. Welsh, iMc Arthur, 566. R. v. Perkins, 2 Mood. C. C. 135 ; 2 Brown v. Getchell, 11 Mass. 11; State u. Whitfier, 21 Me. 341 ; Dole Geyer v. Irwin, 4 Dall. 107. v. Thurlow, 12 Met. 157 ; Com. v. " Magnay v. Burt, 5 Q. B. 393; Burke, 16 Gray, 33; Cook v. Mix, Cameron v. Lightfoot, 2 W. Black. H Conn. 432; Com. v. Lattin, 29 VOL. I. 22 337 § 393.] THE LAW OF EVIDENCE. [book II. on disputed facts, it may be left by the court, at its discretion, to the jury.^ § 392. The law, on grounds of policy, presumes that all wit- ^11 ^ij. nesses tendered in a court of justice are not only com- nesses petent but credible. If a witness is incompetent, this presumed '^ . . . competent, must be shown by the party objecting to him ; ^ if he is not credible, this must be shown, either from his examination, or by impeaching evidence aliunde.^ Hence, so far as compe- tency is concerned, if the evidence is in equipoise, the witness should be admitted.* § 393. A party who knows objections to the competency of a Ordinarily witness Cannot, so it has been held, hold back such ob- incompe- jgctjons until the witness has been examined, and then tency shou'li otlected to should be raise the objections if the witness's testimony prove un- objected to J _ _ 7 J r before oath, favorable.^ But it is otherwise when the objecting party is not aware of the full force of the objection until the examination has begun.® The objection, however, if discovered Conn. 289 ; Keynolds v. Lounsbury, 6 Hill, 534 ; State v. Catskill Bank, 18 Wend. 466; Perry's case, 3 Grat. 632; Rohrer v. Morningstar, 18 Ohio, 579; Draper v. Draper, 68 111. 1 7 ; Peter- son V. State, 47 Ga. 524; Chouteau v. Searcy, 8 Mo. 733 ; State v. Scanlan, 68 Mo. 204 ; Anderson v. Maberry, 2 Heisk. 653. See Johnson v. Kendall, 20 N. H. 304, intimating that where doubts as to competency arise during the examination, though the question is primarily for the court, it may be ultimately submitted to the jury. S. P., Lee V. Welsh, 1 Weekly Notes of Cases, 453. 1 Hartford Ins. Co. v. Reynolds, 36 Mich. 302. ^ Carrington v. Holabird, 17 Conn. 536 ; Snyder v. May, 19 Penn. St. 235; Pegg V. Warford, 7 Md. 582; Dens- ler V. Edwards, 5 Ala. 31 ; Richardson V. Hage, 24 Ga. 203. ' See infraj §§ 551 et seq. ; Willey v. Portsmouth, 35 N. H. 303. * Johnson v. Kendall, 20 N. H. 304; Duel V. Fisher, 4 Denio, 615 ; Watta 338 ^. Garrett, 3 GiU & J. 355. See, however, Story v. Saunders, 8 Humph. 663. ^ Howell V. Lock, 2 Camp. 14; R. V. Frost, 9 C. & P. 183 ; Dowdney v. Palmer, 4 M. & W. 664 ; Stuart v. Lake, 33 Me. 87; Com. v. Green, 17 Mass. 515; Donelson v. Taylor, 8 Pick. 390; Lewis v. Morse, 20 Conn. 211; though see Needham v. Smith, 2 Vern. 463; Yardley v. Arnold, C. & M. 437; Jacobs V. Layburn, 11 M. & W. 685 ; Heely v. Barnes, 4 Denio, 73; Howser V. Com. 51 Penn. St. 332 ; Baugher V. Duphorn, 9 Gill, 314; Groshon v. Thomas, 20 Md. 234 ; Hudson v. Crow, 26 Ala. 515; Drake v. Foster, 28 Ala. 649 ; Levering v. Langley, 8 Minn. 107. 6 See R. V. Whitehead, L R. 1 C. C. 83 ; S. C. 10 Cox, 234; Vaughan t). Worrall, 2 Madd. 322; Selway ti. Chappell, 12 Sim. 113 ; State v. Dam- ery, 48 Me. 827 ; Shurtlefi v. Willard, 19 Pick. 202; Andre v. Bodman, 13 Md. 241; Veiths v. Hagge, 8 Iowa, 163. CHAP. Vm.J WITNESSES : WHO ARE COMPETENT. [§ 394. during the examination in chief, must be made before cross-ex- amination.^ When a witness, after verdict, is discovered to have been incompetent, and this without any laches on the part of the objecting party, a new trial may be granted, if the evi- dence of the witness was material, or if the party offering this evidence is tainted with suspicion of impropriety in concealing the incompetency.^ But where the objection could have been taken during the trial, a new trial will be refused, nor can the objection be noticed on error.^ § 394. The distinction between secondary and primary evi- dence, which is applied to written instruments, is not Distinction applicable to witnesses. A copy of an instrument can- secondary not be received as long as the original is attainable ; ^ary does when the best documentary evidence is to be had, an ""^ W'y inferior medium for the transmission of the same sub- nesses. ject matter will be rejected. It is otherwise, however, when we come to compare witnesses with each other; a witness of weak memory or of bad reputation will not be excluded because a witness remarkable for veracity and clear headedness is kept back. A witness, no matter how reliable, cannot be permitted to give the contents of a written instrument that could be pro- duced ; but no witness, no matter how unreliable, can be ex- cluded because another, more authoritative, is not called.* A witness who has heard a party or his agent say certain things can be received, though the party or his agent might have been examined, but is not ; ^ a party acquainted with the writing of another is as admissible to prove such writing as is the writer himself ; ^ and the admissions of a party can be proved, though the party himself is in court to be examined as to such admis- sions.'^ 1 Sheridan v. Medara, 10 N. J. Eq. v. House, 5 Ind. 237 ; State v. Scott, 469 ; Brooks v. Crosby, 22 Cal. 42. 1 Bailey, 270. 2 Wade V. Simeon, 2 C. B. 342. * See supra, § 90 ; State v. Cain, 9 See Whart. Cr. L. § 3334. W. Va. 559 ; Governor v. Roberts, 2 » Turner v. Pearte, 1 T. R. 717; Hawks, 26; Green v. Cawthorn, 4 Essex Bk. v. Rix, 10 N. H. 201 ; Jack- Dev. L. 409. son V. Barron, 37 N. H. 494; Snow « Badger v. Story, 16 N. H, 168; w. Batchelder, 8 Cush. 513; Spaulding Featherman v. Miller, 45 Penn. St. V. Hallenbeck, 35 N. Y. 204 ; Rees v. 96. Livingston, 41 Penn. St. 113; Mcln- » Infra, § 708. roy V. Dyer, 47 Penn. St. 118 ; House ' Infra, §§ 1094, 1175 et seq. 339 § 395.] THE LAW OF EVIDENCE. [BOOK II. § 395. By the English common law, the oath was an essential Atheism prerequisite to the admission of a witness to testify. fawX""" -^'* judicio non creditur nisi juratis.^ In the leading qualifies, case on this topic 2 the question came up on the admis- sibility in evidence of depositions which had been made on oath by some Gentoos before a chancery commission in the East In- dies. It had been thought, up to that time, on the authority of Coke,^ that none but Christians were competent witnesses. He had laid it down that " an infidel cannot be a witness ; " and it was clear that, under the designation of infidel, he clas- sified all who were not Christians. But Willes, C. J., ruled that Lord Coke's proposition was " without foundation, either in Scripture, reason, or law ; " and proceeded to declare, in an opinion which has not since been questioned, that " Such infi- dels who believe in God, and that He will punish them if they swear falsely (in some cases and under some circumstances), may and ought to be admitted as witnesses in this, though a Christian country." And, " Such infidels, if any such there be, who either do not believe in God, or, if they do, do not think that he will either reward or punish them in this world or in the next, cannot be witnesses under any case or under any circum- stances, for the plain reason, because an oath cannot possibly be any tie or obligation upon them." * It may therefore be regarded as settled that by the Anglo-American common law an atheist is inadmissible as a witness, independently of the statutes per- mitting affirmations to be substituted for oaths ; ^ though it is sufficient for admissibility, that the witness proposed believes in a Supreme Being who dispenses retribution in this life alone.^ 1 2 Salk. 512; 1 Bl. Com. 402. Wend. 460 ; Anderson v. Maberry, 2 " Omichund «. Barker, Willes, 538; Heisk. 653. Otherwise, when an af- 1 Sm. L. C. 194. firmation is permitted. Supra, § 386. « Co. Litt. 6, h. 6 Omichund b. Barker, Willes, 538 ; < See Maden v. Catanaeh, 7 H. & Wakefield v. Eoss, 5 Mason, 18; U. S. N. 360 ; 81 L. J. Ex. 118. v. Kennedy, 3 McLean, 175 ; Hunscom 15 Maden v. Catanaeh, 7 H. & N. «. Hunscom, 15 Mass. 184; Butts v. 360 ; Smith v. Coffin, 18 Me. 157 ; Swartwood, 2 Cow. 431 ; People v. Norton v. Ladd, 4 N. H. 444 ; Arnold Matteson, 2 Cow. 433 ; Brock v. Mil- V. Arnold, IS Vt. 363; Thurston v. ligan, 10 Ohio, 125 ; Shaw w. Moore, Whitney, 2 Cush. 104; Beardsly v. 4 Jones L. 25; Jones v. Harris, 1 Foot, 2 Root, 899; Atwood u. Welton, Strobh. 160; Blocker v. Burness, 2 7 Conn. 66; People o. McGarren, 17 Ala. 354; Cubbison «. McCreary, 2 340 CHAP. VIII.J WITNESSES : IRRELIGION. [§ 396. By statute, however, in England and in most parts of the United States, religious disbelief no longer disqualifies ; nor at common law can defect in such belief be a ground of exclusion in juris- dictions which permit the substitution of an aflirmation for an oath.i § 396. Where religious disbelief operates to incapacitate, the burden is on the party endeavoring thus to exclude a ^ ., , . . . Evidence Witness, all persons being presumed to have a religious may be belief such as entitles them to be sworn.^ It is compe- to reiigioua tent, under such a rule, at any time before the witness is sworn, to introduce testimony to show his defect in this rela- tion. ^ Whether he can himself be sworn on his voir dire as to his religious belief has been doubted. The affirmative has sometimes been maintained,* but without reason ; for it is a Watts & S. 262 ; Bennett v. State, 1 Swan, 411 ; Blair v. Seaver, 26 Penn. St. 274. 1 Supra, § 386 ; Com. v. Burke, 16 Gray, 33 ; Perry's case, 3 Grat. 632 ; People V. Jenness, 5 Mich, S05 ; Fuller V. Fuller, 1 7 Cal. 605. The following summary of the older cases may be still not without value : In Pennsylvania, it was directly de- cided that the true test of the compe- tency of a witness, on the ground of his religious principles, is, whether he believes in the existence of a God who will punish him if he swear falsely. Cubbison v. M'Creary, 2 W. & S. 262. See Com. v. Winnemore, 1 Brewster, 356; Blair v. Seaver, 26 Penn. St. 274. Hence those are competent who believe future punishment not to he eternal. Cubbison v. M'Creary, 2 W. & Serg. 262. See Butts v. Swartwood, 2 Coweu, 431 ; Blocker v. Burness, 2 Ala. 354 ; U. S. v. Kennedy, 3 Mc- Lean, 175. In Ohio, it is held that a witness's belief that punishments for false swearing are inflicted in this life only, might go to his credibility. U. S. V. Kennedy, 3 McLean, 175. In Connecticut, it was formerly decided that those who helieve in a God, and in rewards and punishments only in this world, are not competent wit- nesses. Atwood V. Welton, 7 Conn. R. 66. The legislature of that state has since enacted that such persons shall be received as witnesses. In Massachusetts, it has been said that mere disbelief in a future existence goes only to the credibility. Huns- com V. Hunscom, 15 Mass. 184. In Maine, a helief in the existence of the Supreme Being is rendered sufficient, without any reference to rewards or punishments. Stat. 1833, c. 68 ; Smith V. Coffin, 6 Shep. 157. In South Car- olina, a belief in God and his provi- dence has been held sufficient. Jones V. Harris, 1 Stroh. 160. In Illinois it has been said that a person who has no religious belief, nor belief in a Su- preme Being, and who, though recog- nizing his amenability to human law, in case he testifies falsely, has no sense of moral accountability, is inadmissi- ble. Central Mil. E. R. v. Rockafel- low, 17 111. 541. 2 Donnelly «. State, 26 N. J. L. 463. ' Anderson v. Maberry, 2 Heiskell, 653. See infra, § 543. * See R. V. White, 1 Leach, 430; Maden u. Catanach, 7 H. & N. 360; K. V. Serva, 2 C. & K. 56. 341 § 397.] THE LAW OF EVIDENCE. [book II. petitio principii to swear a person in order to determine whether he can be sworn. ^ But a witness cannot, in any view, be com- pelled to answer as to special phases of his creed.^ To prove such defect in religious belief as argues a deficiency in a sense of moral accountability, the proper course is to put in evidence the witness's own declarations.^ If the witness has changed his opinion, this cannot be proved by examining him. Declarations, exhibiting such change of opinion, may be shown by those to whom such declarations were uttered.* § 397. At common law, persons convicted of crimes which ren- Infamy in- der them infamous are excluded from being witnesses. " Infamous " crime in this sense is regarded as compre- hending treason, felony, and the crimen falsi.^ By stat- utes, however, adopted in England and in most of the United States, the disqualification of infamy is removed, but a conviction may be proved to aifect credibility.^ 1 Queen's case, 2 B. & B. 284 ; IT. a public duty in obedience to a sub- capacitates at common law. S. V. White, 5 Cranch C. C. 38 ; Wake- field V. Ross, 5 Mass. 19 ; Smith v. Coffin, 6 Shepley, 157 ; Com. v. Smith, 2 Gray, 516 ; Com. v. Burke, 16 Gray, 33- .''ackson v. Gridley, 18 Johns. 98; Com. V. Winnemore, 1 Brewst. 356; State V. Townsend, 2 Harring. 543. See Odell v. Koppee, 5 Heisk. 88. 2 Donkle v. Kohn, 44 Ga. 266. See infra, § 543. " It has sometimes been allowed to counsel." says Mr. Justice Talfourd, "to question witnesses on their voir dire as to their religious belief; but it may be doubted whether a witness would not be justified in insistino-, when so questioned, on the simple answer that he considers the oath ad- ministered in the usual form binding on his own conscience, and in declin- ing to answer further; for a confession thus forced from him, of a disbelief in a state of retribution, would certainly be esteemed as disgraceful in a court of justice, and there seems no reason why a person should thus be taxed, perhaps to his own infinite prejudice, merely because he appears to perform 342 poena. At all events, it is quite clear that a witness may properly refuse to answer anij questions which go beyond an inquiry into his belief in a Supe- rior Being to whom man is answer- able ; and that it is the duty of coun- sel to refuse, however urged, to put such questions, which are altogether impertinent and vexatious." 6 Dick. Q. S. 536. ^ Wakefield i>. Ross, 5 Mason, 19; Central. Mil. R. R. v. Rockafellow, 17 111. 541; Curtiss v. Strong, 4 Day, 51; Jackson v. Gridley, 18 Johns. 98. * U. S. V. White, 5 Cranch C. C. 38; Smith v. Coffin, 6 Shepley, 157; Com. V. Wyman, Thacher C. C, 432 ; Atwood V. Welton, 7 Conn. 66 ; Jack- son V. Gridley, 18 Johns. 98 ; State v. Townsend, 2 Harr. 543 ; Com. v. Bach- elor 4 Am. Jur. 79. 6 Phil. & Am. on Ev. p. 17; 6 Com. Dig. 353, Testm. A. 4, 5 ; Co. Litt. 6 h; 2 Hale P. C. 277; 1 Stark. Evid. 94, 95 ; 1 Greenl. on Evidence, §§ 372, 873. See Mr. Livingston's criticism, Works, ed. of 1873, p. 468. ^ Com. V. Gorham, 99 Mass. 420. CHAP. VIII.] WITNESSES: INFANCY. [§ 398. § 398. To infancy is peculiarly applicable Burke's illustra- tion of insanity, as applied by Lord Penzance, that Admissi- while we know what is day and what is night, there hlfants de- is a region of twilight which we can neither call night P^"f|?.°° or day. A child may be very far from maturity, yet gence. In Massachusetts, see Sup. Rev. Stat. 607, 803. In New York, see Dona- hue V. People, 56 N. Y. 208. In Mich- igan, see Dickinson, v. Dustin, 21 Mich. 561. In Ohio, Brown v. State, 18 Ohio St. 496. In Indiana, Glenn V. Core, 42 Ind. 60. In Georgia, Fraiff v. State, 40 Ga. 529. See, as to impeaching witnesses in this way, infra, § 567. In New York, however, as late as 1869, all convictions of of- fences punishable by death or impris- onment in the state prison made the convict incompetent as a witness. See, as applying this provision, People v. Park, 41 N. Y. 21; aff. S. C. 1 Lans. 263. As there are still states which re- tain the disqualification of infamy, and as in several states convictions of in- famous offences can be introduced to impeach credibility, it may be proper to append, in this place, a summary of the rulings as to infamy. A witness is rendered infamous by a conviction in the courts of his own country of forgery ; R. v. Davis, 5 Mod. 74; Poage v. State, 3 Ohio St. Rep. (N. S.) 239; perjury; Greenl. Ev. § 673 ; R. V. Teal, 11 East, 307; subornation of perjury; Co. Lit. 6 6; 6 Com. Dig. 353, Testm. A. 5; Saw- yer's case, 2 Hale P. C. 141 ; suppres- sion of testimony by bribery, conspir- acy to procure the absence of a wit- ness; Clancy's case, Fortesc. R. 208; Bushell V. Barratt, Ry. & M. 434; con- spiracy to accuse another of crime; 2 Hale P. C. 277; 6 Hawk. P. C. c. 46, B. 101 ; Co. Lit. 6 ft ; R. v. Prid- dle, 1 Leach C. C. 442; Crowther v. Hopwood, 3 Stark. Rep. 21; 1 Stark. Evid. 95 ; Ville de Varsovie, 2 Dods. 191; and barratry; R. v. Ford, 2 Salk. 690; Bull. N. P. 292. But it is said not to be so of the mere attempt to procure the absence of a witness. State V. Keyes, 8 Vermont, 57. It is the infamy of the crime, and not the nature or mode of the punish- ment, that destroys competency; Gilb. Evid. 140; Com. v. Shaver, 3 Watts & Serg. 338 ; Schuylkill v. Copley, 67 Penn. St. 386; and, therefore, though a man had stood in the pillory for a libel, or for seditious words, or the like, he was not thereby disabled from being a witness ; Gilb. Evid. 140, 141; 3 Lev. 426. Outlawry in a civil suit does not render a man incompetent as a witness; Co. Lit. 6 6; 2 Hawk. c. 46, s. 21 ; nor has the mere commis- sion of any offence that effect, unless the party have been actually convicted of it. Kel. 17, 18 ; 1 Sid. 51 ; Cowp. 3. See 11 East, 309. In Pennsylvania, a person convicted of arson in the night time of buildings or board yards in any city or incorpo- rated district was by statute incompe- tent to testify. Act April 16, 1849, Pamph. L. 664. A conviction of grand or petit lar- ceny disqualifies. Pendock v. Mac- kinder, Willes R. 665 ; Com. v. Keith, 8 Met. 531 ; State v. Gardner, 1 Root, 485; Lyford v. Farrar, 11 Foster (N. H.), 314. In New York, however, the latter has been ruled to go only to the credibility of a witness. Carpen- ter V. Nixon, 5 Hill, 260. If a statute declare the perpetrator of a crime " infamous," this, it seems, rendered him incompetent to testify. 343 § 398.] THK LAW OF EVIDENCE. [book II. he may be equally far from idiocy. His memory may be indis- tinct, but this peculiarity belongs to the old as well as to the 1 Phil. Evid. p. 18; 1 Gilb. Evid. by Lofft, 256, 257. In Massachusetts, it was said at common law that a person convicted of the offence of receiving stolen goods, knowing them to have been stolen, is not a competent witness. Com. v. Kogers, 7 Met. 500. In Pennsylva- nia, however, the contrary doctrine has been advanced by a learned judge. Com. V. Murphy, 5 Penn. Law J. 22. No disqualification, it was said by Judge Washington, attends a convic- tion of assault and battery with intent to kill; U. S. V. Brockius, 3 Wash. C. C. R. 99; nor, it was ruled by the Supreme Court of Pennsylvania, the conviction of a sheriff of the offence of bribing a voter previous to his elec- tion to the office. Com. v. Shaver, 3 Watts k Serg. 338. A .conviction of the offence of ob- taining goods by false pretences does not render the party an incompetent witness ; Utley v. Merrick, 11 Met. 802; nor does a conviction for ob- structing the passage of cars on a railroad; Com. v. Dame, 8 Cush. 384; nor for being a common prostitute; State V. Randolph, 24 Conn. 363; nor for keeping a gaming or bawdy house; K. V. Grant, 1 Ry. & M. 270; Deer V. State, 14 Missouri, 348 ; Bickel v. Fasig, 9 Casey, 463; nor for cutting timber; Holler v. Ffirth, Penning. 531 ; nor for conspiracy to defraud by spreading false news or otherwise; 1 Greenl. Evid. § 373; though the last point has been ruled differently by the United States Circuit Court in the Dis- trict of Columbia. U. S. v. Porter, 2 Crancb C. C. R. 60. In Kansas, a convict is admissible in civil but not in criminal trials. State V. Howard, 19 Kans. 507 (1878); Winter v. Sass, 19 Kans. 656. 344 Foreign convictions. — How far a foreign judgment of an infamous of- fence disables a witness has been the subject of much conflict of authority. In Massachusetts, it has been deter- mined that such conviction does not attach disability ; and, after an argu- ment of remarkable learning and vigor, the court came to the conclu- sion that it was not bound to respect the criminal judgments of the courts, either of neighboring states or of a foreign country, though the record is admissible to discredit. Com. v. Green, 17 Mass. 515, 540. See, also, Campbell v. State, 23 Ala. 44. Such seems also to be the opinion of the late Mr. Justice Story; Conflict of Laws, §§ 91-93, 104, 620, 625; and of Mr. Greenleaf; 1 Greenl. on Evid. § 376. See, also. State v. Ridgely, 2 Har. &M'Hen. 120; Clarke's Lessee V. Hall, Ibid. 378; Cole's Lessee v. Cole, 1 Har. & Johns. 572. The force of the three last cited cases, however, is much weakened by the fact that in them the rejected wit- nesses were persons sentenced in England for felony, and transported as such to Maryland before the Rev- olution. In Virginia ; Uhl v. Com. 6 Gratt. 706 ; and Alabama ; Camp- bell V. State, 28 Ala. 44, the record is rejected altogether. The contrary opinion was held in North Carolina, after an elaborate examination. Hall, J., dissenting. State v. Candler, 3 Hawks, 393. In New Hampshire, a conviction in another state of a crime which, by the laws of such state, dis- qualifies the party from being heard as a witness, and which, if committed in New Hampshire, would have oper- ated as a disqualification, is sulBcient to exclude the party from being a wit- ness. Chase v. Blodgett, 10 N. Hamp. CHAP. VIII.] WITNESSES: INFANCY. [§ 398. young. He may be incapable of expressing himself with pre- cision, but so are multitudes of witnesses whose competency is indisputable. On the other hand, he is comparatively free from those prepossessions by which the perceptive powers are distorted, and he is incapable of maintaining a consistent false narrative. It must be remembered, however, that these observations apply only to the border-land between infancy and maturity ; to per- mit a child of two, three, or even four years, to be sworn and ex- amined would be trifling with public justice. Hence the dying declarations of a child of four years have been rejected;^ and the admissibility of children of that age is generally questioned.^ 22. See Hoffman v. Coster, 2 Whart. 453 ; U. S. V. Wilson, Baldw. R. 90; Jackson v. Rose, 2 Virg. Cas. 34. See Com. V. Hanlon, 3 Brewster, 461; Earschner v. State, 9 Wis. 140; Wh. Confl. of Laws, §§ 107, 769. Verdict loithout judgment. — Con- viction without judgment works no disability. U. S. v. Dickenson, 2 McL. 325. Com. V. Gorham, 99 Mass. 420; Cora. Dig. 354, Testm. A. 5; R. v. Castell Careinlon, 8 East, 77; Lee f . Gansell, Cowp. 3; Bull. N. P. 392; Fitch V. Smallbrook, T. Raymond, 32; Cushman u. Loker, 2 Mass. 108; Peo- ple V. Whipple, 9 Cow. 707; People 17. Herrick, 13 Johns. 82; Blaufus v. People, 69 N. Y. 107; Skinner v. Perot, 1 Ash. 57; State w. Valentine, 7 Ired. 225 ; Dawley v. State, 4 Indi- ana, 128. Prisoners who have pleaded guilty, but on whom no sentence has been passed, are constantly admitted in practice as witnesses; and in one of these cases Baron Wood told the man that he would pass sentence upon him, upon his plea of guilty, because he fenced with the questions. Alderson, B., R. u. Hineks, 2 C. & K. 464; S. C. 1 Den. C. C. 84. In Virginia, upon the trial of a con- vict from the penitentiary for a fel- ony committed there, another convict confined there for felony is by stat- ute a competent witness for the pros- ecution. Johnson's case, 2 Gratt. 581. Pardon. — Disability by infamy may be removed by the production of a pardon under the great seal. As to pardon, see fully Whart. Cr. Law, tit. "Pardon." 1 Pike's case, 3 C. & P. 598. 2 People V. McNair, 21 Wend. 608. While there should be every caution observed as to the possibility of a child being tampered with by parents, or by those to whose influence they are par- ticularly subjected, it should be ob- served that, so far as their own action is concerned, the ideas they receive are much more apt to be transferred un- changed to a third person , than those received by adults. " To them," it is well observed by Mr. Amos (Great Oyer, 277), "it is a matter of interest to pay particular attention to the pre- cise words which people utter in their presence. They are usually passive recipients of other persons' ideas and expressions; whereas a grown person, when he hears a statement, is apt to content himself with the substance of it, and to modify it in his own mind, and may be afterwards unable to trace back his ideas to the original impres- sions." 345 § 400.] THE LAW OF EVIDENCE, [book II. On the other hand, the testimony of a child between four and five,^ and of a child between six and seven, have been received on the trial of an indictment for an attempt to ravish.^ And it may be regarded as settled that wherever there is intelligence enough to observe and to narrate, there a child, a due sense of the obligation of an oath being shown, can be admitted to tes- tify.3 § 399. The rule by which an infant under seven years of age cannot commit a felony, because the law presumes him conclu- sively not to have sufficient intelligence for the act, has no anal- ogy in the law of evidence.* Age, at least after four years are past, does not touch competency ; and the question is entirely one of intelligence, which, whenever a doubt arises, the court, as we will presently see, will determine to its own satisfaction, by examining the infant on his knowledge of the obligation of an oath, and the religious and secular penalties of perjury.* § 400. Competency in such case being for the court, the court may, by a preliminary examination, probe the witness's intel- ligence.^ It will require a strong case to sustain a reversal 1 E. V. Holmes, 2 F. & F. 788. = R. I). Brazier, 1 Leach, 199; S. C. 1 East P. C. 443; Com. v. Hutchinson, 10 Mass. 225; State v. Morea, 2 Ala. 275; and see, to same effect, observa- tions of Alderson, B., in B,. u. Perkins, 2 Moo. C. C. 139; Anonymous, 2 Pen. (N. J.) 930; Washburn v. People, 10 Mich. 372; State v. Le Blanc, Hill (S. C), 354; S. C. 3 Brev. 339; State i;. Richie, 28 La. An. 327. See Givens V. Com. 29 Grat. 835; Wade v. State, 50 Ala. 164. 8 R. V. Powell, 1 Leach, 110; R. v. Brazier, 1 Leach, 199; R. v. Wil- liams, 7 C. &P. 320; R. v. Travers, 2 Str. 700; State u. Whittier, 21 Me. 841; State v. De Wolf, 8 Conn. 98; Com. V. Hutchinson, 10 Mass. 225; Com. V. Hill, 14 Mass. 207; Jackson V. Gridley, 18 Johns. 98; People v. McGee, 1 Denio, 19; Com. v. Carey, 2 Brewst. 404 ; Draper v. Draper, 68 111. 17; Blackwell v. State, 11 Ind. 346 196; State v. Levy, 23 Minn. 104; Gardner v. Kellogg, 23 Minn. 463; Washburn v. People, 10 Mich. 372; State V. Edwards, 79 N. C. 648; State V. Morea, 2 Ala. 275; Wade V. State, 50 Ala. 164; State v. Denis, 1 9 L. An. 119; State v. Scanlan, 58 Mo. 204; Vincent 17. State, 8 Heisk. 120; Logston V. State, 3 Heisk. 414; Flan- agin u. State, 25 Ark. 92; Warner o. State, 25 Ark. 447; Davidson v. State, 89 Tex. 129. See, as to the Ohio limit of ten years, Act of February 14, 1859, § 1. As to same limit in Missouri, see State V. Scanlan, 58 Mo. 204. * Per Patteson, J., R. v. Williams, 7 C. & P. 320. See, however. Com. v. Hutchinson, 19 Mass. 225; State v. Doherty, 2 Tenn. R. 80. ' 1 Leach, 430, n.; R. v. Nichols, 2 C. &K. 246; Powell's Evidence, 4th ed. 29. 8 R. V. Perkins, 2 Mood. C. C. 135; State w. Whittier, 21 Me. 341; Com. CHAP. VIII.] WITNESSES : DEFECT IN PERCEPTION. [§ 401. of the ruling of the court examining such a witness.^ When a child is incompetent simply for want of instruction as to the nature of an oath, the practice has been to postpone the case so that the child might be intermediately properly instructed.^ When, however, " the infirmity," to use the language of Pol- lock, C. B., " arises from no neglect, but from the child being too young to have been taught, I doubt whether the loss in point of memory would not more than counteract the gain in point of religious instruction." ^ A temporary suspension, how- ever, to enable a child to recover from agitation, is not merely unobjectionable but proper.* The preliminary examination of the witness must be public, not private.^ § 401. Deficiency in perception, to operate as an exclusion, must go to the capacity to perceive the phenomena in ,. dispute. A blind man, however, may be called to in percip- identify another person, the senses of hearing and of ers if total touch being often made more acute by the loss of sight ; ^^'='"'^^'- V. Hutchinson, 10 Mass. 225; Com. v. Mullins, 2 Allen, 295; Com. v. Lattin, 29 Conn. 389; Den v. Vancleve, 2 South. (N. J.) 589; Simpson v. State, 31 Ind. 90; Com. v. Le Blanc, 3 Bre- vard, 339; Peterson v. State, 47 Ga. 524. 1 Anonymous, 2 Pen. (N. J.) 930; Peterson v. State, 47 Ga. 524. " See note to B,. v. White, 1 Leach, 430. R. V. Nicholas, 2 C. & K. 246. * " The course pursued on the occa- sion was eminently proper. There is a practice sanctioned by time-honored precedent, under -which, when a child is found too young to testify with a proper sense of responsibility, the trial may be postponed until the witness shall have been suitably instructed. This, however, has been criticised, as like 'preparing or getting up a wit- ness for a particular purpose.' In the present case, even that objection dis- appears. While the child was so la- boring under nervous agitation from the novelty of the surroundings, as to give unintelligible or absurd answers, she was not permitted to testify. The court merely waited for a natural re- covery of mental equilibrium, which should permit the true capabilities of the witness to appear. No sign was visible then in her examination, that she was incapable, either of receiving just impressions of the facts about which she was to testify, or of relat- ing them truly. We can find no er- ror in the record." State v. Scanlan, 58 Mo. 206, Lewis, J. 5 In a trial for rape in Indiana, the principal witness was a child only six years old at the time of the trial, which was sixteen months after the alleged offence. The witness being excepted to, she was examined by the court, who, not being satisfied, ap- pointed two gentlemen, who retired with the child to a private room, and after some time reported to the court that " in their opinion her testimony ought to be heard, but received with great allowance." It was held that this reference was irregular, and that 347 § 402.] THE LAW OF EVIDENCE. [book II. and even if this were not so, identification of voice and accent is always an incident entitled to weight. Loss of the requisite sense, after the period of observation, does not affect the admis- sibilitj' of testimony. Hence, a blind man is competent to testify to what he saw prior to his blindness ; a deaf man to what he heard prior to his deafness. i But generally a person incapable of perception is incapable of testifying. If the incapacity of perception is total, — e. g. idiocy, — then the incapacity for giv- ing evidence is total.^ Where, however, the incapacity of per- ception is partial, the incapacity to testify cannot be extended beyond the limits of such incapacity to perceive. Thus a blind man can testify as to what he has heard, and a deaf man as to what he has seen.^ Whether a person drunk, or asleep, or etherized at the time of the event, is competent, has been else- where discussed.* Stupefaction, no matter from what cause, may be always shown to affect credibility." § 402. In respect to persons of deranged intellects interesting questions arise in this relation. Formerly it was held that lunatics, as they were called, were to be univer- sally excluded from the witness box. This sweeping rule, however, has receded before the conviction that as there can be neither perfect sanity nor perfect insanity, so no witness is to be absolutely excluded because he is insane.® But Insane persons subjected to same test. the court ought to have acted on its own judgment, at a public exami- nation in the defendant's presence. Sirason v. State, 31 Ind. 90 ; State ii. Morea, 2 Ala. 276. 1 Weiske, Rechtslexicon, XV. 25.S; Schneider, Lehre der Beweis, § 112. Infra, § 405. * Coleman v. Com. 25 Grat. 865. ' Harrod v. Harrod, 1 Kay & J. 9 ; Morris v. Lennard, 3 C. & P. 127 ; R. V. Powell, 1 Leach, 110; R. v. Travers, 2 Str. 700; R. v. Boston, 1 Leach, 408; R. V. Wade, 1 Mood. C. C. 86 ; Com. V. Hill, 14 Mass. 207; State u. DeWolf, 8 Conn. 93. < 1 Whart. & St. Med. Jur. §§ 245, 789 ; Whart. Cr. Law, 7th ed. § 753. In Beale's case (2 Whart. & St. Med. 348 Jur. § 266), and Green's case (Ibid. § 267), convictions were sustained on the testimony of women as to what took place when they were etherized. But these convictions are open to grave criticism. Ibid. ' Hartford v. Palmer, 16 Johns. 143; Sisson v. Conger, 1 Thomp. & C. 564; Duffy v. Com. S. C. Penh. 1878; Tuttle v. Russell, 2 Day, 201 ; Fleming v. State, 5 Humph. 564 ; State V. Buckley, 72 N. C. 368. » 1 Whart. & St. Med. Jur. § 342 ; 2 Heard's Lead. Cas. 20 ; R. «. Hill, 5 Cox C. C. 259 ; 5. C. 2 Den. C. C. 254; 5 Eng. L. & E. 547; Fennell v. Tait, 1 C, M. & R. 584; Spitte v. Walton, L. R. 11 Eq. 420; Com. v. Reynolds, cited 10 Allen, 64; Ken- CHAP. VIII.] WITNESSES : MENTAL INCOMPETENCY. [§ 403. it is competent, in order to discredit a witness, to show that he is governed by insane delusions on the subject of his testimony. i § 403. If the witness appears, on examination by the judge, or by evidence aliunde, to have been incapable, at the witness time of the occurrences which he is called to relate, of ™xamined perceiving, or to be incapable, at the time of the trial, ^y i'^^s^- of relating, then he is to be ruled out.^ But to justify such ex- clusion mere streaks of insanity are not sufi&cient. A man may have many delusions and yet be capable of narrating facts truly ; and in any view, the existence of such delusions on his part, at the time of trial, goes to his credit and not to his competency .^ Evidence, also, of mental disturbance, at the time of the events narrated, can be received to affect credibility.* But the judge, on being convinced of the incompetency of the witness at the trial, may at any period stop the examination, and direct the jury to disregard the witness's testimony.^ This question, as we have seen, arises when witnesses testify as to what happened to them when unconscious, or when they are more or less intoxicated at the trial.^ dall V. May, 10 Allen, 59 ; Holcomb V. Holcomb, 28 Conn. 177; Living- ston u. Kiersted, 10 Johns. 362; Cole- man V. Com. 25 Grat. 865 ; Campbell V. State, 23 Ala. 44. Boswell (Boswell's Johnson, Crok- er's ed. IV. 276), tells us that John- son told him that "he was once offered ten guineas to point out whence Se- mel insanivimus omnes was taken. He could not do it, but many years af- terwards met with it by chance in Johanne's Baptisma Mantuanus." As to witness imbecile from old age, see McCutcheon v. Pigue, 4 Heisk. 563. As to intoxicated witnesses, see in- fra, § 418. 1 State V. Kelley, 57 N. H. 549. See Isler v. Dewey, 75 N. C. 466. Infra, § 410. 2 K. V. Hill, 5 Cox C. C. 259; S. C. 2 Den. C. C. 254; Powell's Ev. 4th ed. 28 ; Holcomb i>. Holcomb, 28 Conn. 177; Coleman v. Com. 25 Grat. 865 ; Livingston v. Kiersted, 10 Johns. K. 362. Supra, § 391. An able criticism on the topic be- fore us will be found in a Pamphlet Report, by Dr. Ordronaux, N. Y. 1876. » K. V. Hill, 2 Den. C. C. 254 ; S. C. 5 Cox C. C. 259; R. v. Whitehead, L. R. 1 C. C. R. 33 ; Spittle v. Wal- ton L. R. 11 Eq. 420; Campbell v. State, 23 Ala. 44; Sarbach v. State, 20 Kans. 500. * Fairchild v. Bascorab, 35 Vt. 398; Holcomb t). Holcomb, 28 Conn. 177; Rivara v. Ghio, 3 E. D. Smith, 264. See Bell v. Rinner, 16 Ohio St. 45. In Vermont the right to examine on voir dire is disputed. Robinson v. Dana, 16 Vt. 474. 6 R. V. Whitehead, L. R. 1 C. C. 33. s See 2 Whart. & St. Med. Jur. §§ 245-266. Infra, 407. A maniac, as said by commentators on the Roman law, is an incompetent witness as to the transaction to which 349 § 404.] THE LAW OF EVIDENCE. [BOOK II. An inquisition of lunacy may be primd facie evidence of in- competency,! but does not exclude if upon hearing the court find that the witness understands the nature of an oath, and the facts of which he speaks.^ § 404. " The credibility of a witness to a fact seems to de- Credibiiity P^""! mainly on the four following conditions, namely : depends J. That the fact fell within the range of his senses. 2. veracity That he observed or attended to it.^ 3. That he pos- pacity to scsses a fair amount of intelligence and memory.* 4. observe. ^i^at he is free from any sinister or misleading interest ; or if not, that he is a person of veracity. If a person was present at any event, so as to see or hear it ; if he availed himself of his opportunity, so as to take note of what passed ; ^ if he has sufficient mental capacity to give an accurate report of the oc- currence ; and if he is not influenced by personal favor, or dis- like, or fear, or the hope of gain, to misreport the fact ; ^ or if, notwithstanding such influence, his own conscience and moral or religious principle, or the fear of public opinion, deters him from mendacity, such a person is a credible witness." "^ Of the de- pendence of credibility on the opportunities possessed by the witness for observation, we may draw an illustration from the line of cases which involve collisions at sea. It has been re- marked that collision cases are peculiarly distinguished for con- flict of testimony ; and this may be partially explained by the prejudice felt by witnesses for their own boats. In boat races a conflict takes place as to every question as to which a conflict can his mania extends; but this cannot be citing R. v. Hill, supra; Leonard v. sustained, for the determination of in- Leonard, 14 Pick. 280. capacity can only be completed by the ' See People v. Bodine, 1 Edm. Sel. examination of the witness, and his Cas. 36; Julke v. Adam, 1 Redf. (N. supposed mental derangement goes to Y.) 454. the value, not the competency, of hia * See Willet v. Fister, 18 Wall. 91 ; testimony. The passage relied on from Evans v. Lipscomb, 31 Ga. 71. the Institutes is, " Furiosus nullum ^ See Barrett U.Williamson, 4 Mc- negotium gerere potest, quia non in- Lean, 689 ; Jacksonville R. R. v. Cald- tellegit quid agit." § 8, L. iii. 18. well, 21 111. 76; Durham v. Holeman, But this is not only confined to mat- 30 Ga. 619; Hitt v. Rush, 22 Ala. ters of business, but assumes unoon- 663. sciousness on the part of the " furio- « See Chicago R. R. v. Triplett, 38 sus " of what he is doing. 111. 482. 1 Hoyt V. Adee, 3 Lansing, 1 73. ' Sir Geo. Corn. Lewis, on Influence 2 Kendall v. May, 10 Allen, 63 ; of Authority, 2d ed. 1875. p. 15. 350 CHAP. VIII.J WITNESSES : INABILITY TO RELATE. [§ 406. be raised ; and the gravest as well as the lightest yield to the common excitement. The most dispassionate and the most ac- curate of observers, so we are told, when on one moving vessel, fail in taking a correct view of the absolute course of another vessel. We cannot overcome the instinctive belief that it is our own vessel that is stationary, and that it is the other alone that moves. Hence admiralty courts have held that the testimony of mere observers on board a vessel is to yield, in cases involv- ing the course and deflection of the vessel, to that of those who hold her helm in their hands.^ What is true of the sea is true, though in varying degrees, of the land. We all occupy stand- points which make us, however honest, more or less incapable of perfectly accurate observation. Until allowance be made for this incapacity, no testimony can be properly weighed.^ § 405. A witness may have been capable of perceiving yet be incapable of relation. He may have no powers of . J^ •! c Incapacity speech, and have no means of expressing himself by to relate f TT 1 , • • 1 may affect Signs. He may have become insane since the occur- compe- rences he is called upon to relate. If, however, such ^'^°^' incapacity is temporary, the court will in proper cases direct an adjournment so that it may be overcome.^ But the application must be made before the jury is sworn.* And the case must be one which promises a speedy restoration.^ § 406. Deaf and dumb persons were formerly regarded as idiots, and therefore incompetent to testify ; but the Deaf and modern doctrine is that if they are of sufficient under- fn'compe-' standing, and know the nature of an oath, they may '®'''- give evidence either by signs,' or through an interpreter, or in writing.^ It has been laid down that "the presumption is always in favor of sanity, and there is no exception to this rule 1 McNally V. Meyer, 5 Ben. 239. K. v. Kinloch, 18 How. State Trials, " On this point observe the com- 402. ments on Lady Tichborne's declara- ^ Supra, § 400. tions, supra, § 9. The same criticism ^ 1 Hale P. C. 34; Rushton's case, applies to Lady Vane's declarations 1 Leach C. C. 408 ; Morrison v. Len- in the Vane case, before Malins, V. nard, 3 Car. & P. 127; Com. v. Hill, ' C, December, 1876. U Mass. 207; State v. De Wolf, 8 ' R. V, White, 1 Leach, 430, n. a. Conn. 93; People v. MeGee, 1 Denio, Supra, §§ 400, 401. 99; Snyder v. Nations, 5 Blackf. 295. * R. V. Wade, 1 Moody C. C. 86 ; See supra, § 401. 361 § 408.] THE LAW OF EVIDENCE. [BOOK II. in the case of a deaf and dumb person, but the onus of proving the unsoundness of mind of such a person must rest upon those who dispute the sanity." ^ § 407. If there are any means by which the witness may be Inferpreta- interpreted, such means will be adopted. A deaf mute, tionofwit- Jqj, instance, may be permitted tb express himself in missibie. writing, if this be the mode in which he can be better understood, or through a sworn interpreter by whom his signs can be interpreted.^ Such interpretation is not hearsay,® nor is it excluded by the fact that the witness can write.* § 408. One of the advantages of cross-examination, as we Bias to be shall have occasion to see more fully hereafter,^ is that account"in i* enables the bias of a witness to be disclosed, and this estimating jg peculiarly important where interest is no longer a accuracy r j r o of witness, ground for disqualification. We should at the same time remember, however, that pecuniary interest in a case is by no means the only influence by which bias is produced. Re- lationship, party sympathy, personal affection, work upon the perceptive powers of witnesses more subtly and more effectively, in the great body of cases, than does pecuniary interest ; and it is by no means creditable to the English common law, that it regarded the less honorable influence as so powerful that the interest of a single penny would incapacitate, while it so little appreciated the force of the nobler affections that in only one case, that of marital relationship, did it recognize their existence.® Now, however, that all disqualifications are removed, and that proof of interest goes only to credibility, influences of all kinds are equally objects of consideration, in determining how far cred- ibility exists. Credibility, therefore, so far as it depends upon the capacity for accurate narration, is now relieved from the ob- structions produced by the old rules, and is determinable by the ordinary laws of free logical criticism.'' The question now is, not 1 Per Lord Hatherley, Harrod v. Conn. 93; Snyder v. Nations, 5 Harrod, 4 K. & J. 9 ; Powell's Evi- Blackf. 295. dence, 4th ed. 28, and cases in next ' Supra, § 1 74. section. ^ * State v. De Wolf, 8 Conn. 93. i" R. V. Pluston, 1 Leach, 408; R. « Infra, § 527. V. Steel, 1 Leach, 452; Morrison v. ' See infra, § 419. Lennard, 3 C. & P. 127; Com. v. Hill, ' See Watkins v. Causall, 1 E. D. 14 Mass. 207; State v. De Wolf, 8 Smith, 65; Chicago R. R. v. Triplett, 362 CHAP. VIII.] WITNESSES : CREDIBILITY. [§408. whether a witness is to be received, but how far he is to be be- 38 111. 482; Sullivan v. Collins, 18 Iowa, 228. " The trustworthiness (Jides) of tes- timony is settled by the general log- ical rules which govern the inference from the conditioned to the condition, and, more particularly, the construc- tion and verification of hypotheses, for this is only a special case of that more general class. The fact to be concluded is the real prius of the tes- timony. The content of the testi- mony may have for its ground, either that the event has happened and has been observed exactly in the same way, or that the observation has been influenced by a false apprehension, an untrue recollection, preference of some fancy to strict accuracy, or the confusion of subjective judgment with objective fact. But the witness of an immediate or eyewitness (testis primi- tivus, proximus, oculatus"), who is an immediate witness notoriously or ac- cording to the assured concurrence of historical criticism, is trustworthy, provided that he has been able to ap- prehend the fact strictly and truly, according to his intellectual and moral condition, and to represent it truly, and has taken care to do so. The agreement of several immediate wit- nesses with each other gives to their assertion a very high probability, if it is proved that they are independent, that they have not been deceived by the same deception, nor have been afEected and psychologically influenced by the same one-sidedness in appre- ■ hension and statement; for a purely accidental agreement in an accidental circumstance has, according to the laws of the calculation of probability, a very high degree of probability in all complicated relations. The trust- worthiness of mediate witnesses (testes secundarii, ex aliis testibus pendentes') VOL. I. 23 is determined partly by their sense and critical capacity, partly and chiefly by their relation to immediate wit- nesses. It is an essential problem, but seldom absolutely soluble, to dis- cover the genealogy of testimony. The testimony of later witnesses is suspi- cious, especially when there is any- thing in it to serve a distinct (poet- ical, national, philosophical, dogmatic, or practical) tendency, and the further it stands from the actual occurrences. The verification of the subjective trustworthiness of different witnesses is reciprocally related to the verifica- tion of the objective probability, which what is attested has in itself and in connection with undoubted facts. Crit- icism is positive so far as it has to con- struct a complete picture of the real previous occurrence by combining the true elements and excluding the false." Ueberweg's Logic, Lindsay's trans. §140. " The teacher, physician, historian, and judge have daily occasion to ob- serve how little men are accustomed to describe the simple facts, and how very much they mix up in the state- ment (unconsciously and unintention- ally) their own opinions and interests. It is inconceivably hard, I had almost said impossible, to describe what has been seen or heard wholly and exactly as it has been seen and heard. We often introduce our own feelings with- out anticipating it, and although we have the strongest and purest love of truth. We see in the descriptions not the things themselves, but only the im- pressions which they have made upon the soul of our author, and we know that the account of the impression never fully corresponds to the things. It is the business of the historical critic to infer back from the narrative to the first form of the impression, and 353 § 410.] THE LAW OF EVIDENCE. [BOOK II. lieved.^ Interest and party sympathy may be always shown in order to discredit a witness,^ and the same observation may be made as to near relationship.^ But immorality cannot be intro- duced to affect credibility unless it be involved in a reputation for untruth.* § 409. A witness spending a single day in a country may be . , . examined as to its climate, but his answer will relate to And so of . want of op- what may be only exceptional phenomena; and his tes- of observa- timony will at the best be entitled to but little weight "'"'■ compared with that of an observer for years. A phy- sician called upon once to visit a patient can speak as to this interview, but cannot speak as to what he had no opportunities to observe.^ Farmers will be entitled to credit in agricultural matters, as to which other persons are of no authority ; ^ and so, mutatis mutandis, as to architects.'^ Opportunities of obser- vation, though not essential to competency, are of much impor- tance, therefore, in determining credibility, for a witness is en- titled to little credit when he narrates that which he imperfectly observed.* In questions of identity this caution is to be pecul- iarly applied.^ § 410. Nor should the capriciousness of memory be left out of And so as account in adjusting credibility. Old persons recollect teinty^of *^® impressions of their childhood far more vividly memory, than they do those of their maturer years. Falstaff, on his death-bed, " babbled of green fields," though since boy- hood his life had been spent in the city. Chief Justice Marshall, when dying, — to pass from one of the weakest to one of the strongest of characters, — repeated a child's hymn, recalling the scenes of his infancy, — from this to the actual fact, to remove '' See Barrett v. Williamson, 4 Me- the additions and changes due to sub- Lean, 589 ; Durham v. Holeman, 30 jective influence, and to restore the Ga. 619; Hitt v. Rush, 22 Ala. 563. objective occurrence." Ibid. ^ Jacksonville R. R. v. Caldwell, 21 1 See infra, § 666. 111. 75. 2 Infra, §§ 544, 545. 7 Tucker v. Williams, 2 Hilt. (N. Y.) « Infra, § 566 ; Gangwere's Est. 14 562. See infra, § 439. Penn. St. 417; Tardif v. Baudoin, 9 « See fully on this point, §§ 71, 72. La. An. 127. o gee supra, §§ 9, 11 ; and charge of * Infra, § 663 ; State ti. Randolph, Cockburn, C. J., in Tichborne case, I. 24 Conn. 363; Smithwick v. Evans, 12, cited in first edition of this work 24 Ga. 461. to § 409. 354 CHAP. VIII.] WITNESS : DEFECT OF MEMORY. [§ 410. Coelamque Adspicit, et dulces moriens reminiscitur Argos. This experience is almost universal ; yet we must remember that the tenacity of such impressions is more remarkable than their accuracy.! ^\^q reason why the memory is so retentive of early events is, that when these events occurred the memory was plas- tic ; but the fact that the memory is plastic by no means pre- supposes its exactness. Its very plasticity makes it open to disturbing contemporaneous influences, just as the least palpi- tation in the air will disturb the features of a cast when in the first processes of hardening. The influence of association, also, has a great deal to do with even our riper memory. We are accustomed to see a particular person in a particular place ; we do not readily recognize him when we see him out of that place ; when we visit the place we are apt to imagine we see him in his familiar nook. Great allowance, also, is to be made for the idiosyncrasies of memories. A great master of legal logic thus speaks : " There are things which pass every day, which make no impression on the mind of one man, but wliich do make an impression on the mind of another. Men dine at the same mess or table, something occurs in the course of the conversation ; one man remembers it, the other does not think of it any more, and the next morning it is forgotten. One man recollects some event in his past life, more or less important, or more or less trivial, which some one else present at the same time, if you were to ask him about it, would have no knowledge of or recollection of at all. Of all the unfathomable mysteries which the human mind presents, there is none in my view so astonishing as the faculty of memory, especially in the matter to which I am now adverting ; that is how some things compara- tively trivial remain indelibly impressed on the recollection, while others, far more important, fade away into the darkness of eternal night, and are totally and entirely forgotten. It would not be fair, therefore, to say, ' Here are half a dozen people who were present with you on a certain occasion, and they all recollect a certain fact. If you do not remember it you cannot be the man.' Still less just would it be if each of those individuals were allowed ! See observations as to comparative accuracy in this respect, supra, §§ 9, 11, 72. 355 § 411. J THE LAW OF EVIDENCE. [BOOK H. to pick out some peculiar circumstance which has remained im- pressed on his individual memory, and then, because the man did not recollect all that the six persons recollected, it should be said, ' Oh, you cannot be the man.' I quite agree, we must not deal with a man in that way ; it would be unfair and unjust to do so ; but there are things which it is next to impossible any one should forget, and in respect of those things we are entitled to require that a man should exhibit some knowledge, when you know that they happened to a person whom he represents himself to be. Yet even here we must be on our guard ; for even things of im- portance, things that you would have expected to remain im- pressed on a man's memory, often pass away and are forgotten ; but if you find that a multitude of circumstances such as you cannot reasonably believe that a man could have forgotten are unknown, a very different case presents itself." ^ But no matter how uncertain a witness's memory may be, or may be admitted to be by himself, or may be proved to be,^ this, it must be men- tioned in addition, goes to his credibility, not his competency.^ § 411. Fabricators deal usually with generalities, avoiding cir- Wantof cumstantial references which may be likely to bring stantiaiity their statements into collision with other evidence. A fofdia-^ careful avoidance of details, when persisted in during credit. cross-examination, was one of the causes of the break- ing down of the witnesses against Queen Caroline ; and such avoidance is always suspicious.* The conclusion, however, is not one of technical jurisprudence, but of psychology. Events of remote date we cannot expect a witness to remember in detail ; and some portion, at least, of such circumstances we must be pre- pared to find lost in haze. If involving matters of deep inter- 1 Cockburn, C. J., charge in Tich- * See supra, §§ 8 e< sey. ; Spicott's borne case. case, 5 Rep. 68; Presbytery of Auch- 2 Isler V. Dewey, 75 N. C. 466. terarder v. Kinnoul, 6 CI. & P. 698; Supra, § 402. Walker w. Blassingame, 17 Ala. 810; » Lewis V. Ins. Co. 10 Gray, 508; Cornet v. Bertelsmann, 61 Mo. 118. Kuntzman v. Weaver, 20 Penn. St. " Dolosus versatur in generalibus, — 422. a person intending to deceive deals Expert testimony in a case where in general terms, — which has been a witness, who is a paralytic, is pro- adopted from the civil law, and is duced, is admissible as to paralysis frequently cited and applied in our affecting memory. Lord v. Beard, courts." Broom's Legal Max. 289. 79 N. C. 5. 866 CHAP. VIII.] WITNESSES : CIRCUMSTANTIALITY, ETC. [§ 412. est to the witness they may be remembered in their efiEects, but not ordinarily in their particulars. A minute specification of details, as to very distant events, in which the witness had no personal interest, does not enhance credit ; ^ its absence, as to such events, does not detract from credit.'^ But as to matters which the witness, under ordinary circumstances, would remember, the test fairly applies. § 412. Falsum in uno, falsum in omnibus, is a maxim which is proper in cases in which the special falsity is of a „ , nature to imply falsity as to the whole case ; ' or when «no does the contradictions are so numerous as to show imbecil- lately dis- ity of memory.* The maxim, however, should not be '^'^ ' ' pressed beyond this limit. There are instances, in connection even with an examination in chief, in which a witness may swear falsely in a particular line, and yet with such truthfulness as to the rest of the case that it would work injustice to throw out his testimony entire. It is said, for instance, to be as much a point of honor for an adulterer to shield his paramour under oath, as it is to shield her in conversation.^ So a witness's personal as- sumptions may be false while his relation of external objects may be true. The Chevalier D'Eon, for instance, frequently tes- tified as a woman, but was ultimately proved to be a man ; but the Chevalier D'Eon's evidence on the witness stand was not thereby invalidated as a whole.^ To cross-examinations these observations are peculiarly applicable. A witness, whom it may be attempted to disgrace, may swear falsely as to some sore point in his history whict may be touched, yet truly as to the rest of the case. On account of such falsity it would be a perversion of justice to reject the rest of his evidence. It may be proper to 1 Willet w. Fister, 18 Wall. 91; 23 Ga. 297; Ivey «. State, 23 Ga. 576; Parker v. Chambers, 24 Ga. 518; Pierce v. State, 53 Ga. 865; State v. Chandler v. Hough, 7 La. An. 441. Mix, 15 Mo. 153 ; Paulette v. Brown, 2 Fulton V. Macracken, 18 Md. 538; 40 Mo. 52 ; Brown v. R. R. 66 Mo. State V. Cowan, 7 Ired. L. 239 ; Black 588 ; Troxdale v. State, 9 Humph. V. Black, 38 Ala. 111. Infra, §§ 413, 411. 514. •* Evans v. Lipscourt, 31 Ga. 71. " Hargraves v. Miller, 16 Ohio, 338 ; ' Infra, §§ 419, 433. StofFer v. State, 15 Ohio St. 47 ; State ' See article in Gentleman's Mag. V. Wells, 46 Iowa, 662 ; Richardson v. for May, 1877; Broglie's Secret duRoi, Roberts, 23 Ga. 215; Smith v. State, Paris, 1878; and see infra, § 1080. 357 § 412.] THE LAW OF EVIDENCE. [BOOK U. punish the witness for his perjury; it would not be proper to punish the party innocently calling the witness by refusing to be- lieve what was true in the witness's testimony. Nor would it be right to tell a jury, who are sworn to determine a case according to the evidence, that they are to reject that which is probably true in the testimony of a witness because that testimony con- tains something that is probably false. Falsa demonstratio non nocet, is a maxim of universal application, so far as it means that we may reject as surplusage a false description that is not vital to the object of controversy.^ It should be remembered, also, that to decide that a statement is "wilfully" false requires a fuller exhibition of evidence than can usuallj^ be collaterally given. Hence it is that the maxim, Falsum in uno, falsum in omnibus, does not generally hold good except in cases where the party calling the witness is cognizant of the falsehood, or where the falsehood goes to the core of the witness's testimony.^ A fortiori is this the case where the misstatement is inadvertent or attributable to the ordinary fluctuations of memory.^ Nor, when we undertake to test credibility by this standard, should we fail to temember that persons vary very much as to their capacity for remembering details. By some, the recalling of numbers, and of words as previously spoken or written, is a task which can rarely be accomplished; and a vehement effort thus to recall specific words or figures, instead of stimulating, rather distracts the memory. Very few persons can recall the precise terms of a written paper they have not committed to memory ; and a failure by a witness to recall such precise terms is what we 1 Broom's Legal Maxims, 629 ; and Pierce «. State, 53 Ga. 365; Laven- see infra, § 945. burgh v. Harper, 27 Miss. 299 ; State " See, generally, Turner u. Foxall, i>. Elkins, 63 Mo. 159; Brown w. R. R. 2 Cranch C. C. 324; Lewis v. Hodg- 66 Mo. 538; People v. Strong, 30 Cal. don, 17 Me. 267 ; Parsons v. Huff, 41 151. Me. 410; Brett v. Catlin, 47 Barb. » Giltner v. Gorham, 4 McLean, 404; Koehucke «. Ross, 16 Abb. (N. 402; Miller e. Stem, 12 Penn. St. Y.) Pr. N. S. 345 ; Meixsell v. Wil- 883; Brennan v. People, 15 111. 511; liamson, 35 111. 529; GuUiher v. Pec- Crabtree w. Hagenbaugh, 25 III. 233; pie, 82 111. 145 ; Callanan v. Sbaw, 24 Blanchard v. Pratt, 37 111. 243 ; Shanks Iowa, 441; Mercer v. Wright, 3 Wis. v. Hayes, 6 Ind. 59; State v. Peace, 1 645 ; State v. Williams, 2 Jones (N. Jones (N. C.) L. 251 ; Jones v. La- C.) L. 257 ; State v. Brantley, 63 N. ney, 2 Tex. 342; Yoes v. State, 9 Ark. C. 518; State v. Brown, 76 N. C. 222; 42. 858 CHAP. VIII.] WITNESSES : CIRCUMSTANTIALITY. [§ 414. should expect, and it should not therefore be permitted to dis- credit the witness. 1 § 413. If several persons are sent to report the proceedings of a public meeting, and if, without pretending to be Lif^^^i ^^ perfect stenographers, they should bring in reports of incidence proceedings and speeches exactly coincident, we would statements say, " either all the reports are fabrications, or one re- for sus- port is the original from which the others were copied." P'"°°' To witnesses called, not because they had previously been sent to make a report, but because it transpired subsequently that they had been at the meeting in question, these observations apply with even greater strength. As such witnesses are under oath, we would have a right to say, " The whole testimony bears the marks of concoction ; to all but one of the witnesses, at least, per- jury is assignable.''^ "Substantial truth, under circumstantial variety," is the true test of reliable testimony ; ^ and the circum- stantial variety expands or contracts in multiplicity in proportion as the witness examined has margin of observation, and is left to his own faculties to reproduce what he sees or hears. If two sheets printed from the same type should differ even in a comma, we should attribute it to carelessness in the printer, and the va- riation would cause us some surprise. On the other hand, we would be still more surprised if two persons, who had read the same page a week ago, and who were not charged with com- mitting it memoriter, should repeat it to us word for word, and comma for comma. It is in this sense that we are to understand Aristotle's famous axiom, Tu ft-h yap aX-qda -navra CTUVoSet ra virap- \ovTa, Tw 8c i/icvSet ra^v Siacjiavei TahqBi's. As to suhstance,, harmony is one of the conditions of truth ; as to form, wherever there are veracity and liberty there is variety. § 414. Evidence in criminal issues not being within the range of the present work, it is unnecessary to dwell on the One wit- limitations by which in treason and in perjury two wit- CTau/°°" nesses have been regarded as necessary to a conviction.* pj^f^'" In civil issues, with but few exceptions, a case can be <=ase. 1 Jackson v. McVey, 18 Johns. E. ' Paley's Evidence, part iii. ch. i. 330. Supra, § 410. * See Whart. Cr. Law, tit. " Evi- * See Greenl. Test, of the Evangel, dence," in which these topics are §134; Brougham's Speeches, i. 215. treated. 359 § 414. J THE LAW OF EVIDENCE. [BOOK II. made out by a single witness. In case of bastardy, however, it is necessary, to sustain an order of affiliation, that the evidence of the mother should be corroborated, in some material particular, by other testimony.^ In equity suits, as we will see hereafter,^ when a defendant denies the plaintiff's case in toto, it requires something more than a single witness to sustain the plaintiff's case.^ Under the New York Code, a verified answer is not evi- dence, and hence two witnesses are not necessary in a case where there is a verified answer, in the pleadings, denj'ing the plaintiff's case.* In divorce cases, the testimony of a party, uncorroborated, has been held insufficient to establish adultery.^ It should at the same time be remembered that we have derived this limitation from the English ecclesiastical courts, whose jurisdiction is now reduced almost to a nullity, and whose judges considered them- selves bound by canon law to refuse a decree upon the testimony of a single witness, unless supported by "adminicular circum- stances." ^ " This doctrine was in former days productive of much injustice ; " ^ and is now abandoned even as to divorce cases by the statutory prescription of the rules of evidence ob- served in the superior courts of common law.^ In this country, while the limitation was never accepted as absolute,^ the better opinion, as is elsewhere stated, is, that whenever corroboration is from the nature of the case practical, there a divorce will not be granted on the unsupported testimony of a party.^" In suits based on the supposed perjury of the defendant, as 1 R. V. Roberts, 2 C. & K. 614; v. Black, 26 N. J. Eq. 481 ; Bronson Hodges V. Bennett, 5 H. & N. 625 | v. Bronson, 8 Phila. R. 261 ; Hays o. R. 1). Read, 9 A. & E. 619. Hays, 19 Wis. 182; Fugate v. Pierce, « Infra, § 487. 49 Mo. 446. ' See strong expressions to this ef- " See Taylor's Ev. § 88S, citing feet in Down v. Ellis, 35 Bear. 578 ; Donellan v. Donellan, 2 Hagg. Ecc. R. Nunn V. Fabian, 35 L. J. Cli. 140; 144; Simmonds u. Simmonds, 5 Ec. & Hartford v. Power, 8 I. R. Eq. 602 ; Mar. Cas. 324 ; Hutchins v. Denziloe, Abbott V. Case, 26 N. J. Eq. 187. 1 Const. R. 181. As to practice when parties are ex- ' Taylor's Ev. § 883. amined as witnesses, see infra, § 487. » See U., falsely called T., v. J., L. * Stilwell V. Carpenter, 62 N. Y. R. 1 P. & D. 461. 639. 8 Bishop Mar. & Div. § 278. « Thayer v. Thayer, 101 Mass. Ill ; "See infra, § 433. Tate V. Tate, 26 N. J. Eq. 55 ; Black 360 CHAP. VIII.] WITNESSES : NUMBER REQUIRED. [§ 415. much, evidence, it has been said, is required to sustain a verdict as is required in prosecutions for perjury.^ So, when a witness is a particeps criminis his testimony, with- out corroboration, is entitled to little weight,^ but a witness de- nying complicity is not an accomplice in this sense.^ Parties, as will hereafter be seen, being now admissible as wit- nesses, the question as to the weight of a party's testimony, when given in response to a bill in chancery, may be regarded as settled. A party is now to be received as would be any other witness, and his credibility is for the jury as is that of other wit- nesses.* With the qualifications above noticed, a verdict may be rested on the testimony of a single witness. How far such testimony is to be believed is to be determined by the circumstances of the particular case. The presumptions to be invoked are of fact and not of law. In cases where the statements of the wit- ness are improbable, or are those of a particeps criminis, slight credit will be given ; ^ in other cases, where a witness's character is unimpeached, and no attempt is made to contradict him, his single testimony is enough to prove a case.® § 415. It is an ordinary conclusion of logic that the testimony of a credible witness, that he saw or heard a particu- Affirma- lar thing at a particular time and place, is more reli- morly^^s'' able than that of an equally credible witness who, with stronger _■'•■'_ _ ' than nega- the same opportunities, testifies that he did not see or tive. hear such thing at such time and place.'' It should be added, ^ Laughran v. Kelly, 8 Cush. 199. 489; and see Sugden v. St. Leonards, " Whart. Cr. Law, tit. « Perjury." cited supra, §§ 138-9. But the rule requiring corroboration ' Stitt v. Huidekopers, 17 Wall. is not applicable to civil issues. Kalck- 384 ; Sutherland v. B. R. 41 N. Y. hoft'u Zoehrlant, 43 Wis. 473. 17; Seibert v. R. R. 49 Barb. 583; " Pollock V. Pollock, 71 N. Y. 137. Longhlin v. People, 18 111. 266 ; Chic, * See infra, § 490. &c., R. R. v. Stumps, 53 111. 367 ; « Sunday v. Gordon, Blatch. & H. Ralph v. R. R. 32 Wis. 177; Johnson 669; Lyon v. Lyon, 62 Barb. 138; v. State, 14 Ga. 55; Todd v. Hardie, Donohue v. Henry, 4 E. D. Smith, 5 Ala. 698 ; Pool v Devers, 30 Ala. 162; Prince v. Prince, 25 N. J. Eq. 672; Hepburn v. Bk. 2 La. An. 1007; 310; Kittering v. Parker, 8 Ind. 44; Auld». Walton, 12 La. An. 129; State Blankman v. Vallejo, 15 Cal. 638 ; v. Gates, 20 Mo. 400 ; Coles v. Perry, Evans V. Evans, 41 Cal. 103. 7 Tex. 109. See Salter v. R. R. 59 • See Ford v. Haskell, 32 Conn. N. Y. 631; Culhane v. R. R. 60 N. Y. 133. 361 § 415.] THE LAW OF EVIDENCE. [BOOK n. ho-wever, that the weight to be attached to the negative witness depends upon the exhaustiveness of his observation. Put an in- telligent and credible witness in a small chamber, open through- out to his scrutiny, and his testimony that in that chamber, at a given time, an event did not occur which could not have occurred without his observation, is entitled to the same weight as that of a witness who, equally intelligent and credible, should swear to the occurrence of the event at the same time.^ A negative witness, also, whose attention is concentrated on a particular point, may outweigh an affirmative witness whose attention has not been so concentrated.^ On the other hand, as the space cov- ered by a negative witness becomes undetermined, his testimony loses in weight.* Thus a witness who swears that a party did not receive value for a promissory note cannot counterbalance a witness who swears to a transaction transferring such value.* And when the negative does not in any point strike that which it purports to contradict, it may become irrelevant." " One of the errors assigned and in- sisted on grows out of the conflict in the testimony between the plaintifif and the two defendants, all of whom were sworn as to two papers, which the defendants aver were signed by them and delivered to the plaintiflF at the time the escrow was signed, one of which limited the time within which the plaintiff could pay the money and take up the deed to the 1st of Decem- ber, and the other agreed to give him $2,500 out of the $40,000 so paid. No such papers were produced, and on this point the testimony is conflicting. The plaintiff denies the receipt of any such papers, and both the defendants swear positively to their delivery to plaintiff. " On this subject the court charged the jury ' that it is a rule of presump- tions that ordinarily a witness who testifies to an affirmative is to be pre- ferred to one who testifies to a neg- ative, because he who testifies to a negative may have forgotten. It is possible to forget a thing that did 362 happen. It is not possible to remem- ber a thing that never existed.' " We are of opinion that the charge was a sound exposition of a recog- nized rule of evidence of frequent ap- plication, and that the reason of the rule, as stated in the charge, dispenses with the need of further comment on it here." Miller, J., Stitt v. Huide- kopers, 17 Wall, 393, 394. > Johnson v. Whidden, 32 Me. 230; Campbell v. Ins. Co. 98 Mass. 881; Pollen «. LeRoy, 10 Bosw. (N. Y.) 38; Coughlin V. People, 18 111. 266; Green- ville V. Henry, 78 111. 160 ; Blakey v. Blakey, 33 Ala. 611; Fox v. Mat- thews, 38 Miss. 433 ; State u. Gates, 20 Mo. 400. See Sobey v. Thomas, 39 Wis. 317; Bemis v. Becker, 1 Kans. 226. ^ Beeves v. Poindexter, 8 Jones (L.) N. C. 308; Rockford K. R. f. Hillmer, 72 111. 235. « Abel u. Fitch, 20 Conn. 90 ; Thomas w.De Graffenreid, 17 Ala. 602. * Matthews v. Poythress, 4 Ga. 287. ' Chambers v. Hill, 34 Mich. 623. CHAP. VIII.J WITNESSES : CREDIBILITY. [§ 417. § 416. Supposing, however, the witnesses on the one side are equal in intelligence, opportunities of observation, when memory, and truthfulness, to the witnesses on the other "ftnesses side, what rule is to be followed ? Indubitably, in such " eSonder- case, the decision should follow the greater number ^'^'^^ *-° •>« J. . , . . . given to of Witnesses, when the disproportion is marked. Two number, witnesses, all other things being equal, are less likely to be mis- taken than one.i Where, however, the numbers on each side are large, no artificial rule of this order can be applied.^ Nor should it be forgotten that one witness, corroborated by facts or doc- uments, may outweigh a multitude whose testimony may have been the result of imperfect observation, or have been influenced by prejudice.^ § 417. Credibility, based upon such considerations as those just noticed, is, it should be always remembered, for the Credibility jury, under such instructions, as to the reason of the '^*<""J"''y- case, as may be given by the court. It should at the same time be equally kept in mind that the presumptions usually in- voked in this relation are presumptions of fact, based on free logic, and are not presumptions of technical law.* It need scarcely be added that the importance of applying psychological tests, resting on the motives which may lead a witness to deceive. See State v. Phair, 48 Vt. 366 ; Ben- 78 111. 481 ; Angelo v. Faul, 85 111. 106; nett V. State, 52 Ala. 192. Stampofski v. Steffins, 79 111. 303 ; 1 See Dowdell i>. Neal, 10 Ga. 148. Evans v. George, 80 111. 51; Hart- 2 Cockburn, C. J., in Tichborne ford Ins. Co. v. Gray, 80 111. 28 ; case; M'Lees v. Felt, 11 Ind. 218; Chevinger u. Curry, 81 111. 432; Green Glenn v. Bank, 70 N. C. 191 ; Hub- v. Cochran, 43 Iowa, 545; State v. bard v. Kankin, 71 111. 129. See Smallwood, 75 N. C. 104 ; Kinchelow Sanborn v. Babcock, 33 Wis. 400; i/. State, 5 Humph. 9; Ridley ». Ridley, Byrne v. Myers, 1 Wy. 352. 1 Coldw. 323; Shellabarger v. Nafus, * See supra, § 8; and see Rudolph 15 Kans. 547; Hardee v. Williams, 30 V. Lane, 58 Ind. 115; McCrum v. Ga. 921; City Bank v. Kent, 57 Ga. Corby, 15 Kans. 112. 253; Moore v. Jones, 13 Ala. 296; * Supra, § 124; Ray w. Donnell, 4 Comstook v. Rayford, 20 Miss. 369. McLean, 504 ; Brutus v. Tisdall, 4 Among these presumptions may be Barb. 571; Prowattain u. Tindall, 80 noticed those drawn from the wit- Penn. St. 295; Harrison v. Brock, 1 ness's manner. Ibid. And see Hus- Munf. 22; French v. Millard, 2 Ohio ted u. O'Donnell, 118 Mass. 424; Chi- St. 44; Lewis v. Lewis, 9 Ind. 105 ; cago R. R. v. Bert, 69 111. 388. Corn- Terry V. State, 13 Ind. 70; Nelson v. pare particularly infra, §§ 1237 et seq. Vorce, 55 Ind. 455 ; Paton v. Stewart, 363 § 419.] THE LAW OF EVIDENCE. [BOOK II. or the character which deprives him of trustworthiness, is en- hanced by the statutory removal of disqualification from interest, from infancy, and from atheism. § 418. When the court is satisfied that a witness is so drunk Intoxi- as to be unable to testify, he may be excluded, or his catedwit- examination postponed till he is sober.^ But to exclude nesses in- ^ Jr competent, a witness it is not sufficient that he has been found to be a habitual drunkard, under the statute.^ Proof that a wit- ness was drunk at the time of the event to which he testifies may be introduced to discredit him.^ The use of opium cannot be introduced to impair credit, unless it be shown that the witness was under the influence of opium when examined, or when the litigated event occurred.* § 419. It is unnecessary at present to do more than allude to -_.. the reasons which have led, both in England and the Witnesses _ ° no longer United States, to the abrogation of the old common- disqaah- , , ,. . , . ^m ■ fiedbyin- law rule excluding interested parties, ihe impolicy of such exclusion has been shown by Mr. Bentham, Mr. Best, and Mr. Edward Livingston with a force and copiousness -which leave little to be done by those who follow in the same line.^ We have already noticed the untruth of the assumption that a pecuniary interest is stronger than other interests ; and the same reasoning^ that leads to the rejection of witnesses in one case of interest would justify their rejection in all other cases of interest. Yet if all kinds of interest should disqualify wit- nesses, few witnesses could be sworn, for there are few witnesses who in some way are not interested in the cases as to whiqji they are called upon to testify. As, therefore, it is impossible to ex- clude all interested witnesses, the question arises why pecuniary interest alone should disqualify. Love of money is a powerful passion ; but it does not follow that love of money is of all pas- sions the most effective in causing a witness to speak untruth- 1 Hartford v. Palmer, 16 Johns. K. ' Supra, § 401. 143; Gould V. Crawford, 2 Barr, 89 ; * McDowell v. Preston, 26 Ga. 528. State V. Underwood, 6 Ired. 96. That As to insane witnesses, see supra, drunkenness or other stupefaction at §§ 401, 402. the time of the event may be put in » j^^. Livingston's argument will evidence to affect credibility, see su- be found in the second volume of his pra, § 401. Works (ed. 1878), pp. 424 et seq. ^ Gebhart v. Shindle, 15 S. & R, 235. • Supra, § 408. 364 CHAP. VIII.] WITNESSES : INTEREST NO DISQUALIFICATION. [§ 419. fully. Men dealing with money are likely to be more exact in their words than those not accustomed so to deal. A busi- ness man knows that he has to pay such penalties for exag- geration that, as a usual thing, he refrains from exaggeration. A business man who does not keep his word is disgraced, and ceases to be a business man. Such men hold truth peculiarly sacred, not simply from the love of truth, but because falsehood to them is ruin. By the English common law, however, a busi- ness man with an interest of a penny in a case is excluded, while a witness who is bound to one of the parties by the most passion- ate ties is nevertheless a witness for such party. Who, for in- stance, is more likely to swear for another through thick and thin than an associate in a raid which strongly excites partisan sympa- thy ? Nor does this spring necessarily from a conscious desire to pervert truth. In collision cases, for instance, all the witnesses may be honest; yet there are few collision cases, as has been already noticed, in which each witness does not swear with his ship.i In riots, also, in which the responsibility of two warring factions is involved, it is notorious that the witnesses belonging to each faction swear together, even in respect to issues as to which it is impossible to give credit to the one body of witnesses without imputing perjury to the other body. Party spirit, to as- cend to a higher line of illustration, makes us unwilling to see, and, a fortiori, unwilling to narrate, that which is disadvantage- ous to those to whom we are attached ; and even if our percep- tions are not thus affected, between a willing and an unwilling witness the practical difference is great. And stronger than party spirit are to be reckoned those strong family instincts which render the parent ready to make great sacrifices on behalf of the child, the child on behalf of the parent, the brother on be- half of the brother. Attachments such as these may take hold of weak minds and so warp them as to make them unconscious of the falsity of their false statements, while the influence wrought by a pecuniary interest is usually one of which the witness him- self is conscious ; and he belongs to a class peculiarly susceptible to the difference between the true and the false, which is the most exposed to ruin from speaking falsehood, and which is obliged to attach peculiar sanctity to truth. This line of reason- 1 See supra, § 405. 365 § 420.] THE LAW OF EVIDENCE. [BOOK II. ing, coupled with a growing consciousness that the truth, in ju- dicial investigations, is best brought out by the exhibition of all relevant testimony, has led to the now universal statutory abro- gation of the old rule excluding parties and persons having a pecuniary stake in the issue.-'^ § 420. It has been doubted whether a lawyer who, in any Counsel in Capacity, has addressed a jury in a cause, may be per. be^wi™*^ mitted to testify in the same cause as a witness ; ^ nesses. though as this might in extraordinary cases work in- justice, the exclusion should be confined to those instances in which the attempt is recklessly and unnecessarily to unite the functions of counsel and witness.^ The mere fact that the case has been opened by an attorney, who has previously cross-exam- ined witnesses on the other side, does not make him incompetent as a witness for his client.* Where, however, counsel thus be- come witnesses, it may be a proper exercise of the discretion of the court to prohibit them from subsequently addressing the jury on the case thus made up ; and the testifying of the counsel should be confined to extreme cases as to which there is no other proof.^ But, as a general rule, a lawyer is a competent witness in a case he is trying or directing.® ^ See Sorg v. First German Cong. v. Corker, 25 Ga. 479 ; Hines v. State, 63 Penn. St. 156; Forrester v. Tor- 26 Ga. 614; Sharman v. Morton, 31 rence, 64 Penn. St. 29; Knerr v. HofB- Ga. 34. man, 65 Penn. St. 126; Dailey v. « Potter u.Ware, 1 Cush. 519; Tul- Monday, 32 Tex. 141. locku. Cunningham, 1 Cow. 256; Folly " Stones V. Byron, 9 D. & L. 393; v. Smith, 7 Halst. 139; Bell u.Bell, 12 Deane v. Packwood, 9 D. & L. 395; Penn. St. 235; FoUansbee v. "Walker, Carrington v. Holabird, 17 Conn. 72 Penn. St. 230 ; Morgan u. Roberts, 530; Quarles v. Waldron, 20 Ala. 38 111.65; Abbott v. Striblen, 6 Iowa, 217. ■ 191; State 1*. Woodside, 9 Ired. 496; ' State V. Cook, 23 La. An. 847. Morrow v. Parkman, 14 Ala. 769; See Tilton v. Beecher, Pamph. Eept., Grant's Succession, 14 La. An. 795. for an illustration of a case in which " On the trial of this case, A. S. such testimony was admitted. Foster, Esq., was offered as a witness * FoUansbee v. Walker, 72 Penn. on the part of the defence, objected St. 228. to by the plaintiff's counsel, and re- ' See Cobbett v. Hudson, 1 E.& B. jected by the court for the following 11 ; Ross V. Demoss, 45 111. 447; Mad- reason : ' Mr. Foster is attorney for den V. Farmer, 7 La. An. 580; Boissy the defendant FoUansbee, opened the u. Lacou, 10 La. An. 29. As to Georgia case for him to the jury, and exam- statute, excluding attorneys from tes- ined the witnesses for said defendant, tifying for their clients, see Churchill and the court on this ground excludes 366 CHAP. Vni.] WITNESSES: HUSBAND AND WIFE. [§ 421. V. DISTINCTIVE RULES AS TO HUSBAND AND WIFE. § 421. Where the relation of husband and wife under the local law makes either incompetent as a witness for or against Husband the other, it is necessary, to work such incompetency, competent that a valid marriage should be proved. Primd facie ™i^^f^ every person is competent to testify in all issues ; if he ^"'^^ ^' •^ ^ ^ •> ' common is to be excluded by the policy of the law, the burden law. him as a witness.' This is assigned for error. "In Frear v. Drinker, 8 Barr, 621, Mr. Justice Rogers says : ' It is also contended an attorney is not a compe- tent witness for his client. In Eng- land, it has been lately ruled that an attorney is not to give evidence under certain circumstances.' He cites two cases before Mr. Justice Patteson and Mr. Justice Erie, and he says, ' The farthest the court has yet gone is to discourage the practice of acting in the double capacity of attorney and witness, but there is nothing to pro- hibit an attorney from being a witness for his client, when he does not ad- dress the jury. It is said, and I agree, that it is a highly indecent practice for an attorney to cross-ex- amine witnesses, address the jury, and give evidence himself to contradict the witnesses. It is a practice which, as far as possible, should be discoun- tenanced by courts and counsel. But these cases are not open to this objec- tion, because it appears negatively that the counsel did not address the jury. It is sometimes indispensable that an attorney, to prevent injustice, should give evidence for his client.' In the earlier cases in Pennsylvania, the objection to the examination of the attorney in the cause was his in- terest in it, as in the case of the late Judge Baldwin, in Miles v. O'Hara, 1 S. & R. 32, in 1814. In the first case, Newman v. Bradley, 1 Dallas, 240, in the year 1788, Howell, who was of counsel for the plaintiff, gave the chief evidence to support the action, and he and Tod argued the cause before the jury, and there was a verdict for the plaintiflf. ' "When Howell offered himself as a witness. Levy objected that he was interested, inasmuch as his judgment fee depended on his success in the cause. But the objec- tion was overruled by the court.' The two English cases cited by Judge Rog- ers have since been overruled. Pitt Taylor, in the second volume of his Treatise on the Law of Evidence, p. 1170, § 1240, 4th ed., thus states the law: 'The judges at nisi prius were at one time inclined to regard as in- competent to testify all persons, wheth- er counsel, attorneys, or parties, who, being engaged in a cause, had actually addressed the jury on behalf of that side upon which they were afterwards called to give evidence. Further in- vestigation of the subject, however, has led to a judicial acknowledgment that no such practice exists.' The au- thority for this, Corbett v. Hudson, 22 L. J. Q. B. 11, 1852, the judgment of the court (of which Mr. Justice Erie was one) being delivered by Lord Campbell, C. J. " The question may, therefore, be considered as settled in England and Pennsylvania, and also in Massachu- setts. Potter V. Inhabitants of Ware, 1 Cush. 519. There was, therefore, error in holding Mr. Foster was not 367 § 421.] THE LAW OF EVIDENCE. [book II. is on the party objecting to him to show the reason for such ex- clusion. Intimate sexual relations do not constitute such reason, even though disguised by a pretended though invalid marriage.^ Where a man and a woman lived, as they supposed, as husband and wife, but separated, in consequence of the woman discover- ing that a former husband, believed to be dead, was still alive, it was held that the woman was a competent witness against such a man, with whom she thus lived as a second husband, even as to facts she learned from him during their cohabitation.^ For when a former existing marriage is conceded, no subsequent mar- riage, no matter how solemn, can operate to invest witnesses with incapacities which a valid marriage alone can establish.^ a competent witness." Read, C. J., FoUansbee v. Walker, 72 Penn. St. 230. By the Roman law no attorney is permitted to testify as to a matter in which he is professionally employed, and this prohibition includes all con- fidential professional agents. See L. 25, D. xxii. 5 ; and see HefEter, Civil Proc. 205. Prioilege in professional communica- tions is hereafter discussed. Infra, §576. 1 Batthews v. Galindo, 4 Bing. 610; S. C. 3 C. & P. 238; Campbell v. Twemlow, 1 Price, 31 ; DivoU v. Lead- better, 4 Pick. 220; People v. Mc- Craney, 6 Parker C. R. 4!) ; State v. Taylor, Phill. (N. C.) L. 508; Flana- gin V. State, 25 Ark. 92. In Utah privilege has been held to attach to a " plural " wife. Friel v. Wood, 1 Utah, 160. » Wells V. Fletcher, 5 C. & P. 12; People V. McCraney, 6 Parker C. R. 49. = R. V. Serjeant, Ry. & M. 854 ; R. V. Jones, C. & M. 614; R. v. Madden, 14 Up. Can. Q. B. 588; State v. Pat- terson, 2 Ired. 346; Finney v. State, 3 Head (Tenn.), 544; State ». John- son, 12 Minn. 476. It is said that Lord Kenyon once 368 rejected a woman, called as a witness for a putative husband, to whom she was never married, but who acknowl- edged her as his wife; Anon., cited by Richards, B., in 1 Price, 83; but in that case the criminal had, throughotit the trial, admitted that the witness was his wife, and was thus in a manner estopped from denying the marriage when her competency was questioned; and in the subsequent case of Bat- thews V. Galindo, 4 Bing. 610, 612, 613 ; 3 C. & P. 238, and 1 M. & P. 565, S. C, where Lord Kenyon's rul- ing was discussed. Park and Bur- roughs, JJ., declared that his decision was founded on this admission, and the whole court determined that a kept mistress was a competent witness for her protector, though she passed by his name and appeared to the world as his wife. The same view was after- wards taken even as to confidential communications between persons un- truly believing themselves husband and wife; though in the latter case the parties had separated before the trial, on hearing that a former hus- band of the woman was still alive. Wells V. Fletcher, 5 C. & P. 12, per Patteson, J. ; S. C. nam Wells v. Fisher, 1 M. & Rob. 99, and n. It seems, also, from this last case, and CHAP. VIII.] WITNESSES : HUSBAND AND WIFE. [§ 423. § 422. Marriage, however, being proved, neither husband nor wife is competent at common law to testify in a suit for or against the other,^ nor can either be admitted as a witness to sustain the other's interests.^ An exception to this rule exists in prosecutions for violence committed by husband on wife, in which cases the wife may be examined as a witness against the hua- band,3 or for him.* § 423. In cases in which a party could be a witness for himself, from several others ; R. v. Peat, 2 Lew. Fisher, 22 Wis. 93 ; Osborn v. Black, C. C. 288 ; R. V. Wakefield, Ibid. 279; 1 Russ., C.-& M. 218, n. t ;' that a sup- posed husband or wife may be exam- ined on the voire dire to facts show- ing the invalidity of the marriage ; and it is apprehended that no valid reason can be given for not admitting their evidence thus far, though the fact that the marriage ceremony has been actually performed may have been previously proved by independ- ent testimony ; R. v. Bramley, 6 T. R. 330; R. V. Bathwick, 2 B. & Ad. 646, where Lord Tenterden observed, " that it might well be doubted, whether the competency of a witness can depend upon the marshalling of the evidence, or the particular stage of the cause at which the witness may be called." Taylor's Ev.§ 1231. 1 R. V. Smith, 1 Mood. C. C. 289 ; R. V. Payne, 12 Cox C. C. 110 ; State V. Welsh, 26 Me. 30 ; Kelley v. Proc- tor, 41 N. H. 139; Blain v. Patterson, 48 N. H. 151; Manchester v. Man- chester, 24 Vt. 649 ; Seargent ». Sew- ard, 31 Vt. 509 ; Com. v. Marsh, 10 Pick. 57; Lucas v. State, 23 Conn. 18; Bird v. Davis, 14 N. J. Eq. 467; Copous V. Kauffman, 8 Paige, 583 ; Hasbrouck v. Vandervoordt, 9 N. Y. 153; Snyder v. Snyder, 6 Binney, 488; Pringle v. Pringle, 59 Penn. St. 281; Miller v. Williamson, 6 Md. 219; Corse V. Patterson, 6 Har. & J. 153; Rose V. Brown, 11 W. Va. 122 ; Kyle V. Frost, 29 Ind. 382; Taulman v. State, 37 Ind. 353 ; Mountain v. VOL. I. 24 Speers (S. C), 431 ; Barclay v. War- ing, 58 Ga. 86; Williams v. State, 44 Ala. 24; TuUey v. Alexander, 11 La. An. 628; State v. Berlin, 42 Mo. 572; Haerle v. Kreihn, 65 Mo. 202; Smead v. Williamson, 16 B. Mon. 492; Milton V. Hunter, 13 Bush, 163; Gil- key V. Peeler, 22 Tex. 663; White- head V. Foley, 28 Tex. 268. In Wisconsin by statute a wife who is her husband's agent is a competent witness for him as to facts in the con- duct of such agency ; Chunot v. Lar- son, 43 Wis. 536, but is not otherwise a competent witness for him. Marsh V. Pugh, 43 Wis. 597. 2 Dwelly V. Dwelly, 46 Me. 377; Hosack V. Rogers, 8 Paige, 229 ; Marsh- man V. Conklin, 1 7 N. J. Eq. 282; Cobb V. Edmondson, 30 Ga. 30 ; Caperton V. Callison, 1 J. J. Marsh. 397 ; Wil- son V. Sheppard, 28 Ala. 623 ; Cull V. Herwig, 18 La. An. 315. See the authorities for this rule in its criminal relations in Whart. Cr. Law, tit. " Evi- dence." Where a defence is joint, the wife of one defendant is not admissible for the other, when she could not have been a witness for her husband. Stew- art V. Stewart, 41 Wis. 624. 8 Whart. Cr. Law, tit. " Evidence ; " R. V. Sergeant, R. & M. 352 ; People u. Fitzpatrick, 5 Parker C. R. 26. * Com. V. Murphy, 4 Allen, 491; State V. Neill, 6 Ala. 685. See State V. Bennett, 31 Iowa, 24. 369 § 424.J THE LAW OF EVIDENCE. [BOOK n. marital disqualification ceases.^ Thus, even at common law, a wife can be a witness for her husband, to prove the contents of his lost trunk in an action against the carrier.^ So a merely con- tingent reversionary interest in the husband, he not being a party, does not exclude the wife.^ So a wife may testify to her husband's original entries, when she keeps his books for him.* So in a suit brought by an infant through his procJiein ami, it is no objection to the admissibility of a witness that she is the wife of the prochein amifi So the wife, in a habeas corpus brought by her husband to obtain her custody, may testify to acts of cruelty committed by him.^ § 424. In suits in which either husband or wife is a party, But may either the man or the woman may be examined on the ness to"" ^''*'' <^*''^ ^^ *° ^^^^ marriage ; '' though to establish the prove mar- marriage, proof aliunde must be adduced. The rea- Tiage col- o'r ^ ^ _ i-ii laterally, soning is simply this : if the marriage is valid, the wit- ness is not competent; admitting that which he is offered to prove, then he is incompetent as a witness in the suit. This conclusion, however, does not apply to police or collateral in- quiries.^ Thus it has been held in Pennsylvania, that a woman is a competent witness to pro ye the contract of marriage in a pro- ceeding by the guardians of the poor to compel the alleged hus- band to contribute to her support.^ So a vrife, when her chil- 1 Jackson v. Bard, 4 Johns. R. 230; 15 Low. C. J. 181 ; Scherpf v. Szadeo- Sneckner v. Taylor, 1 Redf. (N. Y.) zky, 4 E. D. Smith, 110; Greenawalt 427; Peaceable v. Keep, 1 Yeates, u. McEnelly, 85 Penn. St. 382; Red- 576; Daniel v. Proctor, 1 Dev. (Law) grave v. Redgrave, 38 Md. 93 ; Wil- 428. Hams v. State, 44 Ala. 24. In New ^ McGill V. Rowand, 3 Penn. St. York, however, under the statute per- 451 ; Illinois R. R. v. Taylor, 24 111. mitting a wife to testify in matters af- 823; Sasseen v. Clark, 37 Ga. 242. fecting her husband, she may testify ' Dyer v. Homer, 22 Pick. 253 ; in her own behalf, in a suit of divorce Town V. Needham, 3 Paige, 546. brought by her, to prove a marriage. * Littlefield v. Rice, 10 Met. 287. Bissell v. Bissell, 55 Barb. 325. But See Perry v. Whitney, 30 Vt. 390. at common law, either husband or wife ^ Leavitt v. Bangor, 41 Me. 458; maybe a witness to prove marriage Bonett V. Stowell, 37 Vt. 258. collaterally in all cases in which proof ° People V. Mercein, 8 Paige, 47. of the marriage would not make the ' Seeley v. Engell, 13 N. Y. 542. witness incompetent. Willis v. Un- R. V. Peat, 2 Lew. C. C. 288 ; R. derhill, 6 How. N. Y. (Pr.) 396. V. Bramley, 6 T. R. 330; R. v. Bath- ° Guardians of the Poor v. Nathans, ■wick, 2 B. & Ad. 646; R. v. Bienvenu, 2 Brewst. 149. 370 CHAP. Vin.] WITNESSES : HUSBAND AND WIFE. [§ 425. dren's legitimacy is at issue, may testify to the validity of the marriage.! To invalidate a second marriage, by proving the ex- istence of a first marriage, either party is competent.^ § 425. It cannot be safely held that a wife's testimony cannot be received when it tends to criminate the husband; wifecan- because, however important it may be that the husband peiied to™" should not be convicted and punished on such testi- her"hus^ mony, it is equally important that, in suits between ba°^- strangers, justice should not be denied in order to sustain a privi- lege which under such circumstances rests mainly on sentiment. In a suit between A. and B., when C. is called as a witness by B., and gives testimony which is perjured, to refuse to permit C.'s wife to be examined, to show C.'s untruthfulness, would be to sacrifice the justice of the cause, and this to maintain privi- leges which C. has forfeited. " Hence it has been held, that a man or a woman may testify in a collateral case to matters which tend to criminate the man's wife or the woman's husband.^ Yet while such testimony will be admitted, it will not be compelled. A wife, for instance, such is the tendency of authority, will not be compelled, against her protest, to charge her husband, even collaterally, with crime.* As to matters disgracing, though not criminating, an answer will be compelled.^ How far common disability in this respect is modified by recent statutes, so far as ^ Christy v. Clarke, 45 Barb. 529. her husband is not in a satisfactory ^ Shaak's Est. 4 Brewst. 305. state. It was held at common law, ' See infra, § 432; R. v. Bathwick, in R. v. Claviger, 2 T. R. 268, that a 2 B. & Ad. 639; R. v. All Saints, 6 wife could not be compelled to answer Maule & S. 194; R. v. Halliday, 8 questions criminating her husband. Cox, 298; Henman v. Dickinson, 5 In R. v. Worcester, 6 M. & S. 194, Bing. 183; State v. Bridgman, 49 Vt. Lord EUenborough held that a wife 202; Com. v. Reid, 8 Phila. R. 385. was competent to answer such ques- • Cartwright v. Green, 8 Ves. 405; tions, and that the answers were not R. V. All Saints, 6 Maule & S. 200; excluded on the ground of public pol- State V. Briggs, 9 R. I. 361; Com. v. icy; but Bayley, J., was of opinion Reid, 8 Phila. R. 385. See fully in- that a wife who threw herself upon fra, § 432. the protection of the court would not 5 R. V. Bathwick, 2 B. & Ad. 639; be compelled to answer. In equity State u. Marwin, 35 N. H. 22; Com.«. there is no doubt that a wife cannot Sparks, 7 Allen, 584; State v. Briggs, be compelled to answer any question 9 R. I. 361; Ware v. State, 35 N. J. which may expose her husband to a L. 553; State u. Dudley, 7 Wis. 664. charge of felony. Cartwright w., Green, " The question whether a wife is 8 Ves. 410." Powell's Eyidenoe (4th bound to answer questions criminating ed.), 110. 371 § 426.] THE LAW OF EVIDENCE. [BOOK II. concerns criminal law, is discussed in another treatise.^ How far such statutes affect civil cases will be considered in a future section of this chapter.* § 426. It has been ruled in Canada that on an indictment for bieamv the first wife is inadmissible for the defence to Inproseou- o j tions for prove that her marriage is invalid.^ This, however, bigamv, . » -i i • • .... mi lawfui'wite IS founded on a petitio principii. ihe question is prove mar- whether the first marriage is valid. If so, she is not a ""ge. -witness, but she is a witness if such marriage is invalid. For the court to refuse to admit her, when called by the defence, to disprove the marriage, is to prejudge the question in issue. That she cannot be called to sustain the marriage is clear, for she is excluded by the very hypothesis she is called to support. The proper course is to examine her on her voir dire. If she claims to be the first wife, on her own showing she is inadmissi- ble. If she denies that she was married to the defendant, then she should be admitted, and the jury directed to disregard her testimony if they believe her to be the defendant's wife.* Other- wise material testimony might be excluded on a hypothesis not oply artificial but false. On the other hand, if a man be prose- cuted for bigamy, his first wife, the validity of whose marriage is assumed by the prosecution, cannot be called to prove her mar- riage with the defendant.^ The first marriage being established, the woman, with whom the second marriage was had, is a com- petent witness either for or against the prisoner ; for the second marriage is void.^ It is said, indeed, that if the proof of the first marriage were doubtful, and the fact were controverted, the witness could not be admitted.^ It has, however, been argued by a respectable authority that the lawful wife, though incom- petent as a witness, may appear in court for the purpose of being identified, although by this process suspicion may attach to her 1 Whart. Cr. Law, tit. " Evidence." « Grigg's case, T. Ray. 1 ; 1 Hale, " See infra, §432. 693; 1 Ruas., C. & M. 218; Whart. » R. 0. Madden, 14 Up. Can. Q. B. Cr. Law (7th ed.), §§ 768 et seq.; and 688; R. V. Tubbee, 1 Up. Can. P. R. see supra, § 421. lOS. e B. N. P. 287; R. v. Serjeant, 1 * Peat's case, 2 Lewin, 288; R. v. Ry. & M. 354, per Abbott, C. J., and Wakefield, Ibid. 279; which cases, cases cited, §§ 423-5. however, only intimate such a course, ' Grigg's case, T. Kay. 1, •without positively sanctioning it. 372 CHAP. Vlll.] WITNESSES : HUSBAND AND WIFE. [§ 427. husband ; it being said, by way of illustration, that she may be thus produced to be identified as having passed a note which he is charged with having stolen.^ § 427. Independent of the question of interest, the law, in view of the high importance of preserving intact the Neither confidence and security of the marriage state, regards nor wife confidential communications between husband and wife IfilV^l^^ as privileged, and refuses to permit either to be inter- fidentiai rogated as to what occurred in their confidential in- lations. tercourse during their marital relations.^ The privilege, how- ever, is personal to the parties ; a third person, vrhq happened to overhear a confidential conversation between husband and wife, may be examined as to such conversation.^ Nor does the privi- lege extend to conversations with third parties which the wife overheard ; * nor does it protect confidential corespondence be- tween husband and wife when brought into court by third par- ties ; ^ nor conversations beween husband and wife overheard by third parties ; ^ though it is otherwise if such third persons are infants, taking no part in the conversation.^ The privilege, also. * Allison, Pract. of Cr. Law, 463; Taylor's Evidence, § 1231. ' Dexter v. Booth, 2 Allen, 559; Baldwin v. Parker, 99 Mass. 79; Kaynes v. Bennett, 114 Mass. 424; Drew V. Tarbell, 117 Mass. 90; Brad- ford V. Williams, 2 Md. Ch. 1 ; Wad- dams V. Humphrey, 22 111. 661 ; Jenne V. Marble, 37 Mich. 319; Costello «. Costello, 41 Ga. 613; Wade's Succes- sion, 21 La. An. 343. A husband, under the Massachusetts statute, can- not be admitted to testify as to his private conversations with his wife, so as to charge his wife with liability based on such conversations. Drew v. Tarbell, 117 Mass. 90. See Brown v. Wood, 121 Mass. 137. So under Mis- souri statute; Moore v. Wingate, 53 Mo. 398 ; though in other respects either husband or wife may be a wit- ness for the other. Chesley v. Chesley, 54 Mo. 347. So in New Jersey, Wood V. Chetwood, 27 N. J. Eq. 31 1. As to what is " confidential," see Ibid. » Com. V. Griffin, 110 Mass. 181. * Mercer v. Patterson, 41 Ind. 440. 6 State V. Buffington, 20 Kans. 599. « State V. Center, 35 Vt. 379; Kea- tor V. Dimmick, 46 Barb. 158; Alli- son V. Barrow, 3 Coldw. 414. On this point see Westerman u. Wester- man, 25 Ohio St. 500, cited infra, § 431. ' " The conversation between the husband and wife appears by her tes- timony to have been had in the pres- ence of no other person except their family of young children, who are not shown to have taken any part in, or paid any attention to, the conversation. It must, therefore, be deemed incom- petent evidence as a private conversa- tion between husband and wife. Dex- ter V. Booth, 2 Allen, 559; Bliss v. Franklin, 13 Allen, 244; St. 18 70, c. 393, § 1." Gray, C. J., Jacobs v. Hesler, 113 Mass. 160. 373 § 428.] THE LAW OF EVIDENCE. [BOOK H. extends only to confidential communications, and does not cover knowledge derived from general intercourse.^ § 428. Whether the incompetency of husband and wife as wit- Consent nesses in suits in which either is concerned is a priv- Tucii''*'''* ilege of the party, or a privilege of the public, is a ques- priviiege. ^^^^ tij^t jj^a been much discussed. On the one side it is argued that the welfare of society depends upon marital con- fidence being inviolable, and that consent of parties can no more do away with this inviolability, than the consent of parties can do away with the marriage tie.^ The twain are legally made one flesh ; .consent cannot sever them and resolve them into in- dependent parties. On the other side it is argued that even on the showing of those who set up this inviolability, it has its exceptions, for husbands and wives are permitted to testify on opposite sides of suits between strangers, and in all cases of per- sonal violence can testify against each other, which would not be permitted if the policy of the law regarded them as absolutely identical. It is further insisted that public justice is advanced by having all obtainable relevant evidence poured into a case, leav- ing credibility to be determined as a matter of fact ; and though public justice may be required to yield in cases where by calling either husband or wife to testify the peace of a family may be destroyed ; yet this is not necessary when the husband desires the ^ The point in the text is thus no- after the death of her hushand, is not ticed: "The widow of the intestate limited to private conversations be- Whitcomb was not a party, nor one of tween them during marriage, but ex- the parties, to the suit; Gen. Sts. c. tends to all facts and transactions 131, § 14; nor was the contract or which then came to her knowledge, — cause of action made or transacted it is enough to say that the contrary with her in the lifetime of her bus- has been recently decided by this band and in his absence. St. 1865, c. court in a case like the one here pre- 207, § 2. Her competency as a wit- sented. Robinson v. Talmadge, 97 ness in this case does not depend upon Mass. 171 ; Dexter v. Booth, 2 Allen, the recent statutes. The disqualifioa- 559; Kelly v. Drew, 12 Allen, 107; tion of pecuniary interest, which for- Coffin v. Jones, 18 Pick. 441, 445." merly excluded parties, is indeed now Colt, J., Litchfield v. Merritt, 102 removed; but the rules of the common Mass. 524. See, as bearing on this law, founded on public policy, which topic, Tracy v. Kelley, 52 Ind. 535. relate to the competency of the wife to As to statutory changes in this re- testify for or against her husband, still spect, see infra, §§ 480-1. prevail. Upon the point pressed by " See Barker v. Dixie, Cas. temp, the plaintiff in review, — that this dis- Hardw. 260; Colbern's case, 1 Wheel, qualification of the wife, continuing C. C. 479. 3T4 CHAP. VIII.J WITNESSES : HUSBAND AND WIFE. [§ 429. examination of the wife, or the wife desires the examination of the husband, because by such consent the peace of the family- is promoted. Hence it is that Best, C. J., once permitted the examination of a wife when the husband consented,^ though his conchision has been subsequently questioned, and is still open to doubt.2 In England, by the Act 16 & 17 Vict., husbands and wives of parties are made competent witnesses in such cases.^ § 429. Where the relationship has ceased by death,* or by divorce,^ the wife may be admitted for or against the Effect on former husband or his representatives (or the converse), ""in"^^*- 1 Pedley v. Wellesley, 3 C. 8e P. ,^58. " Barbat v. Allen, 7 Ex. K.'609. » Taylor's Evidence, § 1219 a. In Barbat v. Allen, supra, the defendant had called his wife as a witness, but the judge at nisi prius had rejected her testimony on objection taken. [This was before the passing of the Act 16 & 17 Vict. c. 83.] The plaintiff afterwards offered to waive the objec- tion, but the judge refused to receive the waiver. Under these circum- stances, the learned barons, without deciding the question whether the witness could be thus examined by consent, were contented to hold that it was at least discretionary with the judge whether he would allow the objection to be withdrawn, and he having refused to do so, declined to interfere. Barbat v. Allen, 7 Ex. K. 609. * Doker v. Hasler, R. & M. 198; Dexter v. Booth, 2 Allen, 559; Bax- ter V. Knowles, 12 Allen, 114 ; Dobson I). Racey, 8 N. Y. 216; Gebhart v. Shindle, 15 S. & R. 237 ; Thomas v. Maddan, 50 Penn. St. 261 ; Wallis v. Britton, 1 Har. & J. 478; Morris v. Harris, 9 Gill, 19 ; William & Mary College V. Powell, 12 Grat. 372 ; Sto- ber V. McCarter, 4 Ohio St. 513 ; Wool- ley V. Turner, 13 Ind. 253 ; Haugh v. Blythe, 20 Ind. 24; Shaffer v. Rich- ardson, 27 Ind. 122; Mercer v. Patter- son, 41 Ind. 440 ; Tracy v. Kelley, 52 Ind. 535 ; Lockwood v. Mills, 39 111. 602; Pratt v. Delavan, 17 Iowa, 307; McGuire v. Maloney, 1 B. Mon. 224; English V. Cropper, 8 Bush, 292; Pil- low u. Thomas, 57 Tenn. 121; Price u. Joyner, 3 Hawks, 418 ; Gaskill v. King, 12 Ired. L. 211; Moseley v. Eakin, 15 Rich. (S. C.) 324 ; Hay v. Hay, 3 Rich. (S. C.) Eq. 384; Saun- ders V. Hendrix, 5 Ala. 224; Stuhl- muller v. Ewing, 39 Miss. 447; Reilly V. Reilly, 28 La. An. 669 ; Sherwood V. Hill, 25 Mo. 391; Keys v. Baldwin, 33 Tex. 666. In Illinois the common law disability remains unaffected by statute. Reeves v. Herr, 59111. 81. By statute in Massachusetts, the widow is a witness for the administrator, though not as to confidential communications. Robinson v. Talmadge, 97 Mass. 171. As to New Hampshire statute, see Winship V. Enfield, 42 N. H. 197. ^ Dickermanu. Graves, 6 Cush. 308; Barnes v. Camack, 1 Barbour, 392; Ratcliff V. Wales, 1 Hill, 63 ; Cook v. Grange, 18 Ohio, 526 ; Crose v. Rut- ledge, 81 111. 266 ; State v. Dudley, 7 Wis. 664; Crook v. Henry, 25 Wis. 569 ; Herrick v. Odell, 29 Mich. 47; Anderson v. Anderson, 9 Kans. 112. A divorced wife is a witness for her former husband in an action for mm. con., both to prove the marriage and the offence. Wottrich v. Freeman, 71 N. Y. 601. 375 § 431.] THK LAW OF EVIDENCE. [book II. bility of though she is prechided from testifying as to infornoa- divorce. tion derived confidentially during marital intercourse.^ It is otherwise as to non-confidential information.^ §430. General statutes removing disabilities do not touch this. The reason for the exclusion of husband and wife, when called for or against the other, being social pol- icy, and not interest, statutes abolishing incompetency resting on interest do not remove the common law in- competency of husband and wife for or against the other.^ This is eminently the case in respect, as will presently be seen, to the confidential communications to each other of hus- band and wife.* § 431. Under special statutes, husband and wife, in several „ , iurisdictions, have been mad^ competent witnesses in Under spe- •■ . ^ ciai ena- suits affecting each other." These statutes, it may be utes may generally remarked, in conferring competency, do not ° ' ^' preclude the parties from taking advantage of the right I Monroe «.Twistleton,Peake'sEv. Ap. 39 ; Doker v. Hasler, R. & M. 1 98 ; Avison V. Kinnaird, 6 East, 192; Stein V. Bowman, 13 Peters, 209 ; Ryan v. FoUansbee, 59 N. H. 100; CofBn v. Jones, 13 Pick. 444 ; Williams v. Bald- win, 7 Vt. 503; State v. Phelps, 2 Tyler, 374; Gray v. Cole, 5 Harr. (Del.) 418 ; Wells v. Tucker, 3 Binn. 366; Cornell u. Vanartsdalen, 4 Penn. St. 364; Griffin v. Smith, 45 Ind. 366; Crose V. Rutledge, 81 111. 266 ; Sprad- ling V. Conway, 51 Mo. 61; State v. Jolly, 3 D. & Bat. 110; Lingo v. State, 29 Ga. 470; Brewer v. Fergu- son, 11 Humph. 565. " Dickerman v. Graves, 6 Cash. 308; Elswiek V. Com. 13 Bush, 155. 8 Lucas V. Brooks, 18 Wall. 436; McKeen i'. Frost, 46 Me. 239 ; Young V. Gilman, 46 N. H. 484; Cram v. Cram, 23 Vt. 15; Lunay v. Vantyne, 40 Vt. 501 ; Kelly v. Drew, 12 Allen, 107; Dreww. Tarbell, 117 Mass. 90; Symonds v. Peck, 10 How. (N. Y.) Pr. 395; Rich v. Husson, 4 Sandf. 115; Mitchinson v. Cross, 58 111. 366; Bevins v. Cline, 21 Ind. 37 ; Pea v. 376 Pea, 35 Ind. 387; Stanley v. Stanton, 36 Ind. 445 ; Costello v. Costello, 41 Ga. 613; Dunlap v. Hearn, 37 Miss. 471 (though see Lockhart v. Luker, 36 Miss. 68) ; Funk .;. Dillon, 21 Mo. 294 ; Birdsall v. Dunn, 16 Wis. 235; Hobby V. Wisconsin Bk. 17 Wis. 167; Gee V. Scott, 48 Tex. 510. See infra, §478. * See infra, § 478. 5 Packet Co. v. Clough, 20 Wall. 528; State v. Black, 63 Me. 210; Snow V. Carpenter, 49 Vt. 426 ; Burke V. Savage, 13 Allen, 408 ; Merriam v. R. R. 20 Conn. 354; Southwick v. Southwick, 49 N. Y. 510; Marsh v. Potter, 30 Barb. 506 ; Bronson v. Bron- son, 8 Phila. R. 261; Dellinger's Ap- peal, 71 Penn. St. 425; Robinson v. Chadwick, 22 Ohio St. 627; Menk V. Steinfort, 39 Wis. 370 ; Bennifield V. Hypres, 88 Ind. 498; MoNail ii. Ziegler, 68 111. 224; Wing v. Good- man, 75 111. 159 ; Anderson v. Friend, 71 111. 475; Hayes v. Parmalee, 79 111. 568 ; Davenport v. Ryan, 83 111. 218 ; State v. Nash, 10 Iowa, 81 ; Ruth V. Ford, 9 Kans. 17 ; Furrow v. CHAP. VIII.] WITNESSES : HUSBAND AND WIFE. [§ 431. of witholding privileged communications which occurred during coverture and not in the presence of third parties ; ^ nor do they strip the parties of the right to decline to answer criminating questions.^ Privilege, as it exists at common law, can be as- serted in all cases in which it is not specifically prohibited by statute. 3 Chapin, 13 Kans. 107; Bradsher v. Brooks, 71 N. C. 322 ; Porter v. Allen, 64 Ga. 623 ; Sumner w. Cooke, 51 Ala. 52; Berry v. Sturdivant, 53 Miss. 490; Chesley v. Chesley, 54 Mo. 347; Evers V. Ins. Co. 59 Mo. 429; Quade v. Fisher. 63 Mo. 325; Wilcox v. Todd, 64 Mo. 688. In Massachusetts, the wife is precluded by statute from testifying to transactions between herself and her husband when no one else is present. See Drew v. Tarbell, 117 Mass. 90 ; Brown V. Wood, 121 Mass. 137. 1 McKeen v. Frost, 46 Me. 239 ; Jones V. Simpson, 59 Me. 180; Young V. Gilman, 46 N. H. 484 ; Dexter v. Booth, 2 Allen, 559 ; Burke v. Savage, 13 Allen, 408 ; Bliss v. Franklin, 13 Allen, 244; Packard v. Reynolds, 100 Mass. 153 ; Baxter v. R. R. 102 Mass. 385; Raynes v. Bennett, 114 Mass. 424; Drew v. Tarbell, 117 Mass. 90; People V. Reagle, 60 Barb. 527 ; South- wick V. Southwick, 49 N. Y. 613; Wehrkamp v. Willett, 4 Abb. (N. Y) App. 548; Westerman v. Westerman, 25 Ohio St. 500 ; Bevins v. Cline, 21 Ind. 371 ; Thomas v. Barbour, 49 111. 370; Mitchinson v. Cross, 58 111. 366 ; Reeves v. Herr, 59 111. 81 ; Jackson v. Jackson, 40 Ga. 157 ; Costello v. Cos- tello, 41 Ga. 613; Buck v. Ashbrook, 51 Mo. 539; Moore v. Wingate, 53 Mo. 398 ; Magness v. Walker, 26 Ark. 470; Creamer v. State, 34 Tex. 173; State V. McCord, 8 Kans. 232. ^ Bronson v. Bronson, 8 Phila. K. 261. ' The statutes bearing on marital incompetency are so numerous and various as to defy analysis. The fol- lowing, however, may be taken as il- lustrations : — In New Hampshire the statutes are thus recapitulated : "In State v. Moulton, 48 N. H. 485, it was expressly held that the recent statutes, making the wife a wit- ness for her husband, do not apply in criminal cases. A different rule is now established by the following stat- ute, P. L. 1871, c. 38, § 2: 'In any case where the respondent in any criminal prosecution is allowed to tes- tify by law, the wife of such respon- dent shall be a competent witness.' Sec. 3. ' This act shall apply to all cases now pending, and shall take ef- fect upon its passage.' Approved July 13, 1871. " In civil cases, under the provisions of § 22, of c. 209, Gen. Sts. (as amended by P. L. 1869, c. 29, and P. L. 1870, c. 20), the wife may testify for or against her husband, and the husband for or against the wife, in any case, when it appears to the court that their examination as witnesses upon the points to which their testi- mony is offered would not lead to a violation of marital confidence ; and in the trial of any civil suit or pro- ceeding in which a husband or wife is competent, or shall be admitted to tes- tify as witnesses for or against each other on one side of a case, the same right shall exist on the opposite side of the case. Besides these general provisions, applicable to all cases alike, the husband and wife are by statute (Gen. Sts. c. 209, §§ 20, 21) made witnesses for or against each 377 § 432.] THE LAW OF EVIDENCE. [book II. § 432. If it were held that a husband, in suits between stran- Husband gers could not be admitted as a witness to contradict may b"ld- ^^^ '^^^^ °^ ^ ^^^® ^®^ husband, not only would a part of mitted to ^\^q truth be kept out of the case, but an unfair advan- contradict * i i i j -j. each other, tage would be given to the party who has the lortuitous other, whether joined as parties or not, in the following cases: 1st. In actions upon insurance policies, so far as relates to the amount and value of the property insured. 2d. In suits against common carriers, so far as re- lates to the loss, amount, and value of the property in question. 3d. In ac- tions on matter arising before mar- riage. 4th. In suits for personal in- juries to the wife, or for damages to the husband on that account." State V. Straw, SO N. H. 460, Ladd, J. In Massachusetts, by St. 1865, the ■wife may be a witness as to contracts made in her husband's absence. This, however, does not relieve disability except in the business transactions conducted by the wife in such ab- sence. Baxter v. B. K. 102 Mass. 385. " The facts alleged did not make the plaintiff's wife a competent wit- ness. She was offered because it was alleged that she was the only person who saw and knew the facts attending the escape of the plaintiff's cow from his lot. By the St. of 1865, c. 207, § 2, she may be a witness whenever the contract or cause of action in issue and on trial was made or transacted with her in the absence of her hus- band. She was rightly excluded, be- cause the terms of the statute did not include such a case as this. Bliss v. Franklin, 13 Allen, 244." Chapman, C. J., Baxter v. R. R. 102 Mass. 385. Under the Illinois statute husband and wife are not competent witnesses against each other, though in certain cases they may be examined in each 878 other's behalf. Hawver v. Hawver, 78 111.412; Trepp v. Barker, 78 111. 146; Primmer v. Clabaugh, 78 111. 94. As to New York statute of 1867, making husband and wife witnesses for each other with certain exceptions, see Southwick v. Southwick, 49 N. Y. 510; citing Wehrkamp w. Willett, 1 Keyes, 250 ; Smith v. Smith, 15 How. Pr. R. 165; Minier !'. Minier, 4 Lan- sing, 421. In Tilton v. Beecher (Abbott's Rep. ii. 48 et seq.), Mr. Tilton, the plain- tiff (the suit being against Mr. Beecher for damages for criminal conversation with the plaintiff's wife), was offered as a witness to prove his wife's adul- tery. This was objected to by the defendant's counsel, who, after citing a series of common law authorities, relied on Chamberlain v. People, 23 N. Y. 88 ; Dann v. Kingdom, 1 N. Y. Sup. Ct. 492 ; Lucas v. Brooks, 18 Wall. 452; Rideout's Trusts, L. R. 10 Eq. 44. In behalf of the plaintiff it was argued that his competency, for this purpose, was established by the statute of 1867. To this effect were cited: Potter v. Marsh, 30 Barb. 506; S. C. 24 How. Pr. 610, note ; Wehr- kamp u. Willetl, 4 Abb. App. 548, 559; Potter V. Chamberlain, 23 N. Y. 85; White V. Stafford, 35 Barb. 419; Card V. Card, 39 N. Y. 317; Matteson «. R. li. 62. Barb. 364 ; S. C. 35 N. Y. 487; Petrie v. Howe, 4 N. Y. Sup. Ct. 85. The court (p. 116) held that the plaintiff was entitled to testify as a witness, but not as to confidential com- munications from his wife. In {Dickerman v. Graves, 6 Cush. CHAP. VIII.] WITNESSES : HUSBAND AND WIFE. [§ 432. advantage of priority in call. By this accident it would be de- termined whether the husband's version or the wife's should be received. Whoever would happen to be called first would pre- clude the other from being examined. Hence either party to the marriage relation is permitted to contradict, even to the extent of discrediting, the other party when the two are examined in one case.-' Whether either husband or wife can be permitted, in a col- lateral procedure, to charge the other with a criminal offence, has been doubted. In England, it was at one time held that no such testimony could be received,^ and so has it frequently been ruled in this country.^ But it is more reasonable to admit such testi- 308, a wife, after a divorce from her cases pending and causes of action husband, was held a competent wit- existing at the time of its passage. ness for him to prove the fact of adul- tery in a suit by him against the al- leged adulterer. In Pennsylvania, under the Act of April 15, 1869, a wife may be called by her husband as a witness, notwith- standing she may be compelled, on cross-examination, to give evidence against him ; the act provides for the competency of the witness, not for the effect of her testimony. Ballan- tine V. White, 77 Penn. St. 20. In the same state, in an action against husband and wife on a mort- gage of the wife's property, where she died before trial, and her administra- tor was substituted of record, the judge excluded the plaintiff as a wit- ness, but permitted the husband to testify. It was held by the Supreme Court that the husband also should have been excluded. Crouse v. Sta- ley, 3 Weekly Notes, 83. In Ohio, under the amendatory Act of April 18, 1870 (67 Ohio L. 113), husband and wife are competent wit- nesses for and against each other, ex- cept as to communications made by one to the other, and acts done by one in the presence of the other during coverture, and not in the known pres- ence of a third person. The act is held to be applicable to notwithstanding the provisions of the Act of February 19, 1866 (S. & S. 1), declaring the effect of repeals and amendments. It has been further ruled that evi- dence that a third person was present, and known to be present, at the time of making such communications or do- ing such acts, is for the court and not for the jury, and, on error, will be pre- sumed to have been given to the court, unless the contrary appears. West- erman v. Westerman, 25 Ohio St. 50O. 1 Supra, § 425 ; Stapleton v. Crofts, 18 Q. B. 368; Annesley u. Anglesea, 17 How. St. Tr. 1276; R. v. All Saints, 6 M. & S. 194 ; R. V. Bathwick, 2 B. & A. 639; Stein v. Bowman, 13 Pet. 209; State u. Marwin, 35 N. H. 22; Fitch V. Hill, 11 Mass. 286; Roy. Ins. Co. V. Noble, 5 Abb. Pr. (N. S.) 55; Ware v. State, 35 N. J. 553; State V. Dudley, 7 Wis. 664. See, however, contra, Roach v. State, 41 Tex. 261 ; Keaton v. McGwier, 24 Ga. 217. 2 R. V. Clivinger, 2 Burn. & East, 263. Supra, § 425. 8 State V. Welsh, 26 Me. 30; Com. V. Sparks, 7 Allen, 534 ; State v. Gard- ner, 1 Root, 485; State v. Wilson, 31 N. J. 77 ; State u. Pettaway, 3 Hawks, 623; People v. Horton, 4 379 § 434.] THE LAW OF EVIDENCE, [book II. In divorce cases testi- mony to be carefully weighed. mony in all cases where it cannot be used as an instrument of fut- ure prosecution, provided the witness be not compelled to testify.^ § 433. It has been said that adultery in a divorce suit must be proved beyond reasonable doubt.^ But this con- flicts with the conclusions hereafter reached,^ and would produce much confusion in cases in which adultery is charged on both sides.* But it is only with reluctance that courts will grant divorces on the testimony of the parties ; and at least some corroborative proof will be required when the nature of the case permits.^ It should also be remembered that a proceeding for divorce is in many respects a criminal proced- ure ; and that it is open to grave question whether, as such, either husband or wife is admissible to prove each other's adul- tery, in those states where adultery is a criminal offence. ^ As to non-access, the question of privilege will be hereafter discussed." §434. Expert is entitled to testify as a specialist. VI. DISTINCTIVE RULES AS TO EXPERTS. An expert has been defined to be a witness who testi- fies as to conclusions from facts, while an ordinary wit- ness testifies only as to facts. This definition, however, is not sufficiently exact. Few witnesses, called to de- Mich. 87. See R. v. Williams, 8 C. & P. 289. 1 E. V. Bathwick, 2 B. & Ad. 639 ; R. V. All Saints, 6 M. & S. 194; R. v. Halliday, 8 Cox, 298 ; State v. Briggs, 9 R. I. 361; Petrie v. Howe, 4 N. Y. Sup. Ct. 85; Tilton v. Beecher, Ab- bott's Rep. ii. 116. See Phillipp's Ev. i. 84 (4th Am. ed.) ; Com. v. Reid, 8 Phil. R. 609 ; State v. Dudley, 7 Wis. 664. See supra, § 425. ° Berckmans v. Berckmans, 2 C. E. Green, 453. * See infra, § 1245 ; and see Bishop Mar. & Div. § 278. * See supra, § 414; Foss v. Foss, 12 Allen, 26; Thayer v. Thayer, 101 Mass. Ill ; Anable v. Anable, 24 How. (N. Y.) Pr. 92; Van Cort v. Van Cort, 4 Edw. (N. Y.) 621 ; Riv- enburgh v. Rivenburgh, 47 Barb. 419; Lincoln v. Lincoln, 6 Robt. (N. Y.) 380 525 ; Mayer v. Mayer, 21 N. J. Eq. 251 ; Winter v. Winter, 7 Phila. R. 369; Bronson v. Bronson, 8 Phil. R. 261. As to proof of adultery in di- vorce cases, see particularly infra, § 483. * See cases just cited; and see, also, U. V. J., L. R. 1 P. & M. 460 ; T. i;. D., L. R. 1 P. & M. 127; Scott V. Scott, 8 Sw. & Tr. 319; Hart v. Hart, 3 Spinks, 196 ; Robbins v. Rob- bins, 100 Mass. 150 ; Thayer v. Thayer, 101 Mass. Ill; Stevenson v. Stevenson, 7 Phil. 886; Bronson v. Bronson, 8 Phil. R. 261 ; Tate v. Tate, 26 N. J. Eq. 65; Black v. Black, Ibid. 431 ; Hays v. Hays, 19 Wis. 182 ; Fugate u. Pierce, 49 Mo. 446. ° Supra, § 482 ; Faussett v. Faussett, 7 Notes of Ecc. Cases, 72; King v. King, 2 Robt. Ecc. 163. ' Infra, § 608. CHAP. VIII.J WITNESSES : EXPERTS. [§ 434. tail facts, reproduce such facts as they really exist. Apart from the psychological question, whether what we see is perceived or is inferred by us, most acts as to which we testify are necessarily inferred, not actually witnessed.^ I hear the report of a gun, for instance ; I notice that the gun is aimed at a particular bird by a sportsman, and I see the bird fall ; I infer that the sports- man killed the bird, though I did not see the shot as it passed through the air and struck. Identity, in this view, is always a matter of inference. Many witnesses, in the Tichborne cases, swore to the identity, many others to the non-identity, of the claimant with Roger Tichborne ; but all, whether for or against such identity, showed, on their examination, that what they swore to was not a fact, but a conclusion from facts. We must therefore penetrate further if we seek to distinguish between the expert and the non-expert. And the true distinction is this : that the non-expert testifies as to conclusions which may be ver- ified by the adjudicating tribunal; the expert to conclusions which cannot be so verified. The non-expert gives the results of a process of reasoning familiar to every day life ; the expert gives the results of a process of reasoning which can be mastered only by special scientists.^ ^ See supra, § 15. The Italian glossarists, in carrying 2 See Strippelmann, die Sachver- out their maxim that the court is to standigen, Kassel, 1858; Endemann, determine solely secundum allegata et 241. When the examination testified probata, limited the right o£ the judge to may be made alike by specialist to introduce, to extend his informa- and layman (e. g. opinion whether tion as to the case, those who Milwaukee R. R. v. Kellogg, 94 U. S. 469. ^ State V. Watson, 65 Me. 74. 8 Muldowney v. R. R. Co. 36 Iowa, 463. " Cook V. State, 24 N. J. L. 848. See contra, People v. Clark, 33 Mich. 112. " Rawls V. Ins. Co. 27 N. Y. 282. ' Clark V. Detroit, 32 Mich. 348. CHAP. VIII.] WITNESSES : EXPERTS. [§ 437. asked, on his direct examination, to " state if he knew, from his knowledge of the condition of the road at that time, what would be the chance for a stage-coach to tip up, being driven by an or- dinarily careful, prudent driver ; " it was held that the question was inadmissible, as calling for the witness's opinion as to a matter not involving professional skill, and concerning which the jury were to judge for themselves from the facts in evidence.^ § 437. We have seen that where conclusions depend upon facts whose evidential weight can only be determined ^j^ , by those familiar with a particular specialty, then these <»■ no on- , . 1 ■ 1 ^ . •', . 1 elusion be- conclusions may be given by experts in such specialty, longs to a But who is to decide as to what knowledge is special iffortiw and what is ordinarj'^, — as to whether the conclusion '"""^'" is one a layman may safely reach, or one which must be re- served for an expert ? Necessarily the line in this respect must be laid down by the judex fori. Where it is to be drawn must depend, to some extent, upon the degree with which the jury and judge may be familiar with the specialty, which of course de- pends upon varying conditions. Even where the conditions are in a measure constant, the courts have found it difficult to reach a consistent rule as to certain specialties. Thus sometimes we are told that the comparison of hands is to be left to experts, sometimes to juries.* In England, the Queen's Bench has deter- mined that insurance brokers cannot give their opinions as to the degree of diligence requisite in obeying instructions as to policies,^ while the common pleas has virtually ruled the con- trary.* In this country, the practice is to confine experts, as such, to opinions connected with their specialty.^ Whether, as to the particular question, the witness is an expert, the tris^ court is to determine,^ and on this point the witness may be e:^ amined, and evidence may be received aliunde^ An expert may testify to the authority of another expert.^ 1 Oleson V. Tolford, 37 Wis. 327. Delaware Towboat Co. u. Starrs, 69 2 See infra, §§ 712, 720. Penn. St. 41; Moreland v. Mitchell, » Campbell v. Rickards, 5 B. & Ad. 40 Iowa, 394; Hale v. Gibbs, 43 Iowa, 840. 380 ; Gulf City Ins. Co. v. Stephens, * Chapman v. Walton, 10 Bing. 57. 51 Ala. 121. 6 See § 436. ' Davis v. State, 38 Md. 15; Tome » Clinton V. Howard, 42 Conn. 295; v. R. R. 39 Md. 36 ; Mendum v. Com. * Laros v. Com. 84 Penn. St. 200. VOL. I. 25 385 § 439.] THE LAW OF EVIDENCE. [book II. § 438. Whether scientific works are independently admissible in evidence is elsewhere considered.^ Even by those may be ex- courts who have been most resolute in excluding such t™cienOfio works when offered substantively, it is agreed that an authorities, g^pert may show that his views are sustained by stand- ard authorities in his profession.^ He cannot, however, be per- mitted to read, as independent proof, extracts from books in his department,^ though he may refresh his memory, when giving the conclusions arrived at in his specialty, by turning to standard works.* The witness having cited scientific authorities, it has been held they may be put in evidence to discredit him." § 439. Certainly a person having a mere vague superficial An expert knowledge of a profession ought not to be permitted TOeciaiiy ^° ^^J down its laws. To entitle him to answer ques- skiiied. tions as a professed expert, he must, in the opinion of the court, have special practical acquaintance with the immedi- ate line of inquiry.^ Yet he need not be thoroughly acquainted with the differentia of the specific specialty under consideration.^ 6 Rand. 704 ; Bills v. Ottumwa, 35 Iowa, 107 ; Brabbits v. K. R. 38 Wis. 290; Caleb v. State, 39 Miss. 721. Infra, §§ 666-721. 1 See §§ 665-67. " Collier V. Simpson, 5 C. & P. 73 ; Cocks V. Purday, 2 C. & K. 290. ' Washburn v. Cuddihy, 8 Gray, 430; Com. v. Sturtivant, 117 Mass. 122. * See infra, §§ 665-67; Darby v. Ousley, 1 H. & N. 1; Pierson v. Hoag, 47 Barb. 243; Hornblower, C. J., in 1 Zabr. 196; Cory v. Silcox, 6 Ind. 39 ; Harvey v. State, 40 Ind. 616 ; Bowman v. Torr, 3 Iowa, 571 ; Ripon V. Bittel, 30 Wis. 614 ; Luning V. State, 1 Chandl. (Wis.) 264 ; State V. Terrell, 12 Rich. (S. C.) 321 ; Mer- kle V. State, 37 Ala. 139. See Melvin V. Easley, 1 Jones (N. C.) L. 886. « Ripon V. Bittel, 30 Wis. 614. 8 Berry v. Reed, 53 Me. 487; State V. Watson, 65 Me. 74; Woods v. Allen, 18 N. H. 28; Boardman v. Woodman, 47 N. H. 120 ; State v. Ward, 39 Vt. 386 225; Com. v. Rich, 14 Gray, 335; Rich V. Jones, 9 Cush. 329 ; Rogers v. Ritter, 12 Wall. 317; Benkard v. Bab- coek, 2 Robt. (N. Y.) 175; Thomas v. Kenyon, 1 Daly, 132; Hinds v. Har- bou, 58 Ind. 121 ; Donaldson v. R. R. 18 Iowa, 280; Morissey v. People, 11 Mich. 327; Benedict u. Fond du Lac, 44 Wis. 495 ; Graves v. Moses, 13 Minn. 335 ; Weaver v. Alabama Co. 35 Ala. 1 76 ; Caleb v. State, 39 Miss. 722. See, as giving a laxer view, Dole V. Johnson, 50 N. H. 452; Cast- ner v. Sliker, 33 N. J. L. 95, 507 ; Davis V. State, 35 Ind. 496 ; State u. Hinkle, 6 Iowa, 380; State v. Reddick, 7 Kans. 143; Mincke u. Skinner, 44 Mo. 92; Wilson v. State, 41 Tex. 320. And see this point discussed at large in Whart. Cr. Law, tit. " Evidence," and see, also, infra, § 446. ' State V. Wood, 53 N. H. 484; Dole V. Johnson, 50 N. H. 452; Cook V. Castner, 9 Cush. 266; Com. i;. Rich, 14 Gray, 335 ; Shattuek v. Train, 116 Mass. 296 ; Roberts v. Johnson, 58 N. CHAP. VIII.] WITNESSES : EXPERTS. [§ 439. If this were necessary, few experts could be admitted to tes- tify ; certainly no courts could be found capable of determining whether Such experts were competent. A general knowledge of the department to which the specialty belongs would seem to be enough. Thus a physician, not an oculist, has been permitted to testify as to injuries of the eye ; ^ physicians, not veterinary surgeons, as to diseases of mules ; ^ other persons, not veterinary surgeons, as to diseases of animals ; ^ a physician, not making insanity a specialty, as to whether a person he visits is insane ; * a witness, not a chemist, as to whether certain stains are appar- ently blood ; ^ a witness, not a chemist, as to the effect of pow- der, found on the defendant, in removing ink-marks ; •> a sur- veyor, who is a volunteer, not appointed by state or county, to the correctness of a plat ; ^ a person, not a surgeon, to prove that a death was caused by wounds ; ^ a mechanic, not an engi- neer, as to the working of cars on a curve ; ^ a chemist and tox- icologist, though not a physician, as to the effect of poisons on the human system ; ^^ while a witness accustomed to the use of horses may give his opinion, based on experience and observation, as to whether certain obstacles on a road would cause an ordinarily gentle horse to shy.^^ Y. 613 ; Frantz v. Ireland, 66 Barb. « People v. Gonzales, 35 N. Y. 49. 386; Sickles v. Gould, 51 How. N. Y. « People v. Brotherton, 47 Cal. 388. Pr. 22 ; Castner v. Sliker, 33 N. J. L. See Farmer's Bank v. Young, 36 Iowa, 95, 507 ; Consolidated Co. v. Cashow, 45. 41 Md. 59 ; House v. Fort, 4 Blackf. ' Mincke v. Skinner, 44 Mo. 92. 293; Washington v. Cole, 6 Ala. 212; » State v. Smith, 22 La. An. 468. Tullis V. Kidd, 12 Ala. 648; Spiva v. Where a witness has been ques- Stapleton, 38 Ala. 171 ; Morrissey v. tioned to bring out his skill as an ex- People, 11 Mich. 327 ; Davis v. State, pert, considerable latitude ought to be 35 Ind. 496 ; State v. Hinkle, 6 Iowa, allowed on cross-examination to bring 380. But in Emerson v. Lowell, 6 out the facts as to his competency to Allen, 146, it was ruled that a physi- give evidence in that character; yet cian who has had no experience of the no definite limit can be prescribed as effect on health of breathing illurainat- a rule of law, but a large discretion ing gas, could not be examined as an must be left in the trial court. Andre expert as to such effect. v. Hardin, 32 Mich. 324. 1 Castner v. Sliker, 33 N. J. L. 95, » Murphy v. R. R. 66 Barb. 125. 607. 10 State v. Cook, 17 Kans. 392. 2 Horton V. Green, 64 N. C. 64. " Clinton v. Howard, 42 Conn. 295 ; 8 Slater v. Wilcox, 57 Barb. 604 ; S. P., Moreland v. Mitchell, 40 Iowa, Johnson v. State, 1 Ala. Sel. Cas. 72. 394. Infra, § 1295. * Hastings v. Rider, 100 Mass. 622. 387 § 441.] THE LAW OF KVIDENCE. [BOOK II. § 440. We will hereafter notice,^ that witnesses are ordinarily „ . not allowed to give opinions as to conclusions depend- his opin- ent upon facts which are not necessarily involved in conditions such conclusions. An exception to this rule is recog- ST?s^^ nized in the case of experts, who are entitled to give specialty, their opinions or judgments as to conclusions from facts within the range of their specialties, but too recondite to be properly comprehended and weighed by ordinary reasoners. It makes no difference as to what is the specialty with which the expert is conversant. If its laws are not familiar to the ordinary business man, they must be proved, and their application to the case in issue shown by an expert.^ § 441, The most common illustration of the principle just Physicians Stated is that of the physician or surgeon. The med- eeons"so ^^^^ profession is a specialty of vast importance, which admissible, has absorbed masses of learning so recondite and unique as to require a distinctive training for its comprehension, and which is divided not merely into a series of distinct departments, each with its peculiar erudition and practice, but into rival schools, dealing with particular cases in modes divergent if not antagonistic. Jurisprudence does not say to either of these schools, " You are right and the others are wrong ; " but it says to the members of each school, " You are bound to exercise the skill, and possess the preparation, usual to good practitioners of your particular order." ^ So jurisprudence does not say to a physician or surgeon called to testify whether a wound or a poison was fatal, " You must have a particular diploma, or belong to a particular professional school ; " but it says, " If you have become familiar with such laws of your profession as bear upon this issue, then you can testify how the issue is affected by such laws." * Hence physicians generally are admissible to state the nature and effects of a disease ; ^ the conditions of gesta- 1 Infra, §509. 864; Shelton v. State, 34 Tex. 662, " Webb V. R. R. 4 Myl. & Cr. 120; and cases hereafter cited. McFadden v. Murdock, Ir. R. 1 C. L. « Wharton on Negligence, § 733 ; 211; Carter v. Boehm, 1 Smith's L. C. Corsiu. Maretzek, 4 E. D. Smith, 1. 401, note; Litchfield v. Taunton Co. * Livingston's case, 14 Grat. 592 ; 9 Allen, 181; Kershaw v. Wright, 115 New Orl. Co. v. Allbritton, 38 Miss. Mass. 361; Matteson v. R. R. 62 Barb. 242. 388 « Perkins v. R. R. 44 N. H. 223; CHAP. VIII.J WITNESSES : EXPERTS. [§ 442. tion ; ^ the effects of particular poisons on the human system ; ^ the effects of a particular treatment;^ the likelihood that death could be produced by a particular disease,* though they have not made such conditions a specialty.^ As to a specialty, however, entirely out of his line, a physician cannot be examined as an expert.® So medical attendants, neither specialists nor family physicians, may be examined as to cases of insanity,^ though they may not be competent to answer questions as to hypotheti- cal cases.^ So a surgeon is admissible to prove the nature of a wound and its probable cause and effects-,^ though it has been held not admissible for a surgeon to give an opinion on merely speculative data.^" As we have noticed, a physician, not a vet- erinary surgeon, hasbeen permitted to speak as to the diseases of animals.-'^ § 442. We have already seen that foreign laws must be proved, as matters of fact, by experts.^^ In other relations, law- ^j,^ g^ „f yers are admissible for the purpose of proving the laws lawyers. of their profession. On a question of fees, for instance, a law- yer is competent to prove the value of the services sued for.^^ Davis V. State, 35 Ind. 496 ; State v • Reddick, 7 Kans. 143. 8 See fully infra, § 451 ; Com. v. Rich, 14 Gray, 335. 9 Rowell V. Lowell, 11 Gray, 420; Linton v. Hurley, 14 Gray, 191 ; Com. V. Piper, 120 Mass. 186; Wilson v. People, 4 Parker C. R. 619; Gardiner V. People, 6 Parker C. R. 155 ; Rum- sey V. People, 19 N. Y. 41; Fort v. Brown, 46 Barb. 366; Lindsay u. Peo- ple, 63 N. Y. 143; Com. v. Lenox, 3 Brewst. 249 ; People v. Kerrains, 1 Thomp. & C. 333 ; Davis v. State, 38 Md. 15, 43 ; ' State v. Morphy, 33 Iowa, 270; Shelton v. State, 34 Tex. 662. " Hawks V. Charlemont, 110 Mass. 110; Com. V. Piper, 120 Mass. 186; Kennedy v. People, 39 N. Y. 245. " Slater v. Wilcox, 57 Barb. 604. See Benson v. Griffin, 30 Ga. 106; Horton v. Green, 64 N. C. 64; John- son V. State, 1 Ala. Sel. Ca. 72. " See §§ 300-302. " Covey V. Campbell, 52 Ind. 157 ; 389 State V. Powell, 2 Halst. 244 ; Vanau- ken, in re, 10 N. J. Eq. 186 ; Lush v. McDaniel, 13 Ired. L. 485; Parker V. Johnson, 25 Ga. 576; Hook v. Sto- vall, 26 Ga. 704; Bennett v. Fail, 20 Ala. 605 ; Roberts v. Fleming, 31 Ala. 683; Jones v. White, 11 Humph. 268. 1 State V. Smith, 32 Me. 369 ; Young V. Makepeace, 103 Mass. 50. ^ Stephens v. People, 4 Parker C. R. 396. ° Barber t7.Merriam, 11 Allen, 322. * State V. Smith, 32 Me. 329 ; Wen- dell V. Troy, 39 Barb. 329 ; Mattison V. R. R. 62 Barb. 364; 35 N. Y. 487; Anthony v. Smith, 4 Bosw. 503 ; Cahn V. Costa, 15 La. An. 612; Paty v. Martin, 15 La. An. 620. ^ Dole V. Johnson, 50 N. H. 452; Castner v. Sliker, 33 N. J. L. 95, 507. " Emerson v. Lowell, 6 Allen, 146. ' Hastings v. Rider, 100 Mass. 622; Chandler v. Barrett, 21 La. An. 58; § 444.] THE LAW OF EVIDENCE. [BOOK II. And a lawyer is competent to prove the practice of the courts .1 § 443. Scientists, also, in their particular specialties, are ad- j^ , j,( missible to prove the laws of such specialties.^ Thus, scicEtists. ichthyologists may be examined as to the capacity of fish to surmount certain obstructions ; ^ botanists and specialists in wood, as to the relations of different kinds of woods ; * chem- ists and microscopists, as to whether certain stains are from blood,^ as to the effects of a particular poison,^ as to the nature of ink stains,'' as to the quality of certain fertilizers,^ and as to the erasive effect on writing of particular powders ; ^ physicians, with a general, though not special knowledge of chemistry, as to whether a particular poison was found in the stomach of the deceased ; ^^ and a college graduate, who has studied chemistry with a distinguished chemist, has taught chemistry for five years, and is acquainted with gases, and with the composition of cam- phene, as to the safety of a camphene lamp.^^ § 444. Nor is it necessary that a specialty, to enable one of .its practitioners to be examined as an expert, should And so of , ^ . . n T . All praotition- involve abstruse scientific conditions. A coal-heaver business would be more familiar with the laws bearing on his speciaty. handiwork than would be a person who was without such experience; and hence a coal-heaver would be an admis- sible expert on questions as to whether certain coal was heaved negligently.^ A stockman is more likely rightly to estimate the size of a herd of cattle than would an ordinary observer ; hence a stockman may be asked as to the number of stock of a partic- ular brand running in a range ; '^ and as to the weight of cattle raised by himself.^* So it has been held that tailors may be ex- AUis V. Day, 14 Minn. 516. See Ot- ^ Farmers' Bk. v. Young, 36 Iowa, tawa V. Parkinson, 14 Kans. 159. 45. 1 Mowry v. Chase, 100 Mass. 79. » Wilcox v. Hall, 58 Ga. 635. " Page V. Parker, 40 N. H. 47. » People v. Brotherton, 47 Cal. » Cottrill V. Myrick, 8 Fairf. 222. 388. * Com. V. Choate, 105 Mass. 451. lo State v. Hinkle, 6 Iowa, 880. 5 State V. Knights, 43 Me. 11; Peo- " Bierce v. Stocking, 11 Gray, 174. pie V. Gonzales, 85 N. Y. 49 ; Gaines ^^ See, as giving a contrary view, V. Com. 50 Penn. St. 819. See Whart. Hamilton v. R. R. 36 Iowa, 81. on Homicide, § 688. is Albright v. Corley, 40 Tex. 105. « Hartung v. People, 4 Parker C. " Carpenter w. Wait, 11 Cush. 257. E. 819. 890 CHAP. VIII.] WITNESSES : EXPERTS. [§ 444. amined as to whether a pocket could have been picked through a cut made by a pickpocket in a coat, when it appears that the coat had been mended subsequently to the examination ; ^ master- builders, as to the damage done certain buildings ; ^ journeymen carpenters, as to the safety of buildings ; ^ ship-furnishing car- penters, as to the construction of berths ; * mechanics who have worked on ships, as to the effect of certain repairs to a vessel ; ^ supervisors of townships, familiar with the land and surround- ings, as to the effect of drought on a particular stream;^ rafts- men, as to the safe mooring of rafts ; "^ well-diggers, as to the im- perviousness to water of soil ; ^ farmers, as to whether particular land requires draining in order to have crops,^ and as to injury said to be received by cattle,^" and as to the effect of disturb- ances and noises on grazing cattle ; ^^ gardeners, as to the damage sustained by a garden and nursery ; ^ gas-fitters, as to the charac- teristics of gas-meters ; ^^ lumber floaters, as to the way of floating logs through a flume ; ^* machinists, who were in cars at a par- ticular accident, as to what threw the cars off the track ; ^^ to- bacco dealers, as to the best mode of testing tobacco ; ^^ engravers, as to whether an impression was original or secondary ; ^' pilots, or other navigators, as to the nature of a particular danger of navigation with which they are familiar ; ^^ persons conversant > People V. Morrigan, 29 Mich. 5. (Mass.) 288. See Whitbeck v. R. R. Sed qumre. 36 Barb. 644. 2 Tibbetts v. Haskins, 16 Me. 283. " Downs v. Sprague, 1 Abb. (N. « Moulton V. McOwen, 103 Mass. Y.) App. Dec. 480. 587. 1* Dean v. McLean, 48 Vt. 412. * Tinney v. Steamb. Co. 5 Lansing, ^^ Seaver v. R. R. 14 Gray, 466. 507. 1' Atwater v. Clancy, 107 Mass. 6 Sikes V. Paine, 10 Ired. (N. C.) 369. L. 280. " Per Lord Mansfield, in Folkes v. » Pettibone v. Smith, 37 Mich. Chadd, 3 Dougl. 157. SeeR. o.Wil- 579. liams, 8 C. & P. 4.34. ' Hayward v. Enapp, 23 Minn. '^ East. Transport. Line o. Hope, 314. 95 U. S. 297. In this case a witness ' BufEum V. Harris, 5 R. I. 243. who stated that for years he had been ' BufEum V. Harris, 5 R. L 243. See captain of a tug-boat, and was famil- Sickles V. Gould, 51 How. (N. Y.) iar with the making up of tows; that Pr. 22. he was a pilot and had towed vessels 1" Polk V. Coffin, 9 Cal. 56. on Long Island Sound ; and was fa- '1 Bait. R. R. «. Thompson, 10 Md. miliar with the water of Chesapeake 76. Bay, was asked: " With your experi- 1' Vandine v. Burpee, 13 Met. ence, would it be safe or prudent for 391 § 444.] THE LAW OF EVIDENCE. [BOOK II. with horses, as to whether certain obstructions would frighten horses ;i mail-agents, who have been accustomed to travel for years constantly on the cars, as to the degree to which speed should be slackened on nearing a station ; ^ brakesmen, as to the time required to stop a train ; ^ engine-drivers, as to the possibil- ity of avoiding a collision,* and as to the safety of a certain rate of speed ; ^ millers, as to the condition of a bolting cloth, ^ and as to the working condition of a mill ; ^ seamen, as to whether a certain mode of navigation is prudent, as to questions of collision and wreck,^ as to whether a ship has a full cargo,^ as to the proper mode of stowing,^" as to the effect of a particular leak,i^ as to seaworthiness,^^ as to the proper mode of towing, ^^ and as to whether, when it was maintained that the length of the shaft of a steamer settled the boat by the stern, and caused the journals to heat and bind, the boat settled more than it ought to, or than was usual ; ^* dairymen, as to the adulteration of milk ; ^^ practical firemen, as to what changes in a building would affect its exposure to fire ; ^^ masons, as to the length of time requisite to dry the walls of a house so as to make it fit for habitation,^'^ as to the proper measurement of masonry ,^^ and as to the strength of a wall ; ^^ miners, as to the cause of cracking and settling of walls ; ^ brick-makers, as to the proper way of putting tile in the kiln for burning ; ^i millwrights, as to the character of a mill, a tug-boat on Chesapeake Bay, or ° Ogden v. Parsons, 23 How. 167. any other wide water, to tug three i" Price v. Powell, 3 Comst. 322. boats abreast, with a high wind?" " Parsons u. Ins. Co. 16 Gray, 463. The question was held admissible. i^ Baird v. Dailey, 68 N. Y. 547. Hill 0. Sturgeon, 28 Mo. 823. i' Delaware St. Co. v. Starrs, 69 1 Moreland v. Mitchell Co. 40 Iowa, Penn. St. 41. 394; Clinton v. Howard, 42 Conn. 295. " Campbell, J., Clark v. Detroit L. » Detroit K. R. v. Van Steinburg, M. W. 32 Mich. 348. 17 Mich. 99. 16 Lane v. Wilcox, 55 Barb. 615. » Mott V. R. R. 8 Bosw. 345. See, " Schenck v. Ins. Co. 24 N. J. L. contra, Hamilton v. R. R. 36 Iowa, 343. 31 ; Muldowney v. R. R. 36 Iowa, i' Smith a. Gugerty, 4 Barb. 619. ■*S2. 18 Schulte V. Hennessy, 40 Iowa, * Bellefontaine R. R. v. Bailey, 11 352. Ohio St. 333. 19 Montgomery v. Gilmer, 33 Ala. ^ Coqper V. R. R. 44 Iowa, 134. 116. 6 Cooke V. England, 27 Md. 14. so ciark v. Willett, 35 Cal. 534. ' Read v. Barker, 80 N. J. L. 878. ^ Vandine v. Burpee, 18 Met. ' Fenwick v. Bell, 1 C. & K. 812; (Mass.) 288. Lane v. Wilcox, 55 Barb. 615, 392 CHAP. VIII.] WITNESSES : EXPERTS. [§ 444, and of mill work ; ^ ship-wrights, on questions of seaworthiness ; ^ mill-owners, as to the skilfulness of a millwright,^ tanners, as to the best mode of tanning a hide ; * experts in insurance, as to the practice of insurance companies.* So engineers have been per- mitted to give their opinions as to the effect of an embankment on a harbor ; ^ as to the way in which a steamboat was struck, at a collision ; '^ as to the force of particular tides and streams of water ; * as to the cost of completing a railroad.® A witness who testified that he had control of a stationary steam-engine, and that while he did not claim to be a practical engineer, h^ had fired and handled a locomotive, and understood an engine, may testify as an expert as to the effect of a leaky throttle-valve on a locomotive engine.^" An engineer, also, may testify as to the cause of a particular bayou ; ^^ and as to the effect of certain drains on a fountain of water,!^ and also as to the quality of cer- tain iron and the safety of a track.^^ Surveyors versed in the pe- culiar practice of their profession may speak as to the meaning of marks on trees and soil,i* and as to effect of plans requiring such explanation,^" but not as to the true location of land which is in controversy.^^ But the specialty must be that in which the ex- pert is skilled.^^ Thus a painter cannot be examined as to the construction of a building.^^ Nor is a surveyor of highways, who is not an expert in road building, admissible to testify as to the safety of a road.^® Nor can a surveyor be admitted to testify as 1 Wiggins V. Wallace, 19 Barb. " Brabbits v. K. K. 38 Wis. 290. 338; Hammond u. Woodman, 41 Me. ^^ Avery w. Police Jury, 12 La. An. 177; Detweiler v. Groff, 10 Penn. St. 654. 376 ; Walker v. Fields, 28 Ga. 237. 12 BufEum v. Harris, 5 R. I. 243. 2 Beckworth v. Sydebotham, 1 " Claxton v. R. R. 13 Bush, 650. Camp. 116; Thornton v. Ins. Co. " Knox u. Clark, 123 Mass. 216. Pea. R. 25; Cook v. Castner, 9 Cush. ^ Messer v. Reginnitter, 32 Iowa, 266. 312; Clegg v. Fields, 7 Jones L. (N. » Doster v. Brown, 25 Ga. 24. C.) 37 ; Brantly v. Swift, 24 Ala. 390. * Bearss v. Copley, 10 N. Y. 93. " Wallace v. Goodall, 18 N. H. 6 Infra, §507. 439; Randolph u. Adams, 2 W. Va. ' Folkes V. Chadd, 3 Doug. 167. 519; Stevens v. West, 6 Jones (N. ' Clipper V. Logan, 18 Ohio, 375. C.) L. 49; Blumenthal u.Roll, 24 Mo. 8 Phillips V. Terry, 3 Abb. (N. Y.) 113; Sehultz v. Lindell, 30 Mo. 310. App. 607 ; Porter v. Pequonnoc Man. " Supra, §439. Co. 1 7 Conn. 249. " Kilbourne v. Jennings, 38 Iowa, 9 Waco R. R. V. Shirley, 45 Tex. 533. 855. w Lincoln v. Barre, 5 Cush. 590. 393 § 446.] THE LAW OF EVIDENCE. [BOOK H. to the legal interpretation to be given to a survey.^ But practi- cal surveyors may express their opinions, whether certain marks on trees, piles of stones, &c., were intended as monuments of boundaries,^ and a person accustomed to use revolvers can testify as to which barrel of a revolver has been fired.^ § 445. A specialist in a particular art is admissible to prove So of *^® conditions of such art. Thus a painter, whether artists. professional or amateur, is admissible on the question of the genuineness of a picture ; * a photographer, as to the char- acter of the execution of a photograph.^ So, where the question was whether a paper had contained certain pencil marks, which were alleged to have been rubbed out, the opinion of an en- graver, who had examined the paper with a mirror, was held to be admissible evidence, valeat quantum.^ Seal-engravers, also, as we have seen, may be called to give their opinions upon an impression, whether it was made from an original seal, or from another impression.'^ § 446. So persons familiar with a market have been examined So of per- ^^ *° what are the demands of such market, what is the sons famii- market valuation of a particular article, and how such lar with a , ^ , _ market. value is affected by particular influences. Thus, an underwriter or broker, who has become familiar with the extent to which a particular circumstance affects premiums, may prove such extent ; * an experienced insurance agent may speak as to the effect of certain conditions on insurance ; ® a business or pro- fessional man, familiar with what is paid for particular services, as to the value of such services.^" So pork-packers may be ex- 1 Ormsby v. Ihmsen, 34 Penn. St. » Hobby v. Dane, 17 Barb. Ill; 462. Infra, § 972. Kern v. Ins. Co. 40 Mo. 19. See Hart- ^ Davis V. Mason, 4 Pick. 156. ford Ins. Co. v. Harmer, 2 Ohio St. » Wynne v. State, 56 Ga. 113. 452. * Abbey v. Lill, 5 Bing. 299, 304; i" Stanton v. Embrey, 93 U. S. Woodcock V. Houldsworth, 16 M. & 548; Elting v. Sturtevant, 41 Conn. W. 124. 176; McCoUum «. Seward, 62 N. Y. 5 Barnes v. Ingalls, 39 Ala. 193. 816; Thompson v. Boyle, 85 Penn. St. « R. V. Williams, 8 C. & P. 434, 477; Williams v. Brown, 28 Ohio St. per Parke, B., and Tindal, C. J. 547; Covey v. Campbell, 52 Ind. 527; ' Per Ld. Mansfield, in Folkes «. Carter v. Carter, 86 Mich. 207 ; Eg- Chadd, 8 Doug. 157. gleston u. Boardman, 87 Mich. 14; 8 Hawes v. Ins. Co. 2 Curt. 130. Ottawa o. Parkinson, 14 Kans. 159 ; See infra, § 447. Eagle Co. v. Browne, 58 Ga. 251. 394 CHAP. VIII.] WITNESSES : EXPERTS. [§ 446. amined as to the effect of transportation on hams ; ^ and horse- dealers as to how far cribbing affects the value of a horse.^ In fine, market value can be proved by any one conversant with the markets. If the thing is one of ordinary use, ordinary business experience is sufficient for this purpose.^ And, as a general rule, persohs accustomed to deal in real estate, or other property, may be examined as to the value of such property, and the effect on it of certain extraneous conditions.* Thus, a physician may testify to the value of the services of a nurse in a particular case. Reynolds v. Robin- son, 64 N. Y. 589. 1 Kershaw v. Wright, 115 Mass. 361. 2 Miller v. Smith, 112 Mass. 470. » Alfonso V. U. S. 2 Story, 421 ; Whipple u. Walpole, 10 N. H. 130; Peterboro' v. Jaflfrey, 6 N. H. 462; Lowe w.R. R. 45 N. H. 370; Vandine V. Burpee, 13 Met. (Mass.) 288; Walker v. Boston, 8 Cush. 179; Dwight V. County, 11 Cush. 201; Russell v. R. R. 4 Gray, 607; Swan v. Middle- sex, 101 Mass. 173; Bemis v. Spring- field, 122 Mass. 110; Smith v. Hill, 22 Barb. 656 ; Todd v. Warner, 48 How. (N. Y.) Pr. 23; Van Deusen v. Young, 29 N. Y. 9 ; Robertson v. Knapp, 35 N. Y. 91 ; Hood v. Max- well, 1 W. Va. 219; Butler v. Mehr- ling, 15 111. 488 ; Ohio R. R. v. Irvin, 27 111. 178; Hough v. Cook, 69 111. 581 : Frankfort R. R. «. Windsor, 51 Ind. 238 ; Kermott v. Ayer, 11 Mich. 181 ; Ward u. Reynolds, 32 Ala. 384; Rawles v. James, 49 Ala. 183 ; Cant- ling V. R. R. 54 Mo. 385 ; Hastings v. Uncle Sam, 10 Cal. 341 ; Gonzales o. McHugh, 21 Tex. 256; Thatcher v. Rancher, 2 Col. T. 698. * Webber v. R. R. 2 Met. 147; Swan V. Middlesex, 101 Mass. 173; Lawton v. Chase, 108 Mass. 238; Browning v. K. R. 2 Daly, 117; Orr V. N. Y. 64 Barb. 106 ; Teerpenning V. Ins. Co. 43 N. Y. 279 ; Bedell v. R. R. 44 N. Y. 367 ; Van Deusen v. Young, 29 Barb. 9 ; McDonald v. Christie, 42 Barb. 36; Hanover Co. v. Iron Co. 84 Penn. St. 279 ; Stone v. Covell, 29 Mich. 379; Brackett i'. Edgerton, 14 Minn. 174; Snyder v. R. R. 25 Wis. 60. See Seyfarth v. St. Louis, 52 Mo. 449. See, contra, Richardson v. Northrup, 66 Barb. 85; Thompson v. Deckhart, 66 Barb. 604; Ballantine, &c. R. R. v. Johnson, 59 Ind. 480; Baltimore, &c. R. R. v. Stoner, 59 Ind. 579. "A witness who is acquainted with the land, and knows its capabilities and the proper mode of cultivating it, can form a more intelligent opinion than the jury, whose judgment, unless they can be aided by the opinions of such witnesses, must be formed solely upon a rapid view or a description of the premises. We are of the opinion that the case at bar falls within the prin- ciple of the numerous adjudications in this commonwealth, which permit the opinions of competent witnesses to be given as to the value of land taken, or as to the damages or benefits to ad- joining land, to aid the judgments of the jurors." Vandine v. Burpee, 13 Met. 288 ; Walker v. Boston, 8 Cush. 279 ; Shaw v. Charlestown, 2 Gray, 107 ; West Newbury v. Chase, 5 Gray, 421; Swan v. Middlesex, 101 Mass. 173 ; Sexton v. North Bridgewater, 116 Mass. 200. " The question whether a witness has the requisite knowledge to enable 395 § 447.] THE LAW OF EVIDENCE. [book II. On questions of valuation of property it is impracticable to lay- down any precise line of demarcation between the expert and the non-expert. The safest course is to permit the examination of all having experience in or acquaintance with the thing to be valued, leaving their authority to be tested on their cross-exam- ination.i The same line may be taken, as has been seen, when inquiring into the value of professional or other services.^ Courts of error will deal liberally with questions of this class, and will not reverse because the culture of the expert is not sufficiently special, when ordinary competency appears ; ^ though some spe- cial qualifications must be shown.* § 447. The cases bearing an opinion as to value are so numer- him to give his opinion, is one which is largely within the discretion of the presiding judge or officer. In this case the witness was a farmer, having a farm near the petitioners, which was divided by a railroad, who knew the petitioner's farm, his mode and neces- sities in the management of his farm, and his means of crossing the rail- road. We cannot see that the pre- siding officer erred in admitting his testimony." Morton, J., Tucker v. Mass. Central R. R. 118 Mass. 547. " On the issue of the value to the les- see of rooms in a building which had been taken by a city to widen a street, it is within the discretion of the judge presiding at the trial to permit a wit- ness who underlets rooms in a build- ing in the vicinity, and who, for this purpose, has informed himself gener- ally of the rents of buildings, to give an opinion as to the value of the les- see's premises; although he has not examined, and is not familiar with, the building in question." Lawrence v. Boston, 119 Mass. 126, Gray, C. J. " Upon the assessment of damages sustained by the taking of land for a highway, a witness who has testified without objection to the value of the land taken may state the reasons of his opinion. By the court. The re- 396 fusal of the sheriff, to permit the wit- ness Almy to state the reasons of his opinion, was erroneous. The point has been repeatedly decided, both as to witnesses testifying to value and as to experts, strictly so called. Com- monwealth t;. Webster, 5 Cush. 295 ; Keith V. Lathrop, 10 Cush. 453 ; Dick- enson II. Fitchburg, 13 Gray, 546; Lin- coln V. Taunton Copper Co. 9 Allen, 181; Sexton v. North Bridgewater, 116 Mass. 200; Demerritt u. Randall, 116 Mass. 331." Hawkins i>. City of Fall River, 119 Mass. 94. 1 Webber v. R. R. 2 Met. 147; Dickenson v. Fitchburg, 13 Gray, 546; Brady v. Brady, 8 Allen, 101 ; Swan V. Middlesex Co. 101 Mass. 173; Law- ton V. Chase, 108 Mass. 238; Teer- penning v. Ins. Co. 43 N. Y. 279 ; Bedell v. R. R. 44 N. Y. 367; Penn- sylvania R. R. V. Bunnell, 81 Penn. St. 414 ; Holton v. Lake Co. 55 Ind. 194 ; Brackett v. Edgerton, 14 Minn. 174; Snyder v. R. R. 25 Wis. 60. See infra, §§ 531-546 ; supra, 439. " See supra, § 446, for cases. ' Delaware Towboat Co. v. Starrs, 69 Penn. St. 36. * Mercer v. Vose, 40 N. Y. Sup. Ct. 218 ; Sanford v. Shepard, 14 Kans. 228. See supra, § 438. CHAP. VIII.] WITNESSES : EXPERTS. [§ 448. ous as to invite peculiar consideration. As will be hereafter seen,^ the value of a particular thing at a particular moment „ . . . . ^ , . Opinion or place is to be inferred from various facts, among as to value which may be mentioned its possession of certain in- trinsic conditions enabling it to meet a market demand, and its value at other times and places, so as to give it a marketable price. Two essentials, therefore, exist to a proper estimate of value : first, a knowledge of the intrinsic properties of the thing ; sec- ondly, a knowledge of the state of the markets. As to such intrinsic properties as are occult, and out of the range of com- mon observers, it is necessary to call experts ; as to properties which are cognizable by an observer of ordinary business sagac- ity, being familiar with the thing, such an observer is permitted to testify.^ So the influence on value of certain patent condi- tions (e. g. railroad construction, opening of highways) may be thus estimated by witnesses of business sagacity, of ordinary familiarity with such values.^ But as to effects which only an expert can measure, only an expert can be examined.* § 448. It is elsewhere noticed that conclusions as to value are largely made up of presumptions.^ We presume that Generic the value a marketable article had a year ago it contin- missible ' ues to have ; we take the value it has in a proximate infer'spe-° and sympathetic market as one of the data from which <='fi<=- 1 Infra, § 1290. West Newbury v. Chase, 5 Gray, 421; " See cases in § 446 ; and see Car- Rochester R. R. v. Budlong, 10 How. penter v. Robinson, 1 Holmes, 67, 73; (N. Y.) Pr. 289; Brown v. Corey, 43 Haskinsu. Ins. Co. 5 Gray, 432; Davis Penn. St. 495; Cleveland R. R. v. V. Elliott, 15 Gray, 90; Fowler v. Mid- Ball, 6 Ohio St. 568; Gulf City Ins. dlesex, 6 Allen, 926; Whitman v. R. Co. v. Stephens, 51 Ala. 121. R. 7 Allen, 313; Kendall v. May, 10 * Clark i>. Rockland, 52 Me. 68; Allen, 59 ; Rogers v. Ackerman, 22 Buffum v. R. R. 4 R. I. 921 ; Forbes Barb. 134; Clark v. Baird, 9 N. Y. v. Howard, 4 R. I. 364; Whitney «. 183; Butler v. Mehrling, 15 111.488; Boston, 98 Mass. 312; Lamoure v. Hough V. Cook, 69 III. 581; Crouse Caryl, 4 Denio, 870 ; Clussman v. u. Holman, 19 Ind. 30; Frankfort R. Merkel, 3 Bosw. 402; Sinclair v. R. V. Windsor, 51 Ind. 238; Holton Roush, 14 Ind. 450; Dalzell v. Dav- V. Lake Co. 55 Ind. 194; Anson v. enport, 12 Iowa, 437; Elfeltu. Smith, Dwight, 18 Iowa, 241; Continental 1 Minn. 125; Sanford v. Shepard, 14 Ins. Co. V. Horton, 28 Mich. 173; Kans. 228. Supra, § 439. Whitfield V. Whitfield, 40 Miss. 350; ^ infj-a^ § i290. And see Thomp- Tate II. R. R. 64 Mo. 149. son v. Boyle, 85 Penn. St. 477. > Dwight V. County, 11 Cush. 201; 397 § 448.] THE LAW OF EVIDENCE. [book II. to determine the value it has in our own market. For the same reason we resort to the general value, belonging to things of a given class, in order to infer the value of a particular mem- ber of such class. A witness, for instance, may not be able to speak of the exact distinctive value of an article he has not seen. He is allowed, however, to speak of the market value of the class to which this article belongs. He has never, for instance, seen the horse whose value is in controversy ; and he cannot, there- fore, answer as to the specific value. But he may answer as to the generic value of horses, of age, color, soundness, and speed, such as those assumed to belong to this particular horse.^ Thus, it has been held admissible to ask an expert as to the general value of a good, well-broken setter dog ; ^ and how far cribbing affects the market value of a horse.* But a mere speculative sur- 1 See Kranschnable v. Knoblanch, 21 Minn. 56; and as dissenting, Atch- ison R. K. V. Harper, 19 Kans. 529. '^ Brill V. Flagler, 23 Wend. 354, cited in next note. » Miller v. Smith, 112 Mass. 475. " Whenever the value of any pecul- iar kind of property, which may not be presumed to be within the actual knowledge of all jurors, is in issue, the testimony of witnesses acquainted with the value of similar property is admissible, although they have never seen the very article in question. Beecher v. Denniston, 13 Gray, 354; Pitchburg Kailroad Co. v. Freeman, 12 Gray, 401; Brady v. Brady, 8 Allen, 101; Cornell v. Dean, 105 Mass. 435; Lawton v. Chase, 108 Mass. 238. A witness having the req- uisite knowledge and experience may always be examined by hypothetical questions, even if he has not seen the particular subject to which the trial relates, and has not heard all the other evidence given in the case. Woodbury ti. Obear, 7 Gray, 467; Hunt r. Lowell Gas Light Co. 8 Allen, 169, 172. " In Brill !'. Flagler, 23 Wend. 854, which was an action of trespass for killing a setter dog, one inquiry per- 398 mitted to be made, against objection, was, ' as to the value of a good, well- broke setter dog ; ' and Chief Justice Nelson was of opinion that, in answer to such an inquiry, the testimony of witnesses acquainted with the peculiar qualities of setter dogs, and who had some knowledge of their value in the market, was admissible (although they gave their opinion as to the value of setter dogs generally, and not as to the value of the plaintifTs dog in par- ticular), upon the ground that ' they are supposed to be better acquainted with the general market value of such animals than the generality of man- kind,' and that ' a common standjird is thus fixed that may assist in arriving at the value in the particular instance, which will vary according to the qual- ity, condition, &c., of the article in question.' His only doubt as to the admission of the testimony seems to have been whether the proof of the breed and qualities of the plaintiff's dog was sufficient to authorize the general inquiry; and his opinion in favor of the competency of the testi- mony appears to have been approved by this court in Vandine v. Burpee, 13 Met. 288, 291. CHAP. VIII.] WITNESSES : EXPERTS. [§ 448. mise, based upon imaginary conditions, is incompetent.^ Thus, upon the issue of the value of vacant land taken pursuant to the St. of 1873, c. 189, for a post-office in Boston, the testimony of an expert as to what would be the fair rental value of the land with a suitable and proper building upon it, has been held in- admissible.2 "In the present case, the question whether cribbing was unsoundness, and, if it wa,s, how far it affected the value of the mare in question, were questions of fact for the jury. Wash- burn V. Cuddihy, 8 Gray, 430. But it is not to be presumed that all jurors are necessarily acquainted with the effect of this habit upon the value of fast trotting horses. No objection was made to any of the witnesses on the ground of their want of knowledge or experience ; and we are of the opinion that all the interrogatories objected to were competent. The third asked for the value of fast trotting horses of a certain age, size, gait, speed, and other qualities. The fourth was wheth- er the habit of cribbing or wind suck- ing injured fast trotting horses for use and in market value, and how much. And the fifth was substantially a rep- etition of the fourth, as applied to a horse such as is described in the third, and of the value which the plaintiff paid the defendant for the mare in question, and which the defendant testified, at the trial, was her fair value." Gray, C. J., Miller v. Smith, 112 Mass. 475. So in an action for the conversion of tobacco raised in 1872, a witness, who testified as an expert that, in September, 1874, when a demand was made, there was a market value to the crop of 1872 tobacco grown in the vicinity, so that he could tell the value of a lot of that tobacco without seeing it, or knowing more of it than that it was of that crop, was held right- fully admitted to testify, against the defendant's objection, that the value was from eight to ten cents per pound, though the witness on cross-examina- tion testified, among other things, that he could not tell the value of any par- ticular crop raised that year, save by inspection, sample, or description, and that lots of tobacco raised that year differed very much, and no two were alike. Draper v. Saxton, 118 Mass. 428. " The witness Tucker was properly allowed to testify to the value of the tobacco crop of 1872 in that vicinity. The objection is not made to the wit- ness on the ground of his want of knowledge or experience, but to the competency of the evidence itself. Such evidence is competent for the purpose of ascertaining the market value of a certain class or kind of property, and may assist in determin- ing the value of an article belonging to that class, although the value of the particular article may vary according to its condition and quality. The com- petency of this evidence is fully con- sidered and the cases cited in Miller V. Smith, 112 Mass. 470." Endicott, J., Draper v. Saxton, 118 Mass. 431. 1 Brown v. R. R. 5 Gray, 35 ; Wes- sen V. Iron Co. 13 Allen, 95; Fair- banks V. Fitchburg, 110 Mass. 224. See Chamness v. Chamness, 63 Ind. 301; Gilbert v. Cherry, 57 Ga. 129. ' Burt J!. Wigglesworth, 117 Mass. 802. "But testimony as to what would be the fair rental value of the land with a suitable and proper building upon it related to mere matter of opin- 399 § 449.] THE LAW OF EVIDENCE. [book II. § 449. Value, it must be remembered, consists in the estimate, „ , , in the opinion of those influencing a market, attacha- Prooi of a '^ . . 1 . . T 1 • J ii !_• 1 market ble to certain intrinsic quahties belonging to the article be through to be valued. The opinion of such persons can only be hearsay. presented, in most cases, by hearsay. A broker, for instance, who is called as to the market value of a particular piece of property, and who is cross-examined as to the sources of his knowledge, must ultimately say, " it came from A., B., and C." Even should we call A., B., and C, we would get no further than hearsay ; for the testimony of either A., B., or C, as to what he would give for the article, is of little weight, unless such testimony is based, not on any properties of the thing making it peculiarly valuable to this particular witness, but on the estima- tion at which the thing is generally held in the market. Hence it is that it is no objection to the evidence of a witness testifying as to market value that such evidence rests on hearsay. ^ So it is admissible to fall back, as a basis of opinion, on prices current, provided they be traceable to reliable sources.^ ion as to the future, not of present fact, and was too prospective and in- definite in its nature to be competent evidence of the present value of the land not built upon. Fairbanks v. Fitchburg, 110 Mass. 224; Brown v. Providence, Warren & Bristol Rail- road, Gray, 35, 39; Wesson v. Wash- burn Iron Co. 13 Allen, 95, 100. The statement of Comer upon this point was not given by him as one of the reasons upon which his opinion as to the value of the land was founded, but in answer to a distinct question of counsel, which should have been ex- cluded by the presiding judge." Gray, C. J., Burt t'. Wigglesworth, 11 7 Mass. 306. 1 Supra, § 255 ; Cliquot's Cham- pagne, 3 Wall. 114 ; Laurent v. Vaughan, SO Vt. 90; Beach v. Den- niston, 13 Gray, 354 ; Eldridge v. Smith, 13 Allen, 140 ; Whitbeck v. E. K. 86 Barb. 644; Mish v. Wood, 84 Penn. St. 222; Doane v. Garret- son, 24 Iowa, 851. 400 2 Intra, § 672 ; Cliquot's Cham- pagne, 3 Wallace, 17; Laurent v. Vaughan, 30 Vt. 90; Whitney v. Thacher, 117 Mass. 527; Whelan v. Lynch, 60 N. Y. 469; though see Schmidt v. Herfurth, 5 Robt. (N. Y.) 124. " The exception on account of the evidence admitted to show the fall in the price of gunny bags is presented in several aspects. 1 . We see no rea- son why merchandise brokers in Bos- ton, members of firms doing business, and having houses established both in Boston and New York, might not properly be admitted to testify as to the market value, at a particular date, of an article of merchandise with which they were familiar, even though their knowledge was chiefly obtained from ' daily price current lists and re- turns of sales daily furnished them in Boston, from their New York houses.' It is not necessary, in order to qualify one to give an opinion as to values, that his information should be of such CHAP. VIII.] WITNESSES : EXPERTS. [§ 451. § 450. The distinctions just expressed may be applied to liti- gations to determine the amount of damage sustained so as to by a party by another's act. When the thing damaged d™mage°^ is one of every day use, whose depreciation an ordinary sustained. business observer can estimate, then such an observer may be called to express his opinion of the extent of the damage sus- tained. If the facts which form the basis of such an opinion can be specified, then they must be stated ; if the conclusion is one which the jury can draw, then to the jury must be left the draw- ing the conclusion. But when, as is often the case, these facts can be best expressed by the damage they cause, then this dam- age and its extent may be testified to by the witness.^ On the other hand, where the injury sustained is of an occult character, which only an expert can properly gauge, or when the knowledge of the value is special, belonging, not to business men generally, but only to specialists, then, if opinion as to damage is to be proved, a specialist must be called to give such opinion, and or- dinary observers are inadmissible for this purpose.^ § 451. Insanity is a topic as to which, in its scientific relations, experts may be examined on a hypothetical case, which on ques- may be put in such a way as to comprise the facts on sa"ity^not trial ; ^ while on the question as to whether a particular "°'J1 w person is insane, there is a strong chain of decisions to friends the effect that not merely physicians, skilled in diseases ants may of the mind, but intelligent and observant attendants §J™ °''™" a direct character as would make it D. Smith, 536; Brown v. Corey, 43 competent in itself as primary evi- Penn. St. 495. See Cleveland R. R. dence. It is the experience he ac- v. Ball, 5 Ohio St. 568; Ottawa v. quires in the ordinary conduct of af- Graham, 35 111. 346; Cairo, &c. R. R. fairs, and from means of information u. Woosley, 85 111. 370; Watry v. Hilt- such as are usually relied on by men gen, 16 Wis. 516. engaged in business, for the conduct ' Clark v. jRockland, 52 Me. 68; of that business, that qualifies him Webber v. R. R. 2 Met. 147; Whit- to testify." Wells, J., Whitney v. ney u. Boston, 98 Mass. 312; Buffum Thacher, 117 Mass. 527. v. R. R. 4 R. I. 221; Fish v. Dodge, 1 Supra, § 446; West Newbury v. 4 Denio, 311; Lamoure v. Caryl, 4 Chase, 5 Gray, 421; Shattuck v. Denio, 370; Sinclair t). Roush, 14 Ind. Stoneham R. R. 6 Allen, 115; Bemis 450; Whitmore v. Bowman, 4 Greene, V. Springfield, 122 Mass. 394; Nor- 148. man v. Wells, 17 Wend. 136; Dolittle ' Com. v. Rogers, 7 Met. (Mass.) I). Eddy, 7 Barb. 74; Simons v. Mo- 500 ; State w. Windsor, 5 Barring, nier, 29 Barb. 419; Duff u. Lyon, 1 E. (Del.) 512, and cases infra, § 462.. VOL. I. 26 401 § 451.J THE LAW OF EVIDENCE. [book n. and friends, who have had constant intercourse with the pa- tient, may be examined.^ So far as concerns senile dementia, or other chronic mental disease, the practical observation of business men, coming into constant intercourse with a party, is naturally more likely to attract confidence than are the specula"- tive conclusions of experts, even though the latter have paid the party occasional visits.^ By non-experts, it is said, opinions can- not be given detached from the facts on which they rest ; ^ but this distinction amounts to little, since experts, no matter how 1 Wheeler v. Alderson, 3 Hagg. 574; Wright w.Tatham, 5 CI. & F. 692; Harrison v. Rowan, 3 Wash. C. C. 580; Charter Oak Ins. Co. v. Ro- del, 95 U. S. 232; Cram v. Cram, 33 Vt. 15; Fairchild v. Bascomb, 35 Vt. 398; Hathaway u.Ins. Co. 48 Vt. 335; Grant v. Thompson, 4 Conn. 203 ; Kinne v. Kinne, 9 Conn. 102 ; Real V. People, 42 N. Y. 270 ; Fagnan v. Knox, 40 N. Y. Sup. Ct. 41 ; Ram- bler V. Tryon, 7 S. & R. 90; Wilkin- son V. Pearson, 23 Penn. St. 177; Titlow V. Titlow, 54 Penn. St. 216 ; Castner v. Sliker, S3 l5. J. L. 95, 507; Townshend v. Townshend, 7 Gill, 10; Weems v. Weems, 19 Md. 334; Wil- liams V. Lee, 47 Md. 321; Clark v. State, 12 Ohio, 483; Doe v. Reagan, 5 Blackf. 217; Beaubien v. Cicotte, 12 Mich. 459; Butler o. Ins. Co. 45 Iowa, 93; Clary v. Clary, 2 Ired. L. 78; Powell V. State, 25 Ala. 21; Stuckey V. Bellah, 41 Ala. 700; Wilkinson v. Moseley, 30 Ala. 562; Baldwin v. State, 12 Mo. 223 ; Dove v. State, 3 Heisk. 348; People v. Sanford, 43 Cal. 29; Pigg V. State, 43 Tex. 108; Gar- rison V. Blanton, 47 Tex. 299. That some qualification is a prerequisite, see Sutherland v. Hawkins, 56 Ind. 343. ^ Rutherford v. Morris, 77 III. 397; Rankin v. Rankin, 61 Mo. 295. As limiting non-experts to a bare statement of facts, see State v. Pike, 49 N. H. 399 ; Com. v. Wilson, 1 402 Gray, 337; Dewitt v. Barley, 5 Sel- den, 371; Clapp v. FuUerton, 34 N. Y. 190; Real v. People, 42 N. Y. 270; Sears ». Schafer, 1 Barb. 408 ; Hig- gins V. Carlton, 28 Md. 115 ; Runyan V. Price, 15 Ohio St. 1; Farrell v. Brennan, 32 Mo. 328 ; Gehrke v. State, 13 Tex. 568. From this limi- tation, however, subscribing witnesses are excepted. Ware «. Ware, 8 Greenl. 42 ; Poole v. Richardson, 3 Mass. 330; Logan v. McGinnis, 12 Penn. St. 27; Titlow j). Titlow, 54 Penn. St. 216; Egbert v. Egbert, 78 Penn. St. 326 ; Elder v. Ogletree, 36 Ga. 64. ^ Poole V. Richardson, 3 Mass. 330; Hathorn v. King, 8 Mass. 371 ; Dick- enson V. Barber, 9 Mass. 225 ; Kinne V. Kinne, 9 Conn. 102; Vanauken's case, 2 Stockt. Ch. 186 ; Lowe v. Wil- liamson, 1 Green Eq. 82; Sloan v. Maxwell, 2 Green Eq. 563; Gardiner V. Gardiner, 34 N. Y. 155 ; Sisson v. Conger, 1 Thomp. & C. 564: Clapp v. FuUerton, 34 N. Y. 190; Howell v. Taylor, 18 N. Y. Sup. Ct. 214; Ram- bler u. Tryon, 7 Serg. & R. 90; Bricker V. Lightner, 40 Penn. St. 199; Gibson V. Gibson, 9 Yerger, 329 ; Dorsey v. Warfield, 7 Md. 65; Doe v. Reagan, 5 Blackf. 217; Potts V. House, 6 Ga. 324 ; Dicken v. Johnson, 7 Ga. 484 ; Walker v. Walker, 14 Ga. 242; John- son V. State, 17 Ala. 618; Farrell v. Brennan, 82 Mo. 828; State v. Cole- man, 27 La. An. 691. CHAP, VIII.] WITNESSES: EXPERTS. [§ 452. authoritative, are required, if asked, to give the facts on which their opinions rest.^ The distinction as to hypothetical cases, however, is well founded ; and as to these it is clear a layman, or even an expert without special cultivation,^ cannot be asked.^ But while an isxpert who has personally visited a patient can unquestionably be asked for his opinion as to the patient's san- ity ; * his conclusions must be drawn from direct observation, not from the reports of others.^ As to whether a party at a given time was intoxicated, non-experts as well as experts can speak.^ § 452. The better opinion is that an expert cannot be asked his opinion as to the evidence in the case as rendered. Experts not only because this puts the expert in the place of the ^hied as' jury, in determining as to the credibility of the facts ^^^J^^ in evidence, but because the relief thus afforded is in case, most trials only illusory, experts being usually in conflict, and the duty devolving on court and jury of supervising such conclusions of experts being one which can be rarely escaped.^ It has been J Hardy v. Merrill, 36 N. H. 227 ; Stackhouse v. Horton, 15 N. J. Eq. 202; White v. Bailey, 10 Mich. 155. 2 See Russell v. State, 53 Miss. 368. * Com. V. Rich, 14 Gray, 335; State V. Klinger, 46 Mo. 228; Caleb v. State, 39 Miss. 722; Russell v. State, 53 Miss. 368. • R. I). Searle, 1 Mood. & R. 75; R. V. OfEord, 5 C. & P. 168; Com. u. Rog- ers, 7 Met. (Mass.) 500; Baxter v. Abbott, 7 Gray, 71 ; Delafield v. Par- ish, 25 N. Y. 9; Clark v. State, 12 Ohio, 483; Choice v. State, 31 Ga. 424. ' Heald v. Thing, 45 Me. 392. 8 State V. Pike, 49 N. H. 399; Ga- hagan v. R. R. 1 Allen, 187; People V. Eastwood, 14 N. Y. 662; Piers v. State, 53 Ga. 365; Stanley v. State, 26 Ala. 26. On an issue as to the sanity of a testator, it was proposed to tender a letter (purporting to be from the tes- tator) to a medical witness, and ask him whether the writer of such a let- ter could be of sound mind. Martin, B., held that this could not be done ; but that the letter must first be proved to be in the testator's writing, and that the witness might then be asked if it was a rational letter. Sharpe V. Macaulay, Western Circuit, 1856, MS.; Powell's Evidence (4th ed.), 99. ' R. V. Higginson, 1 Car. & K. 129; Sills V. Brown, 9 C. & P. 604 ; R. «. Frances, 4 Cox C. C. 57; R. v. Rich- ards, 1 F. & P. 87; Dexter v. Hall, 15 Wall. 9 ; Willey v. Portsmouth, 35 N. H. 303; Perkins ». R. R. 44 N. H. 223; Woodbury v. Obear, 7 Gray, 467; Miller v. Smith, 112 Mass. 475; Draper ». Saxton, 118 Mass. 431 ; Brill V. Flagler, 23 Wend. 354; People «. McCann, 3 Parker C. R. 272; Rey- nolds I'. Robinson, 64 N. Y. 589 ; State V. Powell, 2 Halst. 244 ; Kempsey v. McGinniss, 21 Mich. 128; Bishop v. Spining, 38 Ind. 143 ; Phillips v. Starr, 26 Iowa, 849; Butler v. Ins. Co. 45 Iowa, 93 ; State v. Medlicott, 9 Eans. 257; Choice v. State, 31 Ga. 424. But see Getchell v. Hill, 21 Minn. 464. 403 § 453.] THE LAW OF EVIDENCE. [book II. said, however, that when the facts are undisputed, the opinion of an expert can be asked as to the conclusions to be drawn from them ; ^ and it is now settled that experts of all classes may be asked as to a probable hypothetical case.^ Thus, shipwrights have been examined as to the seaworthiness of a ship in a partic- ular condition,^ and sailors whether a certain mode of navigation was prudent in an assumed state of facts.* So an expert as a driver may be asked as to the number of persons necessary to drive a certain number of mules.^ But if the facts on which the hypothesis is based fall, the answer falls also.^ Nor can an ex- pert be asked as to an hypothesis having no foundation in the evidence in the case,'' or resting upon statements made to him by persons out of court.^ § 453. We have already had occasion to call attention to the Expert unsatisfactoriness of the rule that while the expert gives piam Ms opinions, the non-expert gives only facts. We may hFs"exami- ^^^^ ^^^ *^^* i* ^^ ^ mistake to suppose that an expert nation. cannot give the reasoning on which his opinions rest. It is his duty to give such reasoning, when necessary to explain his opinions ; and he may do so in his examination in chief.^ Be- 1 McNaghton's case, 10 CI. & F. 200, 211, 212; 1 C. & K. 135; though see K. V. Frances, 4 Cox C. C. 57. That they may be examined hypo- thetically on a particular piece of evi- dence, or parts of the testimony, see Gilman v. Strafford, 50 Vt. 723 ; Hunt V. Gas. Co. 8 Allen, 169. 2 Dexter v. Hall, 15 Wall. 9 ; U. S. V. McGIue, 1 Curtis, 1 ; Sills v. Brown, ut supra; Spear u. Richardson, 37 N. H. 23; Fairchild v. Bascomb, 85 Vt. 398 ; Hathaway v. Ins. Co. 48 Vt. 335; Woodbury v. Obear, 7 Gray, 467; Com. V. Rogers, 7 Met. 600; Com. V. Rich, 14 Gray, 335; Erickson v. Smith, 2 Abb. N. Y. App. 64; Hoard V. Peck, 56 Barb. 202 ; Carpenter v. Blake, 2 Lans. 206 ; Harnett v. Gar- vey, 66 N. Y. 641; State v. Winsor, 6 Harring. (Del.) 512; Negro Jerry V. Townshend, 9 Md. 145; Choice v. State, 31 Ga. 424; Davis v. State, 36 404 Ind. 496 ; Bishop v. Spinincp, 38 Ind. 143 ; Wright v. Hardy, 22 Wis. 348; Crawford v. Wolf, 29 Iowa, 567; Wil- kinson V. Moseley, 30 Ala. 562; Caleb V. State, 39 Miss. 722; State v. Kling- ler, 46 Mo. 224; Tingley v. Cowgill, 48 Mo. 291 ; North Mo. R. R. v. Ak- ers, 4 Kans. 453; Dove v. State, 3 Heisk. 348 ; and cases cited in prior notes to this section as to insanity. ' Beckwith v. Sydebotham, 1 Camp. 116. * Fenwick v. Bell, 1 C. & K. 312; Malton V. Nesbit, 1 C. & P. 72. 5 North Mo. R. R. v. Akers, 4 Kans. 458. » Hovey v. Chase, 52 Me. 804 ; Thayer v. Davis, 38 Vt. 168. ' Muldowney v. R. R. 39 Iowa, 615 ; State v. Stokely, 16 Minn. 282. 8 Heald v. Thing, 45 Me. 392. » Keith V. Lothrop, 10 Cush. 463. CHAP. VIII.] WITNESSES : EXPERTS. [§ 454. yond this he cannot go in such examination ; ^ though he may be fully examined in details in order to test his credibility and judg- ment.2 Even on a reexamination he may be permitted to give explanations of facts occurring since his examination in chief.* § 454. When expert testimony was first introduced, it was regarded with great respect. An expert, when called Testimony as a witness, was viewed as the representative of the °* exjjert science of which he was a professor, giving impartially ousiy sera- its conclusions. Two conditions have combined to pro- duce a material change in this relation. In the first place, it has been discovered that no expert, no matter how learned and incor- rupt, speaks for his science as a whole. Pew specialties are so small as not . to be torn by factions ; and often, the smaller the specialty, the bitterer and the more inflaming and distorting are the animosities by which these factions are possessed. Peculiarly is this the case in matters psychological, in which there is no hypothesis so monstrous that an expert cannot be found to swear to it on the stand, and to defend it with vehemence when ofE the stand.. " Nihil tam absurde did potest, quod non dicatur ab ali- quo philosophorum."* In the second place, the retaining of ex- perts, by a fee proportioned to the importance of their testimony, is now, in cases in which they are required, as customary as is the retaining of lawyers. No court would take as authority the sworn statement of the law given by counsel, retained on a par- ticular side, for the reason that the most high-minded men are so swayed by an employment of this kind as to lose the power of impartial judgment ; and so intense is this conviction that in every civilized community the reception by a judge of presents from suitors visits him not only with disqualification but dis- grace. Hence it is that, apart from the partisan temper more or less common to experts, their utterances, now that they have as a class become the retained agents of parties, have lost all judicial authority, and are entitled only to the weight which a sound and cautious criticism would award to the testimony it- self.^ In adjusting this criticism, a large allowance must be 1 Ingledew v. R. R. 7 Gray, 86. * Cic. de Div. ii. 68. * Shaw V. Charlestown, 2 Gray, ' See, to this effect, Neal's case, 107 ; Hunt v. Lowell, 8 Allen, 169. cited 1 Redfield on Wills, ch. iii. § 13; ' Farmers' Bk. I). Young, 36 Iowa, 45. Woodruff, J., Gay v. Ins. Co. 2 Big. 405 § 454.J THE LAW OF EVIDENCE. [BOOK n. made for the bias necessarily belonging to men retained to advo- cate a cause, who speak, not as to fact, but as to opinion; and v7ho are selected, on all moot questions, either from their prior advocacy of, or from their readiness to adopt, the opinion to be proved. In this sense we may adopt the strong language of Lord Campbell, that " skilled vritnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence." ^ Life Ins. Cases, 14; Brehm v. K. K. 34 Barb. 256; Jarrett v. Jarrett, 11 W. Va. 584 ; Grigsby w. Water Co. 40 Gal. 396; Watson v. Anderson, 13 Ala. 202; 1 Whart. & St. Med. Jur. (1873), §§ 190, 269; Whart. Cr. Law, tit. "Evidence." See, also, 1 Am. Law Rev. 45, for a learned article on this topic by Prof. Washburn. As dissenting, see Eggers v. State, 67 Ind. 461. 1 Tracy Peerage, 10 CI. & Fin. 191. See, also, Winans v. R. R. 21 How. 101. To cases of litigated handwriting, the remarks which have just been made are peculiarly applicable, and will hereafter be distinctively dis- cussed. Infra, § 722. An expert, however, is privileged as to his an- swers, however wild or prejudiced, so far as concerns liability to a civil suit. Seaman v. Netherclift, L. R. 1 C. P. D, 540, cited, infra, § 722. The scholastic jurists, regarding ex- perts as assessors called upon to state results dependent upon reasoning out of the power of the court to follow, treated the conclusions given by the expert as unassailable facts. These conclusions the coiu-t, if the expert was duly qualified, was bound to ac- cept ; and when there was a conflict, then the conclusions of the majority were to be followed. See, for illustra- tration of this, Masc. c. 1169; and see Endemann, 2S0. This notion, however, has been long 406 abandoned. Of course if we could conceive of experts speaking of a sci- ence whose processes are utterly out of the range of the reasoning powers of the adjudicating tribunal, then a conflict between such experts is to be determined (apart from questions of credibility) just as we would treat the testimony of witnesses who, as to matters equally probable, contradict themselves as to the conditions of a place which no one but themselves has visited. But there is no science whose processes are utterly out of the range of the reasoning powers of even ordinary judges and juries. With some specialties, e. g. that which treats of insanity in its penal relations, twelve jurymen, with average sense, are capable of being so instructed, by evidence and argument, during the trial of a case, as to be able to come to a conclusion as conducive to pub- lic justice as would be twelve experts selected in the same way. The same may be said as to many mechanical sciences; though in such cases the instruction may be tedious and labo- rious. But, at all events, the law no longer is that the conclusion given by the expert is binding on the court or jury. The grounds on which the con- clusion is reached maybe asked for; the expert's capacity for drawing con- clusions, as well as his premises, may be assailed ; cases of conflict are to be determined not by the number of the witnesses but by the weight of the tes- CHAP. VIII.J WITNESSES : PARTIES. [§ 457. § 455. The practice has been to receive for what it is worth the testimony of an expert, when his observations are Especially made ex parte, as when a chemist sent by one party ^jy°y *"" examines, without notice to the other party, remains are ex supposed to contain poison, or a physician is taken by one party, also without notice to the other party, to visit a pa- tient whose sanity is in dispute. In cases such as these, expert testimony is entitled to little respect, and is likely, if the obser- vations be surreptitious and clandestine, to prejudice the party under whose directions they are made. Wherever notice of such observations to the opposing interests is practicable, then such notice should be given. If not given, then observations of the expert, thus privately made, will be exposed to discredit if not to exclusion.! § 456. It is not contrary to the policy of the law that an ex- pert should be specially feed, so that the testimony of Expert competent scientific men can be obtained without loss ^eoiaiiy to themselves. Even the fact, that such a retainer ex- ^^ed. isted was unknown at the time to the opposite side, is no ground for disturbing a verdict. It is for the jury, however, to deter- mine how far the credibility of the witness is affected by such retainer.^ VII. DISTINCTIVE RULES AS TO PARTIES. § 457. The late changes in our practice, by which parties may be examined under oath, may make it not irrelevant to By old Eo- examine the provisions in the Roman law in this rela- Mnsdenoe tion. If it should appear that this privilege of exam- "ou^^bT ination existed in the Roman practice to the same ex- probed, tent as it now exists in our own, this adds not a little to the authority of the Roman jurists in the branch of evidence now particularly before us. timony ; and though the opinion of an Parlange v. Parlange, 16 La. An. 17. expert of high character may be en- See Rutherford v. Morris, 8 Chic. Leg. titled to great respect, yet, if ques- News, 94. tioned, its authority must ultimately See, for a more indulgent view, rest upon the truth, material and for- State v. Porter, 34 Iowa, 131. mal, of the reasoning on which it de- ^ People v. Montgomery, 13 Abb. pends. (N. Y.) Pr. N. S. 207. See, however, 1 See Whart. Cr. Law, tit. " Evi- Lyon u. Wilkes, 1 Cow. 591. As to dence; " Heald v. Thing, 45 Me. 892; right to fees, see supra, § 380. 407 § 460.] THE LAW OF EVIDENCE. [BOOK II. § 458. In the older Roman practice, the parties were accus- tomed to resort, as a mode of compromise, to an appeal to the conscience, or juramentum voluntarium, by which the one agreed to abide by what the other should answer under oath. From the Juramentum voluntarium was gradually developed the jura- mentum neoessarium. The praetor, when either party applied for an appeal of this kind, agreeing to be bound by the result, forced the other party to answer. Suits which depended on the knowledge of the parties themselves were brought to a sum- mary conclusion. The answers made by a party, to questions thus put to him, may be likened to answers to bills of discovery, in the old chancery practice, supposing that on filing the bill the party asking for the discovery should agree to be bound by the answer.^ An answer admitting a certain debt was considered as final, requiring no judgment. Where, however, the admission was of an uncertain debt, then process issued for the assessment of damages, on which process judgment was necessary.^ § 459. It was not obligatory on the actor to adopt this mode of trial. He might proceed, if he thought proper, to substan- tiate his case by the means hereafter detailed. But if he elected to leave the decision to the conscience of the opposite party, the latter was bound either to concede the claim or to answer under oath. "Ait praetor: 'eum, aquo jusjurandum petetur, solvere aut jurare cogam.'' Alterum itaque eligat reus, aut solvat aut juret: si non Juret, solvere cogendus erit a praetore."^ The party asking for discovery was nonsuited, as we might say, if he did not disclose facts making out a case ; the opposite party, if he did not answer, had judgment taken against him by default.* § 460. Of much greater importance to our present inquiry By later was the practice by which the Romans made the testi- examfna- mony of the parties admissible in all contested issues.^ parties was -^f*®^ t^® ^'"'^^ judiciorum, as a distinct tribunal, ceased permitted, to exist, all judicial functions centred in the magis- trates who occupied a similar position to that of equity judges, or judges in common law courts trying cases without juries. While 1 See L. 34, § 6. D. xii. 2; L. 5, § » L. 84, § 6, xii. 2. 2. h. t.; Quinctilian, V. c. 6; Ende- * Savigny, Rom. Recht. vii. § 812. mann, Beweislehre, 443. 6 See Savigny, Rom. Recht. vii. § !> Puchta, Inst. Bd. ii. 190. 813. 408 CHAP. VIII.J WITNESSES : PAETIES. [§ 460. the ordo judiciorum still existed, issues of fact, instead of being tried before the magistrate determining the law, as they after- wards were, were sent, it will be remembered, to the judex who occupied a position not unlike a master of chancery, to whom the examination and determination of facts is committed on a feigned issue. But whatever was the tribunal, the judge whose office was to decide the case was authorized to examine, or to permit to be examined, either or both of the parties. The ex- amination is referred to as if regarded as affording subsidiary proof.^ Certainly if a party could make out his case without calling his antagonist as a witness, it was not either necessary or desirable that the antagonist should be so called. But that it was a party's right to make his antagonist a witness is clear ; and it is also clear that the judge who at the close of a civil issue was in doubt could interrogate under oath either of the parties. This right is expressly confirmed by imperial decree.^ But the answers thus given under oath were regarded, not as concluding the case, as with the arbitration oaths, but simply as testimony. If a party, when so examined, admitted his opponent's claim, this of course was a ground of judgment against the party mak- ing the admission. But where the party made no such admis- sion, then his testimony was to be weighed as would the testi- mony of any other witness.^ The testimony of the party, when thus examined on trial, was regarded as merely evidential, and could be subsequently impeached.* Yet the refusal of a party to testify was not ground for judicial action against him, as it was when he refused to answer in the arbitration procedure. When called as a witness on the trial of the case, he might de- cline to be sworn ; and if so, the court was to determine the case on the evidence presented,^ subject to the logical inferences to be drawn from his refusal.® The refinements which were introduced by the Italian and other scholastic jurists it is not necessary here to discuss. It is enough to say that while admitting the right of the judge to examine the parties, they limited this right to cases 1 See Gaius in L. 31, D. xii. 2. , ^ See L. 12, § 2, Cod. 14, 1. ^ See L. 3, Cod. iv. 1. ' Ibid. Sent., quae quasi ex reou- • See L. 5, § 2, xii. 3. sato juramento processit. See Ende- * See Savigny, § 313, p. 83. mann, 448. 409 § 461.] THE LAW OF EVIDENCE. [BOOK II. where there was an inopia prohationis ; ^ testimony so elicited was announced to be prohatio praesumtiva or semi plena ; ^ and a dis- tinction was sought for in the nature of the case tried. In eausis arduis seu magnis, a party could not be examined ; ^ while as to what constitutes a causa ardua, or magna, a new line of subtle discriminations was opened.* These refinements of the schoolmen were part of a peculiar scheme in which their doctrine of presump- tions, elsewhere discussed, formed the leading feature ; and their speculations on the two topics are mutually dependent. The classical Roman law in this relation, on the other hand, is sub- stantially the same with that recently established in most Eng- lish and American jurisdictions. It is important to notice this fact, not because it helps us to any direct authority as to the effect of testimony so obtained, but because it adds to the logical value of the classical Roman theory of presumptions which we will hereafter discuss.^ In taking the scholastic doctrine, that the testimony of parties was to be virtually rejected, we natu- rally accepted the scholastic theory of presumptions. When the evidence of parties, and of persons interested, is excluded, then we are justified in taking the next best evidence, and we may be even justified, following the schoolmen, in constructing a system of arbitrary rules for our guidance. But if the testi- mony of all parties interested is admitted, then we have no need to resort to presumptions based on the hypothesis of the inca- pacity of the parties to speak, and our examination of litigated facts is to be conducted by the ordinary processes of logic.^ § 461. The testimony of a party in his own cause, to refer Impor- again to the important distinctions elsewhere put,'^ may suXtesti- ^^ either contractual, so as to bind him directly to the ™o°y- opposite party, or strictly evidential, as giving proof of certain facts. A party, for instance, according to the old practice, in answer to a bill of discovery, admits an obligation to the opposite party. This admission concludes him, and judg- 1 Mascard. I. qu. 9, 953, 24. "= Infra, §§ 1227 et seq. " Durant, II. 2, de prob. § 3, nr. 10. « See this ably argued in Ende- 8 Gloss. in L. 31. h. t. xii. 2; Pacian, mann's Beweislehre, and by Mr. Liv- De prob. L. c. 39, No. 19. ingston, in his Report on Evidence, * For instance, an actio famosa, Works, (ed. of 1873), 439. spiritualis, is ardua. S6e Maso. c. 7 See infra, §§ 920, 1082. 956; Endemann, 456. 410 CHAP. VIII.] WITNESSES : PARTIES. [§ 462. ment may be taken against him for the sum admitted. He states, on the other hand, certain facts, from which inferences unfavorable to him may be drawn. These facts are simply evi- dential; and on the trial of the cause he is entitled to prove other facts which tend to modify the inference drawn from the facts stated in his answer. So with regard to the testimony of a party, when examined, either on the trial, or according to the practice which has been recently introduced in many of our states, under rule of court, as preliminary to trial. In such testimony he may either concede to the opposite party the whole or part of the latter's claim, or he may testify to certain facts from which inferences may be drawn, subject to the qualifi- cations above stated in reference to bills of discovery. As to the first of these offices of a party's testimony, it must be remem- bered that every person has a right to dispose of his own prop- erty, and the more solemn the mode of disposal, the more com- plete is its juridical effectiveness. And no mode of disposition can be more solemn than that of the deliberate answer, under oath, of a party when examined by his opponent in a court of justice. It is true that such an admission may, as we will after- wards see, be withdrawn on proof of fraud or mistake. But if not so withdrawn, it is a confessio injure, operating as an assign- ment ojE so much of the party's rights as are thereby involved, and forming in itself ground for a judgment of the court.^ § 462. We must therefore conclude that oaths taken in a cause by a party have a distinct quality not imputable to oathsby oaths taken by witnesses. A party who, either volun- P*''''°^]- tarily or under compulsion, makes an oath in a cause, atory as may, when he testifies as to a contract made with the evidential other party, estop himself by the statement so made. He files, for instance, when sued on a note, an affidavit of defence ; and in this affidavit he makes certain admissions. By these admissions he is afterwards contractually bound to the opposite party, for the reason that when he appears in a case he enters into privity with the opposite party, and is bound to such party afterwards by his concessions. The attaching of the oath to such concessions not only contributes their precision and their solem- nity, but establishes them among the fixed landmarks by which 1 Infra, §§ 488, 1110-19. 411 § 464.J THE LAW OF EVIDENCE, [book II. the juridical relations of the parties are to be subsequently- determined. § 463. We now turn to the English and American statutes removing the common law disability of parties ; and not ex post the first observation to be made is that these statutes are not ex post facto, or obnoxious to the constitutional sanctions prohibiting laws impairing contracts. Such statutes touch remedies, not rights.^ § 464. The statutes are remedial ; and their operation will Such Stat- not be impaired by a technical closeness of construc- liberally* tion.^ Thus the statutes have been held to apply to construed, cases in which the United States is a party ; ^ to cases in chancery ; * to cases where a guardian is party to a suit in- volving his accounts ; ^ to cases where an executor is a party unless he be specifically excluded ; ® to cases where a corporation is a party ; ^ to interested parties to feigned issues testing validity of wills.^ The object of the statutes is to remove all artificial restraints on competency ; and in the promotion of this object, beneficent as it is, the courts are bound to unite.' 1 Hubbell's case, 4 Ct. of Claims, 37; Smyth v. Balch, 40 N. H. 363; Van Falkenbergh v. Bank, 23 N. J. L. 583; Walthall v. Walthall, 42 Ala. 450. See Kimball u. Baxter, 27 Vt. 628. 2 Texas v. Chiles, 21 Wall. 489; Payne v. Gray, 56 Me. 31 7 ; Hosmer V. Warner, 15 Gray, 46 ; Delamater V. People, 5 Lansing, 332; Nourry u. Lord, 3 Abb. (N. Y.) App. 892 ; Mc- Clelland V. West, 70 Penn. St. 187; Jones V. Jones, 36 Md. 447 ; Bison v. Cribbs, 1 Dill. 181 ; Young ti. Bank, 51 111. 73 ; Home v. Young, 40 Ga. 193 ; Brand v. Abbott, 42 Ala. 499 ; Fugate V. Pierce, 49 Mo. 441 ; State V. Dee, 14 Minn. 85; Potter v. Me- nasha, 30 Wis. 492. See Gooderich w. Allen, 19 Mich. 250. 8 Green v. U. S. 9 Wall. 655 ; U. S. V. Cigars, 1 Woolw. 123. * Rison V. Cribba, 1 Dill. 181. * Bogia V. Darden, 45 Ala. 269. 412 ' Johnson v. Heald, 33 Md. 352. ' Carr v. Ins. Co. 3 Daly, 160. ' Frew V. Clarke, 80 Penn. St. 171. ° Under the federal statutes " in the courts of the United States," to adopt the language of Chief Justice Waite, "parties are put upon a footing of equality with other witnesses, and are admissible to testify for themselves and compellable to testify for others." New Jersey R. R. Co. v. Pollard, 22 Wall. 350 ; citing Texas v. Chiles, 21 Wall. 488. As to the adoption by the federal courts of the state statutes, see Bean, in re, 2 Weekly Notes, 482. The English statutes are thus re- capitulated by Mr. Powell: "Lord Denman's Act left actual parties to the record incompetent witnesses. This disability was removed by the 14 & 15 Vict. c. 99 (the Law of Evidence Amendment Act). Finally came the Law of Evidence Further Amendment CHAP, vin.] WITNESSES : PARTIES. [§ 465. § 465. Under the statutes a party may have his deposition taken as well as be examined vivd voce in court.^ Hence, the „ . . statutes deposition of a party taken so as to be admissible m a cover depo- pending suit is admissible in a subsequent suit between the administrators of the parties as to the same subject matter.^ Act, 1869, 32 & 33 Vict. c. 68, which abolished the two exceptions retained by the 14 & 15 Vict. c. 99. After repeating the 4th section of the last mentioned act, the Act of 1869 renders (sect. 2) the parties to actions for breach of promise of marriage compe- tent witnesses. The uncorroborated testimony of the plaintiff is, however, not to be sufficient proof of a promise to marry to entitle the jury to give a verdict for the plaintiff ; his or her testimony must be corroborated by some material evidence in support of the alleged promise. The 3d section of this act renders the parties to pro- ceedings instituted in consequence of adultery, and the husbands and wives of such parties, competent witnesses ; with the proviso that no witness to any proceeding, whether a party or not, is to be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adul- tery; unless such witness has already given evidence in the same proceed- ing in disproof of such adultery. The great aim of the legislature would seem to have been to enable persons charged with adultery in the Divorce Court to deny the charge on oath. This is effected by making such per- sons competent witnesses. In the measure as originally brought into the House of Commons, the parties were to be compellable as well as compe- tent. To this two objections were raised : 1 st. That it would induce par- ties to institute proceedings on very slender grounds, in the expectation of being able to elicit something in cross- examination of the respondent or co- respondent to establish their case. 2d. That an adulteress or adulterer would be very much tempted to commit per- jury to screen the partner in guilt. In deference to these objections, the above mentioned proviso was added to the 3d section. " One question presents itself upon these two sections — are the parties to an action for breach of promise of marriage, and to proceedings insti- tuted in consequence of adultery, com- pellable as well as competent witnesses ? Prima facie every witness who is com- petent is also compellable, unless some privilege intervenes ; and therefore it may be assumed that the proper con- struction to be placed upon these sec- tions is, that the parties mentioned are compellable as well as competent, except when they can claim the pro- tection of the proviso to section 3. In fact, no doubt would present itself but for the language of section 2, of 14 & 15 Vict. c. 99, which enacts, that the parties to any action (except as there- inafter excepted) shall ' be competent and compellable to give evidence.' The words ' and compellable,' how- ever, would seem to be mere surplus- 1 Cornett v. Williams, 20 Wall. 226; New Jersey R. R. v. Pollard, 22 Wall. 350 ; Nichols v. Allen, 112 Mass. 23 ; Bourgette v. Hubinger, 30 Ind. 296 ; McLean i;. Hunsicker, 30 La An. 1157. " Collins V. Smith, 78 Penn. St. 423. See, also, as to notes of testi- mony, Evans v. Reed, 78 Penn. St. 415, and supra, § 178. 413 § 466.] THE LAW OF EVIDENCE. [book n. § 466. In most of the statutes, cases are excepted where the suit Cases is against executors or administrators, in which cases the surviving party to a contract is not permitted to testify ; as it is sometimes put, cases in which one of the where other con- tracting party is dead. or. parties to a contract is dead, in which cases the other age. The following points have been decided on the construction of this act, so far as it affects proceedings instituted in consequence of adultery. The act does not apply to a petition presented by a husband for payment of money out of court on the ground of his child having been bastardized by his wife's adultery. Re Rideout's Trusts, L. R. 10 Eq. 43 ; 39 L. J. Ch. 192. If a witness does not claim the protection given by the 3d section, neither of the parties to the suit can object to the evidence ; Hebblethwaite V. Hebblethwaite, L. R. 2 P. & D. 29; 39 L. J. P. & M. 15; and a witness cannot be cross-examined as to any act of adultery not referred to in the examination in chief. Babbage v. Babbage, L. R. 2 P. & D. 222. Any discussion as to the testimony of in- terested witnesses cannot be more ap- propriately closed than by quoting the remarks of Lord Justice James, when vice-chancellor (Pike o. Nicholas, 17 W. R. 845; 38 L. J. Ch. 529): 'It has been pressed on me that I cannot decide against the positive oath of the respondent without convicting him of wilful and corrupt perjury. I have had occasion more than once to say that this is not a criminal court : that I am trying no one for any crime. I am here bound by my own judicial oath to well and truly try the issue joined between the parties, and a true verdict give according to the evi- dence; that is to say, according as I, weighing all the evidence by all the lights I can get, and as best I may, find the testimony credible or incred- ible, trustworthy or the reverse. The 414 law which admitted the testimony of the parties and of interested persons was passed in full reliance on the judges and on juries that they would carefully scrutinize such testimony, and give it such weight as it deserved, and no more, or no weight at all.' Powell's Evidence, 4th ed. 89. " The concluding words of the 3d section of the 14 & 15 "Vict. c. 99, de- clare that nothing contained in the' act ' shall in any criminal proceeding ren- der any husband competent or com- pellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband.' The first ques- tion which arose on the construction of this clause was as to the compe- tency and compellability of husbands and wives to give evidence for or against each other in civil proceed- ings. It was held in two cases that they were severally incompetent ; Bar- bat V. Allen, 7 Ex. 609 ; Stapleton «. Crofts, 18 Q. B. 367; but it appeared that it was the intention of the legis- lature to make them competent. And now, by the 16 & 17 Vict. c. 83, hus- bands and wives are rendered compe- tent and compellable, in all civil cases, to give evidence ' on behalf of any or either of the parties to the said suit, action, or proceeding.' But neither husband nor wife is compellable to dis- close any communication whatsoever made to him or her by the other dur- ing marriage. After the death of either husband or wife, the privilege enures for the benefit of the survivor. See O'Connor v. Marjoribanks, 4 M. & G. 435. These provisions were, by CHAP. VIII.] WITNESSES : PARTIES. [§ 466. party is not competent as a witness. The reason of this ex- ception is, that when there is no mutuality there should not be admissiblity, — i. e. when the lips of one party to a contract are closed by death, then the other party should not be heard as a witness. It has been argued that if this reason be sufficient, it would prevent all suits against executors and administrators, because if the inability to explain be a ground for the exclusion of adverse testimony in one case, it is a ground for the exclusion of such testimony in all. But whatever is the force of this crit- icism, the exception exists, and the courts have united in eflEect- uating it so far as to silence one party as a witness as to mutual dealings concerning which the other party is unable to speak.^ the act, not to apply in criminal cases, or in proceedings instituted in conse- quence of adultery ; but now, as stated above, the Evidence Further Amend- ment Act, 1869, has made the hus- bands and wives of parties to pro- ceedings instituted in consequence of adultery competent witnesses." Vide supra, p. 38. Powell's Evidence, 4th ed. 46. " Since the Act of 1869, the court, in order to act in good faith towards the legislative branch of the govern- ment, must discountenance all objec- tions on the score of interest and policy unless they be made clearly to appear." Agnew, J., McClelland's Executor v. West's Administrator, 70 Penn. St. 187. 1 Eslava v. Mazange, 1 Woods, 623; Kelton V. Hill, 59 Me. 259 ; Burleigh V. White, 64 Me. 23; Hoyt i-. Rus- sell, 56 N. H. 559 ; Walker v. Taylor, 43 Vt. 612; Morse v. Low, 44 Vt. 661 ; Wood V. ShurtleflF, 46 Vt. 325 ; Woodbury v. Woodbury. 48 Vt. 94 ; Davis V. Bank, 48 Vt. 532; McKel- lop V. Jackman, 50 Vt. 57; Brooks V. Tarbell, 103 Mass. 496 ; Strong v. Dean, 55 Barb. 337 ; Resseguie v. Mason, 58 Barb. 89; Elmore u. Jaques, 4 Thomp. & C. 679 ; Brague v. Lord, 69 N. Y. 404 ; Tooley v. Bacon, 70 N. Y. 34 ; Walker v. Hill, 21 N. J. Eq. 191 ; Karns v. Tanner, 66 Penn. St. 297 ; Craig v. Brendel, 69 Penn. St. 153; Hanna v. Wray, 77 Penn. St. 29 ; Arthur v. King, 84 Penn. St. 525; Downes v. R. R. 37 Md. 100; Field V. Brown, 24 Grat. 74; Mason V. Wood, 27 Grat. 783; Grigsby v. .Simpson, 28 Grat. 348 ; Borst v. Nalle, 28 Grat. 423; Calwell v. Prin- dle, 11 W. Va. 307; Reed v. Reed, 30 Ind. 313 ; Bishop v. Welch, 35 Ind. 521; Noble v. Withers, 36 Ind. 193; Skillen v. Skillen, 41 Ind. 260 ; Hoad- ley V. Hadley, 48 Ind. 452 ; Goodwin V. Goodwin, 48 Ind. 452 ; Hodgson V. Jefiries, 52 Ind. 234 ; Donlevy v. Montgomery, 66 111. 227 ; Ruckman V. Atwood, 71 111. 155 ; Whitmer v. Rucker, 71 111. 410 ; Conelly v. Dunn, 73 111. 218; Langley v. Dodsworth, 81 HI. 86; Crane v. Crane, 81 111. 165; Branger v. Lucy, 82 111. 91; Chambers v. Hill, 34 Mich. 523 ; Schratz v. Schratz, 35 Mich. 485 ; Harmon v. Dart, 37 Mich. 53; Keech V. Cowles, 34 Iowa, 259 ; Caraday v. Johnson, 40 Iowa, 587; Peck u. Mc- Lean, 45 Iowa, 18 ; Smith v. Johnson, 46 Iowa, 308; Koenig v. Katz, 37 Wis. 153; Johnson v. Coles, 21 Minn. 108; Whitesides v. Green, 64 N. C. 307; Isler V. Dewey, 67 N. C. 93; Hower- 415 § 466.] THE LAW OF EVIDENCE. [book II. While such, however, is the policy of the statutes, there is some diversity in the terms in which this policy is expressed. In one class of statutes, the ohject of the suits is used to define the ex- clusion, and it is provided that in respect to contracts with a deceased person the surviving contractor shall not be admissible.^ In other states, as is the case in Pennsylvania, the parties are described, it being enacted that in suits by or against executors or administrators, the opposing party shall not be received.^ Yet even in Pennsylvania we do not find this line exclusively pursued, for, after excluding parties in suits against executors, the statute goes to exclude them in cases where the assignor of the thing or contract in action may be dead.^ Much, how- ton V. Lattimer, 68 N. C. 370; Bal- lard V. Ballard, 75 N. C. 190; Lewis V. Fort, 75 N. C. 251 ; Bushee v. Surles, 77 N. C. 62; Guery v. Kins- ler, 3 S. C. 423 ; Boykin v. Watts, 6 Kich. 76 ; Latimer o. Sayre, 45 Ga. 468 ; Veal v. Veal, 45 Ga. 511; Gra- ham V. Howell, 50 Ga. 203; Dixon v. Edwards, 48 Ga. 142; Wright «. Bess- man, 55 Ga. 187; Hayes v. Calla- way, 58 Ga. 228 ; Perry v. Mulligan, 58 Ga. 479; Waldman v. Crommelin, 46 Ala. 580 ; Stallings v. Hinson, 49 Ala. 92; Louis v. Easton, 60 Ala. 470; Key v. Jones, 52 Ala. 238 Harwood v. Harper, 54 Ala. 659 Witherspoon v. Blewett, 47 Miss. 570 Keinhardt v. Evans, 48 Miss. 230 , Jacks V. Bridewell, 51 Miss. 881 ; Rush- ing u. Rushing, 52 Miss. 329; Kellogg V. Malin, 62 Mo. 429 ; Gist v. Gans, 30 Ark. 285; Lawhorn v. Carter, 11 Bush, 7; Hook v. Bixby, 13 Kans. 164. See Davis v. Plymouth, 45 Vt. 492, where it was held that, on a peti- tion by a woman's guardian to annul her marriage to a deceased man, on the ground that her consent was ob- tained by fraud, she is not a compe- tent witness. Angell v. Hester, 64 Mo. 142. That a survivor to a con- tract cannot prove part performance, see Silton v. Shipp, 65 Mo. 297. 416 1 See Hobart v. Hobart, 62 N. Y. 80 ; Mosner v. Kaulain, 66 Barb. 213. 2 To this effect see Holmes v. Ches- ter, 27 N. J. Eq. 423 ; State v. Cook, 79 Ind. 124; Zerbe v. Eeigart, 41 Iowa, 229 ; Chase v. Evoy, 51 Cal. 618; Wood V. Stafford, 50 Miss. 370: , Jacks V. Bridewell, 51 Miss. 881 ; Ring V. Jamison, 66 Mo. 424. In North Car- olina the survivor is a competent wit- ness in cases in which the representa- tive of the deceased is not a party. Shields v. Smith, 79 N. C. 517. See Thomas v. Kelly, 74 N. C. 416. 8 In Pennsylvania this peculiar- ity in the statute is exhibited and ex- plained in Graves v. Griffin, 66 Penn. St. 297; Karns «. Tanner, 66 Penn. St. 297; Patterson v. Armstrong, 74 Penn. St. 476; McFerran v. Iron Co. 76 Penn. St. 186. Under the Pennsylvania statute, it is held that where by the death of one of two defendants the plaintiff is made incompetent, the surviving de- fendant cannot testify. " When one of the parties to a contract in litiga- tion is denied the privilege of testify- ing, the policy of the law is to close the mouth of the other. Graves v. Griffin, 19 Penn. St. 176. This doc- trine was recognized prior to 1869, CHAP. VIII.J WITNESSES: PARTIES. [§ 466. ever, as the statutes may differ in words, they are the same in purpose. That purpose is to provide that when one of the par- and is the true principle to apply to the construction of this act." Karns v. Tanner, 66 Penn. St. 297; Pattison i>. Armstrong, 74 Penn. St. 476; Grouse V. Stanley, 3 Weekly Notes, 83. The term " action, " in the statute, is to he extended so as to embrace all phases of litigation. McBride's App. 72 Penn. St. 482. Under the Pennsylvania statute it is also ruled that in an issue, devisavit vel nOn, the executor, who is also a devisee, is a competent witness in sup- port of the will. Bowen v. Goranflo, 73 Penn. St. 357, 358; Frew v. Clark, 3 Weekly Notes, 497 ; 80 Penn. St. 1 70. On the other hand, under the same statute, a distributee is not a compe- tent witness in the distribution of a decedent's estate as to transactions in his lifetime. " The first assignment is the refusal to permit the appellant to testify in his own behalf. His object was to relieve himself from a portion of the claim of the estate of the intestate against him. He sought to testify to transactions which occurred during the life of the decedent. That mutu- ality or equality did not then exist be- tween the parties, which is necessary to permit a party to testify in his own behalf. The parties are not within the proviso to the first section of the Act of 15th April, 1869. The ap- pellant was, therefore, rightfully ex- cluded. Karns v. Tanner, 16 P. F. Smith, 297." Mercur, J., Eshleman's Appeal, 74 Penn. St. 42, 48. It has been further held in the same state, that where one partner is dead, in a suit against the survivor for a claim against the firm, the plaintifi is not a competent witness under the Act of April 15, 1869. Hanna v. Wray, 77 Penn. St. 27. VOL. 1. 27 In Rutherford's Estate, 2 Notes of Cases, 443, it was held that a ward, recently arrived at age, was, under the statute, competent to impeach the tes- timony of his late guardian. In Am. Life Ins. v. Shultz, 82 Penn. St. 46, it was held that in a suit upon a contract made by an agent on behalf of his principal, the death of the agent does not render the other party to the contract incompetent as a witness un- der the Act of April 15, 1869. See §469. In Kimble v. Carothers, 81 Penn. St. 494, it was ruled that in an action by the administrator of A. against the administrator of B., to recover funds alleged to belong to A.'s estate, the next of kin of A. are not competent. Under the peculiar provisions of the same statute it has been determined that the husband or wife of a party to a suit cannot testify against an ex- ecutor on a contract alleged to have been made with the latter's decedent. ' ' The right of the witnesses to testify is rested on this Act of 1869. It is urged, inasmuch as it declares ' no in- terest nor policy of law shall exclude a party or person from being a wit- ness,' and the witnesses offered not being directly interested in the event of the suit, they cannot be excluded by the policy of the law. Prior to the enactment of this statute, both inter- est and policy excluded husband and wife from testifying for and against each other." Taylor v. Kelly, 80 Penn. St. 95; S. P., Stoll v. Weid- man, 3 Weekly Notes, 204. Infra, §473. Where A. leased to B. a brewery and fixtures, stipulating that any im- provements or alterations should be- long to the lessor at the end of the term, and B. erected a new boiler on 417 § 466.] THE LAW OF EVIDENCE. [book II. ties to a litigated obligation is silenced by death, the others shall be silenced by law. the property and assigned the lease to C. ; in an action by A.'s executors against C. for the rent, C. having set off the value of the boiler, offered B. to prove a parol variation of the terms of the lease, it was held that B. was a party in interest within the meaning of the Act of 15 April, 1869, and his testimony was inadmissible. Whitney V. Shippen, 2 Notes of Cases, 470. " Every vendor of personal property impliedly warrants the title to his ven- dee. There can be no doubt, there- fore, that Thomas J. Martin was an interested witness, and incompe- tent, unless he was made competent by the Act of April 15, 1869 (Pamph. Laws, 30). But that act expressly declares ' that it shall not apply to actions by or against executors. ' The witness was offered to prove a verbal contract with the testator in his life- time; and, therefore, it cannot be pre- tended that he was within the excep- tion of the Act of 9th April, 1870 (Pamph. Laws, 44), though the act in words is confined to the case of a party to the record, which the witness in this case was not. We think, therefore, that he was properly re- jected." Williams, J., Ibid. See, further, under Penns. statute, Gardner v. McLallen, 79 Penn. St. 398. In New Hampshire, " by the law of June, 1865, chapter 4074, the court may, in its discretion, permit the parties to testify in such case, only where it is clearly made to ap- pear that actual injustice or fraud will otherwise be done; and it is now well settled that if the transaction about which the testimony of the party is sought was directly between the deceased and the living party, and to which the deceased might have 418 testified if living, the surviving party will not ordinarily be allowed to tes- tify. Moore v. Taylor, 44 N. H. 374; Chandler v. Davis, Strafford Co. De- cember, 1867; Harvey v. Hilliard, Coos Co. January, 1858." Brown v. Brown, 48 N. H. 91, Bellows, J. See Fosgate v. Thompson, 54 N. H. 455. The exception in the statute cannot be stretched to cases where the opposite party is disabled from testifying by insanity. Crawford v. Eobie, 42 N. H. 162. The Illinois statute, which pro- hibits a party from testifying when the adverse party sues or defends "as executor, administrator, heir, legatee, or devisee of a deceased person," has been held to apply to remote as well as to immediate heirs. Merrill v. At- kin, 59 111. 19. The Nebkasea statute is of the same purport. Wamsley v. Crook, 3 Neb. 344. In Massachusetts, the statute when passed provided that " where an executor or administrator is a party to the suit, the other party shall not be admitted to testify in his own fa- vor, except as to such acts and con- tracts as have been done or made since the probate of the will, or the appointment of the administrator." This has been held not to prevent the defendant, in an action brought by an administrator de bonis non, from testi- fying to occurrences before the plain- tiff's appointment, but after the ap- pointment of the original adminis- trator. Palmer v. Kellogg, 11 Gray, 27. See Lincoln v. Lincoln, 12 Gray, 45. So, also, virtually in Vermont. See Hunter v. Kittredge, 41 Vt. 359 ; Dawson v. Wait, 41 Vt. 626. See, also, Doody v. Pierce, 9 Allen, 144; Brown v. Brightman, 11 Allen, 227; CHAP. VIII.] WITNESSES : PARTIES. [§ 467. § 467. The exception has been the more cordially recognized from the fact that it rests on a principle which courts Exception i of equity concur in accepting.^ Thus, a pecuniary de- ^^^^^^^^ mand against the estate of a deceased person will not equity o 1 I- 1 practice. be considered as established by the oath of the person ecuted, opposed, or defended. Co. Proc. § 398; and L. 1867. c. 887, § 1 (7 Edm. 198). § 829. [Amended, 1877.] Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through, or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness in his own be- half or interest, or in behalf of the party succeeding to his title or inter- est, against the executor, administra- tor, or survivor of a deceased person, or the committee of a lunatic, or a per- son deriving his title or interest from, through, or under a deceased person or lunatic, by assignment or other- wise, concerning a personal transac- tion or communication between the witness and the deceased person or lunatic ; except where the executor, administrator, survivor, committee, or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence, concern- ing the same transaction or communi- cation. See article in 16 Alb. L. J. 128. § 830 was repealed by laws of 1878, c. 166. As bearing on prior statutes, see Mattoon v. Young, 45 N. Y. 696; Hier V. Grant, 47 N. Y. 280; Cary v. White, 59 N. Y. 336; Hobart v. Hobart, 62 N. Y. 80. Goss V. Austin, 11 Allen, 526; Rich- ardson V. Brackett, 101 Mass. 501; Trafton v. Hawes, 102 Mass. 541 ; Withed V. Wood, 103 Mass. 564. In Massachusetts this exception was re- pealed by the Act of 1870, ch. 393. In Missouri, it is held that the survivor is not admissible even to re- but testimony given by the adverse party to show admissions made by himself since the death of the de- ceased. Ring V. Jamison, 66 Mo. 424. " We take the true distinction to be, that where one of the original parties to the contract or cause of ac- tion in issue and on trial is dead, the other party to such contract or cause of action will not be permitted to tes- tify to any fact which he would not have been permitted to testify to at common law." Angell v. Hester, 64 Mo. 142 ; a£E. in Ring v. Jamison, 66 Me. 424; relying also on Granger v. Bassett, 98 Mass. 462. The following are the pertinent sec- tions in the New York Code of Civil Procedure, which went into force September 1, 1877: — §828. Except as otherwise specially prescribed in this title, a person shall not be excluded or excused from be- ing a witness by reason of his or her interest in the event of an action or special proceeding ; or because he or she is a party thereto ; or the hus- band or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, pros- 1 Down V. Ellis, 35 Beav. 578; u. Power, I. R. 3 Ch. 602. See, how- Grant V. Grant, 34 Beav. 623 ; Nunn ever, as qualifying this, U., falsely V. Fabian, 35 L. J. Ch. 140; Hartford called J., v. J., L. R. 1 P. &.D..461. 419. § 468.] THE LAW OF EVIDENCE. [book II. making such claim, unsupported by any other evidence.'^ Of evi- dence of this class, it has been remarked by James, L. J.,^ " even if legally admissible for any purpose, the interests of mankind imperatively require that unless corroborated it should be wholly disregarded. Nobody would be safe in respect of his pecuniary transactions if legal documents found in his possession at the time of his death, and endeavored to be enforced by his executors, could be set aside, or varied, or altered, by the parol evidence of the person who had bound himself."^ The English equity rule, however, receives the evidence of the surviving party when cor- roborated ; our statutes exclude his testimony in toto when di- rected to establish or explain the contract. § 468. Yet the exception, in those statutes which simply ex- clude proof of communications with deceased persons, does not make the surviving party incompetent, but only precludes him from testifying to communications with the deceased. The witness is competent as to other matters.* The test is the nature of the commu- nications. Where a surviving party undertakes to testify to per- sonal communications with a deceased party, there such survivor is incompetent, no matter what is the technical character of the suit, or who may have been present at the communications.^ Incompe- tency re- stricted to communi- cations with de- The protection is extended in some states, by statute, to insane and im- becile persons. See McNicol v. John- son, 29 Ohio St. 85; Wagner v. Rob- inson, 56 Ga. 47. So in New York, ut supra, and in Missouri. Infra, § 4 74, note. 1 Poole V. Foxwell, 13 W. R. 199 ; cf. Morley v. Finney, 18 W. R. 490; Browne v. Collins, 21 W. R. 222. s Hill V. Wilson, L. R. 8 Ch. 900; 42 L.J. Ch. 817. 8 Powell's Evidence (4th ed.) 53. See Brown v. Brown, 48 N. H. 91, quoted supra. * Kelton V. Hill, 59 Me. 269; Smith V. Sergent, 4 Thomp. & C. 684; Marsh V. Gilbert, 2 Redf. (N. Y.) 465; Mc- Ferren v. Mont Alto Co. 76 Penn. St. 1«0; Stonecipher w. Hall, 64 111. 121; Don-levy D. Montgomery, 66 111. 227; 420 Stewart v. Kirk, 69 El. 509; Campbell V. Mayes, 38 Iowa, 9 ; Wheeler v. Ar- nold, 30 Mich. 304 ; Twiss v. George, 33 Mich. 253; Jones v. Beeson, 36 Mich. 214; Ward v. Ward, 37 Mich. 253; Adams v. Allen, 44 Wis. 93; Gray V. Cooper, 65 N. C. 183; March v. Ver- ble, 79 N. C. 19; Redman v. Redman, 70 N. C. 257; Strickland v. Wynn, 51 Ga. 600 ; Sterling v. Arnold, 54 Ga. 690; Finch v. Creech, 55 Ga. 124; Shaibley it. Hill, 57 Ga. 232; Mc- Clure V.Williams, 58 Ga.494; O'Neal V. Reynolds, 42 Ala. 197; Huckabee V. Nelson, 54 Ala. 12; Martin v. Jones, 59 Mo. 181 ; Poe v. Domec, 54 Mo. 119; Giles v. Wright, 26 Ark. 476; McKean u. Massey, 9 Kans. 600; Clary v. Smith, 20 Kans. 83. See Willingham v. Smith, 48 Ga. 580. " Hatch V. Pengnet, 64 Barb. 189; CHAP. VIII.] WITNESSES : PARTIES. [§ 468. On the other hand,^ the contract must be actually in issue in order to exclude the survivor. If the point in controversy be Goss V. Austin, 11 Allen, 526; Boy- kin V. Watts, 6 Rich. S. C. 76. ^ " The proviso must have a reasona- ble interpretation, and it must not be so construed as to defeat the very pur- pose of the act. It was intended to exclude parties to the transaction from being witnesses in regard to it, where the opposite party is dead and his rights have become vested in others by his own act or by operation of law. But it never could have been intended to exclude persons who were not par- ties to the transaction, and who are not called to testify anything respect- ing it. The plaintiff was, therefore, a competent witness." Williams, J., McFerren v. Mont Alto Iron Co. 76 Penn. St. 186. To the same effect is the following ruling in Michigan: — " Some questions arose concerning the admissibility of testimony from the plaintiff, about matters claimed to come within the statute precluding him from testifying to what ' must have been equally within the knowl- edge ' of the deceased. C. L. § 5968. Most of the facts sought to be intro- duced by his testimony related to what was done in the absence of the de- ceased, including the forwarding and removal of property destined for his use, he being in Texas, and the trans- actions being confined to occurrences in Michigan, and on the way between the two states. Some testimony re- ferred to the value of property and transportation. These matters could not, for the most part, be known to the deceased at all, and his only infor- mation must have been by hearsay. It is not, therefore, necessary to go into any examination of the statute, which cannot possibly apply to such facts." Campbell, J., Wheeler v. Ar- nold, 30 Mich. K. 307. Under the repealed exception to the New York statute, as we have seen, the surviving party may ordi- narily prove the fact of a conversation with the deceased, though not its de- tails. Hier v. Grant, 47 N. Y. 278. In the same state it was held that the exception does not preolude a party from testifying to statements made by a deceased person to a third party; and this is so although the wit- ness participated in the conversation, so long as his testimony is limited to what was not personal between him and the deceased; nor does the fact that the third person was the counsel of the deceased affect the legality of the testimony. Church, C. J., and Allen, J., dissenting. Gary v. White, 52 N. Y. 138. " The fact that another person is competent to speak goes far to take the case out of the substantial reason of the statute, and it does not fall within its letter. It is neither per- sonal transaction nor communication between the witness and the party de- ceased, and these alone cannot be proved by the testimony of a party. Under the existing laws, the rule is that a party is competent as a witness. His exclusion is to be made out by the party alleging his incompetency as to any particular matter. Simmons v. Sisson, 26 N. Y. 277, and Lobdell v. Lobdell, 36 Ibid. 333, 334, sustain the views above expressed. It must, we think, be regarded as settled, under the present provision of the Code, that the three hundred and ninety- ninth section does not preclude a party from testifying to the statements of a person deceased, made to a third per- son in the hearing of the witness." Johnson, J., Gary v. White, 52 N. Y. 139. 421 § 469.] THE LAW OF EVIDENCE. [book II, not a contract which the suit is brought to enforce, then the wit- ness is competent. Otherwise the surviving party to a contract would be excluded in all cases in which the contract is, even in the most collateral way, one of the proofs in the case.^ Whether the exception touches cases in which the evidence is documentary has been considered doubtful. But it has been held that when the representatives of the deceased have the means of proving the document by independent evidence, and when the surviving party is called merely to prove a copy of a document in their control, the case is not within the exception.^ § 469. The exception does not incapacitate where the suit is ^ , asainst co-defendants of whom only one is dead, when Does not ° .,,,.. extend to the contract was made either with the living co-defend- not made ants, or with the living and the dead concurrently.^ ' Infra, § 470; Lahey u. Heenan , 81 Penn. St. 185; Hostetteru. Schalk, 85 Penn. St. 220. In Bradley v: "West, S. C. Mo. 1878, Cent. L. J. 1878, p. 490, it was ruled that in an action of eject- ment against a party holding adverse to the title of the true owner, the plaintiff is competent to prove the ex- ecution and genuineness of the deed to himself, although his grantor was dead at the time of the trial. " By the words ' contract or cause of ac- tion in issue and on trial,' as used in the statute, the legislature evi- dently intended such contract or cause of action as was to be en- forced by the proceeding; that in re- gard to which an issue was to be formed and a trial had, where the rights of the parties to the contract or cause of action would be deter- mined by the result. Manuf. Bank V. Scofield, 39 Vt. 590-594. In Downs V. Belden, 46 Vt. 674, it was held that where A. sued B. in trover for the conversion of property which A. bought of C, who was dead, A. was a competent witness in his own be- lialf, as to his contract of purchase 422 with C. In Granger v. Bassett, 98 Mass. 302, speaking of the cases in which a party may be a witness under a statute like ours, the court said: ' His competency must be determined in advance by the nature of the con- troversy, and the questions in issue. If upon that test he is admitted as a witness in the case, his testimony is competent for all purposes, although it may relate to transactions with a person since deceased, which prove to be involved in, or to affect the matter in dispute.'" Hough, J., Bradley k. West, ut supra. And see Morse v. Low, 44 Vt. 561; Isenhour v. Isen- hour, 64 N. C. 640. Infra, § 470. " Moulton V. Mason, 21 Mich. 364. See Thurman v. Mosher, 3 Thomp. & C. 583; 1 Hun, 344; Milam v. Milam, 60 Ind. 58; but see supra, § 467. Otherwise, parol evidence of a lost correspondence with the deceased can- not be given by the survivor. Schratz V. Schratz, 35 Mich. 485. » Hayward v. French, 16 Gray, 512; Doodyu. Pierce, 9 Allen, 144; Hub- bell V. Hubbell, 22 Ohio St. 208; Hall V. State, 89 Ind. 301 ; Gavin v. Buckles, 41 Ind. 528; Isenhour v. Isenhour, 64 CHAP. VIII.] WITNESSES : PARTIES. [§ 470. So when the deceased contracting party was repre- ^^ijj"^g^®^y sented in the bargain by an agent who is capable of ceased, testifying, then the other contracting party, unless expressly excluded by statute, may be a witness.^ Under those statutes which confine the exception to suits against executors, &c., the death of an agent of one party, through whom the contract was made, does not prevent the surviving party from testifying to the contract.^ Hence in an action of trover to recover the value of certain barrels of oil which the plaintiffs alleged their agent had delivered to the defendant in payment of his own debt, it was held that the defendant was a competent witness to the bargain, though the agent was dead.^ But under statutes which exclude the surviving party to a contract, the death of a con- tracting agent excludes the surviving party who contracted with him,* but not when the contest is with strangers. § 470. The conflict must be really between the dead, whose mouth is closed, and the living, who is able to speak, Exoention in order to enable the statute to apply .^ Consequently does not '•■:'. i. J cover inter- when a third party interposes a claim to property on vening in- which a fi. fa. has been levied, the execution plaintiff is ordinarily a competent witness on the trial of the issue, though the execution defendant is dead.^ So in an action by a widow N. C. 640 ; Brower v. Hughes, 64 N. Ala. 82. It is said that the survivor C. 642; Leaptrot v. Robertson, 37 Ga. may testify to conversation overheard 586; MeGee v. Jones, 41 Ga. 123; by him, between deceased principal Graham v. Howell, 50 Ga. 203 ; Payne and agent, as against the successors V. Elyea, 50 Ga. 395; North Ga. Min- of the principal. Hildebrand v. Craw- ing Co. V. Latimer, 51 Ga. 47. See ford, 65 N. Y. 107. Eaves v. Harbin, 12 Bush, 445. ^ Hostetter v. Schalk, 85 Penn. St. 1 Brown v. Brightman, 11 Allen, 220. 227, cited supra; Hildebrand u. Craw- * First Nat. Bk. v. Wood, 26 Wis. ford, 6 Lans. 502; 65 N. Y. 107; 500; McNab v. Stewart, 12 Minn. Jacquin «. Davidson, 49 111. 82; Ward 407; Crenshaw v. Robinson, 37 Ga. V. Ward, 37 Mich. 253 ; Cottrell v. 18. See Perry v. Mulligan, 58 Ga. Woodson, 11 Heisk. 681 ; though see 479. Spencer K. Trafford, 42 Md. 1 ; Mumm ^ Downs v. Belden, 46 Vt. 674; V. Owens, 2 Dill. 475; Payne v. Elyea, Pattison v. Armstrong, 74 Penn. St. 50 Ga. 395; Whitaker v. Groover, 54 476; Remann v. Buckminster, 85 111. Ga. 174 403; Amonett v. Montague, 63 Mo. 2 Hildebrand v. Crawford, 65 N. Y. 201. See supra, § 468. 107 ; Am. Life Ins. Co. v. Shultz, 82 • Anderson v. Wilson, 45 Ga. 25. Penn. St. 46 ; Hostetter v. Schalk, 85 See Ouzts v. Seabrook, 47 Ga. 359. Penn. Sp. 220 ; Baldwin v. Ashley, 54 Supra, § 468. 423 § 473.] THE LAW OF EVIDENCE. [;bOOK II. Exception does not exclude adminis- trator from testif3'ing in his own behalf. against an alleged fraudulent grantee of her husband, she may- testify as to conversations with the defendant ; ^ nor does the ex- ception, in questions concerning the validity of a will, affect the relations of the beneficiaries.^ It has, however, been held in New- York that the exception applies to cases where third parties lit- igate.^ § 471. The administrator or executor of the deceased party is competent, though the other contracting party is, under the statute, incompetent,* and if examined he may be contradicted by the opposite party .^ But the exception has been ruled not to exclude administrators in suits against administrators.^ In Pennsylvania, however, it is held that when one party is excluded by statute the other is excluded by the policy of the law.''' § 472. It has been held that the exception excludes a partner, Surviving ^^ ^ ^"^* brought by him to obtain an account against partner. ^he firm, when a deceased partner's executors are par- ties to the cause.^ On the other hand, it has been said that the exception does not exclude evidence by a surviving partner against the partnership, to recover a debt due him by the part- nership ; the suit not being against an executor or administrator.^ The question, in this case, depends upon the structure of the local statute.!" § 473. The exception, it has been ruled, relates only to per- sons who are parties to the issue on trial, and not to those who 1 Sanborn v. Lang, 41 Md. 107. " Garvin v. Williams. 50 Mo. 206. * Alexander v. Dutcher, 70 K. Y. 385. See infra, § 473, and see contra, Hostetter v. Schalk, cited to § 469. * Ho-we V. Merrick, 11 Gray 129; Mclntyre v. Meldrim, 40 Ga. 490. See Stearns v. Wright, 51 N. H. 600. In Ne-w Hampshire it has been ruled that if an administrator testifies, this ena- bles the opposite party to testify, even as to communications with the de- ceased. Ballou V. Tilton, 52 N. H. 605. 5 Murphy v. Ray, 73 N. C. 588. « Stearns v. Wright, 51 N. H. 606. ' Kama v. Tanner, 66 Penn. St. 424 297; Pattison v. Armstrong, 74 Penn. St. 476; Grouse v. Staley, 8 Weekly Notes, 83 ; Kimble v. Carothers, 81 Penn. St. 494. 8 McKaig V. Hebb, 42 Md. 227. See Standbridge v. Catanach, 83 Penn. St. 368. In Vermont and Massachu- setts the statute does not exclude in any cases against surviving partners or co-contractors. Reed v. Sturtevant 40 Vt. 521 ; Hayward v. French, 12 Gray, 453; Goss v. Austin, 11 Allen, 525. » Bragg V. Clark, 50 Ala. 363. 1" As to Ohio statute, see Baxter v. Leith, 28 Ohio St. 84 ; and see Carl- ton V. Mays, 8 W. Va. 245. CHAP. VIII. j WITNESSES : PARTIES. [§ 474. were simply technical parties to the original contract.-^ Nor does it exclude the children of the contracting party ;2 Covers real nor his or her husband or wife, provided the witness tedinical offered has no interest in the property in controversy.^ parties. But a real, who is not a nominal party to the record, is excluded by the exception.* And under several statutes, the transferror or assignor of the claim sued on by the plaintiff is as inadmissi- ble as would be the plaintiff himself.^ § 474. Unless the exception expressly covers all suits against administrators, it does not exclude the plaintiff from pogg^ot proving matters occurring since the decease of the party "late to CO o X J transaction of whom the defendant is executor, or administrator.^ after death In some states there is the additional restriction that ceased. Hemry, 59 Mo. 213; Dunne v. Deery, 40 Iowa, 251. " The statute provides that ' No person shall be disqualified as a wit- ness in any civil suit or proceeding at law or in equity, by reason of his in- terest in the event of the same as a party, or otherwise; but such interest may be shown for the purpose of affecting his credibility; provided, that in actions where one of the orig- inal parties to the contract or cause of action in issue and on trial is dead, or is shown to be insane, the other party shall not be admitted, &c. It will be seen that all parties are made com- petent witnesses by this section of the statute, but where one of the parties to a contract in issue is dead, the other party shall not be permitted to testify in his own favor. It was not intended by the statute that in cases consisting of a series of contracts and transactions, each of which were put in issue by the pleadings, some of which transactions had been had with a party who had since died, and others of the transactions had been had with others, or consisted of facts which had taken place since his death, the party living should be excluded from testi- fying to facts occurring since the death of the party to the first transaction. 425 1 Hamilton v. K R. 10 K. I. 538; Hildebrand v. Crawford, 65 N. Y. 107; Looker v. Davis, 47 Mo. 140; State V. Huff, 63 Mo. 288 ; Willingham v. Smith, 48 Ga. 580; Zerbe v. Keigart, 42 Iowa, 229. But see contra, Blood V. Fairbanks, 50 Cal. 420; Wood- house V. Simmons, 73 N. C. 30. That the husband is thereby excluded in his wife's suit, see Hunter v. Lowell, 64 Me. 572. A "next friend" is a party who is excluded. The test is liability for costs. Mason v. McCor- mick, 75 N. C. 263. " Anderson v. Hance, 49 Mo. 159. 8 Rushing v. Rushing, 52 Miss. 329. But see Taylor v. Kelly, 80 Penn. St. 95. * McBride's Appeal, 72 Penn. St. 482; Eshleman's Appeal, 74 Penn. St. 42 ; Alexander v. Hoffman, 70111. 114; Sisters u. Glass, 45 Iowa, 154; Stallings V. Hinson, 49 Ala. 92; Louis V. Easton, 50 ^la.. 470. But see in Iowa, Sweezy i;. Collins, 40 Iowa, 540. « White V. Heavner, 7 W. Va. 324; Louis V. Easton, 50 Ala. 470. " Brown v. Brown, 48 N. H. 90; Straubher v. Mohler, 80 111. 21 ; Cou- sins V. Jackson, 52 Ala. 262 ; Wither- spoon V. Blewett, 47 Miss. 570; Poe V. Domec, 54 Mo. 119; Martin v. Jones, 59 Mo. 181; McGlothlin v. § 475.] THE LAW OF EVIDENCE. [book II. the facts are not to relate to transactions with parties benefi- cially interested during their minority, nor with imbeciles.^ § 475. The exception to statutes where the exclusion relates Does not only to the surviving party in contracts does not in- BuitTfor" elude torts. Hence in a suit for damages against a injuries party for killing plaintiff's husband, the defendant is death. a Competent witness on his own behalf. In such case there is no contract or cause of action to which the deceased was a party, and his death was a sine qua non to the existence of the cause of action.^ Such an exclusion would be wholly outside of the object and intention of the legislature. The object of the law was to prevent one party from testifying to a contract in issue, where the lips of the other party were closed, so that his version of the con- tract could not be given ; but it could answer no valuable purpose to ex- clude a party from testifying to facts about which the dead party knew nothing in his lifetime, and which was wholly transacted with others. Stan- ton V. Eyan, 41 Mo. 510." Poe v. Domec, 54 Mo. 123, Vories, J. " It has been held by this court, in several cases, that it was not intended by the statute to exclude one party when the other was dead, where the evidence related to transactions had with others and to which the deceased party was no party, and with which he had no knowledge of or connection, or consisted of facts and transactions which had taken place since the death of the deceased party. Stanton v. Ryan, 41 Mo. 510; Looker v. Davis, 47 Mo. 140; Poe v. Domec, 54 Mo. 119." Martin v. Jones, 59 Mo. 187, Vories, J. 1 See Stone v. Cook, 79 111. 424. As to imbeciles see § 466, close of note. 2 Entwhistle v. Feighner, 60 Mo. 214. See, however, contra, Sherlock V. Ailing, 44 Ind. 184. 426 In Missouri the position in the text is thus vindicated: "The statute (2 Wagn. Stat. p. 1372, § 1) permits parties to testify in suits; 'provided, that in actions where one of the orig- inal parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor.' ' ' In the present case there was no contract or cause of action to which the deceased husband was a party. The proviso in the statute was enacted for the purpose of putting parties on an equal footing, and not allowing a living party to give his version of a contract when he could not be con- fronted by the other party in conse- quence of death. When the husband was killed, then it was for the first time that the cause of action accrued to the plaintiff as his widow. Had the husband survived, this action never could have been brought. It is an action in which plaintiff and de- fendant only could be parties, for it did not arise till after the husband's death. The defendant, therefore, was a competent witness, and more espe- cially so in this case, as the plaintiff had the benefit of her husband's dec- larations, and the court erred in ruling otherwise." Entwhistle v. Feighner, 60 Mo. 214, 215, Wagner, J. CHAP. VIII.] WITNESSES: PARTIES. [§ 476. § 475 a. The opposite party may waive the immunity by call- ing as a witness the surviving party to the contract as a opposite witness. If so, such witness, though a party, can be ^^'^g™^^ examined fully in his own behalf on the subject of his munity. examination in chief.^ But an administrator, by merely calling the opposite party and examining him as to some conversations with the decedent, does not make him competent to testify as to independent conversations with the decedent.^ As we have seen, a party is not restricted in respect to communications with de- ceased parties when he is not testifying on his own motion, or in his own behalf.^ § 476. The pbject of the statutes being to rehabilitate, not incapacitate witnesses, the exception will be held, un- Does not less otherwise expressly providing, not to make incom- ^^petent petent any witness previously competent.* Thus where, ■""'"fss ir J i. J r ' previously prior to the statute, a defendant is competent to testify competent, for his co-defendant, he is not made incompetent, after the stat- ute, by the fact that the case is against executors.^ So the ex- ception in the statute does not prevent a party from testifying, ■1 Niccols V. Esterley, 16 Kans. 32; Monroe v. Napier, 52 Ga. 685. See Burleigh !). White, 64 Me. 23; Metz V. Snodgrass, 9 W. Va. 190. 2 Supra, §§ 468, 470 ; Lahey v. Hee- nan, 81 Penn. St. 185. ' Supra, §§ 468, 470; Kemann v. Buckminster, 85 111. 403. That the exception does not prevent the ad- ministrator from calling one of the parties for the estate, see Chase v. Evoy, 61 Cal. 618. * Sheetz V. Hanbest, 81 Penn. St. 100; Pratt v. Patterson, 81 Penn. St. 114; Angell v. Hester, 64 Mo. 142. See Am. Life Ins. Co. v. Shultz, 82 Penn. St. 46 and cases cited supra, §473. ' " The first assignment raises the question of the competency of Camp- bell to testify in behalf of his co-de- fendant in the judgment. The plain- tiflf being an executor, and the evi- dence relating to what transpired dur- ing the life of his testator, it is con- tended that the Act of 15th April, 1 86 9, is inapplicable. Prior to this act, the general rule in Pennsylvania un- doubtedly was, that a party to the record was incompetent to testify. Generally, a principal debtor is not a competent witness for a surety in an action against the latter. Whenever, however, the suit is ended as to the principal, and the defence made by the surety is personal as to him, as were the facts here, the principal is substantially discharged from the rec- ord. Although no regular feigned is- sue be formed in practice, yet, under the order of court, the trial is in the nature of one and embraces only the parties thereto. Campbell was there- fore a competent witness. Talmage et al. V. Burlingame et al. 9 Barr, 21. This assignment is not sustained. Mercur, J., Simpson v. Bovard, 74 Penn. St. 360. 427 § 477.] THE LAW OF EVIDENCE. [BOOK II. as he could have done before the statute, to his book of original entries.1 So in a contest between creditors and the executors of a creditor of an insolvent's estate, it was held that the insol- vent debtor was competent as a witness to prove fraud practised upon him by the executors' testator.^ It should be remembered, also, that at common law a party losing a trunk or other pack- age, after the loss is proved aliunde, is a competent witness to prove the contents.^ § 477. Suppose that on the trial of a case, when the parties are both living, one of the parties is examined, and sub- sequently both parties die, can, after death, the testi- mony of the deceased party be reproduced in a second suit ? So far as concerns principle, it ought to be, as the opposite party, living at the time of the giving of the testi- mony, had the opportunity of explanation and of cross-examina- tion.* So where on a second trial of a cause involving the same subject matter, but after the form of action had been changed and an administratrix substituted for the deceased plaintiff, the notes of the testimony given by the latter on the former trial, and to be verified by the oath of the judge who tried the cause, were of- fered in evidence; it was held (reversing the judgment below). Does not exclude testimony of parties taken be- fore death. 1 Leggett V. Glover, 71 N. C. 211. See, also, Kelton v. Hill, 58 Me. 116; Barnett v. Steinbach, 1 Weekly Notes of Cases, 336. But see Miller v. Jones, 32 Ark. 337. ' Sheetz v. Hanbest, 81 Penn. St. 100. " The learned judge below consid- ered that the witness Lentz was ren- dered incompetent under the provi- sions of the Act of 15th April, 1869 (Pamph. L. 30), entitled ' An act al- lowing parties in interest to be wit- nesses.' We think that this was an error. That act was intended as an enlarging statute. No person compe- tent to testify before the passage of the act was rendered thereafter in- competent either by the words or the spirit of the law. Regarding the is- sue below as an action by executors, the statute declares that it shall not 428 apply in such an action; in other words, that the question of compe- tency or incompetency of witnesses shall remain as if the statute had not been enacted. This was an issue be- tween creditors, to which Lentz was no party, and whatever interest he might have in the question, he could neither gain nor lose by the verdict, nor could it be given in evidence in any subsequent proceeding for or against him. The death of Hanbest could have no effect on the question." Sharswood, J., Ibid. 8 1 Greenl. Ev. §§ 348-50; U. S. v. Clark, 96 U. S. 36. * Emerson v. Bleakley, 2 Abb. (N. Y.) App. 22; Collins v. Smith, 78 Penn. St. 423; Mumm v. Owens, 2 Dill. 475. See Miller v. Adkins, 16 N. Y. Sup. Ct. 9. CHAP. VII[.J WITNESSES: PARTIES. [§ 478. that the action did not fall within the proviso to the statute ; and that the evidence should have been admitted.^ Intermediate in- capacitation of a witness, therefore, does not exclude his depo- sition taken when he was competent.^ But when a deceased party's deposition is put in evidence, the other party being still living, such other party should be admitted as a witness in re- ply.3 § 478. At common law, as we have seen,* husband and wife received cannot testify as against the other to coramu- statutes do nications in their confidential intercourse. This rule is "°t '""'^'i common not ordinarily affected by statutes permitting them to law privi- testify for or against the other.^ Nor does the statute band and as to parties generally affect the common law incapacity "' "' of husband and wife.® 1 Evans V. Reed, 78 Penn. St. 415; Pratt u. Patterson, 81 Penn. St. 114; Speyerer v. Bennett, 79 Penn. St. 445. See Roberts v. Yarboro, 41 Tex. 449. 2 Supra, § 198. » Monroe v. Napier, 52 Ga. 385. Supra, § 475 a. And see HoUis v. Calhoun, 54 Ga. 115. It has been held in Maine, that under the R. S. 1871, c. 82, § 87, the defendant cannot introduce the testi- mony of the plaintiff's intestate, as given at a previous trial of the action, and then put himself upon the stand as a witness to contradict it. " At a former trial of this cause," said Apple- ton, C. J., " Ephraim Folsom, the plaintiff's intestate, was a witness. The counsel for the defendant intro- duced his testimony as then given. Having introduced it, he offered the defendant as a witness to contradict it, but the court ruled his testimony inadmissible. This was correct. The testimony of Folsom at a former trial was offered by the defendant. Hav- ing offered it, he did not therefore ac- quire the right to contradict it. It is sufficient that the evidence was not in the form of a deposition. If it were, it may well be doubted whether the adverse party could, within R. S. 1871, c. 82, §87, offer the deposition of his deceased opponent for the pur- pose of rendering his own testimony admissible, when otherwise it would not be. The defendant does not bring himself within any of the exceptions in §87. Kelton «. Hill, 59 Me. 269." Appleton, C. J., Folsom v. Chapman, 59 Maine, 195. * Supra, § 427. ' People V. Reagle, 60 Barb. 527; Steen v. State, 20 Ohio St. 333 ; Noble V. Withers, 36 Ind. 193; Jackson v. Jackson, 40 Ga. 150; Costello v. Cos- tello, 41 Ga. 613. See supra, § 430. ' See cases supra, § 430; Raynes v. Bennett, 114 Mass. 424; Symonds v. Peck, 10 How. (N. Y.) Pr. 395; Rich V. Husson,4 Sandf. 115. See, as to divorce cases, Thayer v. Thayer, 101 Mass. Ill; Winter v. Winter, 7 Phila. R. 369; Bronson v. Bronson, 8 Phila. R. 261 ; Mitchinson v. Cross, 58 111. 366; Stanley!). Stanton, 36 Ind 445; and see Hunter v. Lowell, 64 Me. 572 ; Hays v. Hays, 19 Wis. 182; Fugate V. Pierce, 49 Mo. 441; Owen V. Brockschmidt, 54 Mo. 285. " That it is a rule of the common 429 § 479.] THE LAW OF EVIDENCE. [book II. § 479. So far as concerns confidential communications with Or of at- counsel, a party who offers himself as a witness, and torney. undertakes to answer certain interrogatories, cannot, it has been ruled, refuse to answer pertinent cross-questions on the ground that they touch confidential communications from him- self to his counsel.^ It is otherwise, however, when the witness has not waived his privilege by a partial answer involving the subject matter of his communications.^ law, a wife cannot be received as a witness for or against her husband, except in suits between them, or in criminal cases where he is prosecuted for wrong done to her, is not contro- verted. But it is argued, because Congress has enacted that in civil actions in the courts of the United States there shall be no exclusion of any witness because he is a party to, or interested in, the issue tried, the wife is competent to testify for her husband. Undoubtedly the act of Congress has cut up by the roots all objections to the competency of a wit- ness on account of interest. But the objection to a wife's testifying on be- half of her husband is not, and never has been, that she has any interest in the issue to which he is a party. It rests solely upon public policy. To that the statute has no application. Accordingly, though statutes similar to the act of Congress exist in many of the states, they have not been held to remove the objection to a wife's com- petency to testify for or against her husband. And in West Virginia it has been expressly enacted that a hus- band shall not be examined for or against his wife, nor a wife for or against her husband, except in an ac- tion or suit between husband and wife. Were there any doubt respecting the question, this statute would solve it; for the Act of Congress of July 6, 1862, declares that the laws of the state in which the court shall be held 430 shall be the rules of decision as to the competency of witnesses in the courts of the United States." Strong, J., Lucas V. Brooks, 18 Wallace, 452. In Pennsylvania, the party's wife is excluded when he is incompetent. StoU V. Weidman, 3 Notes of Cases, 205 ; Taylor «. Kelley, 80 Penn. St. 95. 1 Woburn v. Henshaw, 101 Mass. 193; aflf. Com. v. Mullen, 97 liiass. 545. " Montgomery v. Pickering, 116 Mass. 229. See infra, § 583. " The plaintiff became a witness for himself, and testified to material facts. On cross-examination the de- fendant's counsel asked what state- ments he made to his attorneys re- specting his knowledge, and the pur- pose of making the deed to Pratt. This was objected to as calling for a privileged communication ; and the objection was sustained, and herein is the next error assigned. Our stat- ute (revision of 1860, § 3985; Code of 1873, § 3643) provides that ' no prac- tising attorney .... shall be allowed, in giving testimony, to disclose any confidential communication properly intrusted to him in his professional capacity.' .... If this question had been asked the attorney, it is clear the objection made should have been sustained ; and this, also, at the com- mon law, for the statute is but declar- ative of the common law ; and, at the common law, the party was neither CHAP. VIII.J WITNESSES: PARTIES. [§ 481. § 480. A party, it may be generally said, when he becomes a witness is subject to the usual duties, liabilities, and Are subject limitations of witnesses.^ The statute, for instance, tionTof*' does not affect the rule, that parol evidence cannot be """toesses. received to vary a written contract,^ nor can a party give his opinion, when hearsay.^ He may be examined as an expert.* A party when so examined is also subject to the law which au- thorizes a party's admissions out of court to be used in evidence against him on trial.^ His testimony, after his decease, may be reproduced on a future trial, under the same limitations as that of other witnesses.^ So far as concerns leading questions, the practice is hereafter noticed.'' § 481. As a general rule, he subjects himself to the same lia- bilities on cross-examination as other witnesses ; ^ and it Party open is said may be even cross-examined on the whole case, examina- and not simply on what relates to his examination in sa^e'°ex- chief ,^ though this expansion of the liberty of cross- t^°' *^ examination may not be sustained in those states in nesses. competent nor compellable to testify. Hence such communications were ef- fectually locked at the common law, and could not be revealed at all. While our statute makes parties both competent and compellable to give evidence, it should not be construed to open the door to a full inquiry into privileged communications." Cole, J., Barker v. Kuhn, 38 Iowa, 395. Coun- sel can set up the privilege, notwith- standing the statute. Ibid. ; Brand v. Brand, 39 How. Pr. 193. Infra, § 576. 1 Wheelden v. Wilson, 44 Me. 11 ; Quimby v. Morrill, 47 Me. 470 ; Mc- Daniels v. Robinson, 26 Vt. 316; Granger v. Bassett, 98 Mass. 462; Holmes v. Hunt, 122 Mass. 505; Cowles V. Bacon, 21 Conn. 451; Rob- erts V. Gee, 15 Barb. 449; People v. Russell, 46 Cal. 121. '^ Kelly V. Cunningham, 1 Allen, 473. See infra, § 955. But a party may contradict or explain his own re- ceipt. Swann v. Express Co. 53 Miss. 283. 8 First Nat. Bk. v. Reed, 36 Mich. 263. That he may prove value, see March v. Verble, 79 N. C. 19. * Dickenson v. Fitchburg, 13 Gray, 546. Infra, § 487. 6 Call V. Pike, 68 Me. 559 ; Hall v. The Emily Banning, 33 Cal. 522. • Emerson v. Bleakley, 2 Abb. (N. Y.) App. 22. See supra, §§ 178, 477. ' Infra, § 567. 8 Marx V. People, 63 Barb. (JST. Y.) 618; Fralich v. People, 65 Barb. (N. Y.) 48; Varona v. Socarras, 8 Abb. (N. Y.) Pr. 302; Anable v. Anable, 24 How. (N. Y.) Pr. 92; Brubacker v. Taylor, 76 Penn. St. 83; City Bank V. Kent, 57 Ga. 283; State v. Home, 9 Kans. 119. Infra, §§ 484, 527, 955. ° Livingston v. Keech, 34 N. Y. Sup. Ct. 547; Cramer o. Cullinane, 2 MacArthur, 107. See Holbrook v. Mix, 1 E. D. Smith, 154. 431 § 482.] THE LAW OF EVIDENCE. [book II. which strict rules of demarcation in this respect are main- tained.i It has also been held that a party, examined as a witness, may be impeached by showing that he made contradictory state- ments, without first examining him as to such statements.^ § 482. Ordinarily, as is elsewhere seen, a witness cannot be ex- May be ex- amined as to another person's motives. It is otherwise r^hrm"- ^'^^^ ^ witness's own motives, as to which he is always tivea. open either to examination or cross-examination. Hence a party, when examined as a witness, may be asked — so has it been held — as to his own motives or intentions, when these are material.^ In New York we have to this effect a series of rul- ings,* viewing this question in various lights. Thus a plaintiff, suing on a note, has been allowed to testify, in response to a de- fence of usury, as to intent in respect to such usury ; ^ though it is said that such evidence is only admissible to explain ambigu- ous acts, not to control such as are unambiguous.® An assignor, also, has been allowed to testify to his good faith in making an assignment.'^ A plaintiff in an action of deceit has been per- 1 Malone v. Dougherty, 79 Penn. St. 46; S. C. 2 Weekly Notes, 180. See Rea u. Missouri, 17 Wall. 542. ^ Brubracker v. Taylor, 76 Penn. St. 86; Collins v. Mack, 31 Ark. 684. Infra, § 484. That he may be asked whether he did not admit out of court contrary to what he swore, see Call v. Pike, 68 Me. 217. 8 Wheelden v. Wilson, 44 Me. 1; Quimby v. Morrill, 47 Me. 470; Law- ton V. Chase, 108 Mass. 241; Snow v. Paine, 114 Mass. 520; Perry v. Por- ter, 121 Mass. 522; Boyle v. Mowry, 122 Mass. 251; Holmes v. Hunt, 122 Mass. 505; Greer a. State, 53 Ind. 520; White v. State, 53 Ind. 595; Berkey u. Judd, 22 Minn. 287; Peo- ple V. Farrell, 31 Cal. 376. See contra, Oxford Iron Co. v. Spradley, 51 Ala. 171. See supra, § 35 ; infra, §§ 508, 955; andThacher v. Phinney, 7 Allen, 148, quoted infra, § 508. 432 ^ See Alb. Law J., Dec. 9, 1876, where these cases are elaborately re- viewed. S. P., Persse v. Willett, 1 Robt. N. Y. 13 ; Kerrains v. People, 60 N. Y. 221 ; Turner v. Keller, 66 N. Y. 66. « Thurston v. Cornell, 38 N. Y. 281. « Fiedler v. Darrin, 50 N. Y. 437, followed in Black v. Ryder, 5 Daly, 304. ' Seymour v. Wilson, 14 N. Y. 567, overruling Hanford v. Artcher, 1 Hill, 347; followed by Bedell v. Chase, 34 N. Y. 386; and so, also, Forbes v. Waller, 25 N. Y. 430; Mathews v. Poultney, 33 Barb. 127. " The Court of Appeals have over- ruled the exclusion of the testimony of the defendant, in a suit for mali- cious prosecution, that he believed the testimony of the plaintiff (prosecuted for perjury) was material, and that when he made the charge he believed the plaintiff was guilty. McKown v. CHAP. VIII.] WITNESSES : PARTIES. [§ 482. mitted to testify as to his belief in the defendant's representa- tions. ^ When it is material as to ■whom a party voted for at an election, it is held admissible to ask him as to the way he in- tended to vote.^ In criminal cases, there can be no doubt that a defendant is competent to testify as to his intent, whenever his intent is material,^ and belief can in like manner be proved.* In civil cases, however, it should be observed that the right of a party to testify as to his intent, in drawing a contract or other document, is limited in the same way as is other proof of intent ; ® in other words, a party cannot be admitted to prove his intent so as to vary the terms of a document by which he is Jjound.® As Hunter, 30 N. Y. 625. See, also, Tallman v. Kearney, 3 Thompson & Cook, 412, and Goodman v. Stroheim 4 Jones & Spencer, 216. But in a subsequent case in the Fourth Depart- ment (Lawyer v. Loomis, 3 Thompson & Cook, 393), the exclusion of the re- ply of the defendant, a witness, to the question whether he had acted with- out malice, was held proper, on the ground that proof of lack of malice did not show probable cause, and was immaterial where want of probable cause was shown, as had been done in the case then at bar. Fiedler v. Darrin (above) is relied upon as au- thority for sustaining the exclusion of the evidence." Alb. Law J., ul supra. On the other hand, in Waugh v. Fielding, 48 N. Y. 681, where the ac- tion was for a balance alleged to be due on a, sale, and the defence was fraud, the plaintiff, as a witness at the trial, was asked, " Did you give or in- tend to give the defendants anything more than your opinion in regard to " the condition of the chattel sold ? The admission of the question was held error. ^ Thorn v. Helmer, 2 Keyes, 27. = People V. Pease, 27 N. Y. 45. » See Wharton on Hom. § 520. * Ibid. As to belief, see Hine v. Campion, L. R. 7 Ch. D. 344. 6 See infra, § 955. Blake v. Stod- voL. I. 28 dard, 107 Mass. Ill; Holmes u. Hunt, 122 Mass. 505. ' Dillon V. Anderson, 43 N. Y. 231; Harrison v. Kirke, 38 N. Y. Sup. Ct. (6 Jones & S. 396). "It has also been held not to be competent for a contractor, a witness, to reply to the question, ' Who did you suppose you were making the contract with V ' Denman v. Camp- bell, 7 Hun, 88 ; nor, ' To whom did you look for performance of the con- tract? ' Kellar w. Richardson, 5 Hun, 352 ; nor even, ' For whom did you set up that machinery, as you sup- posed ? ' Nichols V. The Kingdom Iron Ore Company, 56 N. Y. 618. But in an action on a promissory note, the plaintiff was allowed to testify in response to the question, ' Were the supplies [proved to have been sold by him] furnished on the note or not ? ' Lewis v. Rogers, 34 N. Y. Super. Ct. (2 Jones & Spencer) 64." Albany Law J., ut supra. In Tracy v. McManus, 58 N. Y. 257, upon the issue whether the de- fendant testifying was a partner with other defendants, the plaintiffs had introduced circumstantial evidence tending to show that he was, and had proved acts by him in furtherance of the partnership. His evidence there- upon, to the effect that the acts proved were done by him for the purpose 433 § 483.J THE LAW OF EVIDENCE. [book II. to domicil, a party may in all cases be examined in reference to his intent, as the animus manendi is always material when dom- icil is to be determined.^ § 483. If a party offers himself as a witness to disprove a rj criminal charge, can he excuse himself from answering avoid reie- on the ground that by so doing he would criminate vant ques- ° . ■ i i • i • tions on himself ? This question has been much agitated since that^e" the passing of the enabling statutes ; and the general would' conclusion is, that so far as concerns questions touching criminate, ^j^g merits, the defendant, by making himself a witness as to an offence, waives his privileges to all matters connected with the offence.^ It has been ruled, also, that to affect his cred- ibility he may be asked whether he has been in prison on other charges,^ and whether he has suborned testimony in the par- ticular case ; * though where there is no statute permitting such inquiries, and where the evidence does not go to motive or bias, answers as to collateral crimes should not be coerced.^ merely of assisting the other defend- ants, who were his relatives, was held to have been improperly excluded. 1 Fisk V. Chester, 8 Gray, 506; Ken- nedy V. Ryall, 67 N. Y. 380. See Whart. Confl. of L. § 62. » State V. Ober, 62 N. H.459; Com. V. Lannan, 13 Allen, 563 ; Com. v. Mullen, 97 Mass. 545 ; Com v. Curtis, 97 Mass. 574; Com. v, Morgan, 107 Mass. 199; Com. W.Nichols, 114 Mass. 285 ; Burdick v. People, 58 Barb. 51 ; Fralich v. People, 65 Barb. 48 ; Mc- Garry v. People, 2 Lansing, 227 ; Brandon v. People, 42 N. Y. 265 ; Connors v. People, 50 N. Y. 240; Barber ». State, 13 Pla. 675. See, however, People v. McGungill, 41 Cal. 429. « Com. V. Bonner, 97 Mass. 587. * Martineau v. May, 18 Wis. 54. " People V. Thomas, 9 Mich. 321 ; Gale V. People, 26 Mich. 157. See, however. State v. Ober, 52 N. H. 459 ; Clark V. Keese, 35 Cal. 89 ; French V. Venneman, 14 Ind. 282. See infra, §533. 434 In a remarkable case in England, in which Cardinal Wiseman was pros- ecuted for libel, the plaintiff, having failed in his attempts to prove the fact of publication, as a last resource pro- posed to examine the defendant him- self. The cardinal, through his coun- sel, declined to be sworn, urging that, on the simple issue of " guilty or not guilty," no question could legally be put to him, the answer to which would not fall within the rule of protection, and it was alike useless and vexatious to swear a man, when no evidence pertinent to the issue could be ex.- tracted from him. On the other hand, it was urged with much force, that the objection had been taken too soon ; that the plaintiff had a clear right to call his opponent as a witness, to cause an oath to be administered to him, and to ask him whatever questions he liked which were relevant to the issue; and that it was not until after the defend- ant had been sworn, and the questions had been put to him, that he was le- gally entitled to claim his protection. CHAP. VIII.] WITNESSES : PARTIES. [§ 483. Questions as to adultery, when this is at issue, are to be treated as are questions as to any other crime. But in divorce cases, as we have already seen, the evidence of parties is to be closely scanned,^ and admissions of parties in such cases, or even the testimony of parties, as to adultery, are not, unless corrob- orated, usually sufficient to sustain a divorce.^ The learned judge erroneously ruled that the cardinal need not be sworn, but the only result of this ruling was, that the parties were put to the an- noyance and expense of a new trial, which in due course was granted by the Exchequer. Boyle v. Wiseman, 10 ,Ex. R. 647. The new trial was granted on the 26th January, 1855, and £1000 damages were ultimately awarded. Taylor's Evidence, § 1270. In another case involving the same principle, an action of trover brought against the London Dock Company for certain pipes of wine, the defend- ants alleged that the plaintiff' had de- posited with them " sour wine," the produce of "rummage sales," and that afterwards, by some means which were not miraculous but fraudulent, the wine had been converted into "sound port." The theory was, tha,t sour wine had been recently abstracted, and empty pipes had been refilled by tapping the other stores in the dock. To assist the defendants in establish- ing this case, they applied to the court for leave to deliver interrogatories to the plaintiff under § 51 of Common Law Procedure Act, 1854 (Osborn v. London Dock Co. 10 Ex. R. 698; but see Tupling v. Ward, 6 H. & N. 749; 30 L. J. Ex. 222, S. C.) ; and the court, after the argument, granted the application although it was strenu- ously argued on behalf of the plain- tiff', that as the sole object of the ques- tions was to fix him with a guilty participation in' the fraud, he had clearly a right to refuse to answer them. Taylor's Evidence, § 1270. > See supra, § 433. ^ Infra, § 1220. The exception in the English statutes, in reference to adultery, are thus commented on by Mr. Taylor (Evidence, § 1221): — " When the evidence acts of 1851 and 1 853 were respectively before par- liament, it was not surprising that the legislature determined to exclude from their operation the parties to any pro- ceeding instituted in consequence of adultery, and the husbands and wives of such parties. Obvious reasons would occur to any man why defend- ants in the suits should not be ex- posed to the almost irresistible temp- tation of committing perjury ; * and * See on this subject the observations of Lord Denman (then Mr. Denman), in Queen Caroline's trial : " We have been told," said he, " that Bergami might be produced as a witness in our exculpation; but^we know this to be a fiction of lawyers, which common sense and natural feeling would reject. The very call is one of the unpar- alleled circumstances of this extraordinary case. From the beginning of the world no instance is to be found of a man accused of adultery being called as a witness to dis- prove How shameful an inqui- sition would the contrary practice engender ! Great as is the obligation to veracity, the circumstances might raise a doubt in the most conscientious mind whether it ought to prevail. Mere casuists might dispute with plausible arguments on either side ; but the natural feelings of mankind would be likely to triumph over their moral doctrines. Supposing the existence of guilt, perjury itself would be thought venial in compari- son with the exposure of a confiding worn- 435 § 484.] §484. He may be contradict- ed on ma- terial points and may be impeached. THE LAW OF EVIDENCE. [book II. A party may be contradicted as to matters material to the issue ; ^ but not as to matters collateral.^ So, as we have seen, he may be contradicted by proof of prior inconsistent statements,^ and this without previously questioning him as to such statements.* He is not pro- tected, so far as concerns contradiction, by the rules ap- plicable to witnesses in general. He may be contradicted by the their exclusion from the witness box seemed at that time to afford the only safe mode of avoiding such a result. In the year 1857, however, when the law of divorce was amended, doubts were caused by the obscure language of the amending statute (see and com- pare 20 & 21 VicL.c. 85, §§ 41, 43, 46, and 48), as to how far the old doctrines of the common law, in re- lation to the competency of witnesses, were to be recognized in the new di- vorce court. These doubts gave rise to fresh legislation, which in its turn gave rise to fresh doubts and difficul- ties. " At length Mr. George Denman carried through parliament a measure (32 & 33 Vict. c. 68) which is sup- posed by many lawyers to have made the law what it ought to be. After repealing the fourth section of the Act of 1851, and so much of the second section of the Act of 1853 • as is contained in the words, " or in any proceeding instituted in consequence of adultery,"' it proceeds to enact, in § 3, as follows : ' The parties to any proceeding instituted in conse- quence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in such proceeding : provided, that no wit- ness in any proceeding, whether a party to the suit or not, shall be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless such witness shall have already given evidence in the same pro- ceeding in disproof of his or her al- leged adultery.' The language used in this proviso, though not free from ambiguity, does not render inadmissi- ble the evidence of a witness that he or she has committed adultery, but it simply protects the witness from be- ing questioned on the subject, in the event of the protection being claimed. Hebblethwaite v. Hebblethwaite, 39 L. J. Pr. & Mat. 15 ; 2 Law Rep. P. & D. 29, S. C. ; Babbage v. Babbage, 2 Law Eep. P. & D. 222. No one but the witness has any right to interfere. Hebblethwaite u. Hebblethwaite, 39 L. J. Pr. & Mat. 15 ; 2 Law Rep. P. & D. 29, S. C" 1 Fralich v. People, 65 Barb. 48; State V. Home, 9 Kans. 119. Infra, §§ 480-1. " Marx V. People, 63 Barb. 618. See infra, § 559. 8 Supra, §§ 480, 481, 482; infra, § 551 ; Brubacker v. Taylor, 76 Penn. St. 83. * See infra, § 555; Brubacker v. Taylor, ut supra; Kreiter v. Bom- berger, 82 Penn. St. 59; Ecker v. McAllister, 45 Ind. 290; Gibbs v. Linaburg, 22 Mich. 479; Hall v. Em- ily Banning, 33 Cal. 522. an. It follows that no such question ought tity of oaths." Quoted in 1 Ld. Brougham's in any case to be administered, nor such Speech. 248. And see infra, § 1220. temptation given to tamper with the sane- 436 CHAP. VIII.] WITNESSES : PARTIES. [§ 487. party calling him ; and he is open to a free examination from both sides.i So, his character for truth and veracity may be im- peached ; ^ and an infamous conviction may be produced against him to affect his credibility.* His credibility, on the whole evi- dence, is, as in other matters of testimony, for the jury.* § 485. A fortiori, a party who has been examined in his own behalf may be reexamined in rebuttal of the defend- „ . _ •' _ He may be ant's testimony,^ and may be called to contradict, un- reexam- der the usual limitations, testimony offered on his own side,^ or to explain ambiguities in his own testimony.^ § 486. So far as concerns criminal issues, the discussion of this topic is remanded to another work.^ In civil issues, presump- the question cannot arise in those states in which one be a^wn party can compel the attendance of the other party as against par- a witness. The refusal of the party, under any cir- testifying, cumstances, to testify as to any facts with which he is familiar, must lead to the presumption which ordinarily holds against a party who withholds explanatory evidence in his power.® § 487. If we are to be governed by equity analogies, it is not necessary, when a defendant is called as a witness, that Two wit- his testimony denying the opposing case should be over- "*^^^^ ""' come by two witnesses. necessary Such testimony may be over- '» o^^f- 1 . . come par- come by one witness alone, with corroborative circum- ty's testi- stances sustaining such witness.^" Facts, indeed, when ""'"^' '■ See supra, § 480; Foster, in re, 44 Vt. 570; Mason v. Poulson, 43 Md. 161; Laramore v. Minish, 43 Ga. 282. " AUis V. Leonard, 68 N. Y. 288. Supra, §481; infra, § 562. " State V. Watson, 65 Me. 74. Infra, §567. ' See supra, § 417; Stampofski v. Steffins, 79 111. 803 ; Matthews v. Story, 54 Ind. 303; Klason v. Kieger, 21 Minn. 59. « Donohue v. People, 56 N. Y. 208; Rust V. Shackleford, 47 Ga. 538. 6 Hildreth v. Shepard, 65 Barb. 265. See infra, § 572. ' Cousins V. Jackson, 52 Ala. 262. « Whart. Cr. Law, tit. " Evidence." • Perkins i>. Hitchcock, 49 Me. 468 ; Call v. Pike, 68 Me. 559; PuUen V. Gillen, 68 Me. 486 ; Whitney v. Bayley, 4 Allen, 173; Andrews v. Frye, 104 Mass. 234. See, however, as qualifying above, Lowe v. Massey, 62 111. 47; Gragg v. Wagner, 77 N. C. 246; and see infra, § 1266. ^^ See supra, § 414; Holdernesse w. Rankin, 2 De G., F. & J. 272; Smith V. Constant, 20 L. J. Ex. 55 ; Jordan V. Money, 5 H. of L. Cas. 185; Smith V. Kay, 7 H. of L. Cas. 750; Gray v. Haig, 20 Beav. 219; Smith v. Con- stant, 20 L. J. Ch. 128; Sharry v. Garty, 2 Ir. Eq. (N. S.) 358; Bent v. Smith, 22 N. J. Eq. 560; Clark v. Van Riemsdyk, 9 Cranch, 160 ; Car- penter V. Ins. Co. 4 How. 185 j Towne 437 § 488.] THE LAW OF EVIDENCE. [BOOK II. properly reproduced, may be always regarded as at least equiva- lent to any other form of proof ; and peculiarly is this the case with deliberate writings of a party .^ The rule as given in courts of equity is, that where the defendant (replication having been filed) " positively, clearly, and precisely " denies by his answer any matter alleged in the bill, the denial must be countervailed by sufiicient evidence of two witnesses, or of one witness and of circumstances, which is as good as two witnesses : otherwise the court will make no decree against the defendant.^ In divorce cases, as we have seen, a party's uncorroborated testimony will not be sufficient to sustain a judgment in a case where corrob- oration is practicable.^ § 488. A party's statements of fact, when under examination Party On the witucss stand, are not entitled to the force of his'owa^ judicial confessions, when not made animo confitendi, admissions gince in such case they may be uttered precipitately stand. and inconsiderately, in confusion, or for the purpose of avoiding a temporary difficulty, rather than of making a solemn judicial statement. They do not, therefore, estop, as may some- times a judicial admission ; but they are nevertheless entitled to high consideration, and cannot, without proof of surprise, be con- V. Smith, 1 Woodb. & M. 118 ; Zeig- As to the application of this rule ler V. Scott, 10 Ga. 389; Jones v. at common law, see Ballentine v. McLuskey, 10 Ala. 27 ; Latham v. White, 77 Penn. St. 20. Staples, 46 Ala. 462 ; Conrey v. Har- That the rule does not operate in rison, 4 La. An. 349 ; Fletcher v. N. Y. practice, see Stilwell v. Car- Fletcher, 5 La. An. 406; Enders v. penter, 62 N. Y. 639. Williams, 1 Mete. (Ky.) 346 ; Proctor In Pennsylvania, in Sower v. Wea- I). Terrill, 8 B. Monr. 451. ver, 78 Penn. St. 443, decided by the 1 Keys V. Williams, 3 Y. & C. Ex. Supreme Court in May, 1875, it was R. 55; Savage v. Brocksopp, 18 Ves. held that in equitable cases the court 335; 2 Story Eq. § 1528; Pember ji. would hold to the equity rule. Mathers, 1 Br. Oh. R. 52; Clark v. In January, 1876, however (Prowat- Van Riemsdyk, 9 Cranch, 160. tain v. Tindall, 80 Penn. St. 295), it '^ Per Kindersley, V. C, Williams was ruled that, since the Act of 1869, V. Williams, 12 W. R. 663; East Ind. permitting parties to testify, the testi- Co. V. Donald, 9 Ves. 282; Gresley's mony of a defendant on his own be- Ev. 4 ; Cooke v. Clayworth, 1 8 Ves. half in an action of covenant is suffi- 12; Money v. Jorden, 2 De Gex, M. cient, although uncorroborated, to & G. 336 ; Smith v. Kay, 7 H. of L. maintain an equitable defence, — its Cas. 760; Anderson v. Collins, 6 Ala. credibility only being, a question for 783; Hynson v. Texada, 19 La. An. the jury as in other cases. 470. » Supra, § 433; infra, § 1220. 438 CHAP. VIII.] WITNESSES : PARTIES. [§ 490. tradicted by the party making them in the same cause. " Obvi- ously," says a learned judge in Michigan, speaking of a case of this class, " the case is to be regarded in a light somewhat differ- ent from what it should have been, had the evidence which the plaintiff gave been given by other witnesses. In the latter case the evidence of facts, precluding recovery, would be addressed to a jury who might not give them full credence, or vyho might suppose them qualified by other evidence considerably modifying their legal effect. But the plaintiff who states his own case on the witness stand, and states himself out of court, cannot well ask the jury to disbelieve or disregard that which tells against him. If he unequivocally states facts which establish a defence, and there is no attempt at a qualifying explanation by other witnesses, he has no ground of complaint if the court charges the jury that no recovery is justifiable." ^ § 489. The effect of the statutes is not simply to enable the parties to testify in their own behalf as witnesses. The under stat- removal of their incapacity is total ; and not only may part/may they be called as witnesses in their own behalf, but <=f''"'e •' _ ' _ other as they may be compelled to answer as witnesses for their witness. opponents.^ The parties thus called are examined under the same limitations, have the same protection, and are open to the same contradiction and impeachment, as are ordinary witnesses,* with the qualification that they may be contradicted by the party calling them, who is not bound by their testimony.* By calling a party as a witness, all objections to his competency are waived.^ He may be cross-examined by his own counsel.^ § 490. Under the statutes- authorizing one party to examine another, before trial, on interrogatories, the answers Where of a party so taken are not evidence, unless made so Iminedou' 1 Cooley, J., Davis w. Detroit R.K. tions to such a witness can be put> Co. 20 Mich. 128. Supra, § 461. see infra, § 499. ^ Texas i-. Chiles, 21 "Wall. 488; * Foster, in re, 44 Vt. 57; Bru- Olive w. Adams, 50 Ala. 373. backer v. Taylor, 76 Penn. St. 86; ' Supra, § 480; French v. Venne- Mason v. Poulson, 43 Md. 161. Su- man, 14 Ind. 282; Dwinelle v. Henri- pra, § 161. See Eck v. Hatcher, 58 quez, 1 Cal. 387; Drake v. Eakin, 10 Mo. 239. Cal. 312; Shepherd v. Payson, 16 La. ^ Turner v. Mcllhaney, 8 Cal. 575. An. 360. See Weinstein v. Patrick, ' Teel v. Byrne, 24 N. J. L. 631 ; 75 N. C. 844. That leading ques- Eck v. Hatcher, 58 Mo. 239. 439 § 490.] THE LAW OF EVIDENCE. [book II. interroga- by the party by whom the interrogatories are put.^ equity In taking and using such evidence, the equity prac- Howed!' tice, as applied to bills of discovery, will be adopted, so far as is practicable.^ The court, on a failure to answer, may compel an answer by attachment, or continue the case until full answers are made.^ An evasive and frivolous answer may be treated as a confession.* 1 Wells V. Bransford, 28 Ala. 200. " Wilson V. Webber, 2 Gray, 558; Richards v. Judd, 15 Abb. (N. Y.) Pr. N. S. 184; Barnard v. Flinn, 8 Ind. 204; Draggoo v. Draggoo, 10 Ind. 95 ; Everly v. Cole, 3 G-. Greene, 239; Jones !). Berryhill, 25 Iowa, 289; Blos- som V. Ludington, 32 Wis. 212; Zeig- ler u. Scott, 10 Ga. 389; Thornton V. Adkins, 19 Ga. 464; Roberts v. Keaton, 21 Ga. 180; Dyson v. Beck- am, 35 Ga. 132; Pritchett v. Munroe, 22 Ala. 501; Weaver v. Alabama Co. 35 Ala. 176; Burnett v. Garnett, 18 B. Mon. 68 ; Haynes v. Heard, 3 La. An. 648; Taylor v. Paterson, 9 La. An. 251; Nicholson u. Sherard, 10 La. An. 533; McMillan v. Croft, 2 Tex. 397; Beal v. Alexander, 6 Tex. S31; Gill V. Campbell, 24 Tex. 405. See Winston v. English, 35 N. Y. Sup. Ct. 512; Drennen v. Lindsey, 15 Ark. 359; Adkins v. Hershy, 17 Ark. 425. ° McLendon, ex parte, 33 Ala. 276. * Whiting V. Ivey, 3 La. An. 649 Prater v. Pritchard, 6 La. An. 730 Knox u. Thompson, 12 La. An. 114 Walker v. Wingfield, 16 La. An. 300 Meyer v. Claus, 15 Tex. 516. See Amherst R. R. v. Watson, 8 Gray, 629. The English Common Law Proced- ure Act of 1854 (17 & 18 Vict. c. 125) enacts, in § 51, that " In all causes in any of the superior courts, by order of the court or a judge, the plaintiff may, with the declaration, and the de- fendant may, with the plea, or either 440 of them by leave of the court or a judge may, at any other time, deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter) interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in the case of a body corporate, any of the officers (Madrid Bk. v. Bayley, 36 L. J. Q. B. 15; 2 Law Rep. Q. B. 37; 8 B. Se S. 29, S. C.) of such body corporate, vnlhin ten days to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting, without just cause, sufficiently to an- swer all questions as to which a dis- covery may be sought within the above time, or such extended time as the court or a judge shall allow, shall be deemed to have committed a contempt of the court, and shall be liable to be proceeded against accordingly.'' Mr. Taylor (Ev. §§ 482, ff.) thus recapitulates the rulings under the above statute, rulings which may be of value in this country under similar statutes : " When these provisions first came into operation, a very eminent judge appears to have suggested that any question might be asked on inter- rogatories which could be put were the party a witness at the trial ; Os- born V. London Dock Co. 10 Ex. R. 698, 702, per Alderson, B.; see Zych- linski V. Maltby, 10 Com. B. N. S. 838; but this interpretation of the statute has since been considered too wide, CHAP. VIILI WITNESSES : EXAMINATION. [§ 491. Vm. EXAMINATION OF WITNESSES. § 491. Whenever sufficient ground is laid for the application, the judge may at his discretion order such a separation judge may of witnesses as may prevent those not yet examined aratbnof from hearing the testimony of the witness on the ^'tnesses. and it is now properly held that courts of law should be guided, though not fettered, by the rules and principles which courts of equity act upon with respect to bills of discovery; Pye v. Butterfield, 34 L. J. Q. B. 17; 5 B. & S. 829, S. C. ; and that the interroga- tories should be confined to matters which might be discovered by a bill in equity. Whateley v. Crowter, 5 E. & B. 712, per Ld. Campbell. In an action of ejectment, therefore, a defendant will not be compelled to answer interrogatories, where the an- swer would tend to show that he had incurred a forfeiture of his lease by reason of his having underlet the premises. Pye v. Butterfield, 34 L. J. Q. B. 17; 5 B. & S. 829, S. C. Neither can a party inquire into facts which relate exclusively to the case of his adversary, although he may ask any questions the answers to which will advance his own case, even though they may also disclose his opponent's case. Bayley v. Griffiths, 31 L. J. Ex. 477; 1 H & C. 429, S. C; Good- man V. Holroyd, 15 Com. B. N. S. 839; Hawkins v. Carr, and Parsons v. Carr, 35 L. J. Q. B. 81; 1 Law Rep. Q. B. 89, S. C; 6 B. & S. 995, S. C; Stewart v. Smith, 2 Law Rep. C. P. 293. For instance, in an action on a policy of insurance on a cargo, claim- ing for a total loss, if the pleas be only such as deny the policy, the in- terest, and the loading, the plaintiff cannot be interrogated as to the sev- eral matters which these pleas will require him to prove ; but if there be also a plea denying the loss, interroga- tories may be tendered with respect to the amount of damage ; and if the de- fendant were further to plead that the sailing of the vessel had been unrea- sonably delayed, the plaintiff might be questioned with respect to this fact. Zarifi V. Thornton, 26 L. J. Ex. 214. On the same ground, if an action for negligence be brought against a sur- veyor or an attorney, the defendant may be asked what steps he took to perform his duty. Whateley v. Crow- ter, 6 E. & B. 709. So, where a plain- tiff had brought an action for money had and received, and his right to re- cover rested on the assumption that the defendant had, in selling certain property to him, falsely professed to act as broker for a third party, the court allowed interrogatories to be de- livered to the defendant, requiring him to answer whether he had acted in the transaction as principal or as agent, and, if as agent, to name his principal. Thol v. Leask, 10 Ex. R. 704. See, also, Blight v. Goodliffe, 18 Com. B. N. S. 757. " Where a party, on being interro- gated as to whether he had in his pos- session any deeds relating to the lands in dispute, answered on oath that he had, but that such deeds were exclu- sively the evidences of his own title to the property, and did not show any title in his opponent, the court held that he could not be compelled to state the contents of the documents, or to describe them, but that his oath as to their effect must be deemed conclu- sive. Adams v. Lloyd, 3 H. & N. 351. Ji prima, facie evidence of the loss of a 441 § 491.] THE LAW OF EVIDENCE. [book II. stand.i "Whoever is yet to be examined, though party or prose- deed be made out by affidavit, the party supposed to have executed the instrument may be interrogated de bene esse as to its contents. Wolverhamp- ton New Waterw. Co. v. Hawksford, 5 Com. B. N. S. 703. Again, a plain- tiff in ejectment may interrogate the defendant as to whether he is not really defending the action on behalf of a third person; for an affirmative answer to such a question would go far towards making the declarations of such third person admissible in evidence. Sketchley v. ConoUy, 2 New E. 23, per Q. B. " It appears now to be determined (Flitcroft V. Fletcher, 11 Ex. R. 543; Kettlewell v. Dyson, 9 B. & S. 300), notwithstanding some decisions which ' look the other way ; ' see Edwards v. Wakefield, 6 E. & B, 469 ; Stoate v. Kew, 32 L. J. C. P. 160; 14 Com. B. N. S. 209, S, C. ; see, also, Wallen V. Forrest, L. R. 7 Q. B. 239 ; that a defendant in ejectment is entitled to interrogate the plaintiff, not only as to the character in which he sues, but as to the nature of the pedigree on which he relies; but the affidavit in support of such an application should, as it seems, disclose special circum- stances. Pearson v. Turner, 16 Com. B. N. S. 157; 33 L. J. C. P. 224, S. C. ; and the ruling can only be upheld on the ground that the court has a gen- eral power to require any person, who seeks to disturb the possession of an- other, to say by what right he does so; per Alderson, B., in Flitcroft v. Fletcher, 11 Ex. R. 549; Bellwood v. Wetherell, 1 Y. & C. Ex. R. 211, 218, per Ld. Abinger; Stoate v. Rew, 32 L. J. C. P. 160; 14 Com. B. N. S. 209, S. C. A plaintiff, therefore, in ejectment, who claims as heir at law, will not be permitted to interrogate the person in possession of the prop- erty as to the nature of his title. Hor- ton V. Bott, 2 H. & N. 249. Neither, as a general rule, will any party be suffered to expose his adversary to fishing interrogatories, or to require him to declare on oath how he intends to shape his case. Edwards u. Wake- field, 6 E. & B. 462; Moor v. Roberts, 26 L. J. C. P. 246; 2 Com. B. N. S. 671, S. C. For example, in an action of trover by the trustee of a bankrupt, the defendant will not be permitted to administer interrogatories to the plain- tiff for the purpose of discovering what case he intends to set up at the trial. Edwards v. Wakefield, 6 E. &B. 462. See, also, Finney v. Forward, 35 L. J. Ex. 42; 1 Law Rep. Ex. 6; and 4 H. & C. 33, S. C. But see Derby Bank V. Lumsden, 5 Law Rep. C. P. 107; 39 L. J. C. P. 72, S. C. The plain- tiff', too, in an action of slander, will not (except under very special cir- cumstances precluding redress by other means; Atkinson v. Fosbroke, 35 L. J. Q. B. 182; 1 Law Rep. Q. B. 628; 7 B. & S. 618, S. C. ; see O'Connell v. Barry, 2 L R. C. L. 648. Sed qu.) be allowed to interrogate the defend- ant with respect to the precise words he uttered, and when, where, and to whom he spoke them. Stern v. Sevas- topulo, 2 New R. 329; 32 L. J. C. P. 268; 14 Com. B. N. S. 737, S. C. ; Tupling V. Ward, 30 L. J. Ex. 222; 6 I Southey v Nash, 7 C. & P. 632; State, 2 Ind. 652; Benaway v. Conyne, Selfe V. Isaacson, 1 F. & F. 194; Peo pie V. Green, 1 Parker C. R. 11 ; State V. Zellers, 2 Halst. 220; Errissman v. Errissman, 25 111. 136; Johnson v. 442 8 Chandl. 214; Nelson v. State, 2 Swan, 237; McLean v. State, 16 Ala 672. CHAP. VIII.] WITNESSES : EXAMINATION. [§491. cutor, is subject to this rule.^ A witness's testimony, it is true, H. & N. 749, S. C. ; Edmunds v. Greenwood, 4 Law Rep. C. P. 70 ; 38 L. J. C. P. 115, S. C. Neither can the defendant, in an action for negli- gence, interrogate the plaintiff as to how the accident happened, or what was the extent of the injury, or what was the amount of the medical charges. Peppiatt V. Smith, 3 H. & C. 129; 33 L. J. Ex. 239, S. C. But see Wright V. Goodlake, 34 L. J. Ex. 82; 3 H. & 0. 540, S. C. Still less will a judge, except under very special circum- stances, permit a defendant, who ad- mits a breach of contract, to interro- gate the plaintiff respecting the dam- age he has sustained, with the view of paying money into court. Jourdain v. Palmer, 35 L. J. Ex. 69; 4 H. & C. 171; and 1 Law Rep. Ex. 102, S. C, commenting on Wright v. Goodlake, 34 L. J. Ex. 82; 3 H. & C. 540, S. C. See Dobson v. Richardson, 37 L. J. Q. B. 261 ; 3 Law Rep. Q. B. 778 ; and 9 B. & S. 516, S. C. Nor, as it seems, will interrogatories be allowed, when the interrogator has ample means of obtaining from his own agents the in- formation which he professes to seek from his opponent. Bird v. Malzy, 1 Com. B. N. S. 308. But see Rew v. Hutchins, 10 Com. B. N. S. 837, per Erie, C. J. ; or when the object is to contradict a written instrument; Moor V. Roberts, 26 L. J. C. P. 246 ; 2 Com. B. N. S. 671, S. C. ; or to gain some tricky advantage not dependent on real information, or to heap up need- less costs. Bechervaise «. Gt. West. Ry. Co. 6 Law Rep. C. P. 36; 4 L. J. C. P. 8, S. C. " The judges have also, on the subject of interrogatories, laid down the following practical rules : first, that on a motion to allow the exhibi- tion of interrogatories, the court will simply determine the principle on which they are to be allowed or re- fused, and will leave their form, in case of dispute, to be settled at cham- bers ; Zarifi v. Thornton, 26 L. J. Ex. 214; see Robson ». Crawley, 2 H. & N. 766 ; S. C. nom. Robson v. Cooke, 27 L. J. Ex. 153, per Pollock, C. B.; Rew V. Hutchins, 10 Com. B. N. S. 829, 837; see, also, Phillips «. Lew- in, 34 L. J. Ex. 37; secondly, that, as the legislature has fixed the time of proceeding, the court, except under special circumstances, amounting al- most to a case of urgent necessity (see Acheson v. Henry, 6 I. R. C. L. 496), will not permit the delivery of inter- rogatories by a plaintiff hefore he has declared, or by a defendant hefore he has pleaded; Martin v. Hemming, 10 Ex. R. 478; explained in Forshaw «. Lewis, Ibid. 716 ; Croomes v. Morrison, 5 E. & B. 984; Jones v. Pratt, 6 H. & N. 697; Anon. v. Parr, 34 L. J. Q. B. 95; S. C. nom. Morris v. Parr, 6 B. & S. 203; thirdly, that a plaintifiF may without a special affidavit obtain leave to deliver interrogatories after the de- fendant has pleaded; James v. Barns, 17 Com. B. 596; fourthly, that where a party interrogated admits his pos- session of documents, he cannot be attached for refusing to set forth their contents, but his opponent must apply for an order to inspect them, either under § 50 of the act, or under § 6 of 14 & 15 Vict. c. 99; Scott v. Zygomala, 4 E. & B. 483; Herschfeld v. Clarke, 11 Ex. R. 712; fifthly, that a plaintiff may be ordered to answer interroga- tories, though he be a foreigner resi- dent abroad; Pbhl v. Young, 25 L. J. Q. B. 23; sixthly, that an application for leave to deliver interrogatories, pro- 1 R. V. Newman, 8 C. & K. 260. 443 § 491.] THE LAW OF EVIDENCE. [book II. will not be necessarily ruled out because he remains in court, even wilfully, after being ordered to withdraw ; ^ but he exposes himself, by his disobedience, to an attachment for contempt.^ But where the party calling the witness is to blame for the dis- obedience, then the witness may be excluded.^ To prevent a witness from being unduly influenced by the knowledge of the vided it be made bona fide ; Baker v. Lane, 34 L. J. Ex. 57 ; 3 H. & C. 544, S. C, as explained away in Bickford D. D' Arcy, 35 L. J. Ex. 202 ; 4 H. & C. 540, S. C. ; and be supported by an affidavit disclosing special circum- stances ; Villeboisnet v. Tobin, 38 L. J. C. P. 146 ; 4 Law Rep. C. P. 184, S. C. ; Inman v. Jenkins, 39 L. J. C. P. 258; 5 Law Rep. C. P. 738, S. C; cannot be resisted on an affidavit that the questions, if answered, may tend to criminate the party interrogated; Osborn v. London Dock Co. 10 Ex. R. 698; M'Fadzen v. May. & Corp. of Liverpool, 3 Law Rep. Ex. 279; 37 L. J. Ex. 193, S. C; Bartlett v. Lewis, 31 L. J. C. P. 230; 12 Com. B. N. S. 249, S. C. ; Goodman v. Holroyd, 15 Com. B. N. S. 839; Simpson v. Car- ter, 30 L. J. Ex. 224, in n. 7 ; or may expose him to a forfeiture of his estate ; Chester v. Wortley, 17 Com. B. 410; Bickford v. D' Arcy, 35 L. J. Ex. 202 ; 1 Law Rep. Ex. 354; and 4 H. & C. 534, S. C; see Pye v. Butterfield, 34 L. J. Q. B. 17 ; seventhly, that the enactment under discussion applies to aations of ejectment; Flitcroft v. Fletcher, 11 Ex. R. 543; Pearson v. Turner, 16 Com. B. N. 8. 157; 33 L. J. C. P. 224, S. C; Horton v. Bott, 2 H. & N. 249 ; Stoate v. Rew, 82 L. J. C. P. 160; 14 Com. B. N. S. 109, S. C; Chester v. Wortley, 17 Com. B. 418; but see Blyth v. L'Es- trange, 3 Fost. & Fin. 154, per Black- burn, J. ; and interpleader issues ; White V. Watts, 12 Com. B. N. S. 267; as well as to ordinary actions; and, eighthly, that it extends equally 444 to real and to nominal parties; M'Kewan v. Rolt, 4 H. & N. 738; Ma- son V. Wythe, 3 Fost. & Fin. 153, per Keating, J." 1 Chandler v. Home, 2 M. & R. 423 ; Cobbett v. Hudson, 1 E. & B. 14; Hopper v. Com. 6 Grat. 684; Langlin v. State, 18 Ohio, 99; Porter V. State, 2 Ind. 435; Grimes v. Mar- tin, 10 Iowa, 347; State v. Fitzsim- mons, 30 Mo. 236; Keith v. Wilson, 6 Mo. 434; State v. Salge, 2 Nev. 821; Davenport v. Ogg, 15 Kans. 863; Pleasant v. State, 15 Ark. 624; Bell V. State, 44 Ala. 393; Sartorius V. State, 24 Miss. 602; People v. Bos- cowitch, 20 Cal. 436. The proper view (Wilson V. State, 52 Ala. 299) is, that the examination of the witness in such case is discretionary with the court. In 2 Phill. on Evid. (5th Am. ed.) 744, it is said: " If a witness, who has been ordered to withdraw, con- tinues in court, it was formerly con- sidered to be in the judge's discretion whether or not the witness should be examined. But it may now be con- sidered as settled, that the circum- stance of a witness having remained in court, in disobedience to an order of withdrawal, is not a ground for re- jecting his evidence, and that it merely affords matter of observation." The old rule was always to exclude the testimony. Parker v. Mc William, 6 Bing. 683; Thomas v. David, 7 C. & P. 350 ; Jackson v. State, 14 Ind. 827. '^ Chandler v. Home, 2 M. & Rob. 423; Bell v. State, 44 Ala. 898. 8 Dyer v. Morris, 4 Mo. 214. CHAP. VIII.J WITNESSES : EXAMINATION. [§ 492. line to which his testimony is expected to reach, it has even been held that the court will order his withdrawal during a legal argument in respect to his evidence.^ But this goes too far, since it would require witnesses to leave the court whenever the coun- sel calling them states, as he constantly is compelled to do, what he intends to prove by questions he may put. Yet in all cases where there is reason to believe that a willing witness is waiting to catch his instructions from counsel, the witness should be ex- cluded. The rule, however, will be made to bend as far as pos- sible to the convenience of the witness. Thus, experts may be permitted to remain in court until the expert testimony begins ; ^ and to attorneys it is especially conceded that they may be ex- cused, when personally required in court, from such withdrawal.^ § 492. When a witness's competency is in dispute, he may be examined, according to the old practice, on his voir dire, voir dire and in each case, in some jurisdictions, he is sworn nan^™-' to make true answers to all questions to be put to him amination. by the court.* The use of such a test is now questioned,^ for if the witness can be sworn on the voir dire, he can be sworn on the examination in chief ; if he is incompetent on the ex- amination in chief, he is incompetent on the voir dire.^ Hence it is now the English practice to put questions as to competency to the witness on his examination in chief. When so examined, he may speak, so it is ruled, as to the contents of written instru- ments without their being brought into court.'' In the United States, however, the practice of examining as to competency on the voir dire continues in many courts,^ though this is at the dis- 1 K. V. Murphy, 8 C. & P. 807; Gisburn, 15 East, 67; Lunnis v. Eow, Charnock v. Uevings, 3 C. & K. 378; 10 A. & E. 606 ; Quarterman v. Cox, Selfe V. Isaacson, 1 F. & F. 194; Nel- 8 C. & P. 97 ; Brockbank v. Anderson, son V. State, 2 Swan, 237. 7 M. & Gr. 295-313 ; S. P., Herndon 2 Alison, Pract. Cr.L.489; Taylor's v. Givens, 16 Ala. 261. Ev. § 1260. 8 Fifield v. Smith, 21 Me. 383 ° Everett v. Lowdham, 4 C. & P. Walker v. Sawyer, 13 N. H. 191 91; Pomeroy v. Baddely, R. & M. Smith v. Fairbanks, 27 N. H. .'i21 430. Bridge v. Wellington, 1 Mass. 219 * Mifflin V. Bingham, 1 Dall. 276. Stebbins v. Sackett, 5 Conn. 258 ' See Taylor's Evidence, § 1257. Seeley v. Engell, 13 N. Y. 542; Fo- ° See, also, Jacobs v, Layborn, 11 ley v. Mason, 6 Md. 87; Wright v. M. & W. 685. Mathews, 2 Blackf. 187 ; Waughop v. ' Taylor's Ev. § 1257, citing K. v. Weeks, 22 111. 350; Diversy v. Will, 445 § 495.J THE LAW OF EVIDENCE. [book II. cretion of the judge, who may remand the question of compe- tency to the examination in chief. ^ The appeal to the voir dire does not preclude recourse to other means of proving incompe- tency.^ § 493; It is elsewhere noticed that the interpretation, by a sworn interpreter, of the testimony of a foreign wit- erstobe ness, is not hearsay.^ It may be added that the ac- sworn. curacy of the interpretation of the sworn interpreter may be impeached, and is ultimately to be determined by the jury.* A witness, without being specially sworn, may interpret foreign terms used by himself.^ When a witness can only speak in a whisper, the court may appoint a suitable person to repeat to the jury what is said by the witness.^ § 494. A witness who refuses to answer a question determined by the court to be proper, is in contempt, and may be attached and committed to custody to be detained until he replies.'^ The same practice exists where the wit- ness refuses to be sworn, or misbehaves when giving evidence.^ § 495. A witness is not entitled to set up, in reply to a rule to show cause why an attachment should not issue against him, that his testimony was irrelevant, and that there- fore he did not answer.^ But if it appear on hearing of the rule that his testimony would be irrelevant, es- pecially if he be a public officer whose attendance would be detrimental to other branches of the public service, then the Witness refusing to answer unishable ly attach- ment. ?; Witness is DO judge of mate- riality of Ms testi- mony. 28 111. 216; Walker v. Collier, 37 111. 362; Harrel v. State, 1 Head, 125; Bailey v. Barnelly, 23 Ga. 582 ; Tar- leton U.Johnson, 25 Ala. 300; Wei- gel's Succession, 18 La. An. 49 ; Hooker v. Johnson, 6 Fla. 730. 1 Seeley v. Engell, 17 Barb. 530. " Stebbins v. Sackett, 5 Conn. 258; Blaokstock v. Leidy, 19 Penn. St. 335. See, however, Le Barron v. Redman, 30 Me. 536; Schnader v. Schnader, 26 Penn. St. 384 ; Williams V. Man. Co. 1 Md. Ch. 306. 8 Supra, §174. * U. S. .;. Gibert, 2 Sumn. 19; Schnier «. People, 23 111. 17. As to 446 New York practice, see Leetch v. Ins. Co. 2 Daly, 518. ^ Kuhlman v. Medlinka, 29 Tex. 385. ' Conner i>. State, 25 Ga. 515. ' Whart. Cr. L. § 3432 ; Broom & Hadley's Com. iv. 364 (Am. ed. ii. 567); R. V. Charlesworth, 2 F. & F. 832; U. S. V. Coolidge, 2 Gall. 364; U. S. V. Caton, 1 Cranch C. C. 150; People V. Kelly, 24 N. Y. 74; Holman V. Austin, 34 Tex. 668. 8 May, Law of Pari. 405 ; 4 Bl. Com. 284. » Scholes V. Hilton, 10 M. & W. 16; Chapman v. Davis, 3 M. & G. 609 ; S. C. 4 Scott N. K. 319. CHAP, VIII.] WITNESSES : EXAMINATION. [§ 498. court will refuse the attachment.^ But while public duties may be held to relieve a party from attendance, no private engage- ments, no matter how solemn, are allowed to have the same ef- fect.2 When attending, it is not for the witness to say that the questions asked him relate to his private affairs, and are irrel- evant. The question of relevancy is for the court.* § 496. It is within the power of the court, at any period of the examination, to put questions to the witness for the _, purpose of eliciting facts bearing on the issue ; and the examine witness may be even recalled for this purpose, or a wit- ness not called by the parties may be called and examined by the judge.* Nor is the court, as to evidence, bound by the rule excluding leading questions.^ But an answer not in itself evi- dence, brought out by a question from the court, may be ground for reversal.® § 497. A witness, examined as such in a court of justice, is so far privileged that he is not liable to suit for words witness spoken by him in answer to questions put by counsel, ag7o au-** with the allowance, either express or implied, of the ^^"^■ court.'' And in England this protection was extended in 1876 to volunteer explanations, which, out of court, would have been libellous.^ § 498. That a party cannot lead his witness by questions which in themselves indicate the answer the witness is ^. 1 ■ 1 7 • 1 1 1 ■ 1 • • Witness on desired to make, is a check which m some junctures is examina- of much value. Against the rule it has been sometimes not be said that an unwilling witness requires leading ques- P"""P * ■ tions, and that a willing witness can do without them. The first objection we will consider presently. As to the second objec- tion, it must be observed that there are contingencies in a case for which no witness, however willing, can have a solution pre- 1 Dicas V. Lawson, 1 C, M. & R. len, 271 ; Palmer v. White, 10 Cush. 934; 7 Dowl. 693. See supra, § 383. 321 ; Epps v. State, 19 Ga. 102. 2 Jackson v. Seager, 2 Dowl. & L. ' People u. Lacoste, 37 N. Y. 192. 13; Goff u. Mills, 2 Dowl. & L .23. ' Revis v. Smith, 18 C. B. 126; » Tippins V. Coates, 5 Hare, 16. Henderson v. Broomhead, 4 H. & N. * R. V. Holden, 8 C. & P. 609. 569 ; Kennedy v. Milliard, 10 Ir. L. 6 Supra, § 281; R. v. Watson, 6 C. R. N. S. 195. & P. 653 ; Middleton v. Barned, 4 ' Seaman v. Netherclift, L. R. 1 C Exeh. R. 243 ; Com. v. Galavan, 9 Al- P. D. 540 ; cited infra, § 722. 447 § 499.] THE LAW OF EVIDENCE. [book II. arranged for his use. Skilful counsel may indeed see on the moment such solutions, and if counsel were allowed to put the solution in the mouth of an unprincipled witness, there would be many cases in which truth would be thereby suppressed and jus- tice frustrated. § 499. Hence it is that the courts have united in maintaining Leading that a party is not permitted, as a rule, to put to his questions witness questions which involve or assume the answer usually ^ T . , . . , , . , prohibited, -vrhich the party desires the witness to make, or wnica suggest disputed facts as to which the witness is to testify.^ The rule, Mr. Best tells us,^ is based on two reasons. First, and principally, on the supposition that the witness has a bias in favor of the party bringing him forward, and hostile to his oppo- nent. Secondly, that the party calling a witness has an advan- tage over his adversary, in knowing beforehand what the witness will prove, or at least is expected to prove ; and that, conse- quently, if he were allowed to lead, he might interrogate in such a manner as to extract only so much of the knowledge of the witness as would be favorable to his side, or even put a false gloss upon the whole. ^ 1 Stephen's Ev. 123 ; Nicholls v. Dowding, 1 Stark. R. 81 ; Page v. Par- ker, 40 N. H. 47 ; Wells v. Man. Co. 48 N. H. 491 ; People v. Mather, 4 Wend. 229; Snyder v. Snyder, 6 Binn. 483; Lee v. Tinges, 7 Md. 215; Hop- per V. Com. 6 Grat. 684; Carpenter v. Ambroson, 20 111. 170; Osborn v. For- shee, 22 Mich. 209 ; Carter v. State, 56 Ga. 463; Stringfellow v. State, 26 Miss. 157; McLean v. Thorp, 3 Mo. 315 ; Mathers v. Buford, 17 Tex. 152. 2 Ev. § 641. ' It is sometimes said, "That the test of a leading question is -whether an answer to it by ' yes ' or ' no ' would be conclusive upon the matter in issue; but although all such ques- tions undoubtedly come within the rule, it is by no means limited to them. Where ' yes ' or ' no ' would be conclusive on any part of the issue, 448 the question would be equally objec- tionable; as if, on traverse of notice of dishonor of a bill of exchange, a witness were led either as to the fact of giving the notice, or as to the time when it was given. So, leading ques- tions ought not to be put when it is sought to prove material and prox- imate circumstances. Thus, on an indictment for murder by stabbing, the asking a witness if he saw the ac- cused covered with blood and with a knife in his hand coming away from the corpse, would be in the highest degree improper, though all the facts embodied in this question are consist- ent with his innocence. In practice, leading questions are often allowed to pass without objection, sometimes by express, and sometimes by tacit con- sent. This latter occurs where the questions relate to matters which, though strictly speaking in issue, the CHAP. VIII.] WITNESSES : LEADING QUESTIONS. [§ 501. § 500. Yet to this rale there are several marked exceptions, where an unwilling witness, or a witness called from the Exception necessity of the case, may have put to him questions ^nnug"" requiring an answer of yes or no to a specific detailed w^^^s. proposition.^ This is the case with attesting witnesses called by order of court ; ^ with unwilling witnesses who have made prior contradictory statements,^ and eminently so with parties whom, under the new practice, opposing parties may call to testify as to handwriting or other material facts.* § 501. Nor does the rule preclude a party from refreshing the memory even of friendly witnesses when the tendency And as to of the question is to lead the witness to the topic rather ^/^eafc than to exhibit the topic to the witness.^ A witness, "memory. for instance, in that confusion of memory so common when a forced effort is made to , recall names or formulas, may have a name given to him, so that he may recognize that which he is striving to recollect.^ Of this we have several illustrations in the Tichborne prosecution. Nor can we do otherwise than per- mit questions involving specifications to be put to persons whose examining counsel is aware are not meant to be contested by the other side; or where the opposing counsel does not think it worth his while to object. " On the other hand, however, very unfounded objections are constantly taken on this ground. A question is objectionable as leading when it sug- gests the answer, not when it merely directs the attention of the witness to the subject respecting which he is questioned." Ibid. 1 Parkin v. Moon, 7 C. & P. 409 1 R. V. Chapman, 8 C. & P. 559 ; State V. Lull, 37 Me. 246; State v. Benner, 64 Me. 267; Severance v. Carr, 43 N. H. 65; Moody v. Rowell, 17 Pick. 490 ; York v. Pease, 2 Gray, 282 ; Green v. Gould, 3 Allen, 465 ; Cronan V. Cotting, 99 Mass. 334 ; People v. Mather, 4 Wend. 229 ; Walker v. Dunspaugh, 20 N. Y. 170; Stevens V. Benton, 39 How. (N. Y.) Pr. 13; VOL. I. 29 Bank of North. Liberties v. Davis, 6 Watts & S. 285; Parmelee v. Austin, 20 111. 35 ; Harvey v. Osborne, 55 Ind. 535; Doran v. Mullen, 78 111. 342; Towns V. Alford, 2 Ala. 378; Blevins V. Pope, 7 Ala. 371 ; Smith v. Hutoh- ings, 30 Mo. 380 ; Leonard v. Wynn, 1 Week. Notes of Cases, 189. Infra, § 730. ^ Bowman v. Bowman, 2 M. &Rob. 501. Infra, §§ 723-730. » Infra, §§ 549-50; Coker v. Hayes, 16 Fla. 368. * Clark V. SaflEery, Ry. & M. 126; Foster, in re, 44 Vt. 570; Brubacker V. Taylor, 76 Penn. St. 83. See Hol- brook V. Mix, 1 E. D. Smith, 154. See supra, § 489. ^ Courteen v. Touse, 1 Camp. 43 ; Gunter v. Watson, 4 Jones L. 455. ' Acerro v. Petroni, 1 Stark. Rep. 100; Kemmerer v. Edelman, 23 Penn. St. 143. 449 § 504.] THE LAW OF EVIDENCE. [BOOK II. mental associations are feeble ; for while such persons may narrate with extraordinary truth whatever they recollect, they may not be able to recollect unless the topic be presented to them in the concrete.-* § 502. A leading question is also permitted when this form is So when the natural mode of bringing out categorically the in- tton'is"^'' formation required.^ A person whose identification is at natural. issue may be in a court room. The proper question in most cases undoubtedly is to ask the witness, " Is the person in question now in the court room ? If so point him out." But when there is a prisoner in the dock charged with an offence, to tell a witness to look round the court room and see whether he can pick out the person to be identified, would be virtually to tell him to look at the person in the dock and ask him whether the prisoner is the person in question. In such cases it is therefore admissible to put the latter question directly.^ § 503. Again : when a witness is called to rebut statements to So when his discredit made by witnesses on the opposite side, he caUed to" ^^7 ^^ asked specifically whether he said or did the contradict, particular things with which he is charged.* § 504. Nor is it necessary for counsel to begin even with a . , willing; witness with a series of inquiries to elicit the So when ° _ ^ _ certain uncontested conditions of a case. It is admissible to are as- assume such of these conditions as are undisputed ; and this may be done by way of recapitulation to questions addressed to the witness.^ Such recapitulation, however, cannot introduce facts not in evidence.^ 1 Edmonds v. Walker, 3 Stark. 7 ; » R. v. Berenger, 2 Stark. R. 129, Huckins v. Ins. Co. 31 N. H. 238; n; E. v. Watson, 32 How. St. Tr. 74. Moody V. Rowell, 17 Pick. 498 ; Che- * See Hallett v. Cousens, 2 M. & R. ney v. Arnold, 18 Barb. 434 ; Boothby 238. Infra, § 569. ti. Brown, 40 Iowa, 104; Lowe u. Lowe, ^ Nicholls v. Dowding, 1 Stark. R. 40 Iowa, 220; Donnell v. Jones, 13 81; People v. Mather, 4 Wend. 229; Ala.490; Long w. Steiger, 8 Tex. 460. Strawbridge v. Spann, 8 Alabama, " Spear v. Richardson, 87 N. H. 820. 23; Hale v. Taylor, 45 N. H. 405; « Baltimore R. R. v. Thompson, 10 Potter V. Bissell, 3 Lansing, 205; Md. 76; Carpenter v. Ambroson, 20 Knappt;. Smith, 27 N. Y. 277; Wil- 111. 170; People v. Grahanl, 21 Cal. son V. McCullough, 23 Penn. St. 440; 261. Cogley V. Cushman, 16 Minn. 397; Adams v. Harrold, 29 Ind. 198. 450 CHAP. VIII.] WITNESSES : EXAMINATION. [§ 507. § 505. A trial might be mischievously delayed if a party were permitted to call all the witnesses he chooses to prove q^^^j ^^^^ any one particular relevant point ; and consequently, discretion when such point appears to the court to be satisfactorily mulationof witn6SS63 established, the further calling of witnesses to prove and of ex- it may be stopped ; subject, however, to the right to *™'°^"°°- recall should the point be subsequently disputed.-^ The court, also, has a discretionary power to limit the examination and cross-examination of witnesses as to collateral or merely cumula- tive issues, as well as to shape the order in which evidence is to be produced.^ § 506. The mode and tone of examination are neces- so as to sarily subject to the discretion of the court trying the ^"amina- case.^ ''""• § 507. Ordinarily a witness cannot be asked as to a conclusion of law. Sometimes this has been so far pressed as . . . . . - Witness to involve the assumption that a witness cannot be cannot be asked as to conclusions of fact. The error of this as- to conciu- sumption will be seen when we remember that there ^"'"®''law- are few statements of fact that are not conclusions of fact.* It is otherwise as to conclusions of law, which, so far as concerns domestic law, are for the court to draw and not for witnesses.* 1 Bunnell v. Butler, 23 Conn. 65 ; * See this shown in Whart. Cr. Bissell w. Cornell, 24 Wend. 354; An- Law, tit. "Evidence;" and supra, thony V. Smith, 4 Bosw. (N. Y.) 603; § 15; infra, § 509. Gray v. St. John, 35 111. 222. 5 Campbell v. Rickards, 4 B. & A. " Wright V. Foster, 109 Mass. 57 ; 840; Rawlins v. Desboro, 2 M. & Rob. Peck V. Richmond, 2 E. D. Smith, 329; Bennett v. Clemence, 6 Allen, 380; Duncan v. McCullough, 4 Serg. 10 ; Cutler v. Carpenter, 1 Cow. 81 ; & R. 480 ; Brinks v. Heise, 84 Penn. Braman v. Bingham, 26 N. Y. 483 ; St. 246 ; though see Eames v. Eames, Rawls v. Ins. Co. 27 N. Y. 282 ; First 41 N. H. 177; Mulhollin v. State, 7 Baptist Church v. Ins. Co. 28 N. Y. Ind. 646 ; Dodge v. Dunham, 41 Ind. 153 ; Fisher v. Derbert, 54 Penn. St. 188; Mix v. Osby, 62 111. 193; Mo- 460; Thistle u. Frostburg, 10 Md. 129; rein v. Solomons, 7 Rich. 97; Adriance White u. Bailey, 10 Mich. 155; Phelps V. Arnot, 31 Mo. 471; Crosett v. Whe- v. Town, 14 Mich. 374; Massure v. Ian, 44 Cal. 200. See infra, § 574. Noble, 11 111. 531 ; Alton R. R. v. ° Schuchardt u. Aliens, 1 Wall. 359; Northcott, 15 111. 49 ; Tomlin v. Hil- Rea V. Missouri, 17 Wall. 542; Com. yard, 43 111. 300; McClay v. Hedge, 18 V. Thrasher, 11 Gray, 57; Bakeman v. Iowa, 66; Smyth v. Ward, 46 Iowa, Rose, 14 Wend. 105 ; Magee v. State, 339 ; Parker v. Haggerty, 1 Ala. 632 ; 32 Ala. 575; Orr v. State, 18 Ark. Wall v. Williams, 11 Ala. 826; Dun- 540. lap V. Hearn, 37 Miss. 471 ; Young 451 § 508.J THE LAW OF EVIDENCE. [book II Among such conclusions of law, legal responsibility is one of the most conspicuous. A witness, no matter how skilful, is not to be permitted to testify as to whether or no a party is responsi- ble to the law ; ^ or whether certain facts constitute in law an agency.^ Nor is even an expert allowed to state whether he considers a deceased person competent to make a will.^ It has also been held that an expert in insurance is not admissible to state whether certain conceded conditions, in respect to an in- sured building, affected the risk.* It has been ruled, however, that an expert may state that it is the usage of insurance com- panies to charge a higher rate for certain conditions.* " Law," in the sense here used, embraoes whatever conclusions belong properly to the court. Thus it is inadmissible, so has it been ruled in New Hampshire, for a ^jritness to define the meaning of the term " minister of the congregational persuasion." ^ Nor can a witness give conclusions as to documents which it is the prov- ince of the court to interpret.^ A witness, also, is not to be permitted to testify as to the motives by which another person is oi; has been actuated. Motives are eminently inferences from con- duct. The facts from which the inferences are to be drawn are to be detailed by the witnesses ; for the jury the work of inference is to be reserved.^ Yet where a § 508. Conclu- sions of witness as to motives of other persons in- admissible. V. Power, 41 Miss. 197 ; Zeringue v. White, 4 La. An. 301 ; Garrett v. State, 6 Mo. 1 ; Lindauer v. Ins. Co. 13 Ai-k. 461 ; Winter v. Stock, 29 Cal. 407. 1 R. 0. Richards, 1 F. & F. 87 ; Joyce V. Ins. Co. 45 Me. 168 ; Peter- son V. State, 47 Ga. 524 ; State v. Klinger, 46 Mo. 224. 2 Short Mt. Coal Co. v. Hardy, 114 Mass. 191; Prov. Tool Co. v. Man. Co. 120 Mass. 36. ' Fairchild v. Bascomb, 35 Vt. 398; Walker v. Walker, 84 Ala. 469. * Marshall v. Ins. Co. 7 Fost. (N. H.) 157; S. C. Bennett's Ins. Cas. 634 ; Luce v. Ins. Co. 105 Mass. 298 ; Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Hill V. Ins. Co. 2 Mich. i76; S. C. Bennett's Ins. Cas. 325; though see Schenck v. Ins. Co. 4 Zabr. 447; Kern 452 V. Ins. Co. 40 Mo. 19; Arnould on Ins. 571. In Hill V. Lafayette, Insurance Co. 2 Mich. 476, the point in the text is fully discussed. ' Mulvy V. Ins. Co. 5 Gray, 541; Lyman v. Ins. Co. 14 Allen, 329; Hart- man V. Ins. Co. 21 Penn. St. 466. As to parallel cases, see Porter v. Pequon- noc Co. 17 Conn. 249; Buffum v. Har- ris, 5 R. I. 243 ; Clegg «. Fields, 7 Jones L. (N. C.) 37. Supra, § 444. 8 Dublin case, 38 N. H. 459. ' Infra, § 972. 8 Zantzinger v. Weightman, 2 Cranch C. C. 478; Whitman v. Freeze, 23 Me. 185; State v. Mairs, 1 Coxe, 453; Ballard v. Lockwood, 1 Daly, 158; Shepherd v. Willis, 19 Ohio, 142; Gilman v. Riopelle, 18 CHAP. VIII.] WITNESSES : OPINION. [§ 509. party is examined as to his own conduct, he may be asked as to his motive, his testimony to such motive being based not on inference but on consciousness.^ § 509. When we enter on the discussion of the admissibility of opinion, we strike a topic which is embarrassed by much opinion of ambiguity of terms. What is opinion ? " Did A. shoot '"^^"f B. ? " C, a by-stander, answers, " My opinion is that ordinarily he did : I saw the pistol aimed ; I heard the report ; I saw the flash ; I saw B. fall down, as I supposed, dead ; from all this I infer that A. killed B." This is all inference on the part of the witness ; yet it is admissible.^ On the other hand it has been held inadmissible to ask a witness as to his opinion as to who constitute the membership of a firm ; ^ or as to whether a certain physician had acted honorably towards his professional brother ; * or as to what is a reasonable load for a horse ; ^ or as to the effect of particular charges in an account ; ^ or as to the effect of certain acts on the credit of a firm ; ^ or as to the probable effect of certain acts in saving a burning house ; ^ or as to the religious sense of a dying declarant ; ^ or as to the conjectural losses of certain business operations ; ^^ or as to Mich. 145; State u. Garvey, 11 Minn, vant and material. The interrogatory 154; Hudgins v. State, 2 Ga. 173; put to him on this subject was there- Hawkins V. State, 25 Ga. 207; Peake fore competent, and his testimony, that V. Stout, 8 Ala. 647; Clement v. Cure- he executed the conveyance in good ton, 36 Ala. 120. faith, was admissible." Bigelow, C. J., 1 Supra, § 482; Quimby o. Morrill, Thacher v. Phinney, 7 Allen, 148. 47 Me. 470; Fisk v. Chester, 8 Gray,- ' See Whart. Cr. Law, tit. " Evi- 506; Lombard v. Oliver, 7 Allen, 155; dence." See supra, §§ 8, 15. Forbes U.Waller, 25 N.Y. 430; Persse « Bonfield v. Smith, 12 M. & W. V. Willett, 1 Eob. N. Y. 131; though 405; Williams v. Soutter, 7 Iowa, see Thornton i). Thornton, 39 Vt. 122; 435; Atwood v. Meredith, 37 Miss. Haywood v. Foster, 16 Ohio, 88. 635. " The plaintiff, being by law a com- * Ramadge v. Ryan, 9 Bing. 333 ; petent witness, was rightly allowed by though see Greville v. Chapman, 5 Q. law to testify to any fact which had a B. 731, a case of doubtful authority, bearing on the issue before the jury. ' Oakes v. Weston, 45 Vt. 430. Inasmuch as the defendant sought to ^ U. S. v. Willard, 1 Paine, 539. impeach the plaintiff's conveyance to ' Donnell v. Jones, 13 Ala. 490; his wife on the ground that it was Thomas w. Isett, 1 Greene, 470. made with a fraudulent purpose, an « Gibson v. Hatchett, 24 Ala. 201. inquiry into his intentions and motives ' State v. Brunetto, 13 La. An. 45. in making the grant to her was rele- '" Rider v. Ins. Co. 20 Pick. 259. 453 § 509.] THK LAW OF EVIDENCE. [BOOK 11. whether the condition of a third person indicates disease,^ though as to ordinary symptoms of disease, a non-expert can speak.2 Nor can a witness be asked whether he did not exercise great care in the discharge of a certain duty;^ as to whether a particular alteration of machinery was technically a repair ; * as to whether a certain person acted fairly ; ^ as to whether a certain religious denomination had a particular creed, but had de- parted from it ; ^ as to whether an engine appeared capable of drawing a train ; ' as to whether a certain bridge was safe ; ^ as to whether certain conduct indicated adultery ; ^ as to whether a certain disorderly house was a nuisance ; ^^ as to whether a certain person's conduct would have particular effects ; ^^ as to whether certain language would have particular effects ; ^^ as to whether certain conduct was negligent, or otherwise ; ^^ as to whether cer- tain conduct was honest ; i* as to whether a deed was unduly in- fluenced ; ^^ as to whether a certain party was insolvent ; ^^ as to whether a particular person was vindictive and dangerous,^ ^ as to whether a gate of a drawbridge should be shut at night ; ^^ as to whether there was cause for an accident, ^^ as to whether cer- tain injuries could have been avoided j^" as to whether a certain 1 Ashland v. Marlboro, 99 Mass. 12 Johnson v. Ballew, 2 Porter, 29. 47; though in Parker v. St. Co. 109 " Qrofut v. Ferry Co 36 Barb. 201; Mass. 506, it was held that a non- Teall v. Barton, 40 Barb. 137; Tay- expert could testify as to a party's lor v. Monnot, 4 Duer, 116; Otis v. probable health. Thorn, 23 Ala. 469 ; Livingston v. 2 Elliott V. Van Buren, 33 Mich. Cox, 8 Watts & S. 61 ; Hopkins v. 49. R. R. 78 111. 32. See Penn. R. v. » Bryant v. Glidden, 39 Me. 458. Henderson, 61 Penn. St. 315. * Bigelow V. CoUamore, 5 Cush. 1* Johnson v. State, 35 Ala. 870. 226. " Dean v. Fuller, 40 Penn. St. ^ Zantzinger v. Weightman, 2 474. Cranch C. C. 478. " Nuckolls v. Pinkston, 38 Ala. 8 Happy V. Morton, 33 111. 398. 615; Babcock v. Bank, 28 Conn. 302; ' Sisson V. R. R. 14 Mich. 489. Phillips J'. Bullard, 58 Ga. 256 ; though 8 Crane v. Northfield, 33 Vt. 124. see Sherman v. Blodgett, 28 Vt. 149 ; 9 Cameron v. State, 14 Ala. 546; Crawford v. Andrews, 6 Ga. 244 ; Cox V. Whitfield, 18 Ala. 738 ; Dallas Riggins v. Brown, 12 Ga. 271 ; Royall ». Sellers, 17 Ind. 479. As to how far v. McKenzie, 25 Ala. 363. reputation is admissible to prove adul- " Ames v. Snyder, 69 111. 376. tery, see supra, § 225. " Lowell v. Wright, 8 Allen, 166. " Smith V. Com. 6 B. Mon. 21. is Patterson v. Colebrook, 29 N. H. 11 Richards v. Richards, 37 Penn. 94. St. 225. 20 Winters v. R. R. 39 Mo. 468. 454 CHAP, vm.] WITNESSES: OPINION. [§ 510. floating dock was seaworthy ; ^ or as to whether certain articles were proper for a minor.^ § 510. The true line of distinction is this : an inference neces- sarily involving certain facts may be stated without the facts, the inference being an equivalent to a specification of the facts ; but when the facts are not necessarily involved in the inference (e. g. when the inference may be sustained upon either of several distinct phases of fact, neither of which it necessarily involves), then the facts must be stated.^ In other words, when the opin- ^ Marcy v. Ins. Co. 11 La. An. 748. '^ Merritt r. Seaman, 6 N. Y. 168. * Lime Rock Bank v. Hewett, 50 Me. 267 ; Holden v. Robinson, 65 Me. 215; Robertson v. Stark, 15 N. H. 109 ; Kingsbury v. Mosea, 45 N. H. 222 ; Spear v. Richardson, 34 N. H. 428; Lester v. Pittsford, 7 Vt. 161; Frazer v. Tupper, 29 Vt. 409 ; Bank of Middlebury v. Rutland, 33 Vt. 414; Dickinson v. Barber, 9 Mass. 2^5 ; Robinson v. R. R. 7 Gray, 92; Lewis v. Ins. Co. 10 Gray, 508; Carpenter V. Leonard, 3 Allen, 32; Bliss v. Wil- braham, 8 Allen, 564; Swift v. Ins.' Co. 122 Mass. 673; Morse v. State, 6 Conn. 9; Sydleman v. Beckwith, 43 Conn. 9; Carpenter v. Tr. Co. 71 N. Y. 574 ; Gibson v. "Williams, 4 Wend. 320; Paige v. Hazard, 5 Hill (N. Y.), 603 ; Morehouse v. Mathews, 2 Comst. 514; Cook v. Brockway, 21 Barb. 331; Strevel v. Hempstead, 44 Barb. 518 ; Newton v. Pordham, 14 N. Y. Sup. Ct. 88; Given v. Albert, 5 Watts & S. 333; Woodburn v. Bank, 5 Watts & S. 447 ; Leckey v. Bloser, 24 Penn. St. 401 ; Bank of U. S. v. Macalester, 9 Penn. St. 475 ; Carr v. Northern Liberties, 35 Penn. St. 324; Stanfield v. Phillips, 78 Penn. St. 73; U. S. Telegraph Co. v. Wenger, 56 Penn. St. 262 ; Law v. Scott, 5 Har. 6 J. 438; Mahoney v. Ashton, 4 Har. & M. 63; Elbin v. Wilson, 33 Md. 135 ; Flickner v. Wagner, 46 Md. 580; Cincinnati Ins. Co. v. May, 20 Ohio, 211; Stillwater u. Coover, 26 Ohio St. 520; State v. Rhoads, 29 Ohio St. 171; Adams v. Punk, 53 111. 219; Wil- liams V. Bewitt, 12 Ind. 309; Barnes V. Newton, 46 Iowa, 567; Daniels v. Mosher, 2 Mich. 183 ; Evans v. Peo- ple, 12 Mich. 27; Whittemore v. Weiss, 33 Mich. 348; Wood v. Ins. Co. 40 Wis. 582; Griffin v. Witlow, 43 Wis. 509 ; Churchill v. Price, 44 Wis. 640 ; Wilson v. Maddock, 5 Oregon, 480; U. S. Ex. Co. V. Anthony, 5 Kans. 490; Shepard v. Pratt, 16 Kans. 209; Bailey v. Poole, 13 Ire. L. 404; Bell V. Morrisett, 6 .Tones L. 178; Mealing v. Pace, 14 Ga. 696; Ingle- hart V. State, 16 Ga. 513; Keener v. State, 18 Ga. 194; South. Life Ins. Co. V. Wilkinson, 53 Ga. 535; Parker V. Chambers, 24 Ga. 518; Hook v. Stovall, 30 Ga. 418 ; Massey v. Walker, 10 Ala. 288; Cameron v. State, 14 Ala. 546 ; Saltmarsh v. Bower, 34 Ala. 613 ; Gregory v. Walker, 38 Ala. 26 ; Hall v. State, 40 Ala. 698 ; Koons V. R. R. 65 Mo. 592; Cooper v. State, 23 Tex. 331. " As a rule, witnes.ses must state facts, and not draw conclusions or give opinions. It is the duty of the jury or court to draw conclusions from the evidence, and form opinions upon the facts proved. The cases in which opinions of witnesses are allowable, constitute exceptions to the general rule, and the exceptions are not to be 455 § 511.J THE LAW OF EVIDENCE. [BOOK II. ion is the mere shorl>hand rendering of the facts, then the opin- ion can be given, subject to cross-examination as to the facts on which it is based.^ § 511. A fortiori whenever a condition of things is such that it cannot be reproduced and made palpable in the concrete to the jury, or when language is not adequate to such realization, then a witness may describe it by its effect on his mind, even though such effect be opinion.^ Eminently is this the case with regard to noises ; ^ and smells,* and to questions of identification, where a witness is allowed to speak as to his opinion or belief.^ extended or enlarged, so as to include new cases, except as a necessity, to prevent a failure of justice, and when better evidence cannot be had. On questions of science or trade, and the like, persons of skill and science, ex- perts in the particular science or trade, may give opinions. 1 Greenl. Evid. § 440 ; 1 Phil. Ev. 290. On questions of value, a witness must often be per- mitted to testify to an opinion as to value, but the witness must be shown competent to speak upon the subject. He must have dealt in, or have some knowledge of, the article concerning which he speaks. C. & H. Notes, 760, Note 529. Persons should be conversant with the particular article, and of its value in the market, as a farmer or a dealer, or a person con- versant with the article, as to the value of lands, cattle, produce, &c. These stand upon the general ground of peculiar skill and judgment in the 1 Taylor v. R. R. 48 N. H. 304; Sherman v. Blodgett, 28 Vt. 149 ; Par- sons V. Ins. Co. 16 Gray, 463 ; Clear- water V. Brill, 61 N. Y. 625 ; King v. Fitch, 2 Abb. (N. Y.) App. 508; Ardesco v. Gilson, 63 Penn. St. 146 ; Sorg V. Congregation, 63 Penn. St. 156 ; Selden v. Bank, 3 Minn. 166; Mont- gomery V. Scott, 34 Wis. 338 ; Lewis V. State, 49 Ala. 1 ; Avary v. Searcy, 50 Ala. 54 ; Ray v. State, 50 Ala. 104; Grey v. Mobile Co. 55 Ala. 387 ; Sparr u. Wellman, 11 Mo. 230 ; Sayfarth v. St. Louis, 52 Mo. 449 ; State v. Fol- well, 14 Kans. 110. See Chicago v. Greer, 9 Wall. 726. ^ Com. V. Sturtivant, 117 Mass. 122; Safford v. Grout, 120 Mass. 20; Com. V. Piper, 120 Mass. 186 ; Kearney v. Farrell, 28 Conn. 317 ; People v. East- wood, 14 N. Y. 562; Townsend v. Brundage, 6 Thomp. & C. (N. Y.) 627 ; Dubois v. Baker, 40 Barb. 556 ; 456 Brennan v. People, 15 111. Ill ; State V. Langford, Busbee (L.), 436; Wood- ward V. Gates, 38 Ga. 205; Patrick v. The Adams, 19 Mo. 73; Eyerman v. Sheehan, 52 Mo. 221; Albright v. Corley, 40 Tex. 105 ; Underwood v. Waldron, 33 Mich. 232. s State V. Shinborn 46 N. H. 497; Leonard v. Allen, 11 Cush. 241, where the meaning of tones of voice and gest- ures was asked. Compare Stacy ti. Portland Co. 68 Me. 279. Supra, § 346-7. See, however, Hardenburg V. Cockroft, 5 Daly, 79, where it was said a witness could not be asked as to how far a voice could be heard. * Kearney v. Farrell, 28 Conn. 317. See Max Mviller's Lectures on Lan- guage, vol. ii. Lect. 1. " Fryer v. Gathercole, 13 Jur. 542; R. V. Orton, Pamph. Trial; State i). Pike, 49 N. H. 398; Com. v. Pope, 108 Mass. 446; Powell's Evidence (4th ed.), 102. CHAP. VIII.] WITNESSES: OPINION. [§ 512. § 512. So an opinion can be given by a non-expert as to matters with which he is specially acquainted, but which cannot be spe- cifically described.^ Thus a witness has been permitted to testify that certain parties were attached to each other ; ^ that a culvert was " steep right down, a culvert that I thought a dangerous place ; " ^ that an engine was running at an estimated speed ; * that a third person was sick or disabled ; ^ that a third person was responsible for his debts ;* that a horse appeared unwell or un- sound, or was or was not diseased,' or was safe ; ^ that a cow was in good condition ; ^ that certain pictures were good like- nesses ; 1" that certain hairs on a club appeared to the naked eye human, and to resemble the hair of the deceased ; ^^ that a cer- tain substance was " hard pan ; " ^^ that certain barrels of a pistol had not been fired ; ^^ that certain distances or weights were to be estimated in a particular way ; ^* that a sidewalk was prop- matters about which opinions are sought. Per Nelson, Ch. J., Lincoln V. Schenectady & Saratoga R. R. Co. 23 W. R. 433; Brill v. Flagler, 23 Wend. 354; Norman t>. "Wells, 17 Wend. 136; Lamoure v. Caryl, 4 Denio, 370. " It is not permitted to give in evi- dence the opinion of witnesses having knowledge of the subject, as to the damages resulting from a particular transaction. Morehouse v. Mathews, 2 Comstock, 514 ; Lincoln v. R. R. Co. supra." Allen, J., Teerpenning v. In- surance Co. 43 N. Y. 281. 1 Brink v. Ins. Co. 49 Vt. 442; Kearney v. Farrell, 28 Conn. 317; Bennett v. Fail, 26 Ala. 605; Cole v. Varner, 31 Ala. 244; Innis v. The Senator, 4 Cal. 5. " Trelawney v. Colman, 2 Stark. R. 192; Robertson K.Stark, 15 N. H. 114; McKee v. Nelson, 4 Cow. 355; but see Dallas v. Sellers, 17 Ind. 479. ' Lund V. Tyngsboro, 9 Cush. 36. * Detroit R. R. v. Van Steinburg, 17 Mich. 99. ' State V. Knapp, 45 N. H. 148-9 ; Whittier o. Franklin, 46 N. H. 23; Norton v. Moore, 3 Head, 480 ; Brown V. Lester, Ga. Dec. Part I. 77; Milton V. Rowland, 11 Ala. 732; Autauga Co. V. Davis, 32 Ala. 703 ; Barker v. Cole- man, 35 Ala. 221 ; Stone v. Watson, 37 Ala. 279; Elliott v. Van Buren, 33 Mich. 49; Shawneetown v. Mason, 82 111. 337 ; Endicott, J., Com. v. Sturti- vant, 119 Mass. 132. ' Blanchard v. Mann, 1 Allen, 433. ' Willis V. Quimby, 31 N. H. 485 ; Spear v. Richardson, 34 N. H. 428; State V. Avery, 44 N. H. 392; Johnson V. State, 37 Ala. 457. See these cases approved in Pike v. State, 49 N. H. 426. Sydleman v. Beckwith, 43 Conn. 9. ' Joy V. Hopkins, 5 Denio, 84. ^^ Barnes r. Ingalls, 39 Ala. 193. " Com. V. Dorsey, 103 Mass. 413. 12 Currier v. R. R. 34 N. H. 498. " Wynne v. State, 56 Ga. 113. " Hackett v. R. R. 35 N. H. 390 ; Eastman v. Amoskeag Co. 44 N. H. 143; Fulsome v. Concord, 46 Vt. 135; Campbell v. State, 23 Ala. 44; Rawles V. James, 49 Ala. 183. 457 § 512.] THE LAW OF EVIDENCK. [book II. erly constructed ; ^ that certain persons were insane, or drunk, or otherwise ; ^ that certain obviously dangerous wounds caused death ; ^ that a liquor looked like whiskey ; * that a color was of a certain hue ; ^ that a certain place was a " mill-site ; " ^ that another person " acted as if she felt very sad ; " ^ that the weather was cold enough to freeze potatoes ; ^ that the ap- pearance of a blood-stain indicated the spurt came from below, though the witness had never experimented with blood or other fluid in this relation.® So, as a general rule, " duration, dis- tance, dimension, velocity, &c., are often to be proved only by the opinion of witnesses, depending as they do upon many mi- nute circumstances which cannot fully be detailed." i" 1 Alexander v. Sterling, 71 111. 366. ^ See supra, § 451 ; Stacy v. Port- land Co. 68 Me. 279; Gahagan v. K. R. 1 Allen, 187 ; People v. Eastwood, 14 N. Y. 562; Dimick v. Downes, 82 111. 570; Stanley v. State, 26 Ala. 26. So as to infancy, Benson v. Mc- Padden, 50 Ind. 431. " State V. Smith, 22 La. An. 468. * Com. r. Dowdican, 114 Mass. 257. s Com. V. Owens, 114 Mass. 252. « Clagett V. Easterday, 42 Md. 617. ' Culver u. Dwight, 6 Gray, 444. s Curtis V. K. R. 18 Wis. 312. ' Com. V. Sturtivant, 119 Mass. 132, where the question is discussed with comprehensive ability by Endi- cott, J. 1" Kingman, C. J., State v. Folwell, 14 Kans. 110; citing Poole v. Rich- ardson, 3 Mass. 330. See, also. Com. V. Malone, 114 Mass. 295. " While it is the general rule that the opinions of witnesses are not evi- dence, there are certain classes of ex- ceptions to it, in which such opinions are admissible in connection with facts testified to, on which they are founded. Certain instances of such exceptions are noticed in the following decisions made by this court: In Porter v. Pe- quonnoc Manufacturing Co. 17 Conn. 249, the question was whether a cer- 458 tain dam was capable of sustaining the water accumulated by it suddenly in time of a freshet. Upon that point the court received the opinions of wit- nesses who had no peculiar skill in the mode of constructing dams, but who were acquainted with the stream and who knew the height of the dam and depth of the pond. The court said: ' The judgment or opinion of these witnesses, as practical and observing men, was sought on this point, on the facts within their knowledge and to which they testified. They had ac- quired, by their personal observation, a knowledge of the character of the stream and also of the dam, and were therefore peculiarly qualified to de- termine whether the latter was suffi- ciently strong to withstand the former. The opinions of such persons upon a question of this description, although possessing no peculiar skill on the sub- ject, would ordinarily be more satis- factory to the minds of the triers than those of scientific men who were per- sonally unacquainted with the facts in the case ; and to preclude them from giving their opinion on the subject, in connection with the facts testified to by them, would be to close an ordi- nary and important avenue to the truth On such a question CHAP. VIII.] WITNESSES: OPINION. [§ 513. § 513. In fine, in addition to the rule already given that opinion is admissible when it is fact in short-hand, it is not nec- the judgment of ordinary persons having an opportunity of personal ob- servation, and testifying to the facts derived from that observation, was equally admissible, whatever compar- ative weight their opinions might be entitled to, of which it would be for the jury to judge. It was a question of common sense as well as of science.' In Dunham's Appeal from Probate, 27 Conn. 192, this court said: 'We never allow the mere opinion of the witness to go to the jury if objected to, unless the witness is an expert and testifies as such, where the jury, from want of experience or observation, are unable to draw proper inferences from facts proved. But where a witness speaks from his personal knowledge, and, after stating the facts, adds his opin- ion upon them, or in a certain class of cases gives his opinion without detail- ing the facts on which it is founded, his testimony is received as founded, not on his judgment, but on his knowl- edge So, a witness may state that a certain road is or is not in repair, or that a certain bridge is sound and safe or otherwise, or that a farm or horse is worth so much, with- out going into the particular facts on which he founds his opinion, these facts being known to him personally. He only states the result of his own observation and knowledge.' " Clin- ton V. Howard, 42 Conn. 306, 307, Pardee, J. In Hardy v. Merrill, 56 N. H. 227, the following valuable classification of authorities appears in the opinion of the court: — " It is proper for me to invite atten- tion to the history of what I have called the Massachusetts exception. Beginning with Poole v. Kichardson, 3 Mass. 330 (a. d. 1807), we find no very wide departure from the general rule of admissibility. The case holds that non-professional witnesses may ' not testify merely their opinion or judgment.' Judge Doe (State v. Pike, p. 410) suspects that ' the only point ruled in this case was, that the wit- nesses were allowed to give their opin- ions when they stated particular facts from which the state of the testator's mind was inferred by them.' " But the exception grew and di- lated, finding larger and stronger ex- pressions along through the years and the course of the cases of Hathorn v. King, 8 Mass. 371; Dickinson v. Bar- ber, 9 Mass. 225 ; Needham v. Ide, 5 Pick. 510 ; Com. v. Wilson, 1 Gray, 337; down to Com. v. Fairbanks, 2 Allen, 511 (a. d. 1861), when it was held per curiam, ' that the incompe- tency of the opinions of non-experts was not an open question in Massa- chusetts ; ' though Judge Thomas had recently said, in Baxter v. Abbott, 7 Gray, 79, that 'if it were a new ques- tion [he] should be disposed to allow every witness to give his opinion, sub- ject to cross-examination, upon the reasons upon which it is based, his degree of intelligence, and his means of observation.' ' ' In very recent times, however, we observe a more liberal disposition on the part of the Massachusetts courts. See Barker v. Comins, 110 Mass. 477 (a. d. 1872); and Nash v. Hunt, 116 Mass. 23 7 (a. D. 1 8 74) . In the former of these cases, it was held that per- sons acquainted with the testator, al- though neither witnesses to the will nor medical experts, may testify whether they noticed any change in his intelligence, and any want of co- herence in his remarks. Gray, J., said : ' The question did not call for 459 § 513.] THE LAW OF EVIDENCE. [BOOK II. essary for a witness to be an expert, to enable him to give his opinion as to a matter depending upon special knowledge, when " A tolerably careful investigation authorizes me to repeat the language of Judge Doe, that ' in England no express decision of the point can be found, for the reason that such evi- dence has always been admitted with- out objection. It has been universally regarded as so clearly competent, that it seems no English lawyer has ever presented to any court any objection, question, or doubt in regard to it.' State V. Pike, 49 N. H. 408, 409. " I presume, however, it will not be denied that in the ecclesiastical courts, where questions of testamentary ca- pacity are generally tried, such opin- ions have always been received. See 1 Gr. Ev. (12th ed.) § 440, n. 4; Dow V. Clark, 3 Addams, 79; Wheeler V. Alderson, 3 Hagg. 574, where Sir John Nicholl said, in pronouncing his judgment, ' There is a cloud of wit- nesses who gave unhesitating opinions that the deceased was mad.' " The practice in the courts of the common law has been universal and unwavering in the same direction ; and ' the number of English authorities is limited only by the number of fully reported cases in which the question of sanity has been raised.' State «. Pike, 49 N. H. 409. " In the year 1800, James Hadfield was tried for shooting at King George III. The defence was insanity, and the opinions of non-expert witnesses were freely admitted; 27 State Trials, 1281 et seq. ; and Mr. Erskine told the jury they ' ought not to be shaken in giving full credit to the evidence of those who .... describe him as discovering no symptoms whatever of mental incapacity or disorder.' Er- skine's Speeches (3d London ed.), 132, 140. " In Egleton v. Kingston, 8 Ves. Jr. the expression of an opinion upon the question whether the testator was of sound or unsound mind, which the witnesses, not being either physicians or attesting witnesses, would not be competent to give. The question whether there was an apparent change in a man's intelligence or understand- ing, or a want of coherency in his re- marks, is a matter not of opinion but of fact, as to which any witness may testify, in order to put before the court or jury the acts and conduct from which the degree of his mental capac- ity may be inferred.' " In Nash u. Hunt, a witness was allowed to say he observed no incoher- ence of thought in the testator, nor anything unusual or singular in re- spect to his mental condition. Judge Wells saying, 'We do not under- stand this to be giving an opinion as to the condition of the mind itself, but only of its manifestations in conversa- tion with the witness.' The witness could state, ' as matter of observa- tion, whether his conversation and de- meanor were in the usual and natural manner of the testator or otherwise ; ' and in Commonwealth v. Pomeroy, 117 Mass. 149, non- professional wit- nesses were allowed to state, without objection, that the prisoner, ' in con- versation and manner, evinced no re- morse or sense of guilt.' " With deference and great respect I may be allowed to say that I rejoice much more in the results attained in these later cases than in the modus operandi of judicial reasoning by which the conclusions were reached. They indicate decided and accelerating progress of the Massachusetts courts to the right direction. The full estab- lishment of the true doctrine there is a question of time only. 460 CHAP. VIII.] WITNESSES: OPINION. [§ 513. he states the facts on which he bases his opinion.^ It is other- wise as to matters concerning which the jury can themselves 450, Ann Boak and Elizabeth Ban- son ' expressed a strong opinion of the total incapacity of the deceased, both from his great imbecility of mind and the dominion .... of Mrs. Kingston ; ' and John Fogg testified that ' his fac- -jilties were very much impaired. ' " In Lowe v. JoUiffe, 1 W. Black. 365, the subscribing witnesses to a will having sworn that the testator was utterly incapable of making such an instrument, to encounter this evidence the plaintiff's counsel examined the friends of the testator, who strongly deposed to his sanity. " In Tatham v. Wright, 2 Russ. & Mylne, Lord Ch. Jus. Tindal, ' in be- half of himself and the Lord Chief Baron,' in reading the judgment of the court, commented upon the fact that ' on the trial of this cause, for the purpose of proving affirmatively the general incapacity of Mr. Marsden, a very large body of parol evidence was produced by the defendants in the issue, comprising not fewer than six- ty-one witnesses in number, some of whom deposed to the state of Mr. Marsden's intellect and the powers of his mind in very early life, and others continued the account down to a pe- riod very shortly before his death in 1826. " The greater part of this testimony came from non-professionals, and con- sisted in the expression of opinion. " Courts and text-writers all agree that, upon questions of science and skill, opinions may be received from persons specially instructed by study and experience in the particular art or mystery to which the investigation relates. '' But without reference to any rec- ognized rule or principle, all concede the admissibility of the opinions of non-professional men upon a great va- riety of unscientific questions arising every day, and in every judicial in- quiry. These are questions of iden- tity, handwriting, quantity, value, weight, measure, time, distance, ve- locity, form, size, age, strength, heat, cold, sickness, and health; questions, also, concerning various mental and moral aspects of humanity, such as disposition and temper, anger, fear, excitement, intoxication, veracity, gen- eral character, and particular phases of character, and other conditions and things, both moral and physical, too numerous to mention. See, in addi- tion to the American cases cited by Judge Doe, in State v. Pike, passim, and the cases cited by the learned counsel for the appellant in argument. Commonwealth v. Dorsey, 103 Mass. 412 I Mclntire v. McConn, 28 Iowa, 480, 483 ; Dickinson v. Dickinson, 61 Pa. St. 404 ; Boyd v. Boyd, 66 Ibid. 283, 286, 290 ; Pidcock v. Potter, 68 Ibid. 351 ; 1 Wharton's Cr. Law, § 48. 1 Currier v. K. R. 34 N. H. 498; Richardson v, Hitchcock, 28 Vt. 149; O'Neill V. Lowell, 6 Allen, 110; Browning v. R. R. 2 Daly, 117; Iselin V. Peck, 2 Robt. (N. Y.) 629; Penn- sylv. R. R. V. Henderson, 51 Penn. St. 315; Dailey v. Grimes, 27 Md. 440; Panton v. Norton, 18 111. 496; Thomas t7. White, 11 Ind. 132; India- napolis V. Buffer, 30 Ind. 235 ; Detroit R. R. V. Van Steinburg, 17 Mich. 19; Sowers v. Dukes, 8 Minn. 23 ; Brackett V. Edgerton, 14 Minn. 174; Cochran V. Miller, 13 Iowa, 128; Barker v. Coleman, 35 Ala. 221; Blackman v. Johnson, 35 Ala. 252; Alabama R. R. V. Burkett, 42 Ala. 83; People v. San- ford, 43 Cal. 29. 461 § 513.J THK LAW OF EVIDENCE. [book II. form opinions, in which cases witnesses cannot state opinions "All evidence is opinion merely, unless you choose to call it fact and knowledge, as discovereid by and man- ifested to the observation of the wit- ness. " And it seems to me quite unnec- essary and irrelevant to crave an apol- ogy or excuse for the admission of such evidence, by referring it to any exceptions (whether classified, or iso- lated and arbitrary) to any supposed general rule, according to the lan- guage of some books and the custom of some judges. There is, in truth, no general rule requiring the rejec- tion of opinions as evidence. A gen- eral rule can hardly be said to exist, which is lost to sight in an enveloping mass o£ arbitrary exceptions. " But if a general rule will comfort any who insist upon excluding and suppressing truth, unless the expres- sion of the truth be restrained within the confines of a legal rule, standard, or proposition, let them be content to adopt a formula like this: Opinions of witnesses derived from observation are admissible in evidence, when, from the nature of the subject under investiga- tion, no better evidence can be obtained. No harm can result from such a rule, properly applied. It opens a door for the reception of important truths which would otherwise be excluded, while, at the same time, the tests of cross-examination, disclosing the wit- ness's means of knowledge, and his intelligence, judgment, and honesty, restrain the force of the evidence within reasonable limits, by enabling the jui^ to form a due estimate of its weight and value. See 1 Redf. on Wills, 136-141. " Opinions concerning matters of daily occurrence, and open to common observation, are received from neces- sity ; Commonwealth v. Sturtivant, 462 117 Mass.; and any rule which ex- cludes testimony of such a character, and fails to recognize and submit to that necessity, tends to the suppres- sion of truth and the denial of jus- tice. " The ground upon which opinions are admitted in such cases is, that, from the very nature of the subject in issue, it cannot be stated or described in such language as will enable per- sons, not eye-witnesses, to form an accurate judgment in regard to it. De Witt V. Barly, 17 N. J. 340; Bel- lows, J., in Taylor v. Grand Trunk Kailway, 48 N. H. 309. " How can a witness describe the weight of a horse ? or his strength ? or his value? Will any description of the wrinkles of the face, the color of the hair, the tones of the voice, or the elasticity of step, convey to a jury any very accurate impression as to the age of the person described? And so, also, in the investigation of mental and psychological conditions, — because it is impossible to convey to the mind of another any adequate conception of the truth by a recital of visible and tangible appearances; be- cause you cannot, from the nature of the case, describe emotions, senti- ments, and affections, which are really too plain to admit of concealment, but, at the same time, incapable of description, — the opinion of the ob- server is admissible from the necessity of the case ; and witnesses are per- mitted to say of a person, ' He seemed to be frightened ; ' ' He was greatly excited ; ' ' He was much confused ; ' ' He was agitated; ' ' He was pleased; ' ' He was angry.' All these emotions are expressed to the observer by ap- pearances of the countenance, the eye, and the general manner and bear- ing of the individual, — appearances CHAP. VIII.] WITNESSES: OPINION. [§ 513. which do not themselves involve the facts from which they are drawn. ^ which are plainly enough recognized by a person of good judgment, but which he cannot otherwise commu- nicate than by an expression of re- sults in the shape of an opinion. See Best on the Principles of Evidence, 585. It is on this principle, says Mr. Best, that testimony to character is received ; as, where a witness deposes to the good or bad character of a party who is being tried on a criminal charge, or states his conviction that, from the general character of another witness, he ought not to be believed on his oath. Best on Ev. 6^7. ' So,' continues Mr. Best, ' the state of an unproducible portion of real evidence — as, for instance, the appearance of a building, or of a public document which the law will not allow to be brought from its repository — may be explained by a term expressing a com- plex idea, e. g. that it looked old, de- cayed, or fresh ; was in good or bad condition, &c. So, also, may the emo- tions or feelings of a party whose psychological condition is a question. Thus, a witness may state as to whether, on a certain occasion, he looked pleased, excited, confused, agi- tated, frightened, or the like.' " Considerations of this character controlled the opinion of the court in De Witt V. Barly, before cited. The learned judge, in delivering the opin- ion of the court, said : ' To me it seems a plain proposition, that, upon inquiries as to mental imbecility aris- ing from age, it will be found imprac- ticable, in many cases, to come to a satisfactory conclusion, without re- ceiving, to some extent, the opinions of witnesses. How is it possible to describe, in words, that combination of minute appearances upon which a judgment in such cases is formed? The attempt to try such a question, excluding all matter of opinion, would, in most cases, I am persuaded, prove entirely futile A witness can scarcely convey an intelligible idea upon such a question, without infusing into his testimony more or less of opinion. Mental imbecility is exhib- ited, in part, by attitude, by gesture, by the tones of the voice, and the ex- pression of the eye and face. Can these be described in language so as to convey to one, not an eye-witness, an adequate conception of their force ? ' And see Hand's note to Poole V. Richardson, 3 Mass. (Rand's ed.) 330 " In Darling v. Westmoreland, 52 N. H. 401, 403, the defendants, argu- ing that evidence of Fletcher's horse being frightened was incompetent, suggested that, ' at best, it was evi- dence of an admission or a declara- tion, by Fletcher's horse, that the al- leged obstruction looked frightful to him, and .... not even a declara- tion under oath at that.' But the court, holding that the fright of Fletch- er's horse was as competent as the fright of the plaintiff's, affirmed the doctrine of Whittier v. Franklin, 46 K. H. 23, that the fright of a horse might be proved by witnesses testify- ing that he ' appeared to be frightened, 1 Cannell v. Ins. Co. 59 Me. 582; Morris v. East Haven, 41 Conn. 252; Messner v. People, 45 N. Y. 1 ; Ames ti. Snyder, 69 111. 376; Bissell v. Wert, 35 Ind. 54; Eaton v. Woolly, 28 Wis. 628; State v. Thorp, 72 N. C. 186; Gavisk V. R. R. 49 Mo. 274 ; Shep- herd V. Hamilton Co. 8 Heisk. 380; Largan v. R. R. 40 Cal. 272. 463 § 514.J THE LAW OF EVIDENCE. [book II. § 614. It is not to be expected that a witness should reproduce entire words that he has heard uttered by another even at a short distance of time; and a profession so to do, unless accurate or that in their opinion he was fright- ened, or (to omit superfluous words, and speak in that positive manner in which witnesses would generally tes- tify on such a subject) that he was frightened.' P. 403. " A non-expert may testify that he thought a horse ' was not then sound : .... his feet appeared to have a disease of long standing;' Willis v. Quimby, 31 N. H. 485, 487; that a horse ' appeared to be well, and free from disease ; ' that he thought ' he never saw any indication of the horse being diseased.' Spear v. Richard- son, 34 N. H. 428-481. These two cases relate to the physical condition of a horse. The same doctrine is equally well settled in relation to the mental and moral condition of a horse, so to speak ; for, in State v. Avery, 44 N. H. 392, 393, it was held, — Bel- lows, J. , — that a non-expert might testify, on an indictment for cruelly beating a horse, that the horse drove like a pleasant and well-disposed horse, unless when harassed by the whip ; that, at the time of the beating, he saw no viciousness or obstinacy in the horse, and that the blows appeared to affect the horse in a particular man- ner. The evidence was opinion, and nothing else; and it was opinion of the mental and moral condition of the horse, judged of by the witness from actions which it was impossible for the witness to describe in any better or more satisfactory way, so as to give the jury the best evidence the nature of the subject permitted. " In Whittier v. Franklin, 46 N. H. 23, an action for a defective highway, — one point of the defence being that the plaintifi''s horse, which he was 464 driving at the time of the accident, was vicious and unsafe, and that the plaintiflF's injuries were caused by the vices of his horse, — it was held, — Bellows, J., delivering the opinion of the court, — that a non-expert who witnessed the accident might testify that ' he did not see any appearance of fright ; that the horse did not ap- pear to be frightened in the least be- fore he went off the bank, or after- wards ; that he appeared to be rather a sulky dispositioned horse to use.' Judge Bellows cites People v. East- wood, 14 N. Y. 562, where it was held that opinions as to whether a person is intoxicated may be received ; Milton V. Rowland, 11 Ala. 732; opin- ions as to the existence of disease, when perceptible to the senses ; Ben- nett V. Fail, 26 Ala. 605 ; opinion that a slave appeared to be healthy, and other cases in relation to opinions of a healthy or sickly condition of body. He also cites Spear v. Richardson, and Willis v. Quimby, before referred to, as to opinion of health of horses. The very learned judge says that the substance of the statement of the wit- ness is, that the horse did not appear to be frightened, but appeared to be sulky; that, on such subjects, persons of common observations may and do form opinions that are reasonably re- liable in courts of justice, from marks and peculiarities that could not in words be conveyed to the minds of jurors, to enable them to make the just inferences ; that it is much like the testimony that a horse appeared well and free from disease, or that a person appeared to be healthy, or in- toxicated. P. 26. The evidence was held admissible as an opinion." CHAP. VIII.] WITNESSES: OPINION. [§ 515. notes at the time were taken, repels rather than attracts ci-edence.^ It has consequently been held sufficient, when the spoken words of another are to be testified to, to give maj- give their substance ; the witness swearing to the material stance of accuracy and completeness of the substance.^ A witness, tionror"" however, cannot be permitted to say what is the im- ■"^"''"S"- pression left on him by a conversation, unless he swears to such impressions as recollections and not inferences.^ What a wit- ness did in consequence of a conversation, however, he may be allowed to prove.* § 515. What has been said of words applies to all facts. I cannot remember exactly an entire conversation, nor ,,. •^ ^ ' vague im- can I reproduce exactly a chain of occurrences in their pressions . ,. 11.°' facts are order, ihe limitedness both of human vision and of inadmissi- human expression forbids this ; it is enough if a witness swears to events and objects according to the best of his recollec- tion and belief.^ But it is no objection to the admissibility of 1 See supra, §§ 411, 413. 2 U. S. V. White, 5 Cranch C. C. 457; U. S. V. Macomb, 5 McLean, 286 ; Lime Bank ti. Fowler, 62 Me. 531; Pope v. Machias Co. 52 Me. 535; Eaton V. Rice, 8 N. H. 378 ; Maxwell V. Warner, 11 N. H. 568 ; Young v. Dearborn, 22 N. H. 372; Williams v. Willard, 23 Vt. 369 ; Clark v. Hough- ton, 12 Gray, 38 ; Woods v. Keyes, 14 Allen, 238 ; Kittredge v. Kussell, 114 Mass. 67 ; Seymour v. Harvey, 11 Conn. 275; Hu£E v. Bennett, 6 N. Y. 337 ; Chaffee v. Cox, 1 Hilt. 78; Sloan V. Summers, 20 N. J. L. 6; Rhine v. Robinson, 27 Penn. St. 30; Brown v. Com. 73 Penn. St. 321 ; Simmons v. State, 5 Ohio St. 325 ; Home v. Wil- liams, 23 Ind. 37; Mineral Point R. R. V. Keep, 22 111. 9; Benson v. Hun- tington, 21 Mich. 415 ; Moody v. Da- vis, 10 Ga. 403; Riggins v. Brown, 12 Ga. 271 ; Rome R. R. v. Sullivan, 14 Ga. 277 ; Tramraell u. Hemphill, 27 Ga. 525 ; Gildersleeve u. Caraway, 10 Ala. 260 ; Buchanan v. Atchison, 39 Mo. 503 ; Thurmond v. Trammell, VOL. I. 30 28 Tex. 371. See Magee v. Doe, 22 Ala. 609. Supra, § 180. s Morris v. Stokes, 21 Ga. 552 ; Lockett V. Mims, 27 Ga. 207 ; Bell v. Troy, 35 Ala. 184 ; Crews v. Thread- gill, 35 Ala. 334; Helm v. Cantrell, 59 111. 528 ; Yost V. Devault, 9 Iowa, 60. * Whaley v. State, 11 Ga. 123. ^ Wilson V. McLean, 1 Cranch C. C. 465 ; Clark w. Bigelow, 16 Me. 246; Lewis o. Freeman, 17 Me. 260; Humphreys v. Parker, 52 Me. 505; Hibbard v. Russell, 16 N. H. 410 ; Tibbetts v. Flanders, 18 N. H. 284 ; Hoitt 0. Moulton, 21 N. H. 586 ; State V. Flanders, 38 N. H. 324 ; Morse v. Crawford, 17 Vt. 499; Cavendish v. Troy, 41 Vt. 99 ; Dodge v. Bache, 57 Penn. St. 421 ; Burt v. Gwinn, 4 Har. & J. 507 ; Rhode v. Louthain, 8 Blaqkf. 413; Wiggins v. Holley, 11 Ind. 2; Lowry v. Harris, 12 Minn. 255 ; Frank- lin 0. Macon, 12 Ga. 257; Rome R. R. V. Sullivan, 14 Ga. 277; Printup v. Mitchell, 17 Ga. 598; Huguley v. Hol- stein, 35 Ga. 271 ; Head v. Shaver, 9 Ala. 791 ; Griffin v. Isbell, 17 Ala. 465 § 516.] THE LAW OF EVIDENCE. [book II. such evidence that the witness uses the term " impression," if he testifies to what he believes, however distrustful he may be as to perfect accuracy.^ It is for the jury to determine how far such " impressions " are reliable.^ So a witness is allowed to state why certain facts are impressed on his memory, if such reasons are not for other grounds inadmissible.^ Impressions, however, which are conjectural and uncertain, cannot be detailed.* IX. REFRESHING MEMORY OF WITNESS § 516. A witness who makes or is concerned in making written Witness notes of an event near the time of its occurrence is per- mitted to refer when under examination to such notes, So a witness, to re- may re- fresh his memory jj; order to refresh his memory.^ by memo- ^ >' randa. fresh his memory, may refer to freight books kept by 184; Campbell v. State, 23 Ala. 44; Wells V. Shipp, 1 Miss. (Walk.) 353; Patricks. Adams, 19 Mo. 73; Weth- erell v, Patterson, 13 Mo. 458; Cornet V. Bertelsmann, 61 Mo. 118; Thomp- son V. Blackwell, 16 B. Monr. 6(10; Jones V. Childs, 2 Dana, 25; Sweeney V. Booth, 28 Tex. 113; Chaires v. Brady, 10 Fla. 133. Supra, § 413. What a witness did in consequence of certain conditions is generally ad- missible when proof of the conditions could be received. 1 Ibid. 2 Duvall V. Darby, 38 Penn. St. 56; Crowell t'. Bank, 3 Ohio St. 406; Mc- B.ae V. Morrison, 13 Ired L. 46 ; Bev- erly V. Williams, 4 Dev. & B. L. 236. « Thomas ». State, 24 Ga. 287 ; Bell V. Troy, 35 Ala. 184. * Clark V. Bigelow, 16 Me. 246 ; Lewis V. Brown, 41 Me. 448 ; Hum- phreys V. Parker, 52 Me. 502; Teb- betts V. Flanders, 18 N. H. 284; Wheeler v. Blandin, 24 N. H. 168 ; State V. Flanders, 88 N. H. 824; Ives V. Hamlin, 5 Cush. 534; Wiggins v. Holly, 11 Ind. 2; Wells v. Shipp, 1 MisB. (Walk.) 383. s Stephen's Ev. 128; Ins. Co. v. Weides, 14 Wall. 375 ; Brooks v. Goss, 61 Me. 307 ; Pinney v. Andrus, 41 Vt. 631 ; Chaplin v. Lapham, 20 Pick. 497; Babb V. Clemson, 12 Serg. & E. 328; Smith V. Lane, 12 S. & R. 84; Se- lower V. Rexford, 52 Penn. St. 308 ; Waters v. Waters, 35 Md. 531; Seav- erns v. Tribby, 48 111. 195; White v. Tucker, 9 Iowa, 100; Moore v. Moore, 39 Iowa, 461 ; Watkins w. Wallace, 19 Mich. 57; Raynor v. Norton, 31 Mich 210; Cowles v. Hayes, 71 N. C. 230 Columbia v. Harrison, 2 Tread. (S C.) 213; Bull V. Lamson, 5 S. C. 284 Godwin v. Pierson, 42 Ala. 370 Davidson v. De Lallande, 1 2 La. An, 826 ; Chiapella v. Brown, 14 La. An 189; McCausland v. Ralston, 12Nev 198 ; People v. Cotta, 49 Cal. 167. "Memoranda of facts or circum- stances, made by a witness at the time of the occurrence of a given transac- tion, are sometimes permitted to be given in evidence to show the exist- ence of such facts or circumstances. Thus in Marcly v. Shultz, 29 N. Y. 346, the offer was to read a memo- randum of the width of the flash-boards on a certain dam, which was a specific fact material to the issue. In Guy v. Mead, 22 N. Y. 462, the offer was to show that, at a given time, a certain CHAP. VIII.] WITNESSES : REFRESHING MEMORY. [§ 518. him or verified by him at the making ; ^ and to " check-slips,'' made in the ordinary course of business, in transshipping goods from one car to another, in proof of the number of the cars, and of the distinctive marks of the goods.^ So a surveyor may refresh his memory by an extract from his field notes,^ even though the copy he uses is in the shape of a printed report made by him, he being able to verify its correctness.* In case the witness swears to the accuracy of the memoranda, or other refreshing documents, they may go to the jury as evidence, if not 'per se inadmissible.^ It is otherwise if such accuracy is not proved.^ § 517. But a memorandum is inadmissible when it is second- ary, e. g. where it is a copy of another not satisfactorily j^^^ admis- accounted for,'' or where the witness could swear to the ^ibie when fact independently of the memorandum.^ As we will dum is un- , J., ,, . . , necessary. hereafter see, the opposing party may put a memoran- dam so used in evidence after verifying it on cross-examination.^ § 518. The fact that the witness has no recollection indepen- dent of the notes does not exclude his testimony as to j^ot fatal the facts stated in the notes, when he states that it was '•">' Y^^ . . >• ness has no his uniform and unvarying practice to make true notes recollection of events of the character noted, immediately after the den't'of' occurrence of the events, and that the memoranda are °"'^^' parts of the notes in question. Nor will his testimony, as so made up, be excluded, if, after recurring to and identifying the notes, as substantially original and contemporaneous, he is able indorsement of forty dollars was not ^ See infra, §§ 519, 520, 521, and on a note, that being a material fact cases cited infra, § 625, and cited in for the consideration of the jury. In prior notes to this section. Barker v. N. Y. C. R. E. Co. 24 N. Y. « Flood v. Mitchell, 68 N. Y. 507. 599, a conductor was allowed to read ' McCormick v. Mulvihill, 1 Hilt, an entry, made by him, of the arrival 131; Neil v. Childs, 10 Ired. L. 195; of a train in Syracuse, at a time Schettler v. Jones, 20 Wis. 412. named." Hunt, C. Reed v. Express ^ Wolfborough v. Alton, 18 N. H. Co. 48 N. Y. 468. ' 195; Kelsea v. Fletcher, 48 N. H. 282; ' Briggs V. Lafferty, 14 Gray, 525. Meacham v. Pell, 51 Barb. 65; Driggs " Shriedley v. State, 23 Ohio St. ». Smith, 45 How. (N. Y.) Pr. 447; 130. See R. v. Langton, L. R. 2 Q. Young v. Catlett, 6 Duer, 437; Haack B. D. 295. V. Fearing, 5 Robt. (N. Y.) 528; Flood » Harrison w. Middleton, H Grat. ». Mitchell, 68 N. Y. 507.. 627. a infj-a, § 526> * Horn V. Mackenzie, 6 CI. & F. 619. Infra, § 522. 46-7 § 518.] THE LAW OF EVIDENCE, [BOOK II. to swear by their means to the facts to which they relate.^ Thus a notary's belief that protest and notice were given, based on his entry in his books, his habit being to make such entry on the happening of the event, will be evidence, though he has no rec- ollection of the protest and notice, independent of his books.^ The same rule applies to a surveyor's field notes used to re- fresh the memory of the surveyor.^ So a witness's testimony to the execution of a deed is admissible, though he recollects nothing of the facts, and only knows that his attestation must have been contemporaneous and correct.* In such cases it is of course necessary that the notes relied on should be produced in court.^ 1 R. V. St. Martins, 12 A. & E. 210; Maugham v. Hubbard, 8 B. & C. 14; Bradley v. Davis, 26 Me. 349; Haven V. Wendell, 11 N. H. 112 ; Wallace v. Goodhall, 18 N. H. 439; Huckins v. People's Co. 31 N. H. 238; State v. Shinborn, 46 N. H. 497; Mattocks V. Lyman, 16 Vt. 113; Norton v. Downer, 33 Vt. 26; Kent v. Garvin, 1 Gray, 148; Bradford v. Stevens, 10 Gray, 378; Dugan v. Mahoney, 11 Allen, 572; Adams v. Coulliard, 102 Mass. 167; Field v. Thompson, 119 Mass. 152; Lawrence v. Baker, 5 Wend. 301 ; Clark v. Vorce, 15 Wend. 195; Bank v. Culver, 2 Hill (N. Y.), 531; Moore u. Meacham, 10 N. Y. 207 ; Halsey v. Linsebaugh, 15 N. Y. 485; Marcly v. Shultz, 29 N. Y. 346 ; Lefevre v. Lefevre, 30 N. Y. 27; Kennedy v. Crandell, 3 Lansing, 1; Tayler v. Stringer, 1 Hilt. 377; Far- mers' Bk. V. Boraef, 1 Rawle, 152; Urket V. Coryell, 5 Watts & S. 60; Ebyu. Eby, 5 Penn. St. 435; Gilmore V. Wilson, 53 Penn. St. 194; Fitzgib- bon V. Kinney, 3 Harr. (Del.) 317; MoDaniel v. Webster, 4 Houst. 305; Martin v. Good, 14 Md. 498; Conner V. Mt Vernon Co. 25 Md. 55; Spiker V. Nydegger, 30 Md. 315 ; Moots v. State, 21 Ohio St. 653; Harrison v. Middleton, 11 Grat. 527; Humphreys 468 V. Spear, 15 III. 275; Chicago Coal Co. V. Liddell, 69 111. 639; Wolcott v. Heath, 78 111. 433 ; Davenport v. Gum- ming, 11 Iowa, 219 ; Adae v. Zangs, 41 Iowa, 536; Stickney w. Bronson, 5 Minn. 215; Chute v. State, 19 Minn. 271; Riggs V. Weise, 24 Wis. 543; Carr v. Stanley, 7 Jones (N. C.) L. 131 ; State v. Rawle, 2 Nott & McC. 331; O'NeU u. Walton, 1 Rich. (S. C.) 234; Vastbinder v. Metcalf, 3 Ala. 100; Cowles v. State, 60 Ala. 454; Tandy v. Masterson, 1 Bibb, 330 ; People V. Elyea, 14 Cal. 144. See fully infra, § 680; and see Howie v. Rea, 75 N. C. 326. " Bank of Tennessee v. Cowan, 7 Humph. 70. ' Harrison w. Middleton, 11 Grat. 527; Nolin v. Parmer, 21 Ala. 66. * Maugham v. Hubbard, 8 B. & C. 16. See infra, § 739. 6 Hall V. Ray, 18 N. H. 126. It has, however, been held in New Hampshire, that whether a memoran- dum, which a witness knew when it was made to be correct, can go to the jury as evidence, depends upon whether the witness, after examining it, is able to state the fact from mem- ory. Watts V. Sawyer, 55 N. H. 39, citing Kelsea v. Fletcher, 48 N. H. 282. CHAP. VIII.] WITNESSES : REFRESHING MEMORY. [§ 520. § 519. Nor to enable a witness so to refresh his memory, is it necessary that the memorandum thus used should be i^otngogg. capable of being admitted independently in evidence.^ ^^^Y *•>»' ^ ° r J notes Short-hand notes, in themselves not admissible, from should be their imperfectness (if for no other reasons), may be dentiy ad- reverted to by the witness, if made by him at the ""*^' time ; ^ and so of an instrument without a stamp ; ^ and so of pencil notes,* and so of copies.^ So it has been held, in the Supreme Court of the United States, that in a suit against an in- surance company for the value of goods lost in the burning of a store, day-books and ledgers, whose correctness as showing the amount and value of the goods is testified to by the person prov- ing them, are, in connection with his testimony, competent evi- dence, though they would not be so by themselves, to show such value.^ § 520. It is scarcely necessary to add, the mere fact of a wit- ness being permitted to refer to a paper to refresh his Memo- memory does not authorize the putting such paper in ^^3*5*6^" 1 Ins. Co. V. Weides, 14 Wall. 375 ; Dugan V. Mahoney, 11 Allen, 572; Sizer v. Burt, 4 Denio, 426 ; Neil v. Childs, 10 Ired. (L.) 195; Mayson v. Beasley, 27 Miss. 106. See Peck v. Lane, 3 Lansing, 136 ; Keed v. Jones, 15 Wis. 40; Schettler v. Jones, 20 Wis. 412. = R. V. O'Connell, Arm. & T. 165. ' Alcook V. Ins. Co. 13 Q. B. 292. * Stetson V. Godfrey, 20 N. H. 227. ^ Folsom V. Apple Eiver Co. 41 Wis. 601. See supra, § 257. ' "As to the second question, the admissibility of the evidence received by the court, there can be no doubt but the day-books and ledger, the en- tries in which were testified to be cor- rect by the persons who made them, were properly admitted. They would not have been evidence per se, but with the testimony accompanying them, all objections were removed. Wood V. Ambler, 4 Selden, 170. So in respect to the memorandum on the fly-leaf of the ledger. It was made by one of the witnesses, taken from in- ventories, present at the time it was made, but which had been subsequently destroyed by the fire. Those inven- tories, if they had been in existence, would have been the best evidence, and, unless their loss was accounted for, must have been produced. But, being lost, parol evidence of their con- tents was admissible, as secondary evidence, and so was the memoran- dum taken from .them, for the like reason. As we understand the evi- dence in the case, the correctness of the entry was testified to. The wit- ness was cross-examined, among other things, as to the correctness of it. The testimony is not given, but, if the evidence of the witness had not been satisfactory, it should have been placed upon the record." Nelson, J., Ins. Co. V. Weides, 6 Wall. 680. See, also, the valuable opinion of Field, J., in Chaffee v. U. S. 18 Wall. 541. 469 THE LAW OF EVIDENCE. [BOOK II. § 521.J when pri- evidence by the party calling the witness. Such paper Kfe'vant.** («. g. a letter containing other matters) may embrace topics inadmissible as irrelevant or self-serving.i It is otherwise, however, when the memorandum simply records the event which the witness details ; in which case the memorandum is in itself evidence for the jury .2 On the other hand, unless book entries offered to refresh memory are admissible independently, it is error to submit them to the jury.' § 521. Notes or memoranda to which the memory of the wit- ness does not immediately attach cannot be used to re- Notes must . ^^ , 1 1 1 X tL rrvi' be pri- fresh his memory. He must be able to say, inis ™"^' was the paper made, or at the time verified, by me, as a true record of the events." An unverified copy of his notes made by some one else is not ordinarily admissible.* Thus to 393; See 1 Olds V. Powell, 10 Ala. Rutherford v. Bank, 14 Ala. 92. Com. V. Fox, 7 Gray, 585. ^ See cases in prior sections ; and §§ 625-6 ; R. v. St. Martin's, 2 Ad. & El. 215 ; Watson v. Walker, 23 N. H. 471; Tuttle v. Robinson, 33 N. H. 104; Clark . Donahue, 118 Mass. 438." Field v. Thompson, 119 Mass. 152, 153, Gray, C. J. * Burton v. Plummer, 2 Ad. & El. 841; Bradley v. Davis, 26 Me. 45; Stanwood v. McLellan, 48 Me. 275 ; State V. Shinborn, 46 N. H. 497; Kent V. Garvin, 1 Gray, 148; Davis v. Allen, 9 Gray, 322; Merrill «. R. R. 16 Wend. 586; Gould v. Conway, 59 Barb. 355; McCormick.u. Mulvihill. CHAP. VIII.] WITNESSES : BEFBESHING MEMOBY, [§ 522. prove sales, the clerk who keeps the book of original entries should be called.^ Even where a person made entries in an account book as such entries were read to him by another, from memoranda kept by the latter, within whose knowledge alone is the correctness of the charges, the entries are inadmis- sible.^ So a paper not written but merely signed by a witness, who has no recollection whatever of its contents, is not evi- dence, though he swears that he has no doubt of the facts the paper states.^ § 522. Where the entries were made by a clerk, under the witness's directions and in his presence, the witness „ . J^ ' Not neces- may use them to refresh his memory.* And a witness sar;' that ,,,. 111 writing may use a memorandum to refresh his memory, although should be it was not made by himself, if he saw the paper shortly ^ "' °^'''' after the event, and then verified the accuracy of the entries.^ It is enough if the notes have been made by those with whom the witness was at the time acting, provided he examined them shortly after they were made, and was then satisfied of their accuracy.^ On the same reasoning the reading of a receipt to a third party who assents to it authorizes the witness to refresh his memory by recurring to the receipt.'^ A plan or survey of land may be used in the same way ; ^ and so may the printed 1 Hilton (N. Y.), 131 ; Moore v. Meacham, 10 N. Y. 207; Gilchrist v. Brooklyn, 59 N. Y. 495; Farmers' Bank v. Boraef, 1 Eawle, 152 ; Fitler V. Eyre, 14 Penn. St. 392; Fitzgibbon V. Kinney, 3 Harr. (Del.) 317; Mo- Daniel V. Webster, 2 Houst. 305 ; Green v. Caulk, 16 Ind. 556; Hum- phreys V. Spear, 15 111. 275; Chicago V. Adler, 56 111. 344; Davenport v. Cummings, 15 Iowa, 219 ; Paine v. Sherwood, 19 Minn. 315; Williams v. Kelsey, 6 Ga. 365 ; Evans v. Boiling, 8 Porter, 546; Crawford v. Bank, 8 Ala. 79. See infra, §§ 682-3. 1 Bradley v. Davis, 26 Me. 49; Kent V. Garvin, 1 Gray, 148; White v. Wil- kinson, 12 La. An. 359. 2 Thomas v. Price, 30 Md. 483. • Parsons v. Ins, Co. 16 Gray, 463. < Doe V. Perkins, 3 T. R. 749; R. V. St. Martin's, 2 Ad. & El. 215; Ste- phen's Ev. 128; 2 Phil. Ev. 480; State V. Lull, 37 Me. 246. ' Coffin V. Vincent, 12 Cush. 98 ; Hillt). State, 17 Wis. 675. Anderson v. Whalley, 3 C. & K. 54; Burrough t'. Martin, 2 Camp. 112; Berry v. Jourdan, 11 Rich. (S. C.) 67. A witness may refresh his mem- ory by entries made by another per- son in a time-book, the witness being present when these entries were called out for the purpose of paying work- men. R. V. Langton, L. R. 2 Q. B. D. 296. ' Rambert v. Cohen, 4 Esp. 213 ; Bolton V. Tomlin, 5 A. & E. 856. 8 CundifE v. Orms, 7 Porter, 58. 471 § 522.] THE LAW OF EVIDENCE. [book n. copy of a report.! So copies may be used to refresh the mem- ory when the witness can swear that these copies correctly state contemporaneous events.^ Yet it is not proper that the copy should be appealed to, even for the purpose of refreshing the memory, while the original can be produced.^ When lost, or non-producible, then the copy, if verified, is admissible, even though it be in print.* On the other hand, admission has been refused to a newspaper account of a transaction in litigation, the account having been prepared from reports received on the day and at the place of the accident ; it appearing that the au- thor, having been examined as a witness, testified he talked with the plaintiff and others about it, and supposed he learned the facts from them, but had no distinct recollection of what was said, and could not tell from whom, principally, he received his information.^ 1 Home V. Mackenzie, 6 C. & Fin. 628. 2 See R. V. Hedges, 28 How. St. Tr. 1387; Tanner v. Taylor, cited in Doe V. Perkins, 3 T. R. 754 ; Chicago R. R. u. Adler, 56 III. 344 ; Madigan V. De Graff, 17 Minn. 52; Hill v. State, 17 Wis. 675. 8 Burton v. Hummer, 2 A. & E. 344. * Topham v. Macgregor, 1 C. & K. 320 ; Home v. Mackenzie, 6 CI. & F. 628; Filkins v. Baker, 6 Lansing, 516. 5 " The article did not purport to be, and was not, in truth, a statement of a conversation with, or declarations made by, the plaintiff, and was not a' memorandum made by the witness, of a particular conversation at or near the time it was had, and which the witness could state under oath was a correct memorandum of such conver- sation. It was not, therefore, compe- tent as evidence of a statement made by the plaintiff, material to the issue, or inconsistent with his testimony on the trial. The printed paper was not the original memorandum made by the witness; neither did he nor could 472 he testify that the article or the copy from which it was printed was a cor- rect memorandum or reproduction of the statement of the plaintiff, and it is not within the principle of any of the cases relied upon by the defend- ant. In all the cases, the original memoranda have been produced, and the persons by whom they were made have vouched for their correctness. Guy V. Mead, 22 N. Y. 462; Halsey v. Sinsebaugh, 15 N. Y. 485; Russell v. R. R. 17 Ibid. 134. The article was but a summary of the facts collected by the writer from all sources, or rather of his understanding of the facts." Allen, J., Downs v. R. R. 47 N. Y. 87. " A copy of an entry made by him- self, or by any other person, may be used by a witness to refresh recollec- tion; Marcly v. Shultz, 29 N. Y. 346; and the original memorandum may be read in evidence, if made at or near the time when a material fact to which it relates occurred, and the witness producing it can swear that it was made correctly, though he cannot then recollect the facts contained in it. CHAP. VIII.] WITNESSES : REFRESHING MEMORY. [§ 523. § 523. The fact that memoranda are not made contempora- neously with the event is fatal to their admissibility, Memoran- unless made when the memory is fresh. ^ This is emi- missible'if nently the case when the concoction is in view of liti- qug^^tiy gation.2 Thus where a witness who had noted down concocted. the transactions at their occurrence asked the solicitor of the party calling her to put her notes into the form of minutes, which she afterwards revised and transcribed, Lord Hardwicke, on discovering that she had recourse to these minutes to refresh her memory, suppressed her deposition. ^ So, where a witness had drawn up a paper for the party calling him, after the cause was set down for trial, though eighteen months before the trial was actually heard, the court would not allow him to refer to it.* But if there is no suspicion of concoction, the fact that the doc- ument used to refresh memory was not prepared for some weeks Halsey v. Sinsebaugh, 15 N. Y. 485. But a copy of a memorandum cannot be read as evidence of the contents of it. 29 N. Y., supra. Though the tes- timony as given in the appeal book is confused as to the various memoranda produced on the trial, it is evident that the memoranda first made by the plaintiff and those helping him were destroyed, and that the papers exhib- ited to the witnesses were prepared from them; but it does not appear that they were literally copies. It seems that in preparing the list of articles in the different lost trunks the memories of those engaged, princi- pally that of the wife of the plaintiff, were set at work, and, as articles were brought to recollection from the bills of the purchase of them, and other- wise, they were set down upon paper ; different pieces of paper it would ap- pear. When this process was com- pleted, the contents of those papers were transcribed in gross. These were the completed and corrected memoranda, and substantially the original memoranda. It was as to these that the plaintiff's wife testified that she knew all the articles named in them were in the trunks. We do not understand that the memoranda were read to the jury as evidence of themselves of what were the contents of the lost trunks, but only a state- ment on paper, in detail, of what this witness had testified were the articles contained in the trunks. In this view the memoranda were competent." Fol- ger, J., McCormick v. R. K. 49 N. Y. 315. 1 Burrough v. Martin, 2 Camp. 112; Wood V. Cooper, 1 C. & K. 645; Smith V. Morgan, 2 M. & Rob. 257; R. u. Kinloch, 25 How. St. Tr. 934; Jones V. Stroud, 6 C. & P. 196; Steinkeller V. Newton, 9 C. & P. 315; Welcome V. Batchelder, 23 Me. 85 ; Glover v. Hunnewell, 6 Pick. 222; Downs v. R. R. 47 N. Y. 82; Kendall v. Stone, 2 Sandf. (N. Y.) 269; Spring Ins. Co. V. Evans, 15 Md. 54 ; Prather v. Pritch- ard, 26 Ind. 65. ' Steinkeller v. Newton, supra ; Washington Co. v. Webster, 68 Me. 479. " See Doe v. Perkins, 3 T. R. 752. * Steinkeller v. Newton, supra. 478 § 525.] THE LAW OF EVIDENCE. [BOOK II. after the event will not exclude such document, if the delay, under the circumstances of the case, was natural and proper.^ § 524. Depositions, signed or otherwise attested by a witness. Depositions ^^^ ^^ ^^^^ ^°^ *^^ same purpose.^ Indeed, it has even may be been ruled that witnesses, testifying as to a trial, can used to re- . , , i t_ i fresh the refresh their memories by the notes taken by counsel memory. ^^ ^^^ trial, provided that afterward they can speak from recollection, and not solely from the notes.^ Where depo- sitions of witnesses before a coroner's jury are to be proved, the coroner's clerk, after testifying that he had taken down the tes- timony of each witness correctly, has been permitted to state the evidence from the depositions themselves, not being required to state the evidence from his memory as refreshed by the depo- sitions.* But it has been held, that in a criminal trial the pros- ecution cannot ask one of its witnesses to recur in his own mind to his testimony before the grand jury, and thus refresh his memory.^ § 525. The opposing party is not entitled to inspect a paper Opposing put into the witness's hands to refresh his memory, but entitled'to which fails to havc that effect.® But where the wit- noteT^ ness depends upon the writing for the revival of his to'^rehert J'scoUections, the opposite party is entitled to see the memory, paper, and to cross-examine on the same.'' The court, however, may limit this right of inspection to such portions of a 1 Vaughan v. Martin, 1 Esp. 440. Burdick v. Hunt, 43 Ind. 381. Infra, ^ Vaughan v. Martin, 1 Esp. 440 ; § 601. Wood V. Cooper, 1 C. & K. 645; State « R. v. Buncombe, 8 C. & P. 369; r. Lull, 37 Me. 246; George v. Joy, Lord v. Colvin, 5 De Gex, M. & G. 19 N. H. 544; Iglehart ti. Jernegan, 47. 16 III. 513; Burney v. Ball, 24 Ga. ' R. v. St. Martin's, 2 A. & E. 215; 505; Cobb v. State, 27 Ga. 648; At- Loyd v. Freshfield, 2 C. & P. 232; kins V. State, 16 Ark. 568. Russell v. Ryder, 6 C. & P. 416; Lord » Lawes 1). Reed, 2 Lew. C. C. 152; v. Colvin, 2 Drew. 205; Beech v. R. V. Philpotts, 5 Cox C. C. 329; Jones, 5 C. B. 696; Pembroke v. Al- Henry u. Lee, 2 Chit. R. 124; Stetson lenstown, 41 N. H. 365. See Com. V. Godfrey, 20 N. H. 227; Beaubien v. Lannan, 13 Allen, 568; Harrison V. Cicotte, 12 Mich. 469. See Harvey v. Middleton, 11 Grat. 527; McKivitt V. State, 40 Ind. 516. v. Cone, 30 Iowa, 455. See, however, * Stephens v. People, 19 N. Y. 549. Trustees v. feledsoe, 5 Ind. 133; State 6 Com. U.Phelps, 11 Gray, 73. See v. Cheek, 18 Ired. L. 114; Hamilton V. Rice, 15 Tex. 382. 474 CHAP. VIII.] WITNESSES : CROSS-EXAMINATION. [§ 528. paper as are relevanL^ But when the paper is thus recognized by the party as true, or when it is cross-examined upon by the other side, as to its meaning (its adoption as true by the witness not being disputed), then, unless for other reasons inadmissible,^ it may go to the jury.^ It is within the discretion of the court to determine whether a party may cross-examine the witness on the paper before it is used by the witness.* § 526. The opposing party may make the paper his own evi- dence by examining the witness as to the whole of it, Opposing provided nothing in the examination casts discredit on P„t fh™*^ it ; ^ but it is otherwise where he simply cross-exam- J^g°n„tgg ines the witness as to the memorandum on which the '« evi- dence, witness relies." X. CROSS-EXAMINATION. § 527. Supposing a witness to be unwilling, or at least not a willing witness on behalf of the cross-examining party,'' on cross- the party cross-examining is entitled to put such lead- tion™ead- ing questions as will draw out positive answers of ves ".'S ques- " -^ ■*■ -J tions may or no, and also, subject to the exceptions hereafter be put. stated, may show bias in the witness.* The witness may be also required to give the details of any incidents referred to by Him in his examination in chief.^ § 528. It has been already noticed that the examination of an unwilling witness can be made more or less persistent closeness and exhaustive at the discretion of the court. The examfna- right to exercise this discretion is peculiarly important ''"".a' ^is- on cross-examinations.^" There are cases in which even c"""^'- 1 Com. I/. Haley, 13 Allen, 587. See where the witness is hostile to the Burton V. Plummer, 2 Ad. & El. 341 ; party calling him, Taylor's Ev. § Sinclair v. Stevenson, 1 C. & P. 682; 1288; Moody v. Rowell, 17 Pick. 498. 10 Moore, 216. 8 Parkin v. Moon, 7 C. & P. 40.'); ^ See supra, § 619. Terry v. McNiel, 58 Barb. 241; Bat- « See cases cited to §§ 516, 526. dorfE v. Bank, 61 Penn. St. 179; ^ Com. «. Burke, 114 Mass. 261. Brown v. State, 18 Ohio St. 496; ' Gregory v. Taverner, 6 C. &. P. Brumagim v. Bradshaw, 39 Cal. 24; 281. Winter v. Burt, 31 Ala. 33. " Ibid.; R. v. Kamsden, 2 C. & P. ' Metzer v. State, 30 Ind. 596; 604. Burghart v. Brown, 51 Mo. 600. ' See, as indicating restrictions i" Cross-examinations to shake 475 § 629.] THE LAW OF EVIDENCK. [book II. in jurisdictions in which a party is ordinarily precluded from cross-examining as to new matter, it is essential to justice that new matter should be introduced on cross-examination. There are other cases in which, when fraud or mistake is probable though not proved, it is proper to give counsel great latitude so that the fraud or mistake, if there be such, should be tracked.^ Much, also, depends upon the attitude of the witness ; much on that of the cross-examining counsel. In view of these consider- ations, courts of review are unwilling, except in extreme cases, to reverse a ruling as to the limits in the concrete of a cross- examination.2 § 629. Although in England, counsel, in cross-examination. Witness are permitted to ask questions bearing on the whole be cross- case, SO as to bring out matters of independent defence, credit are, it should be remembered, perilous experiments, and should be resorted to cautiously. Lord Abin- ger, one of the most consummate of advocates, thus speaks in his autobi- ography: "I learned by much experi- ence that the most useful duty of an advocate is the examination of wit- nesses, and that much more mischief than benefit generally results from cross-examination. I therefore rarely allowed that duty to be performed by my colleagues. I cross-examined in general very little, and more with a view to enforce and illustrate the facts I meant to rely upon than to affect the witness's credit, — for the most part a vain attempt." See on this topic a thoughtful pam- phlet, entitled " Examination of Wit- nesses : Hints tor Conducting a Trial," Des Moines, Iowa, 1877. 1 See Anderson v. Walter, 34 Mich. 113; Jacobson v. Metzger, 35 Mich. 103. Supra, § 33. 2 New Gloucester e. Bridgham, 28 Me. 60; Thompson v. Smiley, 50 Me. 67 ; State v. Kimball, 50 Me. 409; Bishop V. Wheeler, 46 Vt. 409 ; Steene v. Aylesworth, 18 Conn. 244; Moody V. Rowell, 17 Pick. 490; Rand 476 V. Newton, 6 Allen, 38; Prescott v. Ward, 10 Allen, 203; Com. v. Quin, 5 Gray, 478; Com. v. Lyden, 113 Mass. 452; Wallace v. R. R. 119 Mass. 91; Hardy u. Norton,. 66 Barb. 527; Great West. Co. v. Loomis, 32 N. Y. 127; La Beau v. People, 34 N. Y. 223; Wells v. Kelsey, 37 N. Y. 143; West V. State, 22 N. J. L. 212; Clark V. Trinity Church, 5 Watts & S. 266; Elliott V. Boyles, 31 Penn. St. 65; Flagg V. Searle, 1 Weekly Notes of Cases, 290; Legg v. Drake, 1 Ohio St. 286; Young v. Bennett, 4 Scam. 43 ; Toledo R. R. v. Williams, 77 111. 354; Floyd v. Wallace, 31 Ga. 688; Winter v. Burt, 31 Ala. 83; Car- michael, in re, 36 Ala. 514 ; Missouri B. R. V. Haines, 10 Kans. 439 ; Dale w. Blackburn, 11 Kans. 190; Thorn- ton V. Hook, 86 Cal. 223. See Am. Law Rev. Jan. 1877, 896. In Storm V. U. S. 94 U. S. 76, the Supreme Court of the United States held that questions put to a witness on cross- examination, in order to discover the names of witnesses he desired to call, might be excluded at the discretion of the court. ' Murphy v. Brydges, 2 Stark. R. 314. CHAP. VIII.] WITNESSES : CROSS-EXAMINATION. [§ 530. in this country, in most jurisdictions, cross-examina- examined tions, with greater propriety, are confined to the subject ^^^^ of hu" of the examination in chief, and that of the credit of f?*"?'"*' ' lion in the witness. If a matter of defence is to be proved, chief, this must be reserved until the cross-examining party has opened his case, when he is at liberty to call the witness to prove such defence.! In several states, however, this limitation of the range of cross-examination is not applied.^ In any view, the right of cross-examination extends to all matters connected with the res gestae.^ § 530. The conflict, however, which has just been stated, may be reduced by remembering that a witness, in testifying to the case of the party who calls him, impliedly warrants his own truthfulness of narration, and may, as we will presently see, be cross-examined not only as to whatever touches this truthfulness, but as to whatever goes to explain or modify what he has stated in his examination in chief.* But in any view, a witness may be cross-examined as to his examination in chief in all its bear- ings. Thus a subscribing witness to a will may be cross-ex- i Houghton V. Jones, 1 Wall. 702; Phil. & Trenton R. R. v. Stimpson, 14 Pet. 448; Seavy u. Dearborn, 19 N. H. 351 ; Donnelly v. State, 26 N. J. L. 463, 601; Ellmaker v. Buckley, 16 S. & R. 77; Farmers' Bank v. Stro- hecker, 9 Watts, 237; Castor v. Bav- ington, 2 Watts & S. 505; Floyd v. Bovard, 6 W. & S. 77; Helser v. Mc- Grath, 52 Penn. St. 531; People v. Horton, 4 Mich. 67; Campau v. Dewey, 9 Mich. 381 ; Patton v. Hamil- ton, 12 Ind. 256; Aurora v. Cobb, 21 Ind. 492; Chicago v. R. R. 36 111. 60; Bell V. Prewitt, 62 111. 362; Drohn v. Brewer, 77 III. 280; Cokely v. State, 4 Iowa, 477; Wilhelmi v. Leonard, 13 Iowa, 330 ; Congar v. R. R. 17 Wis. 477; Beaulien v. Parsons, 2 Miftn. 37; Sumner v. Blair, 9 Kans. 521 ; Fergu- son V. Rutherford, 7 Nev. 385; Brown V. State, 28 Ga. 199; though see White V. Dinkins, 19 Ga. 285; Mc- Clelland V. West, 70 Penn. St. 183; Malone v. Dougherty, 79 Penn. St. 48; Aiken v. Mendenhall, 25 Cal. 212; People V. Miller, 33 Cal. 99; Austin V. State, 14 Ark. 555; Davis v. Neligh, 7 Neb. 84. ^ Moody V. Rowell, 17 Pick. 490, 498; Com. v. Morgan, 107 Mass. 204; Jackson v. Varick, 7 Cow. 238; Ful- ton Bank u. Stafford, 2 Wend. 483; Wroe V. State, 20 Ohio St. 460; Fra- lick V. Presley, 29 Ala. 457; Mask v. State, 32 Miss. 405; State i>. Sayers, 58 Mo. 585; O'Donnell v. Segar, 25 Mich. 367; Haynes v. Ledyard, 33 Mich. 319. 2 Markley v. Swartzlander, 8 Watts & S. 172; Rhodes w. Com. 48 Penn. St. 396. See, to the effect that the order of testimony is at the discre- tion of the court, Seibert v. Allen, 61 Mo. 482; Rankin v. Rankin, 61 Mo. 295; Merrill v. Nightingale, 39 Wis. 247. * Wilson V. Wagar, 26 Mich. 452. 477 § 530.] THE LAW OF EVIDENCE. [BOOK II. amined as to the testator's sanity.^ When a witness is recalled by B. to substantiate B.'s case, the witness having been origi- nally called by A., A. on the second examination is, from the nature of the case, entitled to cross-examine, though with a lib- erty as to leading questions to be determined by the circum- stances of the case and the bias of the witness.^ 1 Egbert v. Egbert, 78 Penn. St. 326. ' Malone v. Spilessy Ir. Cir. Ct. 504, cited Taylor's Ev. § 1290 ; Lord V. Colvin, 3 Drew. 222. See infra, § 549. On the tone of cross-examination a standard authority thus speaks : — "It is often a convenient way of examining to ask a witness whether such a thing was said or done, because the thing mentioned aids his recollec- tion, and brings him to that stage of the proceedings on which it is desired that he should dilate. But this is not always fair; and when any subject is approached, on which his evidence is expected to be really important, the proper course is to ask him what was done, or what was said, or to tell his own story. In this way, also, if the witness is at all intelligent, a more consistent and intelligible statement will generally be got, than by putting separate questions ; for the witnesses generally think over the subjects on which they are to be examined in criminal cases so often, or they have narrated them so frequently to others, that they go on much more fluently and distinctly, when allowed to follow the current of their own ideas, than when they are at every moment inter- rupted or diverted by the examining counsel. Where a witness is evidently prevaricating or concealing the truth, it is seldom by intimidation or stern- ness of manner that he can be brought, at least in this country, to let out the truth. Such measures may sometimes terrify a timid witness into a true con- 478 fession ; but in general they only con- firm a hardened one in his falsehood, and give him time to consider how seeming contradietions may be recon- ciled. The most effectual method is to examine rapidly and minutely, as to a number of subordinate and appar- ently trivial points in his evidence, concerning which there is little likeli- hood of his being prepared with false- hood ready made; and where such a course of interrogation is skilfully laid, it is rarely that it fails in expos- ing perjury or contradiction, in some parts of the testimony, which it is de- sired to overturn. It frequently hap- pens that, in the course of such a rapid examination, facts most material to the cause are elicited, which were either denied, or but partially admitted be- fore. In such cases, there is no good ground on which the facts thus reluc- tantly extorted, or which have escaped the witness in an unguarded moment, can be laid aside by the jury. With- out doubt they come tainted from the polluted channel through which they are adduced; but still it is generally easy to distinguish what is true in such depositions from what is false, because the first is studiously withheld, and the second is as carefully put forth; and it frequently happens, that in this way the most important testimony in a case is extracted from the most un- willing witness, which only comes with the more effect to an intelligent jury, because it has emerged by the force of examination in opposition to any obvious desire to conceal." Alison, Pract. of Cr. L. 546, 547. " The late CHAP. VIII.] WITNESSES : CROSS-EXAMINATION. [§ 533. § 531. As has already been seen, the present English practice is to permit counsel, on cross-examining a witness as to -w^itness's previous statements made by him in writing, to inter- JJJ^™ j,^/ rogate the witness as to such writing without previ- probed by , ... . . T A 1 written in- ously exhibiting to him its contents.-' At common law strument. this right is not allowed.^ § 532. For the mere purpose of probing memory a collateral witness cannot be cross-examined as to collateral mat- norbe'in"" ters, unless the effect of the testimony, if rendered, J^jgg'j.^'^ would go to prove bias or falsity in the main story.* memory. § 583. A witness, such is one of the most cherished sanctions of our common law, will not be compelled to answer witness any question the answer to which would be a link in impelled* a chain of evidence by which he could be convicted of ^° tg'^JJj'^. a criminal offence.* The same rule holds in equity.* self. Lord Abinger, whose powers as a cross-examining counsel were unri- valled, was fond of giving his jun- iors this advice: "Never drive out two tacks by trying to hammer in a nail." Cross-examination as to bias is here- after noticed, infra, § 645. 1 See supra, § 68. " See, fully, § 68. Roraertze v. Bank, 49 N. Y. 577; People v. Don- ovan, 43 Cal. 162. " In Holland v. Reeves, 7 C. & P. 39, a party put a document into the hands of an adverse witness and cross- examined him upon it, whereupon he was required by the opposite counsel to have it read forthwith ; but Alder- son, B., held that the cross-examining party was not bound to put in the document until he had opened his own case. It would seem, however, in such a case, that the opposite counsel would have a right to inspect the document, in order to found questions upon it in reexamination." Taylor's Ev. § 1270, note. In Kitchen v. R. R. 59 Mo. 514, it was said that counsel cannot read to a witness his former deposition, and then put the question, whether the statements contained therein are true, unless on a proper foundation laid for that purpose he designs to show some inconsistency in the deposition, or to impeach the credibility of the witness. Whether the deposition may be used to save time in asking questions is a matter purely in the discretion of the court, which cannot be reviewed in the Supreme Court. 8 U. S. V. Hudland, 5 Cranch C. C. 309; Com. v. Shaw, 4 Cush. 593; Holbrook v. Dow, 12 Gray, 357; Law- rence V. Barker, 5 Wend. 301; Iron Mountain Bk. v. Murdock, 62 Mo. 70; though see Ross v. Hayne, 3 Greene, 211. Infra, §545. * R. V. Friend, 13 How. St. Tr. 16; R. V. Macclesfield, 16 How. St. Tr. 1146; Gates v. Hardacre, 3 Taunt. 24 ; R. V. Slaney, 5 C. & P. 213 ; Ma- loney v. Bartley, 3 Camp. 210 ; Chest- ler V. Wortley, 7 C. B. 410; Scho- 5 MacuUum v. Turton, 2 T. & J. Paxton v. Douglass, 19 Ves. 225; 183; Claridge ;;. Hoare, 14 Ves. 59; Hayes v. Caldwell, 5 Gilman, 33. 479 § 535.] THE LAW OF EVIDENCE. [BOOK II. The privilege extends to inculpatory documents.^ Neither hus- band nor wife is compelled to answer questions involving the other's criminality.^ Refusal to answer, however, may be used as a presumption against a witness so refusing.^ § 534. A witness, also, will be relieved from answering a ques- „ tion a reply to which might expose him to^ forfeiture pose him- of his estate.* Nor does it make a difference that self to a ,.. , . T-tij_ fine or to the penalties, in a penal prosecution, are limited to a fine.^ Thus a party will be protected from giving an answer which exposes him to a prosecution for usury.® § 536. A party cannot interpose the objection that the an- Privilege swer will expose the witness to punishment. The priv- must be ilege must be claimed by the witness in order to be cmimed by " _ *' witness. available.^ The judge is not bound to notify the wit- field, ex parte, L. R. 6 Ch. D. 230; 1 Burr's Trial, 244; Npale v. Cuning- ham, 1 Cranch C. C. 76; U. S. v. Moses, 1 Cranch C. C. 170; U. S. v. Strother, 3 Cranch C. C. 432 ; Low v. Mitchell, 18 Me. 372; State v. Blake, 25 Me. 350 ; State v. K. 4 N. Hamp. 562; Coburna. Odell, 30 N. H. .540; Chamberlain v. Wilson, 12 Vt. 491; Brown ti. Brown, 5 Mass. 320; Com. V. Kimball, 24 Pick. 366. See Phelin V. Kenderdine, 20 Penn. St. 354; Peo- ple U.Mather, 4 Wend. 229; People V. Rector, 19 Wend. 569 ; Southard V. Rexford, 6 Cow. 254; Tappan, in re, 9 How. Pr. 394; Byass v. Sullivan, 21 How. Pr. 50; Warner v. Lucas, 10 Ohio, 336; Howel v. Com. 5 Grat. 664 ; Poindexter v. Davis, 6 Grat. 481 ; Lister u. Boker, 6 Blackf. 439 ; Printz i>. Cheney, 11 Iowa, 469 ; Hopkins v. Olin, 23 Wis. 309 ; Simmons i>. Hol- ster, 13 Minn. 249; Higdon v. Heard, 14 Ga. 255 ; Pleasant v. State, 15 Ark. 624; State v. Marshall, 36 Mo. 400 ; Lea v. Henderson, 1 Coldw. 146. In New York, by the Revised Code, the protection was limited to cases of felony. Rev. Code, § 1854. 1 See infra, § 751. Byass v. Sulli- van, 21 How. N. Y. Pr. 50. 480 2 Cartwright v. Green, 8 Ves. 405 ; R. V. All Saints, 6 M. & Sel. 200. See supra, § 432. ' Andrews v. Frye, 104 Mass. 234. Infra, § 546. * Parkhurst v. Lowten, 1 Mer. 401; Uxbridge v. Staveland, 1 Ves. Sr. 56. 5 Anderson v. State, 7 Ohio (Part ii.), 250. ^ Bank of Saline v. Henry, 2 De- nio, 155; Curtis ti. Knox, 2 Denio, 341; Henry v. Bank, 3 Denio, 693. See Mitford's Eq. PI. 157 ; Parkhurst V. Lowten, 1 Mer. 401 ; and see infra, §537. ' R. V. Adey, 1 M. & Rob. 94 Thomas v. Newton, M. & M. 48, ii. Fisher v. Ronalds, 12 C. B. 764 Marston v. Downes, 1 A. & E. 34 State V. Wentworth, 65 Me. 234 State V. Foster, 3 Foster (N. H.), 348; Com. v. Shaw, 4 Cush. 594 Ward V. People, 6 Hill (N. Y.), 144 State ti. Bilansky, 3 Minn. 246 ; Roddy V. Finnegan, 43 Md. 490; State v. Patterson, 2 Ired. L. 346 ; Newcomb V. State, 37 Miss. 383; White v. State, 52 Miss. 216 ; Sodusky v. McGee, 5 J. J. Marsh. 621; Clark v. Reese, 85 Cal. 89. " In R. V. Garbett, 1 Den. 236, it CHAP. VIII.] WITNESSES : SELF-CRIMINATION. [§ 536. ness of his privilege in this relation,^ though he may at his dis- cretion give an intimation to this effect.^ § 536. It has been said that a witness cannot be compelled 1 Atty. Gen. v. Radloff, 10 Ex. E. was held that a witness is not com- pellable to answer a question if the court be of opinion that the answer might tend to criminate him. It was also held in the same case that the court may compel a witness to answer any such question ; but that if the an- swer be subsequently used against the witness in a criminal proceeding, and a conviction obtained, judgment will be respited, and the conviction re- versed. (See infra, § 539.) In a later case, Fisher v. Ronalds, 12 C. B. 762, Maule, J., and Jervis, C. J., held, that it is for the witness to exercise his own judgment, and to say whether the answer will criminate him, and that if he thinks that it will, he may refuse to answer. This view was doubted by Parke, B., in a later case, Osborne o. London Dock Co. 10 Ex. 698, where the learned judge indi- cated his adhesion to the doctrine of R. V. Garbett. The Court of Queen's Bench, however, has since held that a witness can only claim the right of refusing to answer a question when the court is satisfied that there is any real danger of a prosecution if he does answer. R. v. Boyes, 1 B. & S. 311." Powell's Evidence (4th ed.), 109. "It is settled that it is no ground for a witness to refuse to go into the box, that the question will criminate him, and that he will refuse to answer it. The privilege can be claimed only by the witness himself after he has been sworn and the objectionable ques- tion put to him. Boyle v. Wiseman, 10 Ex. 647. And the witness must pledge his oath that he believes the answer will tend to criminate him." Powell's Evidence (4th ed.), 109. 31 88. 2 Fisher u. Ronalds, 12 C. B. 764; R. V. Boyes, 2 Fost. & F. 158; Foster V. Pierce, 11 Gush. 437; Com. v. Price, 10 Gray, 472; Mayo v. Mayo, 119 Mass. 292. " It is within the discretion of the court, and the usual practice, to ad- vise a witness that he is not bound to criminate himself where it appears necessary to protect the rights of the witness. If, after having advised him generally, it appears to the presiding justice that the witness intends to in sist upon his privilege, but does not fully understand his rights, it is com- petent for him to instruct the witness fully as to them, otherwise the wit- ness might be entrapped into a posi- tion where his privilege as a witness would be entirely defeated through his ignorance, and he would be obliged fully to criminate himself. Foster v. Pierce, 11 Cush. 437; Commonwealth V. Price, 10 Gray, 472. In the case at bar, therefore, it was competent for the presiding justice, after the witness had made some answers tending to criminate her, if he was satisfied that she had answered ignorantly, and in misapprehension of her rights and duly to the court, to instruct her more fully, and to advise her that she was not obliged to answer further. And it necessarily followed that such an- swers already given should be stricken out. The libellant would have no right to cross-examine the witness in regard to them, and the only way to preserve the rights of all parties was to strike them from the case, as inad- vertently and improperly admitted." Mayo u. Mayo, 119 Mass. 292, Mor- ton, J. 481 § 536.] THE LAW OF EVIDENCE. [BOOK II. to give a link to a chain of evidence by which his conviction of Danger of ^ criminal offence can be insured ; and this position is prosecu- abundantly sustained by authority.^ But it at the tion must •' ■' i!j.i-- be real. same time must appear, from the nature oi tne evi- dence which the witness is called to give, that there is reason- able ground to apprehend danger to the witness from his being compelled to answer. If the fact of the witness being in dan- ger is once made evident, great latitude should be allowed to him in judging of the effect of any particular question. The 1 Gates V. Hardacre, 3 Taunt. 424; MacuUum v. Turton, 2 Y. & J. 183; Harrison v. Southcote, 1 Atk. 518; Bang V. King, 2 Roberts. 153; Park- hurst V. Lowten, 2 Swanst. 215; Peo- ple V. Mather, 4 Wend. 229; South- ard V. Rexford, 6 Cow. 254 ; Bank of Salina v. Henry, 2 Denio, 155 ; Lea v. Henderson, 1 Cold. (Tenn.) 146 ; Whart. Cr. Law, tit. " Evidence.'' 1 Burr's Trial, 424. The question arose on Burr's trial in the following shape: A paper being produced to the court in cipher, a witness (Mr. Wil- lie) was asked, " Did you copy this paper?" He objected, that, if any paper he had written would have any effect on any other person, it would as much aflfect himself. Mr. Wirt in- sisted that, as the witness had sworn, in a, previous deposition, that he did not understand the cipher, the mere act of copying could not implicate him. Willie was then asked, " Do you un- derstand its contents?" It was ad- mitted by the witness that the question per se might be innocent, but should he answer, the prosecution might go on gradually, until it at last obtained matter enough to criminate him. The counsel for the prosecution admitted that, if they had followed with a ques- tion as to what were the contents of the letter, the objection might be valid. But they as yet had not. If he answered that he did understand the letter, his answer to the other 482 question might amount to self-crim- ination; but if he did not understand it, it could not criminate him. The question was again changed, "Do you know this letter to be written by Aaron Burr, or any one under his author- ity ? " Marshall, C. J., said that was a proper question. The witness still refused to answer, as it might crim- inate him. The question was then argued, when the chief justice re- marked, that the proposition con- tended for on the part of the witness, that he was to be the sole judge of the effect of his answer, was too broad; while that on the other side, that a witness can never refuse, unless the answer will per se convict him of a crime, was too narrow. He is not compellable to disclose a single link in the chain of proof against him. If the letter contained evidence of a treason, a question determinable on other testimony by his acquaintance with it when written, he might prob- ably be guilty of misprision of trea- son ; and the court ought not to com- pel his answer. If it relate to the misdemeanor (setting on foot an un- lawful military expedition against Mexico), the court were not apprised that such knowledge would affect the witness. The conclusion was, that the question which respected the present knowledge of the cipher, as it would not affect him in any view, must be answered. CHAP. VIII.] WITNESSES : SELF-CRIMINATION. [§ 53T. danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law, in the ordinary- course of things, and not a danger of an imaginary character, having reference to some barely possible contingency.^ The witness may claim the protection of the court at any stage of the inquiry, unless he have already answered without objection questions bringing virtually out the alleged criminative facts.^ Danger of prosecution in a foreign court may be considered as giving such privilege." § 537. It need scarcely be added that a witness cannot ex- cuse himself on the ground that his answer would ex- Exposure pose him to civil liability.* That a witness's statement '?=!>:'' ■^ . •' . liability no when examined can be afterwards made the basis of a excuse, suit against him, we have already seen.^ Papers and lice misde- documents a witness, in like manner, is compellable to "'*"'"'*• produce, however unfavorable the production may be to his pe- cuniary interests ; ^ though in England an exception is made in favor of titles to estates, on account of the mischief which, in the English system, might be caused if the production of such papers were coerced.^ Formerly, also, parties were excepted from this rule ; but now, by statute in most states, even parties may be compelled to produce papers which are not criminatory.* What has been said as to civil suits has been extended, on ground of public policy, to prosecutions for such police offences as selling spirituous liquors without license. In such cases, the vendee of 1 R. V. Boyes, 1 B. & S. 311; 9 Cox C. C. 32; 2 F. & F. 157; People v. Kelly, 27 N. Y. 74; Wroe v. State, 20 Ohio St. 460, and cases cited supra, § 535. " Infra, § 539. » U. S. V. McKae, L. E. 3 Ch. App. 79, by Ld. Chelmsford; though see King of Two Sicilies v. Willcox, 1 Sim. N. S. 301. * Lowney v. Perhara, 20 Me. 235; Copp V. Upham, 3 N. H. 159; Stevens II. Whiteomb, 16 Vt. 121; Ball o. Love- land, 10 Pick. 9; Keal v. People, 42 N. Y. 270; Baird v. Cochran, 4 Serg. 6 R. 397; Nass v. Van Swearingen, 7 S. & R. 192; Hays v. Richardson^l Gill & J. 366; Taney v. Kemp, 4 Har. & Johns. 348 ; Harper v. Burrow, 6 Ired. 30 ; Alexander v. Knox, 7 Ala. 503 ; Judge V. Green, 1 How. (Miss.) 146 ; Planters' Bk. v. George, 6 Martin, 670; Conover v. Bell, 6 T. B. Mon. 157; Com. v. Thurston, 7 J. J. Marsh. 63; Zollickofferti. Turney, 6 Yerg. 297. 6 Supra, § 488. « Doe V. Date, 3 Q. B. 609; Doe v. Egremont, 2 M. & Rob. 386; Davies V. Waters, 9 M. & W. 608. Infra, §§ 742-56. "> Doe u. Date, 3 Q. B. 369 ; Pick- ering V. Noyes, 1 B. & C. 263. » See supra, § 489; infra, §§ 746, 751. 483 § 539.] THE LAW OF EVIDENCE. [BOOK II. the illicit drink will be compelled to answer, though by so doing he expose himself to a prosecution as accessory to the sale.^ § 538. The witness is not the sole judge of his liability. The Court de- liability must appear reasonable to the court, or the termines -^itness wiU be compelled to answer.^ Thus a witness as to privi- ^ lege. -^^ill be compelled to answer as to conditions which he shares with many others (e. g. whether he was in the neigh- borhood of a homicide on a particular day, when such neighbor- hood includes a city), though not as to conditions which would bring the crime in suspicious nearness to himself.^ But in order to claim the protection of the court the witness is not required to disclose all the facts, as this would defeat the object for which he claims protection.* It is not, indeed, enough for the witness to say that the answer will criminate him.^ It must appear to the court, from all the circumstances, that there is a real dan- ger ; though this the judge is allowed to gather from the whole case, as well as from his general perceptions of the relations of the witness.^ Of course it is by the judge that the decision must be ultimately made.^ § 539. In this country the tendency of authority is that a wit- „, . ness who voluntarily opens an account of a transaction Waiver _ _ . . of part exposing him to a criminal prosecution is obliged to complete the narrative. He cannot, for instance, state 1 State V. Rand, 51 N. H. 361; Greene (Iowa), 532; Kirshner v. State, Com. w. Willard, 22 Pick. 476 ; Com. 9 Wis. 140; Floyd c. State, 7 Tex. V. Downing, 4 Gray, 29; though see 215; and see cases cited supra to § Doran's case, 2 Parsons R. 467. 535. 2 Osborn v. Dock Co. 10 Exch. 698 ; » R. r. Boyes, 1 B. & S. 311; 9 Cox Sidebotham v. Adkins, 27 L. J. Ch. C. C. 22; Wroe v. State, 20 Ohio St. 152; R. I). Boyes, 1 B. & S. 311; Fer- 460. Supra, § 536. nandez, ex parte, 10 C. B. N. S. 3, * R. v. Garbett, 2 C. & K. 495 ; 39 ; Com. v. Brainerd, Thacher C. C. Fisher v. Ronalds, 12 C. B. 762; Mex- 146; Grannis v. Branden, 5 Day, 260; ican & S. Amer. Co., ex parte, 4 Da Jackson v. Humphrey, 1 Johns. R. Gex & J. 220; 27 Beav. 474. 498; People v. Mather, 4 Wend. 229; « R. v. Boyes, 9 Cox, 32; 1 B. & S. Southards. Rexford, 6 Cow. 254; Real 311; Osborne v. Dock Co. 10 Ex. R. V. People, 42 N. Y. 270; Galbreath v. 701; Fernandez, ex parte, 10 C. B. Eichelberger, 3 Yeates, 515; Vaughan N. S. 3. See, however, contra, War- V. Perrine, 2 Penn. 144; Winder v. ner u. Lucas, 10 Ohio, 336; Poole v. Diffenderffer, 2 Bland, 166; Ward v. Perritt, 1 Speers, 128. State, 2 Mo. 98; Territory v. Nugent, 1= See Vaillant v. Dodemead, 2 Atk. 1 Mart. 114; Archbold's C. P. (ed. 524; R. u. Boyes, 1 B. & S. 311. of 1871) 277; Richman v. State, 2 ' Ibid. 484 CHAP. VIII.] WITNESSES : CROSS-EXAMINATION. [§ 540. a fact, and afterwards refuse to give the details.^ Even a party •who becomes a witness cannot, after waiving his rights, decline a cross-examination, on the ground that it exposes a criminality which he has already discovered.^ In England, by a majority of the judges, it is now held that a witness may at any time, before disclosure is complete, avail himself of the protection of the court, and refuse further answers.^ § 540. It is necessary, however, that the offence should be one to which some penal consequences are attached. If p , there be a pardon issued by the proper authorities, the and indem- witness will be compelled to answer ; * and so when the away with statute of limitations has interposed a bar.^ Statutes of ''"' ^^ "'°' indemnity and special amnesty have the same effect, when they do not conflict with local constitutions,^ and when they are as broad as the liability to which the witness may be exposed.^ In New York, for instance, where the Constitution simply secures the witness from being a " witness against himself," indemnity statutes have been held to preclude the witness from setting ' East V. Chapman, 1 M. & Mai. 46; 4 C. & P. 570; Low v. Mitchell, 18 Me. 372 ; State v. K. 4 N. H. 562; State V. Foster, 23 N. H. 348 ; Cham- berlain V. Wilson, 12 Vt. 491; Foster V. Pierce, 11 Cush. 437 ; Com. v. Price, 10 Gray, 472; People v. Carroll, 3 Park. C. R. 73; People v. Lohman, 2 Barb. 216; Alderman v. People, 4 Mich. 414. ' State V. Ober, 52 N. H. 459; Com. V. Lannan, 13 Allen, 563 ; Com. v. Mullen, 97 Mass. 545 ; Com. v. Mor- gan, 107 Mass. 199; McGarry v. Peo- ple, 2 Lansing, 227; Burdick v. Peo- ple, 58 Barb. 51; Fralieh v. People, 65 Barb. 48; Connors v. People, 60 N. Y. 240; Barber v. State, 13 Fla. 675. Supra, § 483. 8 R. V. Garbett, 2 C. & K. 274; S. C. 1 Den. C. C. 235 ; 2 Cox C. C. 448 ; overruling Dixon v. Vale, 1 C. & P. 278 ; East v. Chapman, 2 C. & P. 573; Ewingr. Osbaldiston, 6 Sim. 808. As according with R. v. Garbett may- be cited Burr's case. See supra, 536. * R. V. Boyes, 2 F. & F. 157; S. C. 9 Cox C. C. 32; R. V. Maloney, 9 Cox C. C. 26; R. v. Charlesworth, 2 F. & F. 326. « Roberts v. Allott, 1 M. & M. 192; Parkhurst v. Lowten, 1 Mer. 400; Williams v. Farrington, 2 Cox Ch. R. 202 ; Davis v. Reid, 5 Sim. 443 ; Peo- ple V. Mather, 4 Wend. 229 ; Close i). OIney, 1 Denio, 319; Moloney v. Dows, 2 Hilt. (N. Y.) 247; U. S. v. Smith, 4 Day, 121 ; Weldon v. Burch, 12 111. 374; Floyd v. State, 7 Tex. 215. 8 See R. V. Strachan, 7 Cox, 65 ; R. V. Skeen, 8 Cox, 143 ; R. v. Buttle, 11 Cox, 566 ; Fernandez, ex parte, 10 C. B. N. S. 3 ; R. u. Hulme, L. R. 5 Q. B. 277; Wilkins v. Malone, 14 Ind. 153 ; Douglass v. Wood, 1 Swan, 393; State v. Quarles, 13 Ark. 307. See State v. Henderson, 47 Ind. 127; Clark V. Reese, 35 Cal. 89. ' U. S. V. Tons of Coal, 6 Bisa. 379. 485 § 641.] THE LAW OF EVIDENCE. [BOOK II. up privilege;^ and so, also, has it been ruled under a similar provision in the Constitution of the United States.^ In Massa- chusetts, hovrever, where the Constitution provides that no per- son " shall be compelled to accuse or furnish evidence against " himself, a statute which is not coextensive with the constitu- tional provision does not divest the witness of his common law rights.^ § 541. Every man is entitled to such a measure of oblivion for For the *^® P^^* ^^ ^^^^ protect him from having it ransacked purpose of ^j j](jere volunteers ; and independent of this general ingwit- sanction, if witnesses were to be compelled to answer ness, an- „,. . i i • i • t swers will fishmg questions as to any scandals in their past lives, peiied'to"' the witness box would become itself a scandal which no ^mputhTg civilized community would tolerate. If we allowed un- disgrace. restricted liberty in this respect, no witness, however venerable, could be sworn, without being required, if it should please the opposing party, to submit to an exploration of even the most remote passages of his past life, and without being com- pelled to narrate any events in that life which were discreditable ; no matter for how long a time such discredit had been atoned by penitence, by reformation, and by remedy of the wrong. Such inquisitions, however, the courts have refused to permit ; and it has hence been held, not only, as we will see, that parties are bound by collateral answers they wring from a witness as to his history,* but that the witness will not be compelled to answer such questions when they are only introduced in order to dis- credit him, and are not essential to the merits of the case of the party asking them.^ 1 People V. Kelly, 24 N. Y. 74. 217; Lewis, in re, 39 How. (N. Y.) " U. S. V. Brown, 1 Sawyer, 631. Pr. 155; Resp. v. Gibbs, 3 Yeates,429; ' Emery's case, 107 Mass. 172. Galbreath v. Eichelberger, 3 Yeates, * Infra, § 547. 515; State ii. Bailey, 1 Penn. (N. J.) " R. w. Hodgson, R. & R. 211; Dodd 415; Vaughn v. Perrine, 2 Penn. (N. 0. Norris, 4 Camp. 519 ; Friend's case, J.) 534 ; Houser v. Com. 51 Penn. St. 4 St. Tr. 225 ; Lewis's case, 4 Esp. 332 ; Howel v. Com. 5 Grat. 664 ; 225; MeBridei7. McBride, 4 Esp. 242; Forney u. Ferrell, 4 West Va. 729; U. S. V. Dickinson, 2 McLean, 325; Leach v. People, 53 111. 311 ; Toledo State V. Staples, 47 N. H. 113; Smith R. R. v. Williams, 77 111. 354 ; State V. Castles, 1 Gray, 108; People v. v. Garrett, 1 Busbee, 357 ; Campbell Herrick, 13 Johns. R. 82 ; Lohman v. v. State, 23 Ala. 44; Marx v. Bell, 48 People, 1 Comst. 379; S. C. 2 Barb. Ala. 497; Harper m.R. R. 47 Mo. 567. 486 CHAP. VIII.] WITNESSES : CROSS-EXAMINATION. [§ 542. § 542. On the other hand, a witness cannot ward ofE answering a question material to the issue on the ground that it -yrr;f„ggg imputes disgrace to himself, such disgrace not amount- may be ing to crimination.^ Thus in a prosecution for bastardy, to answer a witness, introduced by the defendant to prove that the imputing plaintiff had sexual intercourse with another man about ^hen^such the time of the begetting of the child, has been com- questions , . . a™ mate- pelled to answer whether he had such intercourse with rial to the her, she having denied that she had such intercourse In Real v. People, 42 N. Y. 270, it was said by Grover, J.: " My conclu- sion is, that a witness upon cross-ex- amination may be asked whether he has been in jail, the penitentiary, or state prison, or any other place that would tend to impair his credibility, and how much of his life he has passed in such places. When the inquiry is confined as to whether he has been convicted, and of what, a different rule may perhaps apply. This in- volves questions as to the jurisdiction and proceedings of a court of which the witness may not be competent to speak. This was the point involved in Griswold v. Newcomb, 24 N. Y. 298, and the only point in that case. Here the inquiry was simply whether and how long the witness had been in the penitentiary. This the witness knew and could not be mistaken about. .... The extent of the cross-ex- amination of this character is some- what in the discretion of the court, and must necessarily be so to prevent abuse." So, also, Howser v. Com. 51 Penn. St. 352; Wilbur v. Flood, 16 Mich. 40; State v. March, 1 Jones L. (N. C.) 526; State v. Garrett, Busbee L. (N. C.) 357; Com. v. Bonner, 97 Mass. 587; People v. Manning, 48 Cal. 335, sustaining such questions. Ordinarily convictions must be proved by record. Clement v. Brooks, 13 N. H. 92; Com. v. Quin, 6 Gray, 478; Newcomb v. Griswold, 24 N. Y. 298 ; Stout V. Rassell, 2 Yeates, 334; Peo- ple V. Reinhardt, 39 Cal. 449. Su- pra, §§63, 64; infra, § 991. See Am. Law Rev. January, 1877, 396. A greater latitude has been recently allowed in England. "In the recent trial of the detectives at the Central Criminal Court, Sir John Holker, the attorney general, while reexamining Benson, asked him categorically the motive of his conduct towards a fe- male friend. The counsel for one of the prisoners objected, stating that the question ought to be pointed to some circumstance.. Baron Pollock ruled that the question was legitimate, and that the motive or reason of the con- duct of the witness was not one pecul- iarly within the province of the jury after that conusel in cross-examina- tion had asked questions, the tendency of which was to suggest improper in- timacy between the sexes, and so to discredit the witness." London Law T., May 26, 1878, in which is given a review of the English rulings in this relation. ' See cases cited in prior section ; Whart. Cr.L.tit. " Evidence; " Com. V. Curtis, 97 Mass. 574; Burnett v. Phalon, 11 Abb. (N . Y.) Pr. 167; Hunti). McCalla, 20 Iowa, 20 ; Ragland V. Wickware,4 J. J. Marsh. 530; Rowe, ex parte, 7 Cal. 184; Clark v. Reese, 35 Cal. 89; Ward v. State, 2 Mo. 98 ; Clementine v. State, 14 Mo. 112. 487 § 642.J THE LAW OF EVIDENCE. [book II. with any one but the defendant.^ So in an action for enticing away the plaintiff's wife, where the answer was that the wife was driven from home by her husband's immorality, it was held that the plaintiff, when examined as a witness, could be com- pelled to answer as to such immorality .^ And while the prose- 1 Hill V. State. 4 Ind. 142. 2 Taylor v. Jennings, 7 Kob. (N. Y.) 681. " In equity this rule is carried even further than at common law. A wit- ness will not be compelled to answer any question which would subject him to a criminal charge, or to any pains or penalties, or to ecclesiastical cen- sure, or to a forfeiture of interest ; and the protection is said to be extended even to cases where the answer would prove the witness guilty of great moral turpitude, subjecting him to penal con- sequences." Wigram on Discovery, 81 ; Mitford on Pleading, 194. " But when the reason for the privilege ceases, the privilege will cease also. Therefore, if a penalty or forfeiture would enure for the benefit of a plaintiff, and he waives the same, or when the time for suing for a penalty has expired, a witness is compelled to answer, as also he is if by contract he is bound to answer, notwithstanding the conse- quences.'' Wigram on Discovery, 83 ; Powell's Evidence, 4th ed. 117. In Iowa we have the following : — " On the cross-examination of the plaintiff as a witness, she was asked by the appellant's counsel the follow- ing question : ' Did you, before this time (referring to the time of the al- leged seduction), have intercourse with other men '? ' The witness refused to answer on the ground of privilege. Ap- pellant's counsel requested the court to compel her to answer the question, but the court sustained the witness in her refusal. •' Our statute provides ' that no wit- ness is excused from answering a ques- 488 tion upon the mere ground that he would thereby become subjected to a civil liability. But when the matter sought to be elicited would tend to render him criminally liable, or expose him to public ignominy, he is not com- pelled to answer,' &c. Revision, §§ 3988, 3989. This term, 'ignominy,' means shame, disgrace, dishonor. See Webster's Unabridged Diet. ' Public ignominy,' therefore, means public dis- grace, public dishonor. The matter sought to be elicited by the question would, most clearly, tend to bring the witness into public disgrace ; for, by the question the appellant sought to show that, prior to her seduction, the witness had illicit intercourse with other men than the defendant. It was the right of the witness, there- fore, to refuse to answer, and there was no error in the ruling of the court on this point. The case of the State V. Sutherland, 30 Iowa, 570, cited by appellant, has no application to this question. That was a criminal pros- ecution for seduction, in which the previously chaste character of the prosecutrix is an essential ingredient of the offence, and the witness in that case did not refuse to answer the in- terrogatory propounded to her in re- spect to her previous conduct with other men. In that case the court, on objection by the state, refused to al- low the question to be put to the wit- ness." Miller, Ch. J., Brown v. Kings- ley, 38 Iowa, 221. In a judicious article in the London Law Journal, reprinted in the Albany Law Journal for 1876, p. 181, we have the following observations : " Ex- CHAl*. VIII.J WITNESSES : CROSS-EXAMINATION. [§ 543. cutrix in rape cannot be examined as to collateral immorality, she can be required to state whether she has not had prior sexual relations with the defendant.^ § 543. As we have already seen, a witness cannot at common perience, apart from fairness, teaches that legal rights are double-edged weapons, which a man should use care- fully. So it is with cross-examina- tion to credit. Counsel may find in his brief material for the injury of a witness; but the business of counsel is to succeed in the cause, and an out- rage on the feelings of a witness may be resented by a jury. Arbitrators are notoriously averse to attacks of this class on the credit of witnesses, and it is hardly ever good policy to attempt anything of the kind in the conduct of references. Counsel have also to reckon with the judge; and the strength of strong judges is not wisely provoked to adverse action where ju- rors and audience would instinctively not assent to a crushing summing-up. There is also the counsel's own sense of right. Nothing can be more mon- strous than for a counsel to ask a question calculated to torture not only the witness, but a host of innocent persons, nearly connected with the witness, merely because the question is in the brief, and the client wishes it to be asked. Counsel is bound in honor, and out of respect to himself and his profession, to consider whether the question ought to be asked, not whether his client would like it put. Counsel is not the mouth-piece of spite or re- venge. He is not to adopt a line of conduct which, if universally carried out, would drive truth out of court by intimidating witnesses. Among other considerations, he should weigh with himself whether the expected answer ought to render the witness unworthy of belief on his oath ; whether the act to be revealed is of recent date, so as to make it improbable that the wit- ness has repented his misconduct, and striven to amend his ways. In some cases, also, counsel may, perhaps, con- sider whether the good to accrue to his client from the answer is not so small as to compare with the enormous mis- chief to be done to the witness, and to other persons, as to justify him in de- clining to put the question. We admit that no definite set of rules can be pre- scribed for counsel. He must judge for himself; and he will have the conso- lation of knowing that he is not very likely to go wrong if he acts on his own opinion, instead of inclining his ear to the remorseless passion or the unscrupulous greed of the party for whom he is retained." " Everybody recollects the famous question on the trial of Orton, which has generally been held unjustifiable, mainly on the ground that the rela- tions between the sexes have no direct bearing on the probability of the wit- ness telling the truth." Sir J. Stephen, in his Digest of the Law of Evidence, expounds the law as follows : " When a witness is cross- examined he may be asked any ques- tions which tend : (1.) To test his ac- curacy, veracity, or credibility ; or (2.) To shake his credit by injuring his character. He may be compelled to answer any such question, however ir- relevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except in the case provided for in article 120, namely, when the answer might expose him to a criminal charge or penalty." ^ See this point discussed, Whart. Crim. Law, tit. " Kape." 489 § 544.] THE LAW OF EVIDENCE. [BOOK II. law be examined, for the purpose of discrediting or excluding -5Pit„ess tim, as to his religious belief. i This rule, it is held in maybe Massachusetts, is unaffected by the statute removing cross-ex- t ■ t i t i! i j. amined as disability on account of religious disbeliet, but permit- ligious'^be- ting evidence of such disbelief in order to affect credibil- ''®^" ity.2 In New York a different conclusion is reached, under the Constitution of 1848, which permits atheists to tes- tify .^ That such questions cannot be put to affect competency, we have already seen.* The same reasoning, it should be added, does not necessarily apply when the question is as to credibility. § 544. Where the question goes to the motives of the witness And so as ^° testifying, he will be compelled, on reasoning al- to ques- ready stated, to answer.^ Thus a witness for the pros- tions as to -^ ' . motive or ecution, on a trial for riot, has been compelled to say V6r3citv or > to the re's whether he did not belong to a secret society organ- gtiae. j^^^ ^^ suppress a sect to which the defendant be- longed.^ So answers may be compelled to any questions as to the witness's corrupt leanings in the case.'^ So as to matters connected with the res gestae a witness may be compelled to answer questions, no matter how much charged with disgrace.^ And while courts haye refused to permit a witness to be exam- ined as to past irrelevant misconduct, yet questions have been permitted tending to search his conscience as to such recent in- famy as leaves his testimony entitled to little respect.^ The same rule applies to questions probing veracity.^" If a criminal con- viction can be put in evidence to discredit a witness,^^ he may be asked as to the collateral incidents of such conviction. 1 See supra, § 396. Eoberts v. Allatt, M. & M. 192. In- 2 Com. v. Burke, 16 Gray, 33. fra, § 545. 8 Stanbro v. Hopkins, 28 Barb. 265. ^ Cundell v. Pratt, 1 M. & M. 108 * Supra, § 396. U. S. v. White, 5 Cranch C. C. 38 ' Supra, § 408 1 Kelsey v. Ins. Co. People v. Mather, 4 Wend. 250-4 35 Conn. 225; People v. Morrigan, 25 Berney w. Mittnacht, 2 Sweeny, 582 Mich. 5; McFarlin t». State, 41 Tex. Hill v. State, 4 Ind. 112; Foster v. 23; and see infra, § 561. People, 18 Mich. 266. « People V. Christie, 2 Parker C. K. » Cundell v. Pratt, M. & M. 108; 579. Roberts v. Allatt, M. & M. 192 ; Real ' State ■0. Dee, 14 Minn. 35. This «. People, 42 N. Y. 270. has been pushed to a great extent by i" Ordway v. Haynes, 50 N. H. 159 ; Best, J., in Cundell v. Pratt, M. & Boles v. State, 46 Ala. 204. M. 108 ; and by Lord Tenterden, in " Supra, §§541-2,note;infra,§567. 490 CHAP. Vni.J WITNESSES : CROSS-EXAMINATION. [§ 547. § 545. Apart from such questions as impute disgrace or crime, a witness may be compelled to answer all questions -^j^^ggg concerning his relationship to either of the parties, his may be . .!• ■ r T J cross-ex- mterest in the suit, his capacity of discernment and ex- amined as pression, his motives, and his prejudices. He may be thus required to explain whatever would show bias on his part or incapacity to testify accurately.^ § 546. However sternly it may be proclaimed by statute or judgment that no inference is to be drawn against a witness from his refusal to answer an inquiry as to mis- conduct, the inference is one which is technically log- ical, and which in ordinary cases it is both natural and permissible for juries to draw.^ It is true that a pure man of great sensitiveness may indignantly refuse to tolerate such a question ; but if the witness be not known to be a pure man of great sensitiveness, his refusal to answer will be naturally presumed to arise from the fact that if he answered the answer would be discreditable.^ § 547. As will hereafter be seen, a witness's answers on cross- examination to collateral questions cannot be disputed.* on cross- A witness's answers to questions relating to his pre- tion'wU^' vious conduct are regarded as so far collateral that they "^^^J^ ^' cannot be contradicted by the party cross-examining, previous Inference against witness may be drawn from re- fusal to answer. 1 See § 408 ; Drew v. Wood, 26 N. H. 363 ; Hutchinson v. Wheeler, 35 Vt. 330: Mclntyre v. Park, 11 Gray, 102 ; Day v. Stickney, 14 Allen, 265 ; Atwood V. Welton, 7 Conn. 66 ; Me- chanics' Bank v. Smith, 19 Johns. R. 115 ; Bennett v. Burch, 1 Denio, 141; Newton v. Harris, 6 N. Y. 345 : Peo- ple V. Christie, 2 Park. C. R. 579 ; Baird v. Dailey, 68 N. Y. 547; Brei- nig V. Meitzler, 23 Penn. St. 156; Bricker u. Lightner, 40 Penn. St. 199 ; Blessing v. Hape, 8 Md. 31 ; Phillips V. Elwell, 14 Ohio St. 240 ; Huckleberry v. Kiddle, 29 Ind. 454 ; Ray V. Bell, 24 111. 444 ; First Nat. Bk. V. Haight, 5 111. 191 ; Crippen v. People, 8 Mich. 117; Dann v. Cud- ney, 13 Mich. 239 ; Kellogg v. Nel- son, 5 Wis. 125; Suit v. Bonnell, 33 Wis. 180; State v. Oscar, 7 Jones L. 305 ; Stoundenmeier v. Williamson, 29 Ala. 558; Pool v. Pool, 33 Ala. 145 ; Winston v. Cox, 38 Ala. 268 ; BuUard v. Lambert, 40 Ala. 204; State V. Adams, 14 La. An. 620; Dick V. State, 30 Miss. 631; Newcomb v. State, 37 Miss. 383; Coates v. Hop- kins, 34 Mo. 135 ; Harper v. Lamping, 33 Cal. 641 ; Bixby v. State, 15 Ark. 395; Thornburgh v. Hand, 7 Cal. 554. 2 See Taylor's Ev. § 1321, citing Bayley, J., in R. v. Watson, 2 Stark. R. 153. See Andrewes v. Fry, 104 Mass. 234. « See infra, § 1265. < See infra, § 559. 491 § 549.] THE LAW OF EVIDENCE. [BOOK II. character unless it be as to matter which the law permits to be s[ve™ndso shown for the purpose of impairing credibility. i If terfcoilat they go to malice or corruption, the questions are not "■*'• collateral.2 § 548. Even a party when cross-examined as a witness, as to previous misconduct similar to that under trial, concludes the party cross-examining him by his answers, unless such miscon- duct would be itself relevant as part of the case of the cross- examining party .^ To let in such evidence would be to abro- gate the fundamental principle that a party is only to be tried on a particular issue, and that on such issue evidence of inde- pendent misconduct is inadmissible.* But this principle applies only to the witness's answers. Whether the questions can be put is elsewhere discussed.^ XI. IMPEACHING WITNESS. § 549. By a technical rule of the English common law, while p a party may contradict his own witnesses, though this notdis- may discredit them, he is not ordinarily permitted to credit his •' ■' '^ own wit- impeach them, even though called afterwards by the opposite side, either by general evidence, or by proof of prior contradictory statements.^ By calling the witness, so it is ^ Goddard v. Parr, 24 L. J. Ch. that he acted through motives of mal- 784; Taylor's Ev. § 1295; Odiorne ice, as every man who comes into the V. Winkley, 2 Gall. 51 ; Seavy v. witness box must come prepared to Dearborn, 19 N. H. 351; Stevens v. show that he gives his evidence from Beach, 12 Vt. 585; Bivens v. Brown, pure motives, and such evidence as 37 Ala. 422; Cornelius t>. Com. 15 B. shows that he does not would be ad- Mon. 539. missible against him." ^ In Attorney General v. Hitchcock s Tolman v. Johnstone, 2 F. & F. (1 Ex. 93), Baron Parke thus speaks: 66. " A collateral question cannot be en- * See, also, Baker v. Baker, 3 Sw. tered into as to a man having com- & Tr. 213. See supra, §§ 29, 533. mitted a lirime on a former occasion, ^ H)i(j. gee Shepard v. Parker, 36 one reason being that it would lead N. Y. 517. to complicated issues and long inqui- ' Ewer v. Ambrose, 3 B. & C. 746 ; ries; and another, that a party cannot Chamberlain v. Sands, 27 Me. 458; be expected to be prepared to defend Com. v. Starkweather, 10 Cush. 59; the whole of the actions of his lite. Com. u. Welsh, 4 Gray, 535; Adams Neither of these cases applies to the v. Wheeler, 97 Mass. 67; Bullard v. receiving of a bribe, nor to a man Pearsall, 53 N. Y. 230; Coulter v. having a direct influence in giving his Express Co. 56 N. Y. 588 ; People evidence in a cause. It may be shown v. Safford, 5 Denio, 112; Pollock v. 492 CHAP. VIII.] WITNESSES : HOW IMPEACHED. [§ 549. argued,-' a party represents him to the court as worthy of credit, or at least not so infamous as to be wholly unworthy of it ; and if he afterwards attack his general character for veracity, this is not only mala fides towards the tribunal, but it " would enable the party 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 hand of destroying his credit if he spoke against him." ^ Pollock, 71 N. Y. 137; Brewer v. Porch, 17 N. J. L. 377; Stearns v. Bank, 53 Penn. St. 490; Rockwood v. Poundstone, 38 111. 199; Quinn v. State, 14 Ind. 589 ; Hunt v. Coe, 15 Iowa, 197; Montgomery v. Hunt, 5 Cal. 366; People v. Jacobs, 49 Cal. 384; Craig u. Grant, 6 Midi. 447; Round- tree V. Tibbs, 4 Hayw. 108; Perry v. Massey, 1 Bailey, 32; McDaniel v. State, 53 Ga. 263; Griffin v. Wall, 32 Ala. 149 ; Fairly v. Fairly, 38 Miss. 280; Young v. Wood, 11 B. Mon. 123. See Am. Law Rev. Jan. 1877, 261. 1 Best's Ev. § 645. 2 B.N. P. 297; 2 Phill. Ev. 525. In England, by statute, when a wit- ness, in the opinion of the judge, is hostile to the party calling him, the witness may be contradicted by other evidence, or, by leave of the judge, proof may be made that the witness has at other times made inconsistent statements ; though in the latter case the " circumstances of the supposed statement, sufficient to designate the particular occasion, must be men- tioned to the witness, and he must be asked whether or not he has made such statement." See on the con- struction of this statute, Taylor's Ev. § 1282-3, citing Greenough v. Eccles, 5 C. B. N. S. 806; Faulkner t'. Brine, 1 Post. & F. 254; Dear v. Knight, 1 Fost. & F. 433; Pound v. Wilson, 4 Fost. & F. 301 ; Reed v. King, 30 L. T. 290, Exc. ; Jackson v. Thomason, 1 B. & S. 745 ; Coles v. Coles, L. R. 1 P. & D. 70. As to sub- scribing witnesses, see supra, § 500. A provision substantially the same, borrowed from the English statute, is found in the Code of Massachusetts. Ryerson v. Abington, 102 Mass. 530. The Massachusetts statute above noticed is thus commented on : " The St. of 1869, c. 425, which took effect before the trial, provides that the party producing a witness ' may con- tradict him by other evidence, and may also prove that he has made at other times statements inconsistent with his present testimony; but, be- fore such last mentioned proof can be given, the circumstances of the sup- posed statement, sufficient to desig- nate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statements, and, it so, allowed to explain them.' This statute abrogates the rule of common law, by which a party who had called a witness was deemed to have held him out as wor- thy of credit, and was therefore not allowed to prove by other witnesses statements previously made by him, inconsistent with his present testi- mony, which would not be admissible as independent evidence, and which could have no effect but to impair his credit with the jury. Adams v. Whee- ler, 97 Mass. 67, and cases cited. It is taken, almost verbatim, from the English statute of 17 & 18 Vict. c. 125, § 22, omitting, however, the qualifica- tion of that act, ' in ease the witness shall in the opinion of the judge prove adverse ; ' and the limit of the right to prove such inconsistent statements 493 § 549.] THE LAW OF EVIDENCE. [book II. In this country, while a party cannot ordinarily discredit his own witness, his right to prove a case inconsistent with that stated by such witness is unquestioned even though this discredit the witness incidentally.^ We have also held that, even at.com- ' by leave of the judge ' only; but yet does not allow such statements to be proved, without giving the witness the full notice and opportunity to explain, to which a witness called by the oppo- site party is entitled by the practice of the courts of England, of the United States, and of New York, though not by that of our own. 2 Taylor on Ev. (4th ed.) §§ 1282, 1300; Conrad v. Griffey, 16 How. 38, 46, 47; Pendle- ton V. Empire Stone Dressing Co. 19 N. Y. 13; Gould V. Norfolk Lead Co. 9 Cush. 338. " So great a change in the rules of evidence, giving so extensive a power to a party to introduce proof in con- tradiction and disparagement of a wit- ness put on the stand by himself, un- controlled by the discretion of the judge before whom the trial is had, must be kept strictly within the bounds of the statute, and certainly cannot be construed as enabling a party to con- tradict his own witness in any respect in which the law would not permit him to contradict a witness produced by the opposite party. " We are of opinion that the statute did not warrant the admission of the testimony objected to, for two reasons : First, the surveyor, whose testimony was sought to be contradicted, had only been asked generally whether or Aot he had made such statements to the other witness ; and no ' circum- stances of the supposed statement, suf- ficient to designate the particular oc- casion,' had been mentioned to him, as the statute expressly requires. An- gus V. Smith, Mood. & Malk, 473; Crowley v. Page, 7 C. & P. 789; Con- rad t). Griffey, and Pendleton v. Em- 494 pire Stone Dressing Co., above cited. And, secondly, the testimony which was sought to be contradicted was to mere matter of opinion, would have been incompetent if objected to, and, being irrelevant and immaterial, could not have been contradicted if elicited in cross-examination from a witness called by the opposite party. Lincoln V. Barre, 5 Cush. 590 ; Brockett u. Bartholomew, 6 Met. 396; Elton v. Larkins, 5 C. & P. 385; Tennant v. Hamilton, 7 CI. & Fin. 172; 5. C. Macl. & Rob. 821." Gray J., Kyer- son V. Abington, 102 Mass. 530. See, also, Day v. Cooley, 118 Mass. 526; Force v. Martin, 122 Mass. 5, cited infra. That under the same statute a party cannot contradict his own wit- ness by proof of prior inconsistent statements, without first calling his attention to such statements, see fur- ther Newell V. Homer, 120 Mass. 278. 1 U. S. V. Watkins, 3 Cranch C. C. 441 ; Brown v. Osgood, 25 Me. 505 Swamscot v. Walker, 22 N. H. 457 Brannon v. Hursell, 112 Mass. 63 Warren v. Chapman, 115 Mass. 584 Whitney v. R. R. 9 Allen, 364 ; 01m stead V. Bank, 32 Conn. 278; Law' rence «. Barker, 5 Wend. SOI; Gibbs V. Hunter, 41 N. Y. Sup. Ct. 190; Stockton V. Demuth, 7 Watts, 39; Wolfe V. Hauver, 1 Gill, 84 ; Rock- wood V. Poundstone, 88 111. 299; Thorn ». Moore, 21 Iowa, 285; Artz V. R. R. 41 Iowa, 284 ; Smith v. Eha- nert, 43 Wis. 181 ; Spencer v. White, 1 Ired. L. 136; Shelton v. Hampton, 6 Ired. L. 216; Bradford v. Bush, 10 Ala. 886; Warren v. Gabriel, 51 Ala. 235; Brown ti. Wood, 19 Mo. 475; CHAP. VIII.] WITNESSES : HOW IMPEACHED. [§ 549. mon law, adverse witnesses, who tell a story contradicting that which they had previously given, may, on the party calling them being thus surprised, be examined as to their former statements, in all cases where it would appear that a deception has been prac- tised on the party examining, and that he has been guilty of no negligence or laches. ^ In England, the right to ask as to such former statements has been much agitated, though the weight of authority, at common law, is against the right so to impeach, un- less with the limitation just expressed.* On the other hand it is urged ^ " that, although a party who calls a person of bad char- acter as witness, knowing him to be such, ought not to be allowed to defeat his testimony because it turns out unfavorable to him, by direct proof of general bad character, — yet it is only just that he should be permitted to show, if he can, that the evidence has taken him by surprise, and is contrary to the examination of the witness, preparatory to the trial ; that this course is neces- sary, as a security against the contrivance of an artful wdtness, who otherwise might recommend himself to a party by the prom- ise of favorable evidence (being really in the interest of the op- posite party), and afterwards by hostile evidence ruin his cause ; that the rule, with the above exception, as to ofEering contradic- tory evidence, ought to be the same, whether the witness is called by the one party or the other, and that the danger of the jury's treating the contradictory matter as substantive testimony, Norwood V. Kenfield, SO Cal. 393 ; evidence at the trial should be entirely People V. Jacobs, 49 Cal. 384. at variance with each other. 1 State V. Lull, 37 Me. 246 ; State " In Greenough v. Eccles (28 L. J. !). Benner, 64 Me. 267; Brown w. Bel- 160, C. P.), the Court of Common lows, 4 Pick. 1 79 ; Cronan v. Cotting, Pleas held that the word ' adverse ' 99 Mass. 334; Brooks v. Weeks, 121 means hostile, and not merely un- Mass. 433 (under statute) ; Bullard favorable, and that the better con- V. Pearsall, 53 N. Y. 230 ; Bank of struction of the section is, that the North Lib. v. Davis, 6 W. & S. 285; party producing him may not only Blackburn v. Com. 12 Bush, 181; contradict him by other witnesses, but Hemmingway v. Garth, 51 Ala. 530. may also, by leave of the court, prove 2 See 2 Phil. Ev. 528 (10th ed.) ; that he has made inconsistent state- Melhuish v. Collier, 15 Q. B. 578. ments. In Jackson o. Thomason (31 Under 1 7 & 18 Vict. c. 125, the right L. J. 11, Q. B.), it was decided by the to cross-examine and contradict is Court of Queen's Bench that the state- given. See Jackson v. Thomason, 8 ment may be made up out of a series Jur. Rep. N. S. 189, where it was held of documents." Law Times, ut supra. " that the previous statements and the ' Ph. & Am. Ev. 905. 495 § 549.] THE LAW OF EVIDENCE. [book II. is the same in both cases ; that, as to the supposed danger of col- lusion, it is extremely improbable, and would be easily detected. It may be further remarked, that this is a question in which not only the interests of litigating parties are involved, but also the more important general interests of truth, in criminal as well as in civil proceedings ; that the ends of justice are best attained by allowing a free and ample scope for scrutinizing evidence and estimating its real value ; and that in the administration of crim- inal justice, more especially, the exclusion of the proof of con- trary statements might be attended with the worst consequences." So far, however, as concerns impeaching witnesses generally, this view does not now obtain.^ But a party lond fide surprised at 1 " Whatever differences of opinion have existed elsewhere, I understand the rule in this state to be settled, that a party may not impeach, either by .general evidence or by proof of contradictory statements made out of court, a witness whom he has pre- sented to the court as worthy of credit. He may contradict him as to a fact material in the cause, although the effect of that proof may be to discredit him, but he cannot adduce such a contradiction when it is only material as it bears upon credibility. Thus, in this case, the plaintiff was at liberty to contradict the witness as to his not having driven on the walk, because that fact was generally material in the cause, but was not at liberty to show that, after the affair was over, he had made a statement which conceded that he had driven on the walk ; be- cause that statement did not bear upon the question whether he did or did not drive upon the walk, but only upon the question whether his testimony that he did not was worthy of belief. In People n. Safford, 5 Denio, 112, ■where this point was material, the court, after adverting to the conflict of cases and text-books on the subject, proceeded, as it said, to consider it on principle, and determine that a party 496 cannot prove contradictory statements made by his own witness. The court held that such evidence is only allow- able with a view to the impeachment of the witness, and is not open to the party producing him. " In Thompson v. Blanchard, 4 N. Y. 303, 311, a new trial was granted in this court for a violation of the rule in question. The plaintiff had called on Wheeler, as a witness, who, among other things, had stated favor- ably to the defendant certain declara- tions made on the execution of papers material in that controversy. The plaintiff, under objections, had been allowed to prove a contradictory ver- sion of what took place at the time in question, and also to show that Whee- ler had subsequently made statements contradictory to his testimony on the trial. For the admission of this lat- ter evidence a new trial was granted. The court, after stating the general rule, and showing that in accordance with it the plaintiff could contradict Wheeler's evidence as to what took place, proceed to say, the plaintiff went further and gave evidence that Wheeler, at a subsequent time, made statements contradictory of the state- ments to which he testified. Such evidence is only allowable, in any case, CHAP. VIlI.j WITNESSES : HOW IMPEACHED. [§ 550. the unexpected testimony of his witness may be permitted to interrogate the witness, as to previous declarations alleged to have been made by the latter, inconsistent with his testimony,^ the object being to probe the witness's recollection, and to lead him, if mistaken, to review what he has said. Such corrective testimony, also, is receivable, to explain the attitude of the party calling the witness. But where the sole object of the testimony so offered is to discredit the witness, it will not be re- ceived.2 § 550. It sometimes becomes important, in view of the rule just stated, as well as of that which gives the right of j^ party's cross-examination to an adverse party, to determine witnesses ^ ■' are those who are a party s witnesses, in such a sense that they whom he cannot be discredited or cross-examined by him. A examines party, it may be said at the outset, who calls and causes '" "^ '^ " to be sworn a competent witness, primd facie makes such wit- ness his own, so as to open the witness to cross-examination by the opposite side.^ It is otherwise, however, if such witness be called and sworn by mistake, and is dismissed before questions are asked ; * or if he be called for merely formal purposes (e. g. with a view to the impeachment of the Y. 230, quoted in § 550. See an in- witness, — a ground not open to the teresting article on this topic in Am. party producing the witness. Law Kev. Jan. 1877, 261. In Mas- " There is a class of cases in which saohusetts, under the statute above a party who calls a witness has been noticed, allowing a party producing a allowed to show, by his own examina- witness to contradict him by former tion at least, if not by introducing statements, these statements must be proof by others, that he had previous- material. Eyerson v. Abington, 102 ly stated the facts in a different man- Mass. 526 ; Brooks v. Weeks, 121 Mass. ner; but this seems to stand upon the 433; Force v. Martin, 122 Mass. 5. ground of surprise, as contrary to what * Wood v. Mackinson, 2 M. & Rob. the party had a right or was led to 373; Reed w. James, 1 Stark. R. 182; believe he would testify, or of deceit R. v. Brooke, 2 Stark. R. 472; Toole through the influence of the other v. Nichol,. Nute, 41 N. H. 60; People » Supra, § 412. «. Jackson, 8 Parker C. R. 590; Gregg ' Dunn V. People, 29 N. Y. 523. v. Jamison, 55 Penn. St. 468; Ray v. ' State V. Winkley, 14 N. H. 480. Bell, 24 111. 444 ; State v. Ostrander, » Hall U.Young, 37 N. H. 134; City 18 Iowa, 435; though see McVey v. Bank v. Young, 48 N. H. 457; Hine v. Blair, 7 Ind. 590. 504 CHAP, vm.] WITNESSES : HOW IMPEACHED. [§ 560. issue, he cannot, as to his answer, be subsequently con- dieted on tradicted by the party putting the question.^ " The test collateral, of whether a fact inquired of in cross-examination is collateral is this, Would the cross-examining party be entitled to prove it as a part of his case, tending to establish his plea ? " ^ This lim- itation, however, only applies to answers on cross-examination. It does not affect answers to the examination in chief."* § 560. In England, by the old practice, in cases of conflict, the witnesses could be confronted ; and on one remark- By old able occasion no less than four witnesses were for this conmcting purpose placed together in the box.^ " This practice, ^u°^*^g^ which is still recognized in ecclesiastical courts and confronted. courts of probate, and which prevails largely in county courts, where it is often productive of highly useful results, has, for some unexplained reason, grown into comparative disuse at nisi prius. This is to be regretted ; for the practice certainly affords an excellent opportunity of contrasting the demeanor of the op- posing witnesses, and of thus testing the credit due to each ; 1 Spenoeley v. De Willott, 7 East, 108; R. V. Watson, 2 Stark. R. 149; Baker v. Baker, 3 Sw. & Tr. 213; Tennant v. Hamilton, 7 CI. & F. 122; U. S. V. Dickinson, 2 McLean, 325 ; U. S. V. White, 5 Cranch C. C. 38; Ware v. Ware, 8 Me. 42 ; State v. Kingsbury, 58 Me. 239 ; State v. Reed, 60 Me. 550; State v. Benner, 64 Me. 267; Tibbetts v. Flanders, 18 N. H. 284; Seavy v. Dearborn, 19 N. H. 351; State v. Thibeau, 30 Vt. 100; Com. V. Buzzell, 16 Pick. 153 ; Com. V. Farrar, 10 Gray, 6; Davis v. Keyes, 112 Mass. 436; Kaler v. Ins. Co. 120 Mass. 333; Eames v. Whitaker, 123 Mass. 342; Winton v. Meeker, 25 Conn. 456 ; Carpenter v. Ward, 20 N. Y. 243; Gandolfo v. Appleton, 40 N. Y. 533; Green v. Rice, 33 N. Y. Sup. Ct. 292; Rosenweig v. People, 63 Barb. 634; Griffith v. Eshelman, 4 Watts, 51; Schenleyu. Com. 36 Penn. St. 29; Mclntyre v. Young, 6 Blackf. 496; Fogleman v. State, 32 Ind. 145; Cokely V. State, 4 Iowa, 477; Patten V. People, 18 Mich. 314; State v. Staley, 14 Minn. 105; State v. Pat- terson, 2 Ired. 346; State v. Pully, 63 N. C. 8; Clark v. Clark, 65 N. C. 655; State V. Elliott, 68 N. C. 124; Wil- kinson V. Davis, 34 Ga. 549; Dozier v. Joyce, 8 Port. 303; Rosenbaum v. State, 33 Ala. 354; People v. Devine, 44 Cal. 452; Henderson v. State, 1 Tex. App. 432. " Sharswood, J. , Hildeburn v. Cur- ran, 65 Penn. St. 63; and see Attor- ney General v. Hitchcock, supra, § 547; Woodward v. Easton, 118 Mass. 403; State v. Patterson, 74 N. C. 157. As to how far such contradic- tion may be extended at the discretion of the court, see Powers v. Leach, 26 Vt. 270; and see supra, § 547. ' State V. Sargent, 32 Maine, 429; Hastings v. Livermore, 15 Gray, 10; Whitney v. Boston, 98 Mass. 312. * White V. Smith, Arm., M. & O. 171, per Brady, C. B.; Casson v. O'Brien, Ibid. 263, per Penefather, C. J.; Taylor's Ev. § 1332. 505 § 561.J THE LAW OF EVIDENCE. [book II. Witness's answer as to motives may be contra- dicted. ■while it also furnishes the means of explaining away an apparent contradiction, or of rectifying a mistake, where both witnesses have intended to state nothing but the truth." ^ § 561. A witness's answers as to motives are not open to the criticism that has been applied to his answers as to prior misconduct. The latter open one or more dis- tinct issues, and prejudice the witness, by putting him, without notice, on trial for other acts than that specif- ically in litigation. The former relate exclusively to the imme- diate issue, and concern topics as to which the party has notice to prepare. Hence it has been held that a witness may be asked whether he has not a strong bias or interest in the case, and if he denies such interest or bias, that he may be contradicted by evidence of his own statements, or of other implicatory acts.^ The same rule applies to questions as to quarrels between the witness and the party against whom he is called.® It is true that we have cases disputing this conclusion .; * but it is hard to 1 Ibid. Mr. Justice Cowen, in his note to Ph. Ev. vol. ii. p. 774, illus- trates the utility of the practice by a case " in which a highly respecta- ble witness, sought to be impeached through an out-of-door conversation, by another witness, who seemed very willing to bring him into contradic- tion, upon both being placed upon the stand, furnished such a distinction to the latter as corrected his memory, and led him in half a minute to acknowl- edge that he was wrong. The differ- ence lay only in one word. The first witness had now sworn that he did not rely on a certain firm as being in good credit. It turned out that in his former conversation he spoke of a part- nership from which one name was soon afterward withdrawn, leaving him now to speak of the latter firm thus weak- ened by the withdrawal. In regard to the credit of the first firm, he had, in truth, been fully informed by let- ters. Vfiih respect to the last, he had no information. The sound in the title of the firm was so nearly alike 606 that the ear would easily confound them; and had it not been for the colloquium thus brought on, an ap- parent contradiction would, doubtless, have been kept on foot, for various purposes, through a long trial. It in- volved an inquiry into a credit which had been given to another on the fraudulent representations of the de- fendant." Taylor's Ev. § 1332. 2 People V. Austin, 1 Parker C. R. 154 ; Gaines v. Com. 50 Penn. St. 319. ' R. 0. Yervin. 2 Camp. 638; R. v. Martin, 6 C. & P. 562; Thomas v. David, 7 C. & P. 350; Queen's case, 2 B. &. B. 311; Atty. Gen. v. Hitch- cock, 1 Exch. 11. 102; Swett v. Shum- way, 102 Mass. 365 ; Davis v. Keyes, 112 Mass. 436 ; Beardsley v. Wild- man, 41 Conn. 515; People v. Austin, 1 Parker C. R. 154; Gaines v. Com. 14 Wright (Penn.), 327; Lucas v. Flinn, 35 Iowa, 9; Geary v. People, 22 Mich. 220. Supra, § 561. * Harrison v. Gordon, 2 Lew. C. C. 150; R. V. Holmes, L. R. 1 C. C. R. 237 ; Harri-s v. Tippett, 2 Camp. 637; CHAP. VIII.] WITNESSES : HOW IMPEACHED. [§ 562. see how evidence which goes to the root of a witness's credibil- ity can be regarded as collateral to the issue.^ § 562. It is competent, in order to discredit a witness, to offer evidence attacking his character for truth and veracitj'.^ Witness's Particular independent facts, though bearing on the fo^raJh"^ question of veracity, cannot, however, be put in evi- f"*J^?b'e dence for this purpose.^ Thus, evidence has been re- attacked, fused of declarations of a witness of his own want of religion ; * though it is held that it may be proved that a witness had de- clared that he would swear to anything.^ A fortiori^ is general character for " badness," or " infamy," inadmissible.^ Thus, it State V. Patterson, 2 Ired. 346. As to the materiality of bias and motive, see supra, § 408. 1 Supra, §§ 408, 544, 545. 2 K. V. Rockwood, 1 3 How. St. Tr. 210; Carlos v. Brooks, 10 Ves. 49; Mawson v. Hartsink, 4 Esp. 103; R. V. Brown, L. R. 1 C. C. 70 ; U. S. v. Vansickle, 2 McLean, 219; U. S. v. White, 6 Cranch C. C. 38 ; Ordway ». Haynes, 50 N. H. 159. As to mode of proving character, supra, §§ 48-9, 56. See Hamilton v. People, 29 Mich. 173. ' Supra, § 49, 50; R. u. Rockwood, 13 How. St. Tr. 210; Carlos v. Brooks, 10 Ves. 49; Penny o. Watts, 2 De Gex & Sm. 501 ; U. S. t>. Masters, 4 Cranch C. C. 169; U. S. v. Vansickle, 2 McLean, 219; Phillips u. Kingfield, 19 Me. 375; Shaw v. Emery, 42 Me. 59; State u. Bruce, 24 Me. 71 ; Spears V, Forrest, 15 Vt. 435; Crane v. Thayer, 18 Vt. 162; Com. v. Churchill, 11 Met. (Mass.) 538; Root v. Ham- ilton, 105 Mass. 22; Bakeman u. Rose, 18 Wend. 146 ; Wehrkamp v. Willet, 4 Abb. (N. Y.) App. 548 ; S. C. 1 Keyes, 250, 1 Daly, 4; Corning v. Corning, 6 N. Y. 67 ; Macdonald «. Garrison, 2 Hilt. 250 ; Poster v. Newbrough, 58 N. Y. 481 ; South- worth K. Bennett, 58 N. Y. 659; Crich- ton V. People, 6 Parker C. R. 363 ; Wike r. Lightner, 11 Serg. & R. 198; Rixey v. Bayse, 4 Leigh, 330; Uhl v. Com. 6 Grat. 706; Barton v. Morphes, 2 Dever. 520 ; Clark v. Bailey, 2 Strobh. Eq. 143 ; Weathers v. Barks- dale, 30 Ga. 888; Nugent v. State, 18 Ala. 521 ; Craig v. State, 5 Ohio St. 605; Hillis u. Wylie, 26 Ohio St. 574; Frye v. Bank, 11 111. 367; Crabtree V. Kile, 21 111. 180; Walter v. State, 6 Blackf. 1 ; Long v. Morrison, 14 Ind. 595 ; Ketchingman v. State, 6 Wis. 426; Rudsdill v. Slingerland, 18 Minn. 380 ; Thurman v. Virgin, 18 B. Mon. 785 ; Taylor v. Com. 3 Bush, 508; Newman v. Mackin, 21 Miss. 383. * Halley v. Webster, 21 Me. 461. Supra, § 395. 5 Newhal v. Wadhams, 1 Root, 504; Anonymous, 1 Hill (S. C), 25. ^ State V. Bruce, 11 Shepl. 71 ; State V. Morse, 67 Me. 428; Com. v. Churchill, 11 Met. 538; State v. Sa- ter, 8 Iowa, 420; Kilburn v. Muller, 22 Iowa, 498 ; State v. O'Neil, 4 Ired. 88; People v. Yslas, 27 Cal. 630; though see Carpenter v. Wall, 11 Ad. & El. 803; Sharp v. Scoging, Holt N. P. R. 641 ; Johnson u. People, 3 Hill (N. Y.), 178; Wright t. Paige, 36 Barb. 143; State v. Boswell, 2 Dev. L. 209; State v. Shields, 13 Mo. 236; State u. Breeden, 58 Mo. 507; Hume V. Scott, 3 A. K. Marsh. 261 ; Gilham V. State, 1 Head, 88. 507 § 563.] THE LAW OF EVIDENCE. [book II, has been held inadmissible, in order to attack veracity, to prove the bad character of a female witness for chastity, or to show that she is a prostitute ; ^ or to prove habits of intemperance, which do not affect the perceptive or narrative powers.^ § 563. The impeaching witness, it has been frequently ruled, Questions must be asked, as a preliminary question, as to the fined to"' impeached witness's general cjiaracter or reputation for reputation truth and veracitv in the community in which he has for verae- ^ ^ ^ '^ ity. lived.^ It is inadmissible to ask what character the impeached witness had in a neighborhood in which he was a non- resident ; * or at a period long prior to that of the trial.^ But evidence of bad reputation for veracity four years previous to the trial is held admissible to impeach a witness who had no fixed domicil, and had been out of the state over a year of the time, and whose residence at the place of such reputation was as long as at any other.^ A stranger sent into a community to 1 Low V. Mitchell, 6 Shep. 372; Hagenbauch, 25 111. 233 ; Simmons w. Wilds u. Blanchard, 7 Vt. 141 ; Spears «. Forrest, 15 Vt. 435 ; Com. v. Churchill, 11 Met. 530, overruling Com. V. Murphy, 14 Mass. 387; Com. V. Billings, 97 Mass. 405; Jackson v. Lewis, 13 Johns. R. 504 ; Bakeman w. Rose, 14 Wend. 105; Gilchrist v. Mc- Kee, 4 Watts, 380; Dimick v. Downes, 82 111. 570 ; Kilburn v. Mullen, 22 Iowa, 498; Pleasant v. State, 15 Ark. 624; People «. Yslas, 27 Cal. 630; State V. Larkin, 11 Nev. 314. See Indianapolis R. R. u. Anthony, 43 Ind. 183. The rule in the text has been applied to the prosecutrix in bastardy cases. Rawles v. State, 56 Ind. 433. ^ Thayer v. Boyle, 30 Me. 375; Hoitt V. Moulton, 21 N. H. 586. See supra, §§ 48-56. ' Teese v. Huntingdon, 23 How. 2 ; U. S. t>. Vansickle, 2 McLean, 219; Knode v. Williamson, 17 Wall. 586; State V. Randolph, 24 Conn. 863; People V. Mather, 4 Wend. 229 ; At- wood V. Impson, 20 N.J. Eq. 150; Bogle V. Kreitzer, 46 Penn. St. 465; Bucklin V. State, 20 Ohio, 18 ; French ti. Millard, 2 Ohio St. 44 ; Crabtree v. 608 Holster, 13 Minn. 249 ; Keator v. People, 32 Mich. 484; Boswell v. Blackman, 12 Ga. 591 ; Stokes u. State, 18 Ga. 17; Smithwick v. Evans, 24 Ga. 461; Pleasant v. State, 15 Ark. 624. See Bates v. Barber, 4 Cush. 107; Com. I). Lawler, 12 Allen, 585 ; Gra- ham V. Chrystal, 2 Abb. (N. Y.) App. 263. ^ Boynton v. Kellogg, 3 Mass. 192; Conkey «. People, 5 Parker C. R. 31; Wike f. Lightner, 11 Serg. & R. 198; Griffin v. State, 14 Ohio St. 55; Chance v. R. R. 32 Ind. 472; Webber V. Hanke, 4 Mich. 198; Campbell ». State, 23 Ala. 44. See Sleeper v. Van Middlesworth, 4 Denio, 431 ; Rathbun ii. Ross, 46 Barb. 127; Holmes v. Stateler, 17 111. 453. See supra, § 49. 6 State V. Howard, 9 N. H. 485; Rogers v. Lewis, 19 Ind. 405; Aurora ■0. Cobb, 21 Ind. 492. See Com. u. Billings, 97 Mass. 405 ; People v. Abbott, 19 Wend. 192, as indicating limits as to time. •" Keator v. People, 32 Mich. 484. See Blackburn t>. Mann, 85 111. 222. CHAP. VIII.] WITNESSES : HOW IMPEACHED. [§ 565. learn the character of a witness is not competent to testify as to such character.^ § 564. " Character," in the sense in which it is used in the questions so authorized, is to be viewed as convertible with repu- tation. ^ It is true that " in many cases, it has been said, the regular mode of examining is to inquire whether the witness knows the general character of the person whom it is intended to impeach ; but in all such cases the word ' character ' is used as synonymous with reputation. What is wanted is the common opinion, that in which there is general concurrence ; in other words, general reputation or character attributed. That is pre- sumed to be indicative of actual character, and hence it is re- garded as of importance when the credibility of a witness is in question." ^ But while particular facts are inadmissible on this issue, general reputation only being the question, on cross-ex- amination, as we will see, a witness attacking character may be tested as to details.* § 565. Unless the court is satisfied that the impeaching wit- ness has adequate means of knowledge, he will not be admitted ; ^ though this is in Massachusetts left to the discretion of the court.^ It is generally sufficient if the witness says he can speak of the general sense of such of the community as are acquainted with the impeached witness, or among whom the impeached witness moves.' Supposing the impeaching witness be shown to be com- petent to express an opinion, he may then be asked whether he would believe the impeached witness on his oath.* But it has 1 Reid V. Reid, 17 N. J. Eq. 101. 336 ; Crabtree v. Kile, 21 III. 280 ; 2 Supra, § 49. Hadjo v. Gooden, 13 Ala. 718; Dave ' Strong, J., Knode v. Williamson, v. State, 22 Ala. 23 ; Elam v. State, 17 Wall. 588. See other cases supra, 25 Ala. 53 ; Ward v. State, 28 Ala. §49. 53. * Infra, § 565. See, particularly, ' R. u. Brown, 10 Cox C. C. 453; supra, § 49, to the position that dis- S. C. L. R. 1 C. C. 70 ; Mawson v. paraging facts cannot be introduced. Hartsink, 4 Esp. 103 ; Titus v. Ash, 4 5 King V. Ruckman, 20 N. J. Eq. Foster, 319; People u. Mather, 4 Won- 316; Kelley v. Proctor, 41 N. H. 139; dell, 457; People i;. Rector, 19 Wen- State V. Parks, 3 Ired. L. 266; State dell, 569; Bogle v. Kreitzer, 46 Penn. V. Speight, 69 N. C. 72. St. 465; Lyman v. Philadelphia, 56 " Wetherbee v. Norris, 103 Mass. Penn. St. 438; Knight v. House, 29 565. See, however, Walker v. Moors, Md. 194; Hillis v. Wylie, 26 Ohio St. 122 Mass. 501. 574, overruling Craig v. State, 5 Ohio ' Kimmel v. Kimmel, 3 Serg. & R. St. 605 ; Eason v. Chapman, 21 111. 509 § 565.J THE LAW OF EVIDENCE. [book II. been held not essential, in order to throw discredit on the im- peached witness, that the impeaching witness should state that 33; Hamilton v. People, 29 Mich. 185; Keator v. People, 32 Mich. 484; Wil- son V. State, 3 Wis. 798 ; Stokes v. State, 18 Ga. 17 ; McCutchen v. Mc- Cutchen, 9 Port. 650; Mobley v. Ha- mit, 1 A. K. Marsh. 590; Henderson V. Hayne, 2 Mete. (Ky.) 342 ; Ford v. Ford, 7 Humph. 92; Hooper v. Moore, 3 Jones (N. C.) L. 428; Stevens v. Irwin, 12 Cal. 306; People v. Tyler, 35 Cal. 553. See Gass v. Stinson, 2 Sumn. 610; Kimmel v. Kimmel, 3 S. & R. 336; Wike v. Lightner, 11 S. & R. 198. The right to put such a question is disputed by Mr. Greenleaf, vol. i. § 461; but is vindicated at length by Campbell, J., in Hamilton v. People, 29 Mich. 185, from whose opinion we extract the following : — " So far as the reports show, the American decisions, instead of shak- ing the English doctrine, are very de- cidedly in favor of it, and have so held upon careful and repeated examina- tion, and we have not been referred to, nor have we found any considera- ble conflict. See, in New York, Peo- ple V. Mather, 4 Wend. R. 229 (which was the view of Judge Oakley, no opinion being given by his associate) ; People t. Rector, 19 Wend. R. 569; People V. Davis, 21 Wend. 309; in New Hampshire, Titus v. Ash, 4 Fos- ter, 319; in Pennsylvania, Bogle's Ex'rs V. Kreitzer, 46 Penn. St. 465; Lyman v. Philadelphia, 56 Penn. St. 488; in Maryland, Knight u. House, 29 Md. 194; in California, Stevens V. Irwin, 12 Cal. 306; People u. Ty- ler, 35 Cal. 553 ; in Illinois, Eason v. Chapman, 21 111. 33; in Wisconsin, Wilson V. State, 3 Wis. 798 ; in Geor- gia, Stokes V. State, 18 Ga. 17 ; Tay- lor V. Smith, 16 Ga. 7; in Tennessee, Ford V. Ford, 7 Humph. 92; in Ala- 510 bama, McCutchen v. McCutchen, 9 Port. 650 ; in Kentucky, Mobley v. Hamit, 1 A. K. Marsh. 590; also in Judge McLean's Circuit, in U. S. v. Vansickle, 2 McLean, 219. " Mr. Greenleaf himself intimates that it might be a proper inquiry on cross-examination. We think the in- quiry proper, when properly confined and guarded, and not left to depend on any basis but the reputation for truth and veracity. And we also think that the cross-examination on im- peaching or sustaining testimony should be allowed to be full and searching." Campbell, J., Hamilton V. People, 29 Mich. R. 185. See, as dissenting, Phillips v. Kingfield, 1 Appleton, 375; and see Webber v. Hanke, 4 Mich. 198. The Massachusetts practice in this respect is thus stated: " The ruling of the presiding judge, that each of the witnesses called to impeach the plain- tiff should be first asked the question, ' Do you know the reputation of the plaintiff for truth and veracity ? ' is not the subject of exceptions. The practice upon this subject differs in different courts. In this state, no practice is established as a rule of law, but it is within the discretion of the presiding judge to require the prelim- inary question above stated to be asked of each witness, if he shall deem that the interests of justice re- quire it. The same principle is ap- plicable to the examination of wit- nesses upon other subjects. It often occurs, in the trial of cases, that the judge is called upon to inquire of a witness whether he has knowledge of the matter of which he is called to testify. If it appears to be doubtful whether the witness understands and appreciates his duty to testify only to CHAP. VIII.J WITNESSES : HOW IMPEACHED. [§ 566. he would not believe the impeached witness on his oath.^ The impeaching witness, who has sworn as to the bad character of the impeached witness for truth, may be asked on cross-examina- tion as to who he had heard thus disparage the impeached wit- ness ; ^ and as to what other grounds he had for his conclusion.^ The court may, at its discretion, limit the number of impeaching witnesses to be examined.* § 566. As we have seen,^ it is competent, ground being first duly laid by cross-examination, to impeach a witness Bias may by showing his bias. For this purpose it is admissible ^^ shown, to prove near relationship, sympathy, hostilities as evidenced by a quarrel, and prejudice as to the particular case, so far as is ex- what he knows of his own knowledge; or if, for any reason, there is danger that he may testify to hearsay ; it is the right, and may he the duty, of the presiding judge to inquire of him whether he has knowledge of the matter as to which he is asked to testify; and the party calling the wit- ness would not be thereby aggrieved, and no exceptions would lie. So, in the examination of impeaching wit- nesses, if the presiding judge sees that there is danger that the witness, in answer to the usual question, ' What is his general reputation for truth and veracity?' may give incompetent tes- timony, either because he fails to un- derstand the exact character of the question, or for any other reason, he may require the witness first to be asked whether he knows what that reputation is. Whether the circum- stances of this case required the pre- liminary question to be put, was a matter within the judicial discretion of the presiding judge, and cannot be revised on exceptions. " The case at bar is clearly distin- guishable from the case of Bates v. Barber, 4 Cush. 107. In that case, the presiding judge directed that the witnesses must be first examined as to their knowledge and means of knowl- edge of the character of the witness attempted to be impeached, and upon such examination assumed the right to decide whether the witness offered had sufficient knowledge to qualify him to testify. In this case, the pur- pose and effect of the preliminary question appears to have been merely to ascertain whether the witness had any knowledge of the general reputa- tion of the impeached witness, and not to inquire into the extent or means of such knowledge. The only witness rejected was rejected because he did not appear to have any knowledge; not because the amount of his knowl- edge was not satisfactory to the court." Morton, J., Wetherbee i. Norris, 103 Mass. 566. 1 People V. Tyler, 35 Cal. 353. 2 Bates V. Barber, 4 Cush. 197 ; Weeks v. Hull, 19 Conn. 376; Lower V. Winters, 7 Cow. 263; People v. Annis, 13 Mich. 511; State v. Perkins, 66 N. C. 126. Infra, § 568. 2 Pierce v. Newton, 13 Gray, 528; Titus V. Ash, 24 N. H. 319; Bullard V. Lambert, 40 Ala. 204. * Bunnell v. Butler, 23 Conn. 65; Bissell t'. Cornell, 24 Wend. 354; Gray V. St. John, 35 111. 222 ; Cox v. Pruitt, 25 Ind. 90. 6 Supra, § 408. 511 § 656.] THE LAW OF EVIDENCE. [book II. hibited by declarations and acts.^ When the object is to proTS hostile declarations or acts, the witness must first be cross-exam- ined as to such declarations or acts, so that he may have an op- portunity for explanation.^ A witness cannot, it is said, be asked if he is not prejudiced against a particular party. He must be asked as to particular facts or conditions.^ A witness may be impeached by proof that he stated, after having testified, that he had been hired so to do.* 1 Davis V. Koby, 64 Me. 430; Drew V. Wood, 26 N. H. 363; Carr v. Moore, 41 N. H. 131 ; Hutchinson v. Wheeler, 35 Vt. 330; Long i>. Lamkin, 9 Gush. 3-6 1; Day v. Stickney, 14 Allen, 255; Swett V. Shumway, 102 Mass. 365; Atwood V. Weltou, 7 Conn. 66 ; Dag- gett V. Tallman, 8 Conn. 168 ; People V. Kector, 19 Wend. 569; Howell v. Ashmore, 22 N. J. L. 261 ; Magehan V. Thompson, 9 Watts & S. 54 ; Gang- were's Est. 14 Penn. St. 417; Bat- dorflf V. Bank, 61 Penn. St. 183; Kay V. Bell, 24 111. 444; First Nat. Bk. u. Haight, 55 111. 191; Bersoh v. State, IS Ind. 434; Conkey v. Post, 7 Wis. 131; State v. Oscar, 7 Jones (N. C.) L. 305; Bishop v. State, 9 Ga. 121; Martin v. Martin, 25 Ala. 201 ; Head V. State, 44 Miss. 731; State v. Mont- gomery, 28 Mo. 594 ; Ward v. Valen- tine, 7 La. An. 184; Tardif u. Bau- doin, 9 La. An. 127; Cornelius v. State, 12 Ark. 782. See Chelton v. State, 45 Md. 564. Supra, §§ 551, 561. 2 Day i;. Stickney, 14 Allen, 256 ; Edwards v. Sullivan, 8 Ired. L. 302 ; McHugh V. State, 31 Ala. 317 ; though see New Portland v. Kingfield, 55 Me. 172 ; Martin v. Barnes, 7 Wis. 239. As to the efif'ect of interest on credibility, see supra, § 408; Carver v. Louthain, 38 Ind. 530; Mathilde v. Levy, 24 La. An. 421. Supra, §§ 551, 561. " Cornelius v. State, 12 Ark. 782. " A witness may be impeached by showing a bias or prejudice, or gross misconduct in reference to the cause 612 in which his testimony is given. Mrs. Smith was a witness. She was im- peached by proof from her own lips that she knew nothing about the case but what her husband had told her, and that he had told her the story she must tell; with a caution, that she must tell the same story twice alike, or she would spoil all. The authori- ties all show that a witness may be thus impeached. Chapman v. Coffin, 14 Gray, 454; Day v. Stickney, 14 Al- len, 255; Swett v. Shumway, 102 Mass. 365 ; New Portland v. Kingfield, 55 Me. 172. Certainly, a statement that she knew nothing about the case except what was told her is a contra- diction of any statement as to her knowledge." Appleton, C. J., Davis V. Roby, 64 Me. 430. * McGinnis v. Grant, 42 Conn. 77. " To show bias on behalf of the wit- ness was the right of the defendant, if he could. In Cameron v. Montgomery, 13 S. & R. 128, it was held that the party against whom a witness has tes- tified may show anything which might in the slightest degree affect his cred- it, and the judgment in that case was reversed, because the court below re- fused to allow the witness to be asked, ' whether the plaintiff did not buy (the witness's) property at his (the wit- ness's) instance ? ' 'It was a circum- stance,' said Tilghman, C. J., ' which might show that the witness was under obligation to him, and this might have had some effect on his evidence, by CHAP. VIII.J WITNESSES : HOW IMPEACHED. [§ 567. § 567. We have already noticed ^ that in most states a con- viction of an infamous crime no longer renders a per- infamous son incompetent as a witness. The record of convic- may'be™ tion, however, by the law of several jurisdictions, may ^gggf^^' be put in evidence in order to impeach credibility.^ credibility. Under the Massachusetts General Statutes the conviction of any crime may be shown for this purpose.^ Such conviction, as we have already seen, must be proved by record ; * though- it is ad- missible to ask a witness whether he has not been in the peni- tentiary.^ A verdict of guilty, without judgment, is not a " con- viction." ^ But a pardon does not preclude such conviction from being put in evidence.^ exhibiting a bias.' We cited and ap- proved this rule in Ott v. Heighten, 6 Casey, 451 ; and reversed in that case because it had been disregarded on the trial below." Thompson, C. J., Bat- dorff u. Bank, 61 Penn. St. 183. 1 Supra, § 397. 2 State V. Watson, 65 Me. 74; Com. V. Knapp, 9 Pick. 49; Com. v. Gor- ham, 99 Mass. 420; Real, in re, 55 Barb. 186 ; Donahue v. People, 56 N. J. 208. See Dickinson o. Dustin, 21 Mich. 561 ; Glenn v. Clove, 42 Ind. 62; Jefferson R. R. v. Riley, 39 Ind. 368; Johnson v. State, 48 Ga. 116. 8 Cora. V. Hail, 4 Allen, 305. ■■ Supra, §§ 63, 64, 541 ; infra, § 991. 5 Supra, § 64 ; infra, § 991 ; Real v. People, 42 N. Y. 270, and cases cited supra, § 541. In Frost v. Holloway, 1 Stark, on Ev. 177, the question was allowed and an answer compelled by Lord Ellenborough. To the same ef- fect, when the object is honestly to discredit, see State v. Pike, 65 Me. Ill; Real v. People, 42 N. Y. 270; Howser v. Com. 51 Penn. St. 332; State V. March, 1 Jones (N. C.) 526; State V. Garrett, Busbee, 357; Wil- bur u. Flood, 16 Mich. 40; People v. Manning, 48 Cal. 335; People v. Chin, 51 Cal. 597, by statute. See contra, VOL. I. 33 Johnson v. State, 48 Ga. 116. The rule is limited in Nevada to convic- tions in cases which affect credit. See State V. Huff, 11 Nev. 17. * See cases cited supra, § 897; in- fra, § 824. ' The authorities to this effect are well grouped in the following opin- ion: — "If the king pardon these offend- ers, they are thereby rendered com- petent witnesses, though their credit is to be still left to the jury, for the king's pardon takes away poenam et culpam inforo Jiumano .... but yet it makes not the man always an hon- est man." 2 Hale P. C. 278; King V. Castlemain, 7 How. St. Tr. 1109, 1110; King v. Rookwood, 13 How. St. Tr. 185, 186; 1 Stark. Ev. 99; Peake Ev. 132; McNally Ev. 232, 234 ; 1 Gilbert Ev. (by Lofft, ed. of 1791), 260; 1 Phillipps Ev. (old ed.) 29; 1 Gr. Ev. § 377; 2 Saund. PI. & Ev. 1275; 2 Arch. Crim. Pr. & PI. 155; 1 Arch. N. P; 29; Bac. Abr. Pardon (H.); 3 Wooddeson, Lectures on Laws of Eng. 284; Wharton Cr. L. (6th ed.> § 765; 1 Bishop Cr. L. § 763 ;- 2 Hargrave Juridical Argu- ments, 221, 283, 260, 267; 2 Russell on Cr. 975, note; Roscoe Gr. Ev. 137, note; 2 Am. L. Reg. N. S. 488; U. 513 § 568.] THE LAW OF EVIDENCE. [BOOK II. 211. ATTACKING AND SUSTAINING IMPEACHING WITNESS. § 568. The character of an impeaching witness for truth and veracity inay be itself attacked,^ and may be sustained ing witness by Countervailing proof.^ The impeaching witness's op- tacLd and portunities of observation, or prejudice, may be assailed sustained. ^^ crosS-examination ; ^ and he may be required, as we have seen,* to specify the persons who have spoken disparagingly of the impeached witness.^ S. V. Jones, 2 Wheeler Cr. Cases, 451; Baum v. Clause, 5 Hill, 196; Carpenter v. Nixon, 5 Hill, 260; New- comb V. Griswold, 24 N. Y. 300; 'Gardner v. Bartholomew, 40 Barb. 325; Com. v. Green, 17 Mass. 515, 550, 551 ; Com. v. Rogers (Pamph. Rep.), 39, 148, 179, 180, 231, 249, 256, 271; Hoffman v. Coster, 2 Whar- ton, 453, 462 ; Howser v. Com. 51 Penn. St. 332, 340 ; Anglea v. Com. 10 Grat. 696, 698, 699, 703, 704 ; 2 Hume Cr. L. 844; Glassford Ev. 413. " A person convicted of an offence known in law as infamous is incapac- itated to be a witness, because, when his guilt is established by conviction, his general character for truth is shown to be so bad that his testimony would be useless or dangerous. 1 Gr. Evid. § 372; 1 Stark. Evid. 94. That is the theory of the common law. The conviction is an impeachment and con- demnation of his general character for truth. A pardon is not presumed to be granted on the ground of inno- cence or total reformation. Cook v. Middlesex, 2 Dutcher, 326, 331, 333 ; 4 Bl. Com. 397, 400; 3 Inst. 233, 238; 2 Hawk. P. C. ch. 37, § 8; Com. v. Halloway, 44 Penn. 210. It removes the disability, but does not change the common law principle that the convic- tion of an infamous offence is evidence of bad character for truth. The gen- eral character of a person for truth, 614 bad enough to destroy his competency as a witness, must be bad enough to affect his credibility when his compe- tency is restored by the executive or legislative branch of the government. " It the party against whom an in- famous person is offered as a witness had the election of using the convic- tion as a ground of exclusion, or of an attack upon the credit of the witness, the testimony of the witness might be warped by the fear of impeachment and the hope of avoiding it ; and that may be a sufficient reason for not al- lowing such election. " When the character of a par- doned witness is impeached by the record of his conviction, it would seem that his character may be sus- tained by appropriate evidence." Doe, J., Curtis V. Cochran, 50 N. H. 244. * Long V. Lamkin, 9 Cush. 361 ; Starks v. People, 5 Denio, 106 ; State I'. Brant, 14 Iowa, 180; State v. Moore, 25 Iowa, 128; State v. Cherry, 63 N. C. 493. » Lemons v. State, 4 W. Va. 765. * Mawson v. Hartsink, 4 Esp. 103; Phillips V. Kingfield, 1 Appleton, 375; Long V. Lamkin, 9 Cush. 361 ; State V. Howard, 9 N. H. 485; Weeks v. Hull, 19 Conn. 376 ; Berry v. State, 31 Ohio St. 195 ; Stewart v. People, 23 Mich. 63 ; Arnold v. Nye, 23 Mich. 286; Durham v. State, 45 Ga. 516. * Supra, § 565. 6 Weeks v. Hull, 19 Conn. 376 ; CHAP. Vlil.] WITNESSES : HOW SUSTAINED. [§ 569. XIIJ. SUSTAINING IMPEACHED WITNESS. § 569. When a witness's character for truth and veracity has been impeached, the party calling him may sustain him impeached by calling witnesses to show that his character for truth ^^y^be and veracity is good, and that the sustaining witnesses sustained. would believe him on his oath.^ The inquiries, in such case, may range over the witness's whole prior history in other places. ^ Such rebutting evidence is made admissible by the mere fact that the impeaching party examines an impeaching witness as to the impeached witness's character for truth, though the impeach- ing witness answers favorably.^ It is further held that such evidence may be admitted on particular discrediting facts being developed against the witness on his cross-examination,* espe- cially when he is in the situation of a sttanger, testifying to iso- lated facts. ^ A fortiori is this the case when the opposing party introduces, as part of his case, evidence directly reflecting on the veracity of the witness.^ Thus, a witness's character is so far impeached by putting in evidence his conviction of a felony, that evidence is admissible of his good reputation for truth.' A mere conflict of testimony, however, will not justify introduction Lower v. Winters, 7 Cow. 263 ; State Moras v. Palmer, 15 Penn. St. 51 ; i;. Perkins, 66 N. C. 126. Stratton u. State, 45 Ind. 468. See 1 R. V. Murphy, 19 How. St. Tr. People ti. Davis, 21 Wend. 309 ; 724 ; E. V. Clarke, 2 Stark. K. 241 ; Adams v. Ins. Co. 70 N. Y. 166 ; Anglesea v. Anglesea, 17 How. St. State w. Lanier, 79 N. C. 622. Tr. 1340; Com. v. Ingraham, 7 Gray, ' Com. v Ingraham, 7 Gray, 46. 46; Troup u. Sherwood, 3 Johns. Ch. ^ See Harrington v. Lincoln, 4 558; Frazier v. People, 54 Barb. 806; Gray, 563; People v. Rector, 19 Wend. People V. Davis, 21 Wend. 309; Ly- 569; Webb u. State, 29 Ohio St. 351; man U.Philadelphia, 56 Penn. St. Lewis w. State, 35 Ala. 380; People u. 488; Bucklin v. State, 20 Ohio, 18; Ah Fat, 48 Cal. 62. Lemons v. State, 4 W. Va. 755; Cook ' Merriam v. R. R. 20 Conn. 354. V. Hunt, 24 111. 535; Clark v. Bond, See Brown v. Mooers, 6 Gray, 451. 29 Ind. 555; Harris v. State, 30 Ind. ° Prentiss v. Roberts, 49 Me. 127 ; 131; Clem u. State, 33 Ind. 419; Tay- Isler v. Dewey, 71 N. C. 14. See lor V. Smith, 16 Ga. 7; Artope v. George u. Pitcher, 28 Grat. 299. Goodall, 53 Ga. 318; McCutchen v. ' 2 Phil. Ev. (5th Am. ed.) 95; McCutchen, 9 Port. 350; Hadjo v. State v. Roe, 12 Vt. Ill ; Paine v. Gooden, 13 Ala. 718; State u. Cherry, Tilden, 20 Vt. 554. See, however, 63 N. C. 493 ; Glaze i;. Whitley, 5 Doe v. Harris, 7 C. & P. 330; People Oregon, 164. v. Amanacus, 50 Cal. 233. » Burrell v. State, 18 Tex. 713 ; 515 § 570.] THE LAW OF EVIDENCE. [book II. of evidence thus to bagk up the witnesses thus conflicting.^ Nor can such testimony be received, so it has sometimes been ruled, merely upon proof of prior conflicting statements of the witness.^ Nor, after a record of a conviction has been introduced in order to discredit a witness, is it admissible to sustain him by evidence of his innocence of the offence of which he was con- victed,^ or of general good character, as distinguished from repu- tation for truth.* If it should appear that he was acquitted on a criminal trial, exculpatorj' evidence is, as a rule, inadmissible.^ When a witness has been impeached on his cross-examination, it has been held admissible, at the discretion of the court, to sus- tain him by letters to him from the adverse party expressive of high esteem,^ and by other corroborative facts.'^ The witness may be recalled to substantiate his own testi mony." When a witness is assailed on the ground that he nar- rated the facts differently on former occasions, it is ordinarily incompetent to sustain him by proof that on other occasions his statements were in harmony with those made on the trial.^ Thus the declarations of a §570. But not ordinarily by proof of former consistent statements. 1 Durham v. Beaumont, 1 Camp. 207; Leonori v. Bishop, 4 Duer, 420; Starks v. People, 5 Denio, 106 ; Rog- ers V. Moore, 10 Conn. 13 ; Braddee V. Brownfield, 9 Watts, 124; Wertz v. May, 21 Penn. St. 274 ; Vernon v. Tucker, 30 Md. 456; Pruitt v. Cox, 21 Ind. 15 ; Johnson v. State, 21 Ind. 329 ; Mobile R. R. v. "Williams, 54 Ala. 168. See, however. People v. Schweitzer, 23 Mich. 301 ; Davis v. State, 38 Md. 15, 50; Wade v. Thayer, 40 Cal. 478. 2 Brown V. Mooers, 6 Gray, 451 ; Frost V, McCargar, 29 Barb. 617; Webb V. State, 29 Ohio St. 351 ; Stamper v. Griffin, 12 Ga. 450; New- ton u. Jackson, 23 Ala. 335. See, however, Paine v. Tilden, 20 Vt. 554; Sweet V. Sherman, 21 Vt. 23 ; Clark I). Bond, 29 Ind. 555 ; Isler v. Dewey, 71 N, C. 14; Hadjo v. Gooden, 13 Ala. 718. See Russell v. Coffin, 8 Pick. 143. 616 8 State V. Watson, 65 Me. 74 ; Gard- ner V. Bartholomew, 40 Barbour, 325. * Hey wood v. Reed, 4 Gray, 574; People V. Gay," 7 N. Y. 378. ^ Harrington v. Lincoln, 4 Gray, 63. « Stacey v. Graham, 14 N. Y. 492. ' Harris v. Rosenberg, 55 Ind. 535 ; Berdell v. Berdell, 80 III. 804; Buie v. Carver, 75 N. C. 559. * State V. George, 8 Ired. L. 324. 9 R. V. Parker, 3 Dougl. 242; Berke- ley Peerage case, cited 2 Ph. Ev. 445 ; EUicott V. Pearl, 10 Pet. 412; Conrad V. Griffey, 11 How. 480; State v. Holmes, 1 Cliff. 98 ; Ellicott v. Pearl, 1 McLean, 206; Ware v. Ware, 8 Greenleaf, 42; State v. Kingsbury, 58 Me. 238; Judd v. Brentwood, 46 N. H. 430; Munson v. Hastings, 12 Vt. 348 ; Deshon t;. Ins. Co. 11 Met. (Mass.) 199; Com. v. Jenkins, 10 Gray, 485 ; Robb v. Hackley, 23 Wend. 50; Dudley v. BoUes, 24 Wend. CHAP. VIII.] WITNESSES : HOW SUSTAINED. [§ 670. complainant in bastardy, whether made before or after her formal accusation upon oath, as to the paternity of her child, have been held inadmissible in evidence, when offered by her, either to show constancy or strengthen her credit; since they have no tendency to do either. They are no proof, such are the reasons, that entirely different statements may not have been made at other times, and are therefore no evidence of constancy in the accusation ; and if her sworn statements are of doubtful credi- bility, those made without the sanction of an oath, or its equiva- lent, cannot corroborate them.^ On the other hand, where the opposing case is that the witness testified under corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, it is but proper that such evidence should be rebutted.^ It has consequently been ruled that statements made by a witness corroborating his evidence upon the trial, such statements being uttered soon after the transaction in litigation, and at a time when the witness could not have been subjected to any disturbing influences, are com- petent when proof has been offered to impeach him, by showing that he had recently fabricated the narrative, or that he testified corruptly.^ The witness called to corroborate the impeached wit- 465 ; Butler v. Truslow, 11 Barb. 404; " Russell (vol. 3, p. 593) holds that Smith V. Stickney, 17 Barb. 489 ; the better opinion seems to be, that Com.!). Carey, 2 Brewst. 404; State such evidence is not admissible, ex- V. Thomas, 3 Strobh. 269; Nichols v. cept in cases where the counsel on the Stewart, 20 Ala. 358 ; Riney v. Val- other side impute a design to misrep- landingham, 9 Mo. 817; Queener v. resent from some motive of interest or Morrow, 1 Coldw. 123. relationship; 2 Phillipps, 446 ; 1 Stark. 1 Sidelinger v. Bucklin, 64 Me. 371. Ev. 253 ; R. v. Neville, 6 Cox Cr. C. ' Taylor's Ev. § 1330; Henderson 69. Phillipps agrees with Buller, R. t'. V. Jones, 10 Serg. & R. 410; Cook v. Parker, 2 Doug. 260, and the Berke- Curtis, 6 Har. & J. 86; Stolp v. Blair, ley Peerage case ; but is opposed to 68 III. 543 ; Coffin v. Anderson, 4 Luttrell v. Reynell, 1 Mod. 282 ; R. v. Blackf. 395 ; Daily v. State, 28 Ind. Friend, 13 How. St. T. 32 ; Reg. v. 285 ; Clark v. Bond, 29 Ind. 555 ; Harrison, 12 H. 861 ; Gilbert on Ev. Brookbank h. State, 55 Ind. 169; 135, and Hawkins' Pleas of the Crown, State V. Vincent, 24 Iowa, 570; Green 2, 38, 48." London Law Times, May V. Cochran, 45 Iowa, 544 ; State v. 25, 1878. George, 8 Ired. (L.) 324 ; State v. See Third Turnpike Co. v. Loorais, Dove, 10 Ired. (L.) 469; March v. 32N.Y. 127, La Beau y. People, 34 N. Harrell, 1 Jones (L.) 329; Lyles v. Y. 223. Lyles, 1 Hill Ch. (S. C.) 76 ; People » French v. Merrill, 6 N. H. 465 ; V. Doyell, 48 Cal. 85. Hotchkiss v. Ins. Co. 5 Hun (N. Y.), 517 § 571.] THE LAW OF EVIDENCE. [book II. ness in this respect is usually confined to the fact that the state- ment was made to him (as stated by the impeached witness) and is not permitted to give the particulars of the statement.^ § 671. Ordinarily a party should introduce successively, and Witness before he closes, all the evidence he has to sustain the conobo- essential averments of his case. It may happen, how- rated at ever, that one of his material witnesses may be unex- discretion ' , n t i of court. pectedly attacked, and the suit be made to depend upon 91 ; Com. v. Wilson, 1 Gray, 83. See State V. Dennin, 32 Vt. 158 ; Deshon V. Ins. Co. 11 Met. 199 ; Jackson v. Etz, 5 Cow. 314 ; Maitland v. Bank, 40 Md. 540 ; State v. Parish, 79 N. C. 610; and Dossett v. Miller, 3 Sneed, 72. ' ' This court, in Gates v. The Peo- ple, 14 111. 434, recognized the exist- ence of a conflict of authority upon the question whether the former dec- larations of a witness, whose credibil- ity is attacked, may be given in evi- dence to corroborate his testimony, but did not find it necessary in that case to determine in regard to the general rule, as that case came within one of the admitted exceptions to the rule of exclusion. " We find the decided weight of authority to be, that proof of declara- tions made by a witness out of court, in corroboration of testimony given by him on the trial of a cause, is, as a general rule, inadmissible, even after the witness has been impeached or dis- credited; and we are satisfied with the correctness of the rule. The follow- ing may be referred to among the au- thorities sustaining such rule : 2 Phil. Ev. 6th ed. 978, marginal; 1 Stark. Ev. 147; 1 Greenl. Ev. § 469; Kobb V. Hackley, 23 Wend. 50; Gibbs v. Linsley, 13 Verm. 208; EUicott v. Pearl, 10 Pet. 412; Conrad v. Griffey, 11 How. 480. A collection of cases upon the subject, on either side, will be found in the notes to 2 Phillipps, 618 by Cowen & Hill, 979, marginal, and in the case cited from 11 Howard. " In some places, as in England and New York, the rule has been adopted in the place of a prior contrary one. As recognized in Gates v. The People, supra, the authorities agree that the former statements may, in some in- stances, be introduced for the purpose of sustaining his testimony; as, where he is charged with testifying under the influence of some motive prompt- ing him to make a false statement, it may be shown that he made similar statements at a time when the imputed motive did not exist, or when motives of interest would have induced him to make a different statement of facts. So, in contradiction of evidence tend- ing to show that the witness's account of the transaction was a fabrication of a recent date, it may be shown that he gave a similar account before its effects and operation could be fore- seen. In some cases the admission of the confirmatory statement has been confined to the sole case of an im- peachment by a contradictory state- ment of the witness; and again, such confirmatory statements have been held to be especially not admissible, it they were made subsequent to the con- tradictions proved on the other side, in EUicott v. Pearl, supra, and Conrad V. Griffey, supra." Sheldon, J., Stolp V. Blair, 68 111. 548. 1 K. 1). Neville, 6 Cox C. C. 69. CHAP. VIII.] WITNESSES : REEXAMINATION. [§ 573. the veracity of such witness. In such case it is admissible not merely to sustain the character of the witness when impeached, but to introduce, at the discretion of the court, evidence to cor- roborate the witness's statements. The exercise of this discre- tion is also sometimes prompted by a due regard for time and expense. A party may have a hundred witnesses to prove a particular point ; but if the point should seem uncontested, he may properly content himself with calling one. It would be a hard measure to prohibit him from subsequently calling other witnesses, under such circumstances, to sustain the witness first called.^ The point of such corroboration, however, must be material.^ XIV. EEEXAMINATION. § 572. As to matters that require explanation, or as to new matter, introduced by the opposing interest, a party has p^^j. ^ a right, in rebuttal, to remould his case. As to new reexamine . . witness. matter, however, he cannot ordinarily reexamine.^ It has been said, in qualification of this limitation, that where a witness has been shown to have formerly made inconsistent state- ments out of court, he may be asked to explain the motive and circumstances of such statements,* or generally, to explain or modify what he has said.^ § 573. It is also said that when a witness is cross-examined as > Boston R. R. V. Dana, 1 Gray, 83; Somerville R. R. v. Doughty, 22 N. J. Richardson v. Stewart, 4 Binn. 198; L. 495; McCracken u. West, 17 Ohio, Losee )'. Mathews, 61 N. Y. 627; 16; Great West. R. R. w. Haworth, Wickenkamp u. Wickenkamp, 77 111. 39 111.346; Wickenkamp u. Wicken- 92; Fain v. Edwards, Busbee L. 64; kamp, 77 111. 92; Farmers' Bank u. Outlaw V. Hurdle, 1 Jones (N. C.) L. Young, 36 Iowa, 45 ; Jaspers v. Lane, 150; Johnw. State, 16 Ga. 200; Bru- 17 Minn. 296; Campbell u. State, 23 ton V. State, 21 Tex. 337. Ala. 44; Babcock v. Babcock, 46 Mo. ' McClintock v. Whittemore, 16 N. 243; State v. Denis, 19 La. An. 119 ; H. 268; Wiggin v. Plumer, 31 N. H. State u. Scott, 24 La. An. 161; Bay- 251. See infra, § 572. less v. Estes, 1 Heisk. 78 ; People v. » Queen's case, 2 B. & B. 297; R. Keith, 50 Cal. 137; Ferguson v. V. St. George, 9 C. & P. 488 ; Prince Rutherford, 7 Nev. 385. V. Samo, 7 A. & E. 627; S. C. 3 N. & * R. v. Woods, 1 Crawf. & Dix, P. 139; Sturge v. Buchanan, 10 A. & 439. E. 605 ; Dutton v. Woodman, 9 Gush. ^ Gilbert v. Sage, 5 Lansing, 287; 255; Com. v. Wilson, 1 Gray, 337; SomervlUe R. R. v. Doughty, 22 N. Baxter ./.Abbott,? Gray, 71; First J. L. 495. See Winchell «. Latham, Nat. Bank v. Green, 43 N. Y. 298; 6 Cow. 682. 619 § 575.] THE LAW OF EVIDENCE. [book II. Witness may be recalled. to inadmissible matter, the party calling the witness has a right to reexamine as to such matter.^ § 574. In peculiar cases, when justice will be thereby promoted, the judge may, at his discretion, permit a witness to be recalled in order to be reexamined by the party recall- ing him.^ This, however, will only be granted on due cause being shown,^ and, as a matter of discretion, is not review- able by the appellate court.* So a witness may, at the discre- tion of the court, be permitted to return to the stand, after dismissal, to correct his testimony.^ A witness may also be re- called at the request of the jury.^ § 575. Whenever explanation is required of answers on reex- amination, then the cross-examining party may re-cross- examine, confining himself to the new matter intro- duced on the reexamination.^ It is, however, at the discretion of the court to close such re-cross-examina- tion when the party seeking it has had abundant prior oppor- tunity to draw out his case.® Re-cross- examina- tion per- mitted at discretion of court. ^ Blewitt V. Tregonning, 3 Ad. & E. 55i; though see Smith v. Dreer, 3 Whart. R. 154; Allen v. Hancock, 16 Vt. 230. " It is within the discretion of the court to permit any question to be asked on re-direct examination whicli it was proper to have admitted on the examination in chief." Cooley, J., Hemmens v. Bentley, 32 Mich. 89. See Anderson v. State, 42 Ga. 9 ; Donnelly v. State, 26 N. J. L. 463 ; Stockwell V. Holmes, 33 N. Y. 63. 2 2 Phil. Ev. 408; Bevan v. Mc- Mahon, 2 Sw. & Tr. 65 ; Phettiplace v. Sayles, 4 Mason, 312; U. S. v. Wilson, 1 Bald. 78 ; Beach v. Bank, 3 Wend. 573; Thomas v. State, 27 Ga. 287; State v. Jones, 64 Mo. 391; Dunham v. Forbes, 26 Tex. 23. ' Hallock V. Smith, 4 Johns. Ch. 949 ; Hanson v. Church, 11 N. J. Eq. 441 ; Curren «. Connery, 5 Binn. 488; Thomasson v. State, 22 Ga. 499. 520 * People V. Mather, 4 Wend. 229 ; Covanhoven v. Hart, 21 Penn. St. 495; Howell V. Com. 5 Grat. 664 ; White V. Bailey, 10 Mich. 156 ; Williams v. Allen, 40 Ind. 295 ; Ross v. Hayne, 3 Greene, 211; State v. Rorabacher, 19 Iowa, 154; State v. Haynes, 71 N. C. 79 ; Colclough v. Rhodus, 2 Rich. (S. C.) 76 ; State v. Silver, 3 Dev. L. 332; Jesse u. State, 20 Ga. 166; Bigelow v. Young, 30 Ga. 121 ; Gayle v. Bishop, 14 Ala. 552; Freleigh v. State, 8 Mo. 606; German Bk. v. Kerlin, 53 Mo. 382; Cotton v. Jones, 87 Tex. 34. ^ Kingston v. Tappen, 1 Johns. Ch. 368; Walker v. Walker, 14 Ga. 242; Dunn V. Pipes, 20 La. An. 276. ' Van Huss v. Rainbolt, 2 Coldw. 139. ' Wood V. McGuire, 17 Ga. 303. ' Thornton v. Thornton, 39 "Vt. 122; Com. v. Nickerson, 5 Allen, 518; Koenig v. Bauer, 57 Penn. St. 168; State V. Hoppiss, 6 Ired. L. 406. CHAP. VIII.] PROFESSIONAL PRIVILEGE. [§ 577. XV. PRIVILEGED COMMUNICATIONS. § 576. A lawyer, no matter in what capacity he may be employed, is not, by our common law, permitted to L^wj'er disclose communications made to him by his client in "I' P^"^: •' mitted to the course of their professional relations. Oral com- disclose , • . . , eommuni- munications are thus protected ; '■ and a fortiori does cations of the privilege extend to cases stated for the opinion of counsel,^ and to written instruments held by counsel or attor- neys on behalf of clients.^ The privilege is essential to public justice ; for, did it not exist, "no man would dare to consult a professional adviser, with a view to his defence, or to the en- forcement of his rights." * Nor is the privilege in any way affected by the statutes making parties witnesses ; ^ though it is said that a party making himself a witness cannot, on ground of the statute, refuse to answer as to his confidential communica- tions to his counsel if he open such communications.^ § 577. The privilege extends to all knowledge possessed by the lawyer which he would not have obtained if he had not been consulted professionally by his client.'^ Even when a solicitor 1 Cromack v. Heathcote, 2 B. & B. Coal Co. v. Wark, 3 Macq. Sc. Ca. 4; Carpmael v. Powis, 1 Phill. (Eq.) 468; Crosby u. Berger, 11 Paige, 377. 692 ; Greenough v. Gaskell, 1 Myl. & Infra, § 585. K. 101 ; Chant w. Brown, 9 Hare, 790; * Lord Brougham in- Greenough v. Jenner v. R. R. 7 Q. B. 767; Skinner Gaskell, 1 Myl. & K. 103. V. R. R. L. R. 9 Exch. 298; Woolley « Montgomery v. Pickering, 116 V. R. R. L. R. 4 C. P. 602 ; Maxham v. Mass. 227 ; Brand v. Brand, 39 How. Place, 46 Vt. 434 ; Higbee d. Dresser, Pr. 193; Barker v. Kuhn, 38 Iowa, 103 Mass. 523; Williams v. Fitch, 18 395. See supra, § 479; infra, § 583. N. Y. 550; Britton v. Lorenz, 45 N. ' Woburn v. Henshaw, 101 Mass. Y. 57; Graham v. People, 63 Barb. 193; Hartford Ins. Co. v. Reynolds, 468; Bellis, in re, 38 How. (N. Y.) 35 Mich. 302. Infra, § 583. Pr. 79; Jenkinson v. State, 5 Blackf. ' Greenough v. Gaskell, 1 M. & 465; Bowers v. State, 29 Ohio St. K. 98; Raefle v. Moore, 58 Ga. 94. 542 ; Orton v. McCord, 33 Wis. 205 ; Where, in an action by the payee of a Chahoon «. Com. 21 Grat. 822; State promissory note against the maker, it V. Hazleton, 15 La. An. 72. appeared that the plaintiff had acted ^ Pearse v. Pearse, 1 De Gex & as attorney to the defendant, and Sm. 25. while holding that capacity had ob- ' Laing v. Barclay, 3 Stark. R. 42 ; tained documentary evidence from Doe V. James, 2 M. & Rob. 47 ; Vo- the defendant which he stated was lant V. Soyer, 13 C. B. 231 ; Hawkins wanted to assist her in preparing a V. Howard, R. & M. 64 ; Bargaddie case for counsel ; and on this he relied 521 § 577.] THE LAW OF EVIDENCE. [book II. ■writes letters to a third party for the purposes of a suit, the an- swers are privileged ; ^ and so letters passing between a country- solicitor and his town agent are privileged.^ Communications, even with lay agents, with regard to the preparation of a case, are in like manner protected.^ to take the note out of the statute of limitations. It was held that the evi- dence was inadmissible for the plain- tiff; Piatt, B., observing that it would never have been in the hands of the attorney, except for the purpose of his preparing a case for counsel ; and Martin, B., added : " The client might be in error in thinking the commu- nication necessary to be laid before counsel ; but if she communicated it ionajide, considering it necessary, the communication was privileged, and could not be divulged." Cleave v. Jones, 6 Ex. 573. 1 Simpson v. Brown, 33 Beav. 483. 2 Catt V. Tourle, 19 W. R. 56. = Ross V. Gibbs, L. R. 8 Eq. 522; Preston v. Carr, 1 Y. & J. 175. Infra, §594. Sir J. Stephen, in his treatise on Evidence, thus speaks : — " Abticlb 115. Professional com- munications. — No legal adviser is per- mitted, whether during or after the termination of his employment as such, unless with his client's express con- sent, to disclose any communication, oral or documentary, made to him as such legal adviser, by or on behalf of his client, during, in the course, and for the purpose of his employment, whether in reference to any matter as to which a dispute has arisen or other- wise, or to disclose any advice given by him to his client, during, in the course, and for the purpose of such employment. It is immaterial whether the client is or is not a party to the action in which the question is put to the legal adviser. " This article does not extend to, — 622 " (1 .) Any such communication as aforesaid made in furtherance of any criminal purpose ; " (2.) Any fact observed by any legal adviser, in the course of his em- ployment as such, showing that any crime or fraud has been committed since the commencement of his em- ployment, whether his attention was directed to such fact by or on behalf of his client or not ; " (3.) Any fact with which such le- gal adviser became acquainted other- wise than in his character as such. The expression, ' legal adviser,' in- cludes barristers and solicitors, their clerks, and interpreters between them and their clients. ^^Illustration. — A. being charged with embezzlement, retains B., a bar- rister, to defend him. In the course of the proceedings, B. observes that an entry has been made in A.'s ac- count book, charging A. with the sum said to have been embezzled, which entry was not in the book at the com- mencement of B.'s employment. This being a fact observed by B. in the course of his employment, showing that a fraud has been committed since the commencement of the proceed- ings, is not protected from disclosure in a subsequent action by A. against the prosecutor in the original case for malicious prosecution. Brown v. Fos- ter, 1 H. & N. 736. "Abticlb 116. Confidential com- munications with legal advisers. — No one can be compelled to disclose to the court any communication between himself and his legal adviser, which his legal adviser could not disclose CHAP. VIII.] PROFESSIONAL PRIVILEGE. [§ 578. Sir James Wigram thus briefly states the necessity of the rule : " So long as the state of the law shall make it impossible for parties to be their own lawyers, and to act without profes- sional advice, it is indispensably necessary that the privileges now conceded to professional communications should be main- tained." ^ Lord Brougham, on the same topic, makes the follow- ing distinction : " To compel a party himself to answer upon oath, even as to his belief and thought, is one thing ; nay, to compel him to disclose what he has written and spoken to others, not being his professional advisers, is competent to the party seeking the discovery ; for such communications are not neces- sary to the conduct of judicial business, and the defence or pros- ecution of men's rights by the aid of skilful persons. To force from the party himself the production of communications made by him to professional men seems inconsistent with the possi- bility of an ignorant man resorting to professional advice, and can only be justified if the authority of decided cases warrants it. But no authority sanctions the much wilder violation of pro- fessional confidence, and in circumstances wholly different, which would be involved in compelling counsel, or attorneys, or solic- "itors, to disclose matters committed to them in their professional capacity ; and which, but for their employment as professional men, they would not have become possessed of." ^ § 578. A formal retainer is not necessary to constitute a re- lationship whose communications the law will treat as Not neoes- inviolable.^ It is enough, to enable the protection of relation*' the law to apply, that a legal adviser is sought for *'P ^^ovXi .,.., . befoi-mally the purpose of confidential professional advice, " with instituted. without his permission, although it Heathcote, 2 Brod. & B. 4 ; Regnell w. may have been made before any dis- Sprye, 10 Beav. 51; Greenough v. pute arose as to the matter referred .Gaskell, 1 Myl. & K. 98 ; Moore v. to." Bray, 10 Penn. St. 519. " The tendency of modern decisions ^ Woods v. Woods, 4 Hare, 83, has been to extend rather than to nar- Wigram, V. C. row the rule, from a conviction that ^ Greenough v. Gaskell, 1 Myl. & though sometimes the cause of justice K. 98. The arguments on both sides might be advanced by compelling dis- are ably canvassed by Mr. Livingston, closures, the evils that would result Works, ed. 1873, 459 et seq. would greatly overbalance the possible ° Ross v. Gibbs, L. R. 8 Eq. 522 ; advantages." Cooley, C. J., Am. Law Foster v. Hall, 12 Pick. 89; Beltz- Reg. Feb. 1879, p. 74, citing Foster hoover v. Blackstock, 3 Watts, 20. V. Hall, 12 Pick. 89 ; Cromack v. 523 § 579.] THE LAW OF EVIDENCE. [BOOK II. a view either to the prosecution of a claim, or a defence against a claim." ^ The protection has been even held to reach cases in which a person has been consulted under the belief that he was a professional lawyer, which he really was not ; ^ and also, to cases where the communications were made under the erroneous belief that the party consulted had consented to act as counsel.^ An attorney, however, has been compelled to testify as to non- confidential statements made to him, before retainer, by one who afterwards became his client.* An injunction of secrecy is not necessary to protect the communications.^ § 579. It has been already incidentally noticed that it is not Nor that necessary that the communications should be in refer- munioa- ence to any particular suit. Lord Selborne thus reca- shouid be pitulates the equity practice in a case where discovery made dur- ^^s sought from the plaintiff : ^ " There is a [judg- tion. ment] by that most accurate and learned judge. Sir R. T. Kindersley,'' which contains a statement of the vice chancel- lor's view of the principle, and also of the rule which in 1859 had come to be well settled and established in this court on the foundation of that principle. He says, ' It is not now necessary, as it formerly was, for the purpose of obtaining production, that the communications should be maide either during or relating to an actual or even to an expected litigation. It is sufficient if 1 Sir John Stuart, in Ross r. Gibbs, Sample v. Frost, 10 Iowa, 266 ; Bray- L. R. 8 Eq. 522; S P., Wilson, i-. R. ton v. Chese, 3 Wis. 356. See infra, R. L. R. U Eq. 477; Minet v. Mor- § 593. Galley v. Richards, ut supra, gan, L. R. 8 Ch. 361 ; Sargent v. was distinguished by the fact that the Hampden, 38 Me. 581; March u. Lud- person consulted had been a solici- 1am, 3 Sandf. Gh. 35 ; Beltzhoover v. tor but had given up practice. The Blaokstock, 3 Watts, 20 ; Hill's Est. 9 client erroneously supposed him to be Phil. 355. See, however, Wilson v. still in practice. The communications Rastall, 4 T. R. 753. That the legal were held by the master of the rolls adviser was not ultimately retained to be privileged, the person consulted makes no difi'erence. Thorp v. Goewey, having actually been previously a so- 85 111. 611. licitor. Gommunications by a married wo- « Smith «. Fell, 2 Gurt. 667. man to her husband's attorney, as to * Gutts v. Pickering, 1 Ventr. 197. her separate interests, are privileged. ' Wheeler v. Hill, 16 Me. 329. Scranton v. Stewart, 52 Ind. 68. o Minet i'. Morgan, L. R. 8 Ch. 861. 2 Galley v. Richards, 19 Beav. 401; See, also, Turton v. Barber, L. R. 17 Bean v. Quimby, 5 N. H. 94 (under Eq. 329. statute). Contra, Fountain v. Young, ' Lawrence v. Campbell, 4 Drew. 6 Esp. 113; Bellis, in re, 3 Ben. 386; 485. 624 CHAP. VIII.J PROFESSIONAL PRIVILEGE. [§ 579. they pass as professional communications in a professional capac- ity.' I can only say that I agree with the views both of the principle and of its proper extension taken in these later au- thorities." Lord Brougham, in a case which Mr. Hare adopts as leading and masterly,^ argues forcibly to the same effect : " We are here to consider, not the case which has frequently arisen in courts of equity, and more than once since I came into this court, of a party called upon to produce his own communications with his professional advisers." . . . . " Here the question relates to the solicitor, who is called upon to produce the entries he made in accounts and letters received by him, and those written (chiefly to his town agent) by him, or by his direction, in his character or situation of confidential solicitor to the party ; and I am of opinion that he cannot be compelled to disclose papers delivered, or communications made to him, or letters, or entries made by him in that capacity." After the passage, attributed to him above, he proceeds (speaking of counsel and solicitor) : " As regards them, it does not appear that the protection is qualified by any reference to proceedings pending or in contemplation. If, touching matters that come within the ordinary scope of pro- fessional employment, they receive a communication in their pro- fessional capacity, either from a client or on Ms account, and for his benefit in the transaction of his business ; ^ or, which amounts to the same thing, if they commit to paper, in the course of their employment on his behalf, matters which they know only through their professional relation to their client, they are not only justi- fied in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information, or produce the papers in any court of law or equity, either as party or wit- ness. If this protection were confined to cases where proceed- ings had commenced, the rule would exclude the most confiden- tial, and, it may be, the most important of all communications ; those made with a view of being prepared for instituting or defending suit, up to the instant that the process of the court issued. If it were confined to proceedings begun or in contem- 1 Hare on Discovery (2d ed.), 148, ' On the words in italics, see Ford 158, citing Greenough v. Haskell, 1 v. Tennant, 32 Beav. 162. Myl. & K. 98, 100, 101, 115. 625 § 580.] THE LAW OF EVIDENCE. [BOOK II. plation, then every communication would be unprotected whicli a party makes with a view to his general defence against attacks which he apprehends, although at the time no one may have resolved to assail him. But, were it allowed to extend over such communications, the protection would be insufficient, if it only included communications more or less connected with ju- dicial proceedings ; for a person oftentimes requires the aid of professional advice upon the subject of his rights and his liabili- ties, with no reference to any particular litigation, and without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial inquiry. It would be most mischievous, said the learned judges in the Common Pleas, ' if it could be doubted whether or not an attorney, consulted upon a man's title to an estate, was at liberty to divulge a flaw.' "...." The rules of evidence are the same on both sides of the hall." Lord Lyndhurst, approving of the case just quoted, laid down the rule that where an attorney is employed by a client profes- sionally, to transact professional business, all the communica- tions that pass between the client and the attorney, in the course, and for the purpose of that business, are privileged.^ § 580. To permit professional confidence to be invaded when Nor is professional relations terminate, would put the client at {osTon^* the counsel's mercy, for professional relations might be rion^olVe- terminated in order that professional communications lationship. might be disclosed. The client, indeed, may remove the prohibition by consent that his counsel should be examined ,2 which consent cannot be implied by the client merely calling the lawyer as a witness, without examining him as to such commu- nications.^ If he do not, dissolution of their connection, no mat- 1 Herring v. Cloberry, 1 Ph. 91, a viously at a consultation; Wheatley v. euit to rectify an old settlement; solic- "Williams, 1 Mees. & W. 553, per Lord itor employed to prepare the deed, Abinger. The privilege extends to an but never acted again; Jones v. Pugh, attorney's clerk. Taylor i;. Forster, 2 1 Ph. 96, citing Harvey v. Clayton, 2 Car. & P. 195, cited Hare on Disc. Swans. 221, in note; protection given 161. to a scrivener; Carpmael v. Powis, 1 * Merle v. More, Ry. &M. 390. See Phill. (Eq.) 687; sale of an estate; Weeks on Attorneys, §§ 143 e< sej. Davies 0. Waters, 9 Mees. & W.608; » Vaillant v. Dodemead, 2 Atk. 524; deed only read by attorney just pre- Bate v. Kinsey, 1 C, M. & R. 88. 626 CHAP. VIII.] PROFESSIONAL PEIVILEGE. [§ 582. ter how it may occur, works no change in regard to the in- violability of their intercourse.^ Even an assignee in bankruptcy is not empowered to consent that the professional communica- tions of his assignor should be disclosed.^ Information, how- ever, which is imparted after the relationship terminates, is not privileged.^ § 581. Nor is it necessary that such communications, to be privileged, should relate to matters in litigation. A scrivener appointed to raise money,* a conveyancer' em- ployed to draw deeds,^ counsel consulted as to family or other arrangements without reference to litigation,^ are placed under the same restrictions. But it is other- general . , 1 . . . , counsel. Wise as to a law student whom the party visits for the purpose of obtaining information as to the law.^ Communicar tions in preparation of a case are hereafter noticed.^ § 582. Whoever represents a lawyer, in conference or corre- spondence with the client, is under the same protec- so also as tion as the lawyer himself.^ An interpreter interven- represenS- 'ng between client and lawyer is, therefore, privileged,^" ''^^'• -Privilege includes scrivener and con- veyancer as well as 1 Wilson V. Rastall, 4 T. R. 759; Cholmondeley v. Clinton, 19 Ves. 268; Charlton v. Coombes, 4 GiflF. 372; Galley v. Richards, 19 Beav. 401; Russell V. Jackson, 9 Hare, 387; Chant V. Brown, 7 Hare, 79; Thorp v. Goewey, 85 111. 611. The privilege applies as much to communications made before, as to those made during, litigation. Minet V. Morgan, L. R. 8 Ch. 361; 42 L. J. Ch. 627; 21 W. R. 467; cf. Wilson V. North Hampton Railway Co. L. R. 14 Eq. 477; 20 W. R. 938; Powell's Evidence (4th ed.), 118. " Bowman v. Norton, 5 C. & P. 177. ' Cobden v. Kendrick, 4 T. R. 431. < Turquand v. Knight, 2 ]^. & W. 100; though see Coon v. Swan, 30 Vt. 6; De Wolf v. Strader, 26 111. 225. ' Carpmael v. Powis, 1 Phill. (Eq.) 687; Cromack v. Heathcote, 2 B. & B. 4; GetzlafE v. Seliger, 43 Wis. 297; though see remarks of Parke, B., in Turquand v. Knight, 2 M. & W. 100; and as holding that a conveyancer is not privileged, see Matthews' Est. 1 Phil. 292; 5 Clark, Phil. 149. " R. V. Withers, 2 Camp. 578; Wal- singham v. Goodrieke, 3 Hare, 124; Desborough v. Rawlins, 3 Myl. & Cr. 515; Sawyer v, Birchmore, 3 Myl. & Cr. 572; Carpmael ti. Powis, 9 Beav. 16 (overruling Williams v. Mudie, 1 C. & P. 158; aff. 1 Phill. (Eq.) 687 ; Clark V. Clark, 1 M. & Rob. 3) ; Wadsworth v. Hanshaw, 2 B. & B. 5. ' Barnes v. Harris, 7 Cush. 576. » Infra, §§ 593-4. ' Parker v. Hawkshaw, 2 Stark. 239 ; Du Barre v. Livette, Pea. R. 77; Chenton u. Frewen, 2 Drew. & Sm. 390; Bunbury v. Bunbury, 2 Beav. 173; Walker v. Wildman, 6 Madd 1" Du Barre v. Livette, ut supra. 527 § 683.] THE LAW OF EVIDENCE. [book II. Client can- not be compelled to disclose his com- munica- tions to bis legal ad- viser. and so is the lawyer's executor,^ but, as we will see, it is other- wise with a business agent, not a lawyer, or representing a law- yer, whom the client consults.^ § 583. The question whether a client can be compelled to dis- close his confidential communications to his legal ad- viser draws peculiar interest from the statutes enabling parties to be called as witnesses by their opponents. It is obvious that the guard against the disclosure of such communications by counsel would be a mockery if the client could be compelled to disclose that as to which counsel's lips are sealed. It would be absurd to protect by sol- emn sanctions professional communications when the lawyer is examined, and to leave them unprotected at the examination of the client. The English House of Lords, however, in a case of comparatively early date, intimated that a client might be compelled by bill in equity to disclose any communications made by him to his counsel before litigation had been invoked ; ^ but in England this distinction has been deplored if not repudi- ated,* and in the United States has never been tolerated. The true view is, that communications which the lawyer is precluded from disclosing the client cannot be compelled to disclose.^ Where, however, a party offers himself as a witness, it has been argued that he may be asked as to his communications to his counsel, if part of the case he undertakes to prove.® 47; Goodell V. Little, 1 Sim. N. S. 155; Lafone v. Falkland Islands Co. 4 Kay & J. 34; Taylor v. Forster, 2 C. & P. 195; Chant v. Brown, 9 Hare, 790; Mills V. Oddy, 6 C. & P. 731 ; Ross V. Gibbs, L. R. 3 Q. B. 91; Fan- ner V. R. R. L. R. 7 Q. B. 767| Bus- tros ■;. White, L. R. 1 Q. B. D. 427 ; Jackson v. French, 3 Wend. 337; Brand v. Brand, 39 How. (N. Y.) Pr. 193 ; Sibley v. Waffle, 16 N. Y. 180. 1 Fenwiok v. Reed, 1 Mer. 114. 2 Infra, § 593. 8 Radcliffe v. Fursman, 2 Br. P. C. C. 514. * Walsingham v. Goodricke, 3 Hare, 127; Meath v. Winchester, 10 Bli. 375; Walker v. Wildman, 6 Madd. 628 97; Preston v. Carr, 1 Y. & C. 175 ; Pearse v. Pearse, 1 De Gex & Sm. 24; Minet v. Morgan, L. R. 8 Ch. Ap. 361. See Dr. Lushington's ob- servations in the Macgregor Laird, 1 Ad. & E. 307. 6 Thompson v. Falk, 1 Drew. 21 ; Vent t. Pacey, 4 Russ. 193; Combe V. London, 1 Russ. 631 ; Holmes v. Baddeley, 1 Phill: 476 ; Hemenway v. Smith, 28 Vt. 701; Carnes v. Piatt, 36 N. Y. Sup. Ct. 360; S. C. 15 Abb. Pr. N. S. 337 ; Bigler v. Regher, 43 Ind. 112; State v. White, 19 Kans. 445. See for other cases supra, § 576. ' Woburn v. Henshaw, 101 Mass. 193 ; Hartford Ins. Co. v. Reynolds, 35 Mich. 802. But see contra, Dutten- CHAP. VIII.] PKOFESSIONAL PRIVILEGE. [§ 585. § 584. The protection insured by the relationship of lawyer and client may be lost when not claimed by the party PfivHege privileged ; ^ though it is not extinguished by a com- ™^f^^^ ;„ promise of the suit in which the communications are order to be niade.^ The privilege may be waived by the client.^ and may The evidence of the waiver, however, must be distinct and unequivocal,* though a statement of the consultations by the party himself, when on the witness stand, is such a waiver.^ § 585. What has been said applies, as we have already no- ticed, with equal force to the client's documents in his lawyer's hoffer V. State, Sup. Ct. Ohio, 1878, 6 Rep 726 ; Bigler v. Regher, supra; Barker v. Kuhn, 38 Iowa, 395 ; Bobo V. Boyson, 21 Ark. 357. See supra, §479. 1 Hare on Discovery (2d ed.), 167; Walsh V. Trevanion, 15 Sim. 577; Hunter v. Capron, 5 Beav. 93 ; Dart- mouth V. Holdsworth, 10 Sim. 476; Thomas v. Rawlings, 27 Beav. 140. See, however, People v. Atkinson, 40 Cal. 284, where it was said that the court would interpose of its own motion ; and see supra, §§ 281-283. * Hughes V. Garnons, 6 Beav. 352. 8 " Several questions of an im- peaching nature were excluded, on the ground that Fuller made them to his counsel, and they were, therefore, privileged. We think the rule of privilege was misconstrued. We have no disposition to narrow or hamper privileged communications between clients and their attorneys or counsel. We concur fully in the broad and sen- sible doctrine laid down by Lord Sel- borne, in Minet v. Morgan, L. R. 8 Ch. Ap. 361, that neither client nor attorney can be compelled to answer and disclose matters of confidence. But the privilege is one created solely for the benefit of the client, and there is no ground for protection where he waives it. 1 Greenl. Ev. § 243; 1 Stark. Ev. 40 ; Benjamin v. Coventry, 34 19 Wend. R. 353." Campbell, J., Hamilton v. People, 29 Mich. 183. * " At the hearing, before a single justice, the plaintifif herself testified, and called as a witness one who had been her legal adviser in reference to the transactions in question. He was not then asked as to his communica- tions with his client, but he was cross- examined by the defendant's counsel as to all inatters of fact which came to her knowledge before the execution of the deed. After the evidence was all in, he was recalled and asked by the defendant what conversations he had as counsel, with the plaintiff, in reference to making the deed and giv- ing the receipt, and for what reason he advised the delivery of the deed. But it was ruled that what passed between counsel and client was not admissible, and the evidence was ex- cluded. " It is contended that this ruling was wrong, because exclusion of the evidence offered is a privilege which the client may waive, and, in this case has waived, by becoming a witness in her own behalf. But this alone, in the opinion of the court, does not amount to such a waiver." Colt, J., Mont- gomery V. Pickering, 11 6. Mass. 231. ' Hartford Ins. Co. v. Reynolds, 36 Mich. 302. See Woburn v. Hen- shaw, 101 Mass. 193; Jeanes v. Fri- denburg, 3 Clark, Phil. 199. 529 § 586.] THE LAW OF EVIDENCE. [BOOK II. hands.i Thus it has been held that when a solicitor holds a Privilege document for his client, he cannot, against the will of cfient's'" ^^^ client, be compelled to produce it, even by a person documents -^yjio has an equal interest in it with his client.^ But in lawyer's n i i i i i j hands. a Solicitor may be asked whether he has papers or his client in court ; and if by his answer, which is compulsory, he admit the fact, secondary evidence of their contents may be given if the originals are not produced.^ And although counsel can be compelled to produce any paper whose production would have been obligatory on the client so far as to let in secondary evidence of contents,* yet the fact that the papers were commu- nicated to him by his client for his professional opinion is a good excuse for their non-production. ^ This protection is pe- culiarly applicable to cases where the lawyer is called upon by subpoena to produce his client's papers, his client being a stranger to the suit. Were it not so, no man's titles, so it is argued in England, could be safe from fishing explorations for the purpose of discovering defects.® In this country, under our registry sys- tem, the reason is less applicable ; but the principle still obtains. § 586. If a legal adviser permit his client's papers to pass out Privilege °^ "^^^ hands into those of strangers, or if such papers lost as to are in any way extracted from bis custody, they may ments be put in evidence by the party by whom they are by legal held, as against the client. So far has this been pushed, a viser. ^■^^^ -^^ j^^^ been held that if an attorney permit a wit- ness to see such writings, such witness, not being a clerk of the attorney or legal adviser of the client, may be called to give sec- 1 Supra, §§ 150, 576; Laing v. Bar- * Ibid. ; Ramsbotham u. Senior, L. clay, 3 Stark. R. 42; Volant v. Soyer, R. 8 Eq. 575; Campbell, ex parte, L. 13 C. B. 231 ; Bargaddie Coal Co. v. R. 5 Ch. Ap. 703 ; Rhoades v. Selin, Wark, 3 Macq. S. C. 668; Crosby „. 4 Wash. C. C. 718; Durkee v. Le- Berger, 11 Paige, 377. land, 4 Vt. 612. 2 Newton V. Chaplin, 10 0. B. 356. ^ D^yer v. Collins, ut supra; Be- 8 Dwyer v. Collins, 7 Exch. 689; van v. Waters, 1 M. & M. 235 ; Doe v. Brandt v. Klain, 17 Johns. 335. Su- Harris, 5 C. & P. 692 ; Doe v. Gilbert, pra, § 154; Powell's Evidence, 4th 7 M. & W. 102; Doe v. Langdon, 12 edition, 119. See, also, Phelps v. Ad. & El. (N. S.) 711. See supra, Prew, 3 E. & B. 430; 23 L. J. Q. B. § 581. 140. But the lawyer cannot be com- " R. v. Hunter, 3 C. & P. 691, and pelled to give this secondary evidence, cases cited above. Pavies v. Waters, 9 M. & W. 612. 530 CHAP. VIII.J PROFESSIONAL PRIVILEGE. [§ 587. ondary evidence of the writings, due notice being first given to produce them on trial.^ It is otherwise as to papers passing into the hands of the attorney's agents or representatives ; the papers, in such hands, being entitled to the same protection they enjoyed when in the hands of the attorney.^ § 587. It is easy to conceive of cases in which two or more persons address a lawyer as their common agent. So Commnni- far as concerns a stranger, their communications to the beprivl-" lawyer would be privileged. It is otherwise, however, bf^^Je't' as to themselves ; and as they stand on the same foot- party's ex- ,, 1,. .. elusive ad- ing as to the lawyer, either could compel him to testify viser. against the other as to their negotiations.^ So a communication which is made by one party to a mutual attorney for the pur- pose of being forwarded to the other party is taken out of the range of confidence, and may be disclosed on trial as far as it was meant to be disclosed before trial.* So when communications from an adverse party are made to the attorney as representing the client, the attorney may be subsequently compelled to dis- close such communications.® It is otherwise, however, when no such liberty of disclosure is given the attorney acting as the com- mon agent. Papers put in his hands by either party, not to be shown to the other, but to be used exclusively for his own in- formation, he will not be permitted to communicate.^ Privilege, also, has been held not to extend to communications made to counsel in the presence of all the parties to the controversy ; ^ nor to communications, as we have seen, made by a party to a law student whom the party thinks proper independently to con- sult ; ^ nor to communications overheard by a third person, so far as such third person is concerned.^ But the fact that a third 1 Lloyd V. Mostyn, 10 M. & W. 481 ; ■> Perry u. Smith, 9 M. & W. 681 ; though see Fisher v. Heming, 1 Ph. Reynolds w. Sprye, 10 Beav. 51; Baugh Ev. 170. V. Cradocke, 1 M. & Rob. 182. See " Fenwick v. Reed, 1 Meriv. 114, remarks of Parke, B., 5 B. & Ad. 503. 120. 5 Spenceley v. Schulenburgh, 7 ' Shore V. Bedford, 5 Man. & G. East, 357; Desborough v. Rawlins, 3 271 ; Reynolds v. Sprye, 10 Beav. 51; Myl. & Cr. 515. Warde v. Warde, 3 M. & Gord. 365; ^ Doe i'. Watkins, 3 Bing. N. C. Earle v. Grout, 46 Vt. 113; Hatton 421; Doe v. Seaton, 2 A. & E. 171'. V. Robinson, 14 Pick. 416; Coveney ' Britton v. Lorenz, 45 N. Y. 51'. V. Tannahill, 1 Hill N. Y. 33; Heb- » Barnes v. Harris, 7 Cush. 576. bard v. Haughlin, 70 N. Y. 54; Rice * Hoy t». M'orris, 13 Gray, 51 9i B. Rice, 14 B. Mon. 417. 531 § 588.] THE LAW OF EVIDENCE. [book II. Lawj-er not privi- leged as to informa- tion re- ceived by him extra- profession- person is present, taking part in the consultation, on behalf of the client, does not divest the privilege.^ § 588. If it should be held that a lawyer's lips are sealed as to all mattery which he heard professionally, though he had at the same time extra-professional knowledge of the same subject matter, then, all that would be neces- sary, in order to preclude a lawyer from rendering ad- verse testimony in a case, would be for the party to be *"^rofeT'' iiijured by such testimony to communicate the same sionaiiy. facts to the lawyer in professional confidence. Such a result, however, could not be tolerated ; and for this and other reasons, it has been held that privilege in this relation does not extend to information a lawyer has received from others than his client, though his client may have given the same information.^ Peculiarly is this the case when the information was received by an attorney when acting as a party with a joint interest with the client, and not as his professional adviser,^ or when the knowledge was received in the progress of a trial.* It has also been held that privilege does not protect statements made by client to counsel for the purpose of obtaining information as to matters of fact, disconnected with the litigation ; ^ or statements made to the counsel in the presence of third parties, such parties not being concerned in a confidential consultation ; ^ or state- ments made to counsel in order to induce him to believe that the cause is one he can undertake without breach of duty to an- other client.'^ 1 Bowers v. State, 29 Ohio St. 542. See Goddard v. Gardner, 28 Conn. 172; Hay v. Morris, 13 Gray, 519; Hartford v. Reynolds, 36 Micli. 302. ' Marsh v. Keith, 1 Drew. & Sm. 842; Davies v. Waters, 9 M. & W. 611 ; Lewis v. Pennington, 20 L. J. Ch. 670 ; FoUett v. Jefferyes, 1 Sim. N. S. 3, 17; Mackenzie v. Yeo, 2 Curt. 866; Greenough v. Gaskell, ,1 Myl. & K. 104 ; Crosby v. Berger, 11 Paige, 877; Levers v. Van Buskirk, 4 Penn. St. 809 ; Chillicothe R. R. v. Jameson, 48 111. 281 ; Howard v. Cop- ley, 10 La. An. 604. See, as giving limits to the above, Davies v. Waters, 632 9 M. & W. 608; People v. Atkinson, 40 Cal. 284. « Duffin V. Smith, Pea. R. 108 ; Rochester v. Bank, 5 How. Pr. 259. * Brown v. Foster, 1 H. & N. 736. ' Bramwell ti. Lucas, 2 B. & C. 743; Desborough v. Rawlins, 3 Myl. & C. 515 ; Sawyer v. Birchmore, 3 Myl. & K. 572 ; Allen v. Harrison, SO Vt. 219. ' Goddard v. Gardner, 28 Conn. 172 ; Hartford v. Reynolds, 36 Mich. 302; Bowers v. State, 29 Ohio St. 542, cited supra, § 587. See Hoy v. Morris, 13 Gray, 519. ' Heaton v. Findlay, 12 Penn. St. 304. CHAP. VIII.] PROFESSIONAL PRIVILEGE. [§ 590. § 589. It may happen, also, that the information communi- cated belongs to ordinary as distinguished from profes- j^f^^^^. sional intercourse : and if this be clearly the case, no 'ion not in ■ 1 rrii the scope professional privilege will shield from disclosure. The of profes- topic must be within the peculiar scope of a lawyer's not"priv?- profession,^ and as to matters in which the client is con- ^^^^^' cerned.^ A lawyer, for instance, may be required to identify his client ; ^ to prove his client's handwriting ; * to declare whether certain writings are in his possession, so as to let in secondary evidence,^ to prove what occurred in open court ; ® and to divulge statements made to him by his client when such statements are simply casual observations, having nothing to do with any legal question as to which the lawyer is consulted.' It is now said, however, that he will not be compelled to disclose his. client's address,^ unless the client be a ward of court,^ or in bankruptcy.^" But the condition of the client's mind, when he consults his law- yer, when such condition would be patent to all observers, is not privileged ; ^^ nor is the question whether the lawyer was retained by the client, and in what capacity .^^ § 590. Nor does the privilege protect parties seeking for information or advice as to prospective infractions of Privilege law. Communications of an intended offence of this extend to 1 Carpmael v. Powis, 1 Phill. (Eq.) ^ Ramsbotham v. Senior, L. R. 8 687; Bramwell v. Lucas, 2 Bar. & C. Eq. 575; Campbell, ex parte, L. R. 5 745; Brown u. Foster, 1 H. & N. 736; Ch. Ap. 703. See supra, § 585. R. V. Leverson, 11 Cox C. C. 152; ° Levers u. Van Buskirk, 4 Penn. Goodall V. Little, 20 L. J. Ch. 132; 1 St. 309. Sim. N. S. 155 ; Wheatley v. Williams, ' Gillard v. Bates, 6 M. & W. 547 ; 1 M. & W. 533 ; Desborough v. Raw- Annesley v. Anglesea, 11 How. St. Tr. lins, 3 Myl. & Craig, 515; Jones v. 1220. Goodrich, 5 Moo. P. C. 16; Smith v. ' Heath v. Creelock, L. R. 15 Eq. Daniell, L. R. 18 Eq. 649 ; Clark v. 257; though see Studdy v. Sanders, 2 Richards, 3 E. D. Smith, 89; Pierson D. & R. 347. V. Steortz, Morris (Iowa), 136 ; State ' Ramsbotham v. Senior, L. R. 8 V. Mewheeter, 46 Iowa, 88 ; Buokmas- Eq. 575. ter V. Kelley, 15 Fla. 180. i" Cathcart, in re, L. R. 5 Ch. 703. 2 Hamilton v. Neel, 7 Watts, 517; " Daniel v. Daniel, 39 Penn. St. Beeson v. Beeson, 9 Penn. St. 279. 191. 1 Studdy V. Sanders, 2 D. & R.347; " Beckwith v. Benner, 6 C. & P. Doe V. Andrews, 2 Cowp. 846. 681; Heaton v. Findlay, 12 Penn. St. * Hurd V. Moring, 1 C. & P. 372; 304; though see contra, as to nature Johnson v. Daverne, 19 Johns. 134; of relationship, Chirac v. Reinicker, Brown v. Jewett, 120 Mass. 215. 11 Wheat. 280 ; 5. C. 2 Pet. 613. 633 § 591.] THE LAW OF EVIDENCE. [book II. commum- class counsel are bound to disclose.^ The protection of cations, in . • i i i t j^ view of privilege has therefore been withheld irom commiinica- thria«? tions, to a lawyer for the purpose of raising money on forged securities.^ It is scarcely necessary to add that when the lawyer connives at the illegal purpose, he so far loses his profes- sional character as to preclude him personally from claiming any privilege. " Where a solicitor is party to a fraud, no privilege attaches to the communications with him on the subject, because the contriving of a fraud is no part of his duty as a solicitor." ^ A lawyer, however, cannot be asked, and certainly cannot be compelled to answer, whether his advice to his client did not in- volve an illegal purpose.* § 591. The privilege, it should also be remembered, is meant Priviieffe *° protect the living in their business relations, and cannot be invoked when the question arises as to the intention of a deceased person in respect to the disposi- tion of his estate. " The next important limitation," says Mr. Hare,^ of the doctrine, is pointed out by Lord Justice Turner. He said, that " where the rights and interests does not apply to testamen- tary com- munica- tions. 1 R. V. Avery, 8 C. & P. 596 ; K. v. Farley, 2 C. & K. 313; 5. C. 1 Den. C. C. 197 ; E. V. Brewer, 6 C. & P. 363 i FoUett v. Jefferyes, 1 Sim. N. S. 17 ; Charlton v. Coombes, 4 Giff. 372; People V. Blakeley, 4 Parker C. R. 176 ; Bank v. Mersereau, 3 Barb. Ch. 598; People v. Sheriff, 29 Barb. 622; Graham o. People, 63 Barb. 483. " R. V. Farley, ut supra. " There is no confidence as to the disclosure of iniquity. You cannot make me the confidant of a crime or a fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part; such a confidence can- not exist." Lord Ilatherley, in the case of Garteside v. Outram, 26 L. J. Ch. 113, 114, citing Annesley v. Earl of Anglesea, 17 How. State Trials, 1139; Mornington v. Mornington, 2 John. & H. 697, 703; Gore v. Bowser, 534 5 De G. & Sm. 30; Goodman v. Hol- royd, 15 C. B. N. S. 839; Blight v. Goodliflfe, 18 C. B. N. S. 757; Char- tered Bank of India v. Rich, 32 L. J. Q. B. 300, 306 ; R. v. Jones, 1 Den. C. C. 166; R. V. Farley, 1 Den. C. C. 197. The court will look at the cir- cumstances of each case. Bassford v. Blakesley, 6 Beav. 131. See, also, Doe d. Shellard v. Harris, T) Car. & P. 594; Levy v. Pope, Moo. & M. 410. Where there is fraud there is no priv- ilege. Reynell v. Spyre, 10 Beav. 51; Follett V. Jefferyes, 1 Sim. N. S. 1; R. V. Avery, 8 C. & P. 596; modifying R. 0. Smith, 1 Ph. Ev. 171; though see R. V. Tuffs, 1 Den. C. C. 324. The topic is ably discussed in Hare on Disc. (2d ed.) 163. See, also, People V. Blakely, 4 Parker C. R. 176. « Turner, V. C, in Russell v. Jack- son, 9 Hare, 392. * Doe V. Harris, 5 C. & P. 594. ' Discovery, 2d edition, 162. CHAP. VIII.] PROFESSIONAL PRIVILEGE. [§ 593. of clients, and those claiming under them, come in conflict with the rights and interests of third persons, there can be no diffi- culty in applying the rule." But there is a difiiculty where cases of testamentary disposition arise. " The disclosure in such cases can affect no right or interest of the client. The apprehen- sion of it can present no impediment to the full statement of his case to his solicitor, and the disclosures, when made, can expose the court to no greater difficulty than presents itself in cases where tlie views and intentions of persons, or of the objects for which the disposition is made, are unknown. In the cases of testamentary dispositions, the very foundation of the rule seems to be wanting, and in the absence, therefore, of any illegal pur- pose being entertained by the testator, there does not appear to be any ground for applying it." i § 592. When the client obtains the lawyer's signature as an attesting witness to an instrument executed by the Lawyer client, the lawyer is compelled to prove his signature, jJinJ^^if ^t- his privilege in this respect as a professional man yield- testing wit- ^ , , , ^ ness loses ing to his duties as a witness.^ But the surrender is privilege. limited to the mere act of attestation ; and an attorney, who has signed as attesting witness a deed whose bona fides is contested, though he may be asked as to the attestation, is privileged as to any information derived by him from his client as to the concoc- tion of the instrument.^ § 593. Deviating in this respect from the Roman law, the Eng- lish common law has declined to extend the privilege of Privilege inviolability to any communications except those with Jendedto professional men advising as to the law. Thus it has ""'^"^ ''"^'' been held that disclosure of confidential communications agents, will be exacted from bankers,* from clerks,^ and even from med- ical men,^ though as to the latter remedial statutes have been passed.'^ In England, however, for reasons connected with the 1 Russell V. Jackson, 9 Hare, 387. 6 -Webb v. Smith, 1 C. & P. 337; ^ Sandford w. Remington, 2 Ves. Baker v. R. R. L. R. 3 Q. B. 91; 189; Doe v. Andrews, 2 Cowp. 845; Holmes w. Comegys, 1 Dall. 439. Robinson «. Kemp, 5 Esp. 53. « R. v. Gibbons, 1 C. & P. 97; ' Wheatley v. Williams, 1 M. & W. Duchess of Kingston'.s case, 20 How. 533 ; Turquand v. Knight, 2 M. & W. St. Tr. 572. 98. 7 See Wh. Cr. L. tit. " Evidence." * Loyd V. Freshfield, 2 C. & P. 325. See infra, § 606. 535 § 593.] THE LAW OF EVIDENCE. [book II. complications arising from the old system of the non-recording of titles, trustees cannot be compelled to produce the deeds of their clients.^ The better opinion is that agents, not lawyers, employed by a party, under the direction of counsel, to collect testimony in preparation for a trial, are privileged,^ though an agent, not a lawyer, employed to conduct a suit, has been held not to be privileged.^ It would seem extraordinary, in view of the scope of the object of the privilege, if one party, in advance of a trial, could compel the other party, by calling his counsel's agents, to disclose all the secrets of his case.* The reports, to railroad companies, of confidential servants, and of medical offi- cers sent to report on railway accidents, have also been held to be privileged, if they present a summary of evidence collected for the company, and if made to counsel ; though this privilege is not regarded as extending to cases where the agents are em- ployed to treat with injured parties, and to make official returns of such negotiations.^ J Davies o. Waters, 9 M. & W. 608; R. u. Upper Boddington, 8 D, & R. 726 ; Doe v. Date, 3 Q. B. 369 Pickering v. Noyes, 1 Barn. & Cr. 263 2 Steele v. Stewart, 1 Pliill. 471 Cossey v. R. R. L. R. 5 C. P. 146 Preston v. Carr, 1 Y. & J .1 75 ; Ross t). Gibbs, L. R. 8 Eq. 522; Hooper v. Gumm, 2 Johns. & Hem. 602. » Supra, § 579; McLaughlin v. Gil- more, Sup. Ct. 111. Cent. Law J. Aug. 9, 1878, p. 101. ^ But see Glyn v. Caulfield, 3 M. & Gord. 475; Goodall u. Little, 1 Sim. N. S. 155. " There is no protection as to letters between parties themselves, or from a stranger to a party, merely because such letters may have been written in order to enable the person to whom they were addressed to com- municate them in professional con- fidence to his solicitor." Lord Cran- wortli, in Goodall v. Little, 1 Sim. N. S. 155 ; S. P., Glyn v. Caulfield, 8 M. & Gord. 471 ; though see Hamilton v. Nott, 10 L. R. Eq. 112. ' Hare on Disc. 2d. ed. 152 ; Baker 536 V. R. R. 8 Best & S. 645; Woolley v. R. R. L. R. 4 0. P. 602 ; Cossey v. R. R. L. R. 5 C. P. 146 ; Fenner v. R. R. L. R. 7 Q. B. 767; Skinner v. R. R. L. R. 9 Exc. 298. In Bustros v. White, L. R. 1 Q. B. D. 422, it was held that a physician's report in such case is privileged, and in Friend v. R. R. L. R. 2 Ex. D. 437; 36 L. T. N. S. 729, the Court of Appeal held that a physician's report was privileged, and inspection of it would be refused on the following state of facts : The plaintiff commenced an action against a railway company to recover damages for injuries sustained whilst travel- ling on their line. With the plaintiff's consent, the company's doctor saw and examined the plaintiff, and made a written report to the company's solic- itors. On the plaintiff claiming in- spection of the report, the defendants' solicitors made an affidavit (which the plaintiff did not answer) that the doc- tor was sent, and his reports procured by the solicitor to be used as evidence for the defendants at the trial. S. P., CHAP. VIII.] PRIVILEGE OF TELEGRAMS. [§ 595. § 594. " The communications," says Mr. Hare, in his work on Discovery ,1 " between a party, or his legal adviser, and Communi- witnesses, are also privileged. There is, in those cases^ tween' the same necessity for protection ; otherwise, as Lord P*j.'J,^g5"f Langdale remarked, it would be impossible for a party privileged. to write a letter for the purpose of obtaining information on the subject of a suit, without incurring the liability of having the materials of his defence disclosed to the adverse party." ^ Com- munications between the parties, with regard to the preparation of evidence, are in like manner privileged.^ § 595. It has been urged that telegraphic operators can no more be compelled to disclose the contents of telegrams ,j,gj^_ than can postmasters to disclose the contents of letters, graphic . 1, Til communi- This view, however, is not generally accepted, and tele- cations not graphic agents and operators (if there be no statute to ^"^' ^^ the contrary) are now compelled to produce in court the orig- inals of telegrams, or, if such originals be lost, to give secondary evidence of their contents.* Pacey v. K. R. L. R. 2 Ex. D. 440, note. See infra, § 751. 1 Hare on Disc. 2d ed. 1876, 151. " Preston v. Carr, 1 Y. & J. 175; Ross V. Gibbs, L. R. 8 Eq. 522; Cur- ling I). Perring, 2 Myl. & K. 380; Storey v. Lennox, 1 My]. & C. 525; Llewellyn v. Baddeley, 1 Hare, 527; Lafone v. Falkland Islands Co. 4 Kay 6 J. 34; Gandee v. Stansfield, 4 De G. &. J. 1 ; Daw V. Eley, 2 Hem. & M. 725; Phillips v. Routh, L. R. 7 C. P. 289; Wilson v. R. R. L. R. 14 Eq. 477; Hamilton v. Nott, L. R. 16 Eq. 112. ' Hare on Disc. 152, citing Allan v. Royden, 43 L. J. (C. P.) 206 ; Kruegar, ex parte, 2 Low. 182 ; though see Ray- ner v. Ritson, 6 Best & S. 888 ; Col- man V. Truman, 3 Hurl. & N. 871. * See State v. Litchfield, 58 Me. 267; Henisler v. Freediiian, 2 Parsons Sel. Ca. 274 ; Nat. Bank v. Nat. Bk. 7 W. Va. 544. And see infra, § 617. " The main question presented for our determination is, whether a tele- graphic operator is bound to testify to the contents of a telegraphic message. ' ' The case finds the message mate- rial to the issue. A verbal message, communicated to the prisoner, would be admissible, and the party commu- nicating it would be compelled to state it. So a written message, or its con- tents, after due notice to produce the original, and a failure of its produc- tion by the party notified, would be received in evidence. The mode of transmission to the person delivering the message, whether by telegraph or otherwise, has nothing to do with the matter. The important inquiry re- lates to its materiality. " Nor can telegraphic communica- tions be deemed any more confidential than any other communications. Tel- egraphic communications are not to be protected to aid the robber or as- sassin in the consummation of their felonies, or to facilitate their escape after the crime has been committed. No communication should be excluded, 537 § 596.] THE LAW OF EVIDENCE. [book II. § 596. Whether a priest is privileged as to the confidences of the confessional is a question that has been much agi- tated. On the one side it is maintained that the office of a pastor is at least as important to the community as that of a lawyer, and that to the one office the giv- ing and receiving of confidential communications is as essential as it is to the other. It is further urged that by a venerable Priests not privileged as to con- fessional at common law. no individual should be exempt from inquiry, when the communication, or the answer to the inquiry, would be of importance in the conviction of crime or the acquittal of innocence, except when such exclusion is required by some grave principle of public policy. The honest man asks for no confiden- tial communications, for the withhold- ing the same cannot benefit him. The criminal has no right to demand ex- clusion of evidence because it would establish his guilt." Appleton, C. J., State V. Litchfield, 58 Me. 269. See, also, U. S. V. Babcock, 3 Dillon, 566; and .Judge Redfield, in 10 Am. L. Reg. (N. S.) 376. In the Am. Law Reg. for February, 1879, will be found an article by Ch. J. Cooley, arguing that telegraphic dispatches are privileged. From this article we extract the following sum- mary : — " 1. The statutes which forbid those intrusted with them from disclosing telegraphic communications are not restricted in their force to the impo- sition of penalties for disobedience, but they announce and establish a principle of public policy, which is violated as distinctly when a telegram is brought into court for public ex- posure as when it is privately shown to persons having no right to it. The disclosure contravening and tending to defeat the policy of the law cannot be legalized by any judicial command or license. " 2. The case is within the principle laid down in Wilkes v. Wood, 19 St. 538 Tr. 1154; Lofft's R. 1; and Entinck V. Carrington, 19 St. Tr. 1030, 1065; 2 Wils. 275. If one's private corre- spondence is to be given to the pub- lic, the method is not important; it is equally injurious whether done by sending an officer to force locks and take it, or by compelling the person having the custody to produce it. A subpoena duces tecum to the servant of Wilkes, commanding him to produce the desired letters and papers, would no doubt have been denounced by Lord Camden in terms as vigorous and pointed as those which condemned the illegal warrants. " 3. It is not only subject to all the mischiefs which attend the prying into correspondence by mail, but also to others of most serious character. The evils in other cases are : the exposure of family and other private confi- dences ; the divulging of business and oflicial secrets which parties, of right, are entitled to preserve ; the furnish- ing of occasion for scandal and mis- conceptions, to the general disturb- ance of the community, and others of similar nature. But these are greatly aggravated in the case of telegrams, by the manner in which the corre- spondence is necessarily conducted." In England, in an election contest in 1878, Baron Bramwell, on consul- tation with Grove and Miller, JJ., de- clined to order the production, by the post office, by whom telegrams are communicated, of a telegram. See 13 Western Jurist, 122. CHAP. VIII.J PRIVILEGE OF CLERGYMEN. [§ 596. communion, whose members include a large proportion of the population, confession is absolutely enjoined ; and that it would be cruel and intolerant to use a duty which religion thus makes imperative as an engine for the extortion of secrets for the pur- poses of litigation. To issue subpoenas, for instance, so it is argued, and bring into the oflBce of a committing magistrate all the Roman Catholic priests in a neighborhood, and then to force them to tell all they have learned in the confessional as to any illegal acts, past or present, would be to unnecessarily plunge the state into a war with the Roman Catholic Church, leaving only two alternatives, equally deplorable : its triumph over the state, or the imprisonment of its priests when refusing to testify.-' On the other hand, it is argued that, if it be the doctrine of any re- ligious communion that absolution following on a confession of crime will relieve the conscience from the terrors of guilt in its punishment in another world, this will remove one of the most efficient preventives of crime. And why, it is asked, should the state discriminate between religions, so as to give to one church immunities in this respect which it refuses to others ? Is there any reason for such discrimination in the fact that one church makes the confessional obligatory, while another makes it only optional ? If so, is not the state bound to extend the privilege so as to relieve all persons from all duties (e. g. tax paying in war times) which they hold it irreligious to perform ? At all eventSj it is argued, there is nothing in the office of a clergyman which should relieve him from the civic duties of laymen ; and among these duties that of bearing testimony in all matters in a court of justice is among the chief. A brother is compelled to disclose the confidences of a brother ; a father is compelled to disclose the confidences of a child ; there is nothing in a clergy- man's position more sacred than that of brother to brother or of a father to child. The analogy of the lawyer, it is added, is not applicable, since lawyers are compelled to disclose all communi- cations which relate to proposed illegal acts, and, what is more, a lawyer is a necessary officer of the courts, which a clergyman is not. These and other reasons have led to a refusal, by the English legislature and courts, to adopt the mediseval canons, privileging communications* made in the confessional to clergy- 1 See Mr. Livingston's Argument, Works (ed. 1873), 467. 539 § 597.] ' THE LAW OF EVIDENCE, [BOOK II. men. The English ecclesiastical law, indeed, invites the penitent to confess his sins, " for the unburdening of his conscience, and to receive spiritual consolation and ease of mind;" but the minister, to whom confession is made, is not excused from testifying in a court of justice, but merely enjoined," under pain of irregularity, not to reveal what is confessed." ^ This has been construed to leave him liable to the prescriptions of the common law, which makes in this respect no distinction between clergyman and lay- man.2 § 597. To Roman Catholic priests this rule has been applied at common law in several cases both in England and the United States.^ At the same time, prosecuting officers, as representing the state, properly shrink from calling upon priests to disclose confessions as evidence against parties on trial for crimes ; and eminent judges have gone a great way in encouraging this re- luctance. " I, for one," so Best, J., is reported to have said, " will never compel a clergyman to disclose communications made to him by a prisoner ; but if he chooses to disclose them, I will receive them in evidence." * So it was declared by Alderson, B., in a case where it appeared that a chaplain in a work-house had frequent conversations, in his pastoral capacity, with the in- mates, that it was better that the chaplain should not be called as a witness to prove confessions so received by him." The same sentiment has led to a statute in New York, providing that " no ^ Const. & Can. 1 J. 1, Can. cxiii.; case, Oyer and Terminer of N. Y. 2 Gibs. Cod. p. 963. 1817, Van Ness, J., 2 City Hall Rec. "^ R. V. Gilham, 1 Moo. C. C. 188. 77; Commonwealth v. Cronin, Circuit » Wilson !). Rastall, 4 T. R. 753; Court of Richmond, Va., 1855, 1 Butler V. Moore, M'Nally's Ev. 253; Quarterly Law Journ. 128. And see Anon. 2 Skin. 404; Du Barree v. Totten w. United States, 2 Otto, 107, Livette, Peake's Cas. 77; R. u. Hay, where Field, J., says that "public 2 F. & F. 4; Com. v. Drake, 15 Mass. policy forbids the maintenance of an 161 ; Simon v. Gratz, 2 Penn. R. 41 7; action the trial of which would lead to State V. Bostick, 4 Harr. (Del.) 564. the disclosure of matters which the The following authorities have been law itself regards as confidential. This cited as establishing a view contrary principle is recognized in respect to to the conclusions in the text : — the confidential relations between hus- People u. Phillips, Court of General band and wife, counsel and client, Sessions of N. Y. 1813, Phillips' Trial, physician and patient, and, as to the approved by Chancellor Dessasaure, confidences of the confessional." in Fernandea v. Henderson, 1 Car- * Broad k. Pitt, 3 C. & P. 519. olina Law Journal, 213; Swish's « R. «. Grifl5n, 6 Cox C. C. 219. 540 CHAP. VIII.] PRIVILEGE OF CLERGYMEN. [§ 598. 323. 254; minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rule or practice of such denomination." ^ Similar statutes have been enacted in other states.^ Under these statutes, however, a communication, to be privileged, must be made in the course of religious discipline.^ § 598. Ecclesiastics are by the Roman common law not re- quired to testify as to what was communicated to them under the seal of the confessional. To this rule, however, the follow- ing exceptions have been made : — tion differed from that of the honor- able gentleman with regard to the law of England. He believed it would be found that while any communication between a counsel, solicitor, or attor- ney, with a client, respecting a suit in which the latter was engaged, was a privileged communication ; with regard to a clergyman of any denomination, or a physician, no such privilege ex- isted. He, therefore, contended the learned judge had not gone beyond the law. In fact, the question was pressed by counsel, and the court had no option but to commit the witness under the circumstances. He be- lieved, however, that the reverend gentleman only remained in custody a few minutes, and had been discharged in the course of the day. " Mr. Ingham defended the course pursued by the learned judge, and fully agreed with the right honorable gentleman, the home secretary, in his interpretation of the law. " Sir F. Kelly also corroborated the statement as made by the right honor- able gentleman." See, in reply to this, an interesting work by Mr. Baddely, on the Privi- lege of Religious Confession, London, 1865. And see Stephen's Ev. 171, and Best's Ev. §§ 583-4, where the inference is that the privilege, if it exists at all, belongs to all clergymen. 541 1 2 Rev. Stat. 406, § 72. 2 See Whart. Cr. Law, § 775. " People V. Gates, 13 Wend. See 2 Rogers's Rec. 79. See, Forsyth's History of Lawyers, Joy on Confess. 49-58 ; and closing remarks of Field, J., in Totten v. U. S., quoted infra, § 604. R. V. Hay, 2 F. & F. 4, above no- ticed, led to the following discussion in the House of Commons : — " Mr. Bowyer wished to ask a ques- tion regarding the committal of a Ro- man Catholic priest at Durham. " It appeared that the reverend gen- tleman had received a watch, in con- fession, in order that he might make a restitution of it to the owner, and had subsequently handed it to a police- man. Upon the trial of a party for stealing the watch, the Roman Catho- lic priest was asked by Mr. Justice Hill from whom he received the watch. The reverend gentleman refused to answer the question, and was there- upon committed for contempt of court. Mr. Bowyer thought the case a mis- taken, and very oppressive one, and that, by the old common law, the seal of confession constituted a privileged communication. He wished to ask if the reverend gentleman had been set at liberty, and if not, whether the government would take steps that he might be immediately released. " Sir 6. C. Lewis said his informa- § 599.] THE LAW OF EVIDENCE. [BOOK II. 1. When the disclosure is required by the policy of the state ; 2. When an innocent person is charged with a crime, convic- tion for which he can only escape by a disclosure of facts given in the confessional ; 3. When the clergyman receiving the confession is authorized to testify by the person confessing ; 4. When disclosure is necessary in order to prevent an im- pending crime. ^ § 599. Arbitrations are regarded with favor, as amicable and Arbitrators efficient methods of terminating litigation which would compened otherwise be expensive and protracted ; but arbitrations to dis- would cease to be amicable and efficient if arbitrators close the grounds of could be brought into court, and be examined as to their judg- .,.-.. , i-- ments. the reasons of their decisions, so that these decisions could be overhauled. It is not permissible, therefore, to examine an arbitrator as to the reasons which led him to particular conclu- sions, for this would be collaterally to review his acts ; ^ nor to prove by him his own misconduct.^ As to matters of fact com- ing to the knowledge of arbitrators, there is no reason why they should not be examined. In this result there is a concurrence of high authority.* Thus in a leading case,^ Kelly, C. B., supposed the case of an arbitrator " empowered to give compensation for injury, to a house numbered 'one' in a particular row of houses, and he professed to award such compensation, although in fact the whole evidence before him related to injury to a house numbered ' two,' and his award really was made for injury to that house. Can it be doubted but that this circumstance might be proved by the defendant on the trial of an action on the award ? and if so, I see no reason why it could not be proved by the evidence of the umpire himself. I am therefore of opin- ion that in this case the umpire's evidence was admissible."" In the same case in the Exchequer Chamber,^ it was held by all the 1 See Weiske, Rechtslexicon, xv. 325. Contra, Wade v. Gallagher, 1 259. Yeates, 7 7. " Johnson v. Durant, 4 C. & P. « Buccleugh v. Metropolitan Board 327; Anon. 3 Atk. 644. of Works, L. R. 3 Ex. 806, 324. » Claycomb v. Butler, 36 111. 100. « Bramwell, B., who is reported to * See Woodbury v. Northy, 3 have thought otherwise, gave no rea- Greenl. 85 ; PuUiam v. Pensoneau, S3 sons ; and his opinion to the contrary III. 375; Mayor v. Butler, 1 Barb, effectisdenied. L.R. 5 H.L.457. ' L. R. 5 Ex. 221. 542 CHAP. VIII.] PRIVILEGE : JUEORS, JUDGES. [§ 599. judges that such an arbitrator might be a witness ; Blackburn, J., saying : " There is no case or authority that I can find that says that an umpire or arbitrator is either incompetent as a witness or privileged from giving testimony as to any matter material to the issue. Of course any attempt to annoy an ar- bitrator by asking questions tending to show that he had mis- taken the law, or found a verdict against the weight of evidence, should be at once checked, for these matters are irrelevant. But where the question is, whether he did or did not entertain a ques- tion over which he had no jurisdiction, the matter is relevant, and nobody can be better qualified to give testimony on that matter than the umpire." i Mellor, J., remarked that " it would be unfortunate if there were no means of ascertaining whether or not an arbitrator or umpire, in such a case, had really confined himself within the true limits of the authority conferred upon him." "And it must at least occasionally happen, that with- out the evidence of the arbitrator there would be no means of arriving at the fact." ^ The report of the judgment of the case in the House of Lords ^ contains the result of the opinions of the judges on this point : " That the umpire was admissible as a wit- ness was, without a single exception, the opinion of all the judges who have considered the question in this case." Lord Chelms- ford referred to several cases on the subject,* and Cleasby, B., said that it was " every-day practice for the arbitrator to make an afiidavit where a question arises as to what took place before him, and I have known him to be examined as a witness vri thout objection." ^ The judgment of Lord Cairns, so remarks Mr. Hare, is very clear upon the point in issue, whether as to matters of fact the evidence of an arbitrator is properly admissible. But he does not touch the other question raised by the lord justice, that of matters of law,® which is a point upon which the judg- ment of the latter and the dictum of Blackburn, J., differ. In prior cases it " was determined that an arbitrator cannot be made a party to a bill to set aside an award; '' and that he is not 1 L. R. 5 Ex. 234. 6 Ibid, 462. 2 Ibid. 246. ' Steward v. E. L. Co. 2 Vern. 380; ' L. K. 5 H. L. 418, 457. except where fraud has been charged. * Ibid. 428. Hare on Disc. 50. « L. K. 5 H. L. 4, 33. 543 § 600.] THE LAW OF EVIDENCE. [book II. bound to answer as to his motives for making an award, though he must support a plea of arbitrator with evidence of his good conduct." ^ It has also been held that an arbitrator is admissi- ble to prove that the supposed award was never delivered by him.^ § 600. The privilege of inviolability is necessarily extended to Nor the consultations of judges ; though they may be exam- judges, ined, as we have seen, as to what took place before them on trial, in order to identify the case, or prove the testi- mony of a witness.' The same privilege extends to justices of the peace, with the same liability to be examined as to the facts of the trial.* A presiding judge cannot be sworn as a witness in a case before him.^ But where the decision of a judge of probate is appealed from, on the ground that he was interested in the estate which his decision settled, it has been held in Mas- sachusetts that he is a competent witness on appeal to prove that he was not interested.^ 1 Hare on Discovery, 50, 181-2. " I can see no reason why the ar- bitrator should not be just as well called as a witness as any body else, provided the points as to which he is called as a witness are proper points upon which to examine him. If there is a mistake in point of subject matter, — that is, if a particular thing is referred to an arbitrator, and he has mistaken the subject matter on which he ought to make his award;- or if there is a mistake in point of legal principle going directly to the basis on which the award is founded, — these are sub- jects on which he ought to be exam- ined." Giff'ard, L. J., In re Dare Valley Ry. Co. L. R. 6 Eq. 429. ' Shulte V. Hennessy, 40 Iowa, 352. » Hare on Disc. (2d ed. 1876) 182; Jackson v. Humphrey, 1 Johns. R. 498; Heyward, in re, 1 Sandf. 701. See Welcome v. Batchelder, 23 Me. 85; and see supra, § 180; infra, §§ 785, 986. In R. V. Gazard, 8 C. & P. 595, it was doubted whether even as to the 644 facts of a ,case before him, a judge could be examined. * Highberger v. Stiffler, 21 Md. 338; Taylor u. Larkin, 12 Mo. 103. 6 People V. Miller, 2 Park. C. R. 197. See Morss v. Morss, 11 Barb. 510; McMillen v. Andrews, 10 Ohio St. 112; Ross V. Buhler, 2 Mart. (N. S.) 313; R. V. Anderson, 2 How. St. Tr. 874. ^ Sigourneyu. Sibley, 21 Pick. 101. It has been ruled in England, that if a judge be sitting with others he may then be sworn, and give evidence. Trial of the Regicides, Kel. 1 2 ; 5 How. St. Tr. 1181, n. ,!). C. But in such case, the proper course seems to be for the judge who has thus become a witness to leave the bench, and take no further judicial part in the trial. Mr. Taylor notices in this relation that on several occasions when trials have been instituted before the High Court of Parliament, peers, who have been examined as witnesses, have, nevertheless, taken pai-t in the verdict CHAP. VIII.] PRIVILEGE : JURORS. [§ 601. § 601. It was at one tirae supposed that a grand juror was required by his oath of secrecy to be silent as to what jurors transpired in the grand jury room ; ^ but it is now held to piwr' that such evidence, wherever it is material to explain ^^'^^^ ^°^ what was the issue before the grand jury, or what was tore them. the testimony of particular witnesses, will be compelled.^ This is the statutory rule in Massachusetts and New York.^ A grand juror's testimony, however, will not be received to impeach the finding of his fellows, or even to show what was the vote on the finding.* So a petit juror is not ordinarily permitted to disclose the deliberations of the jury when consulting in their private subsequently pronounced. 7 How. St. Tr. 1384, 1458, 1552; 16 How. St. Tr. 1252, 1391. He argues, however, that these cases are not inconsistent with the law as above stated, since in trials before the House of Lords, the peers must be regarded at least as much in the light of jurors as of judges ; and it has just been shown that a juryman is not disqualified from acting, simply by being called as a witness. Taylor, § 1244. 1 Whart. Cr. Law, tit. " Evidence; " Imlay v. Rogers, 2 Halst. 347 ; State V. Baker, 20 Mo. 338. 2 Sykes v. Dunbar, 2 Selw. N. P. 1059 ; U. S. V. Charles, 2 Craach C. C. 76; Com. t'. Hill, 11 Cush. 137; Com. V. Mead, 12 Gray, 167; State v. Fasset, 16 Conn. 457; Huidekoper «. Cotton, 3 Watts, 56; Thomas v. Com. 2 Robinson (Va.), 795. See State V. OflFutt, 4 Blackf. 355 ; Burnham v. Hatfield, 5 Blackf. 21 ; Perkins v. State, 4 Ind. 222; Granger v. Warring- ton, 3 Gilman, 299; Burdick u. Hunt, 43 Ind. 384 ; State o. Broughton, 7 Ired. 96; Sands v. Robison, 20 Miss. 704; Rocco V. State, 37 Miss. 357; People V. Young, 31 Cal. 564; White 0. Fox, 1 Bibb, 369; Crocker v. State, 1 Meigs, 127; Beam v. Link, 27 Mo. 261 ; Tindle v. Nichols, 20 Mo. 326. » See Whart. Cr. Law, tit. " Evi- dence." VOL. I. 35 * R. V. Marsh, 6 Ad. & El. 236 ; McLellan v. Richardson, 1 Shepl. 82; State V. Fasset, 16 Conn. 467; People V. Hulbert, 4 Denio, 133; Huidekoper V. Cotton, 3 Watts, 56 ; State v. Beebe, 17 Minn. 241; State v. McLeod, 1 Hawks, 344; State v. Baker, 20 Mo. 338; State v. Oxford, 30 Tex. 428. If to impeach a witness evidence is offered of statements made by him before the grand jury, he may testify in rebuttal what those statements were. Way v. Butterworth, 106 Mass. 75. In Low's case, 4 Maine, 440, it was held that grand jurors might be ex- amined as witnesses in court, to the question whether twelve of the panel concurred or not in the finding of a bill of indictment. But, as is argued by Appleton, C. J., in State v. Ben- ney, 64 Me. 284, "if the counsel of the grand jurors is to be kept secret at all events, the votes of the grand jurors are certainly as much a matter of se- crecy as anything done or testified to before them. The action of a grand juror is more especially a matter of his own counsel than any statement of any one else before his body. The assertion, that less than twelve con- curred in an indictment, involves nec- essarily the assertion of who did not so concur." 545 § 602.] THE LAW OF EVIDENCE. [BOOK II. room.i He is, however, competent to testify as to the issues actually passed on by the jury of which he was a member, when such question is material on a subsequent trial .^ §602. A juror who is of knowl- edge ma- terial to the case must be sworn as a witness. A juror on trial, who has knowledge of any material facts, must give notice, so that he can be sworn, ex- amined, and cross-examined. He cannot be permitted to give evidence to his fellow jurors without being so sworn.* Thus, although, so is the rule stated, " each juryman may apply to the subject before him that gen- eral knowledge which any man may be supposed to have ; yet if he be personally acquainted with any material par- ticular fact, he is not permitted to mention the circumstances privately to his fellows, but he must submit to be publicly sworn and examined, though there is no necessity for his leaving the box, or declining to interfere in the verdict." * In Michigan, in 1876, this rule was pushed so far as to include the position that if a juror has special capacity, as an expert, to determine as to the genuineness of handwriting, in a case before the court, his conclusions should be communicated by him as a witness on the stand ; and it was said by the court, in this connection, that " if a verdict were formed on statements of ordinary facts by one 1 Studley u. Hall, 22 Me. 198; Clug- gage V. Swan, 4 Binn. 150; Hannum V. Belchertown, 19 Pick. 311; Coker V. Hayes, 16 Fla. 368. 2 Haak t>. Breidenbach, 3 S. & R. 204 ; Leonard v. Leonard, 1 W. & S. 842; FoUansbee k Walker, 74 Penn. St. 306; Cramer v. Burlington, 42 Iowa, 815. Infra, § 986. A sheriff who summoned a jury is not incompetent as a witness before it. Crowe V. Peters, 63 Mo. 429. "It is equally clear that the jurors were competent witnesses. In Haak V. Breidenbach, 3 S. & R. 204, and Leonard v. Leonard, 1 W. & S. 342, the parol evidence was given by ju- rors, and in the latter case, under a special objection and exception ; yet the judgment was reversed for the rejection of the evidence. There is no principle of law or rule of policy 646 which, in such a case, ought to exclude them. It is entirely different from where they are called to impeach a verdict on the ground of their own misbehavior or that of their fellows. Cluggage V. Swan, 4 Binney, 150, though even that has been since ques- tioned ; Ritchie v. Holbrooke, 7 S. & R. 458." Sharswood, J., FoUansbee i'. Walker, 74 Penn. St. 809. « Taylor, § 1244. * R. V. Rosser, 7 C. & P. 648, per Parke B. ; Manley v. Shaw, C. & Marsh. 361, per Tindal, C. J.; Ben- net V. Hartford, Sty. 233 ; Fitz-James u.Moys, 1 Sid. 133; Andr. 231, arg.; R. V. Heath, 18 How. St. Tr. 123; R. v. Sutton, 4 M. & Sel. 582, 541, 542; 6 How. St. Tr. 1012, n. ; Dunbar i;. Parks, 2 Tyler, 217 ; State w. Powell, 2 Halst. 244; Howser v. Com. 51 Penn. St. 332 ; M'Kain v. Love, 2 Hill S. C. 596. CHAP. VIII.J WITNESSES : POLITICAL PRIVILEGE. [§ 604. juror to his fellows, this would be a violation of their oaths." ^ The principle here invoked is true, if by " ordinary facts " we mean objective phenomena which are the basis of opinion. For a juror, no doubt, to take out of his pocket a writing alleged to emanate from a person whose signature is in controversy, and to offer it to his fellow jurymen as a test paper, would be an impro- priety which would vitiate a verdict in any way influenced by such production. But in jurisdictions where the practice is to permit comparison of hands to be made by the jury ,2 the cases must be rare in which one or more jurymen will not have expe- rience and skill in such respect which will make their opinions influential in forming the conclusions of their fellows. What is said of handwriting applies to all other issues involving special knowledge. An engineer on a jury could not, without exercis- ing such influence, even give a silent vote on an issue involving a question of engineering ; nor, without similar influence, could a farmer on a question of farming. § 603. A prosecuting attorney, it has been held, is privileged from disclosing the proceedings of the grand jury.^ Prosecut- Communications, also, made to a. prosecuting attorney, 'ig attor- relative to suspected criminals, or to the operations of leged as to a detective police, are privileged, and are not to be tiai mat- divulged by the attorney or extracted from witnesses, '^"" without the consent of the person making the communication.* § 604. In England, under the reactionary influences which op- pressed judiciary as well as executive, during the ad- g^^^^ ^^_ ministrations which followed the French Revolution, it f^ts privi- leged, was held that a crown witness, in a political prosecu- tion, could not be asked as to the quarters from which his infor- mation was received ; and this sanctity was extended to revenue as well as crown cases.^ Even as late as O'Connell's case,^ it was 1 Foster's Will, cited infra, § 713. 693; and see, U. S. v. Moses, 4 Wash. 2 That this is the general practice, C. C. 126; State v. Soper, 16 Me. see infra, §§ 713 e< se^. 295; Com. v. Pomeroy, 117 Mass. * McLellan v. Richardson, IS Me. 144; People v. Christie, 2 Parker C. 82; Clark v. Field, 12 Vt. 485. Aliter R. 579. as to necessary facts. Knott v. Sar- ^ R. v. Watson, 32 How. St. Tr. gent, 125 Mass. 95; White v. Fox, 1 100; R. v. Hardy, 24 How. St. Tr. Bibb, 369. 753; Home u. Bentinck, 2 B. & B. * Oliver v. Pate, 43 Ind. 132. See 162. § 604; R. V. Richardson, 3 F. & F. « Arm. & T. 178. 54T § 604.J THE LAW OF EVIDENCE. [book 11. held that state policy precluded an investigation into the chan- nels through which information as to breaches of the law reached the prosecuting authorities. To this extent the protection may- be granted, limiting it strictly to cases of public as distinguished from private interest.^ For the same reason the executive of a 1 R. V. Richardson, 3 Post. & F. 693; Atty. Gen. v. Briant, 15 M. & W. 181 ; U. S. u. Moses, 4 Wash. C. C. 726; State v. Soper, 16 Me. 295. See 1 Burr's Trial, 186; Washington V. Scribner, 109 Mass. 487; Gray v. Pentland, 2 Serg. & R. 23 ; Oliver v. Pate, 43 Ind. 132. In a Massaohusetts case, on the trial of an in{lictment for murder, to which the defence was insanity, an expert, called by the government, testified, on cross-examination, that he had given the counsel for the government a statement in writing of his opinion of the defendant's mental condition. The statement was on reqjiest handed to the defendant's counsel, who offered it in evidence, but was objected to by the attorney general, who stated that he would only allow it to be used to frame questions for cross-examination. The court refused to allow the state- ment to be read to tlie jury, and the defendant's counsel used it to cross- examine the witness. It was ruled that the defendant had no ground of exception. Com. w. .Pomeroy, 117 Mass. 144. In Totten v. The United States, 92 U. S. (2 Otto) 105, the Supreme Court of the United States ruled against a claim to recover compensation for ser- vices rendered by the claimant's in- testate, William A. Lloyd, under a contract with President Lincoln, by which he was to proceed South and ascertain the number of troops sta- tioned at different points in the in- surrectionary states, procure plans of forts and fortifications, and gain such other information as might be benefi- 648 cial to the government. "The ser- vice," said Field, J. "stipulated by the contract was a secret service ; the information sought was to be obtained clandestinely, and was to be commu- nicated privately; the employment and service were to be equally con- cealed. Both employer and agent must have understood that the lips of the other were to be forever sealed respecting the relation of either to the matter. This condition of the engage- ment was implied from the nature of the employment, and is implied in all secret employments of the government in time of war, or upon matters affect- ing our foreign relations, where a disclosure of the service might com- promise or embarrass our government in its public duties, or endanger the person or injure the character of the agent." Chief Justice Eyre states, " that among those questions which are not permitted to be asked are all those questions which lead to the discovery of the channel by which the disclos- ure was made to the officers of justice, that it is upon the general principle of the convenience of public justice that they are not to be disclosed ; that all persons in that situation are pro- tected from the discovery; and that, if it is objected to, it is no more com- petent for the defendant to ask who the person was that advised him to make the disclosure, than it is to whom he made the disclosure in consequence of the advice, — than it is to ask any other question respecting the channel of communication, or all that was done under it." Eyre, C. J., R. v. Hardy, 24 How. St. Tr. 815. CHAP. VIII.] WITNESSES : POLITICAL PRIVILEGE. [§ 604. state, and his cabinet officers, are entitled, in exercise of their discretion, to determine how far they will produce papers, or an- swer questions as to public affairs in a judicial inquiry.^ In con- formity with this view it has been held that communications in official correspondence relating to matters of state cannot be pro- duced as evidence in an action against a person holding an office, for an injury charged to have been done by him in exercise of the power given to him as such officer ; not only because such communications are confidential, but because their disclosure This immunity, however, extends only to ofBcial counsels. " A witness for the prosecution in a trial for riot may be compelled to state, on cross- examination, whether he is a member of a secret society organized to sup- press a sect to which the defendant belongs." People v. Christie, 2 Par- ker C. R. 579. ^ Beatstone v. Skene, 5 H. & N. 838 ; Anderson v, Hamilton, 2 Brod. &B. 156; 1 Burr's Trial, 186; Gray V. Pentland, 2 Serg. & 11. 23 ; Yoter V. Sanno, 6 Watts, 164; Cooper's case, Whart. St. Tr. 662; Marbury v. Madi- son, 1 Craneh, 144 ; Thompson v. R. R. 22 N. J. Eq. 111. See Dickson V. Wilton, 1 Post. & F. 425, where Lord Campbell, following Beatstone V. Skene; 5 H. & N. 838, intimated that where a head of a department should send papers called for, the judge might examine the papers him- self, and determine whether they are such as public policy excludes. In Hartranft's Appeal (1878) 85 Penn. St. 433, the Governor of Penn- sylvania, the secretary of the com- monwealth, the adjutant general, and two officers of the militia, being sub- poenaed to testify before the grand jury in the matter of an investiga- tion into a certain riot, made answer, through the attorney general, that they had no knowledge of the matter except what they learned in their official ca- pacities; that such matters as they could testify to were privileged com- munications ; that an examination into their acts in connection with the riot would, in their judgment, be injurious to the interests of the commonwealth; and that the official duties of the gov- ernor and adjutant general required their presence elsewhere; whereupon the Court of Quarter Sessions directed attachments to issue against them for refusing to appear to testify. On ap- peal to the Supreme Court'^ the order was set aside, and it was held that the witnesses were privileged. (Agnew, C. J., and Sterrett, J., dissenting.) In Thompson r. R. R. 22 N. J. Eq. Ill, a subpoena duces tecum was issued to the Governor of New Jersey, requir- ing him ti» produce before the court an engrossed copy of a private bill signed by him. He refused to obey the sub- poena, and the Court of Chancery sus- tained him in his refusal. See Paxton V. Steckel, 2 Penn. St. 93. As to privileges of senators of the United States in respect to their con- sultations, see Law v. Scott, 5 Harr. & J. 438. In England, members of par- liament are privileged from examina- tion as to what took place in parlia- ment. Chubb V. Salomons, 3 C. & K. 75. As to whether recommendations to office by members of Congress are privileged, see letter of Mr. Devens, attorney general, of July 28, 1877. 549 § 605.] THE LAW OF EVIDENCE. [book II. might betray secrets of state policy .^ And where a minister of state, subpoenaed to produce public documents, objects to do so on the ground that their publication would be injurious to the public interest, the court ought not to compel their publication ; ^ and the question, whether the production of such a document would be injurious to the public service, must be determined by the head of the department having the custody of the paper, and not by the judge.^ This privilege, however, has been held to be personal to the head of a department, and cannot be claimed by a subordinate ; * but in a suit against an admiral in the royal navy to recover damages for a collision caused by his flagship, Sir R. Phillimore refused the plaintiff permission to inspect re- ports of the collision made by the admiral to the lords of the admiralty, the secretary to the admiralty having made an affi- davit that their production would be prejudicial to the public service.^ § 605. Public policy, also, in view of the importance of keep- ing intact the prerogatives of the legislature, as well as of the executive, forbids compelling witnesses (whether reporters or members) to answer ques- tions as to debates and votes in either house of the legislature, unless the consent of the house be first So it was held by Lord EUenborough,^ that while a member of parliament or the speaker may be called on to give evidence of the fact of a member of parliament having taken part or spoken in a particular debate, he cannot be asked what And so consulta- tions and communi- cations of legislature and execu- tive. given. ^ ^ Anderson u. Hamilton, 2 B. & B. 156, n. Lord Campbell, C. J. (Sykes 0. Dunbar, 2 Selw. N. P. 1059; 4 Bl. Comm. 126; note by Mr. Christian of a case at York), once held that a wit- ness cannot refuse to produce a letter which he holds from a secretary of state, to whom it has been addressed in his public character, and who for- bids its production. At the same time it must be remembered, that where a document is privileged from produc- tion on the grounds of public policy, secondary evidence of its contents is inadmissible. Horn v. Bentinck, 2 B, 550 & B. 130; Powell's Evidence, 4th ed. 135. '^ Beatstone v. Skene, 5 H. & N. 838. 8 Ibid., per Pollock, C. B., 5 H. & N. 853. » Dickson v. Lord Wilton, 1 F. & F. 424. 5 The Bellerophon, 23 W. R. 248; 41 L. J. Adm. 5. «'Plunkett V. Cobbett, 6 Esp. 136; S. C. 29 How. St. Tr. 71; Chubb v. Salomons, 3 C. & K. 75. ' Plunkett V. Cobbett, 5 Esp. 186. CHAP. VIII.] WITNESSES : MEDICAL ATTENDANTS. [§ 606. was then delivered in the course of the debate. It has also been held that communications between a governor of a province and his attorney general are privileged.^ Mere volunteer private communications to the executive are not so privileged.^ § 606. A medical attendant is ordinarily without privilege even as to communications confidentially made to him ^ dicalat- by his patient.^ In the United States, however, stat- tendants • ,..,.. , , If notordi- utes, in several jurisdictions, have been passed confer- nariiy ring this immunity,* which statutes virtually prohibit physicians from disclosing information they derive professionally from their relations to their patient.^ The privilege of the stat- ute may be waived by the patient.® But it does not apply to testamentary inquiries ; ^ nor to matters non-professional ; ^ and privileged. 1 Wyatt V. Gore, Holt, 299. This rule was discussed in the Rajah of Coorg V. East India Co. 29 Beav. 350, where it was stated that the produc- tion of political documents depends not upon the question whether the person called on to produce them is a party to the suit or not, but upon the danger to the public interests which would result from their publication. Where an officer in the army sued a superior officer for defamation, the al- leged libel being contained in evidence given by the latter before a military court of inquiry, the Court of Ex- chequer Chamber held such evidence to be not only privileged from being the subject of an action for libel, but also wholly inadmissible, since the pro- ceedings of the court being delivered to the commander-in-chief, and held by him on behalf of the sovereign, ought not to be produced except by her majesty's command or permission. Dawkins v. Lord Rokeby, L. R. 8 Q. B. 255; 42 L. J. Q. B. 73; affirmed by the House of Lords, W. N. 1875, p. 154 ; Powell's Evidence, 4th ed. 132. » Blake v. Pilford, 1 M. & Rob. 198. ' Duchess of Kingston's case, 20 How. St. Tr. 613; Baker v. R. K. 3 C. P. 91 ; Mahoney v. Ins. Co. L. R. 6 C. P. 252. See, as qualifying this in cases where a physician is employed by a railway company, under direction ot counsel, to inquire as to damages from acci- dents, Cossey V. R. R. L. R. 5 C. P. 146; Skinner v. R. R. L. R. 9 Ex. 298. Supra, § 460. * Elwell's Malpractice, 320. 6 Edington v. Ins. Co. 5 Hun (N. Y.), 1 ; Kendall v. Grey, 2 Hilt. (N. Y.) 300; People v. Stout, 3 Parker C. R. 670. The privilege extends not only to communications directly from the pa- tient, but to information derived from persons present at the interviews. Edington v. Ins. Co. 67 N. Y. 185. Dilleber v. Ins. Co. 69 N. Y. 256; An assignee of the patient may avail himself of the privilege. Ibid. Under the statutes a druggist is not privi- leged. Brown v. R. R. 66 Mo. 588. ' Johnson v. Johnson, 14 Wend, 637. ' Allen V. Public Administrator, 1 Bradf. (N. Y.) 221. 8 Babcock v. People, 15 Hun, 347 ; Grattan «. Ins. Co. 15 Hun, 74 ; Col- lins V. Mack, 31 Ark. 684. 551 § 608.] THE LAW OF EVIDENCE. [book II. in any view does not protect consultations for criminal purposes.^ Whether, by the Roman common law, a physician is privileged as to matters confidentially imparted to him by a patient, has been much discussed; and the tendency is to assert the inviola- bility of such secrets.^ § 607. Excepting marriage, as is elsewhere shown, there is no No privi- domestic relationship recognized by the law as attach- tached'to ^"g inviolability to its conferences. Thus parents will ties of ]-,Q compelled to disclose confidential communications blood or ^ friendship, from their children ; ^ servants, those of masters ; * friends those of friends.^ § 608. So great is the sanctity attached by the law to mar- riage, that the lips of parents are, as a rule, sealed on the question of sexual intercourse, so far as such tes- timony would go to assail the legitimacy of children. Whether there was such intercourse cannot be inquired of from either father or mother, either directly or by aid of circumstances from which the result could be in- This inviolability, however, is limited to cases where legitimacy is at issue, and does not preclude the examination, in cases of bastardy, of a married woman as to her adultery with a third person, when non-access with her husband is first proved.'' And it has been held competent for a widow, after her husband's death, to testify in support of her children's le- gitimacy.^ But the mother of a child, begotten before marriage, though born after, is incompetent to prove that the child was not Parents cannot be aslced as to sexual in- tercourse in cases in- volving legitimacy. f erred. ^ 1 Hewitt V. Prime, 21 Wend. 79. '^ See a summary of the question in Weiske's Reohtslexicon, xv. 259, ff. 8 Gilb. Ev. 135. * State V. Cliarity, 2 Dov. 543; State V. Isliam, 6 How. (Miss.) 35. 8 Smitli V. Daniell, L. R. 18 Eq. 649. " R. V. Luffe, 8 East, 193; Good- right V. Moss, 2 Cowp. 594 ; Wright V. Holgate, 3 C. & K. 158; R. v. Sourton, 5 A. & E. 180; R. v. Mans- field, 4 Q. B. 444 ; Anon. <■. Anon. 22 Beav. 481; 23 Beav. 273; Ride- out's Trusts, L. R. 10 Eq. 41; Cliam- 652 berlain v. People, 23 N. Y. 85; Boykin V. Boykin, 70 N. C. 262. But the mother of a child is a com- petent witness to establish its legiti- macy, the father being dead. War- lick u. White, 76 N. C. 175. ' Cope V. Cope, 1 M. & Rob. 272; R. !). Reading, Cas. temp. Hard. 79; Com. V. Connelly, 1 Browne (Pa.), 284; Com. v. Shepherd, 6 Binncy, 283; State v. Pettaway, 3 Hawks, 623. 8 Mosely v. Eakin, 15 Rich. (S. C.) 324. CHAP. VIII.1 WITNESSES : DEPOSITIONS. [§ 609. begotten by the husband.^ The privilege thus established is not affected by the statutes removing disability from interest.^ XVI. DEPOSITIONS. § 609. Depositions taken in perpetuam memoriam, as belong- ing to a branch of practice determined by principles Deposi- common to most jurisprudences, have been already dis" e',°ne/by cussed.^ Depositions of absent or sick witnesses, how- local laws, ever, taken under rule of court, as a substitute for oral examina- tions, are governed by local practice. To give the adjudications in this connection would require, so numerous are they and so abundant in technical distinctions, a separate volume. They are therefore remanded to treatises on practice, to which they more properly belong. 1 Dennison v. Page, 29 Penn. St. 420. " " That issue born in wedlock, though begotten before, is presump- tively legitimate, is an axiom of law so well established, that to cite au- thorities in support of it would be a mere waste of time. So the rule, that the parents will not be permitted to prove non-access for the purpose of bastardizing such issue, is just as well settled. Many reasons have been given for this rule. Prominent among them is the idea that the admission of such testimony would be unseemly and scandalous, and this not so much from the fact that it reveals immoral conduct upon part of the parents, as because of the effect it may have upon the child, who is in no fault, but who must, nevertheless, be the chief suf- ferer thereby. That the parents should be permitted to bastardize the child is a proposition which shocks our sense of right and decency, and hence the rule of law which forbids it. " But the counsel for the appellant insists that the. case is within the pur- view of the Act of 1869. The lan- guage of that act, at first blush, might seem to include a case of this kind. ' No interest or policy of law shall ex- clude a party or person from being a witness in any civil proceeding.' The words we have italicized are those re- lied upon to support the appellant's theory. But when we come to con- sider the fact, that ' the interest or policy of law,' which the legislature had in view in passing that act, was that which, before that time, excluded parties from testifying in their own suits, or where they had an interest in the subject matter in controversy, it becomes obvious that a case, such as the one under discussion, was not in the legislative mind when that act was passed. It would, therefore, be an unnecessary and violent construc- tion of the statute to make it include a ' policy of law ' wholly different from that under contemplation when it was framed. We therefore, with- out hesitation, adopt the view taken of this question by the learned j udge of the Court of Quarter Sessions, and agree with him that the Act of 1869 was not intended to abolish a valuable rule of law founded in good morals and public decency." Gordon, J., Tioga County v. South Creek Town- ship, 75 Penn. St. 436, 437. ' See supra, § 181. 553 CHAPTER IX. DOCUMENTS. I. General Rules. A document is an instrument on which facts are recorded, § 614. Instrument is that which conveys in- struction, § 615. Pencil writing is sufficient, § 616. Detached writings {e. g. letters and telegrams) may constitute contract, § 617. Relative instrument inadmissible without correlative, § 618. Admission of part involves admission of whole, § 619. One part of an account cannot be pat in evidence without the rest, § 620. II. Ihterlineations and Alterations. By Roman law presumption is against corrections and interlineations, § 621. By our own law, material alterations avoid dispositive instrument, § 622. Not so immaterial alteration, § 623. Nor alteration by consent, § 624. Nor alteration during negotia- tion, § 625. As to negotiable paper, alteration avoids, § 626. Alteration by stranger does not avoid instrument as to innocent and non- negligent holder, § 627. In writings inter vivos presumption is that alteration was made before ex- ecution, § 629. Otherwise as to wills, § 630. As to ancient documents, burden of exploration is not imposed, § 631. Blank in document may be filled up, §632. III. Statuteb i Legislative Journals ; ExEOUTivE Documents. Public statutes prove their recitals, § 635. Otherwise as to private statutes, § 366. 554 (For proof of public and private statutes, see §§ 289 et seq.) Journals of legislature proof as to re- cited facts, § 637. So of executive documents, § 638. IV. Non-Judicial Registries and Rec- ords. Official registry admissible when stat- utory, § 639. So of records of public administrative officer, § 640. So of records of town meetings, § 641. A record includes its incidents, § 642. Record must be of class authorized by law, § 643. It must be identified and be complete, §644. It must indicate accuracy, § 645. It must not be secondary, § 646. Books and registries kept by public institutions admissible, § 647. IjOg-book admissible under act of Congress, § 648. (For Judicial Records, see infra, § 758.) V. Records and Registries of Birth, Marriage, and Death. Parish records generally admissible, §649. Registries of marriage and death ad- missible when duly kept, § 653. So when kept by deceased persons in course of their duties, § 654. Registry only proves facts which it was the duty of the writer to re- cord, § 655. Entries must be at first hand and prompt, § 656. Certificate at common law inadmissi- ble, § 657. And so of copies, § 658. Family records admissible to prove family events, § 660. CHAP. IX.] DOCUMENTS. VI. Corporation Books. Books of a corporation admissible against members, § 661. But not against strangers, § 662. Wiien proceedings of corporation can be proved by parol, § 663. VII. Books of History and Science; Maps and Charts. Approved books of history and ge- ography by deceased authors re- ceivable, § 664. Books of inductive science not usu- ally admissible, § 665. Otherwise as to books of exact science, § 667. Maps and charts admissible to prove reputation as to boundaries, § 668. And so as again st parties and priv- ies, § 670. VIII. Gazettes and Newspapers. Gazette evidence of public official documents, § 671. Newspapers admissible to impute notice, § 672. So to prove dissolution of part- nership, § 673. But not generally for other purposes, § 674. Knowledge of newspaper no- tice may be proved inferen- tially, § 675. IX. Pictures, Photographs, and Dia- grams. Pictures and photographs, in cases of identity, admissible, § 676. And so of plans and diagrams, §677. X. Shop Books. Shop books admissible when veri- fied by oath of party, § 678. Change of law in this respect by statutes making parties wit- nesses, § 679. Not necessary that party should have independent recollection, §680. Charge must be in party's busi- ness, § 681. Book must be one of original en- try, § 682. Entries must be contemporaneous, §683. Book must be regular, § 684. Charge must relate to immediate transaction, § 685. Such books may be secondary, §686. When plaintiff's case shows trans- fer to ledger, the ledger must be produced, § 687. Writing of deceased party may be proved, § 688. XI. Proof of Documents. Document must be proved by party offering, § 689. Otherwise when produced by opposite party claiming in- terest under it, § 690. Under statutes, proof need not be made unless authenticity be denied by affidavit, § 691. Seal may prove authorization of in- strument, § 692. Substantial identification is suffi- cient, § 693. Distinctive views as to corporations, §694. Public seal proves itself, § 695. Mark may be equivalent to signa- ture, § 696. Stamps, when necessary, must be attached, § 697. Documents are to be executed ac- cording to local law, § 700. Identity of alleged signer of docu- ment must be shown, § 701. Document by agent cannot be proved without proving power of agent, § 702. Documents over thirty years old prove themselves, § 703. Ancient documents may be verified by experts, § 704. Handwriting may be proved by writer himself, or by his admis- sions, § 705. Party may be called upon to write, §706. Seeing a person write qualifies a, witness to speak as to signature, §707. Witness familiar with another's writing may prove it, § 708. Burden on party to prove witness incompetent, § 709. On cross-examination witness may be tested by other writings, § 710. Comparison of hands permitted by Roman law, § 711. Otherwise bv English common law, §712. Exceptions made as to test paper already in evidence, § 713. In some jurisdictions comparison is admitted, § 714. 555 § 614.J THE LAW OF EVIDENCE. [book II. Test papers made for purpose inad- missible, § 715. Unreasonableness of exclusion of comparison of hands, § 717. Experts admitted to test writings, § 718. Photograpbers in such cases admis- sible as experts, § 720. Experts may be cross-examined as to skill, § 721. Their testimony to be closely scru- tinized, § 722. Attesting mtness, when there be such, must be called, § 723. Collateral matters do not require attesting witness, § 724. When attestation is essential ad- mission by party is insufficient, § 725. Absolute incapacity of attesting witness a ground for non-produc- tion, § 726. Secondary evidence in such case is proof of handwriting, § 727. Such evidence not admissible on proof only of sickness of witness, §728. Only one attesting witness need be called, § 729. Witness may be contradicted by party calling him, § 730. But not by proving his own dec- larations, § 731. Attesting witness need not be called to document thirty years old, § 732. Accompanying possession need not be proved, § 733. Deeds by corporations proved by corporate seal, § 735. Attesting witness need not be called when adverse party produces deed under notice, and claims therein an interest, § 736. Where a document is in the hands of adverse party, who refuses to produce, then party offering need not call attesting witness, §737. Nor need such witness be called to lost documents, § 738. Sufficient if attesting witness can prove his own handwriting, § 739. Must be prima facie identification of party, § 739 a. When statutes make acknowledged instrument evidence, it is not necessary to call attesting wit- ness, § 740. XII. Ikspection of Documehts by Oe- DER OF Court. Eule may be granted to compel pro- duction of papers, § 742. So as to public documents, § 745. Corporation books, § 746. Public administrative offi- cers, § 747. Deposit and transfer books, §748. Inspection must be ordered, but not surrender, § 749. Previous demand must be shown, §750. Production of criminatory or priv- ileged document will not be com- pelled, § 751. Documents, when produced for in- spection, maybe examined by in- terpreters and experts, § 752. Deed, when pleaded, can be in- spected, § 753. Inspection may be secured by bill of discovery, § 754. Papers not under respondent's con- trol he will not be compelled to produce, § 756. §614 Document I. GENERAL CONSIDERATIONS. A " DOCUMENT," in the sense in which the term is used in this treatise, is an instrument on which is re- corded, by means of letters, figures, or marks, matter which may be evidentially used. In this sense the term document applies to writings ; to words printed, litho- graphed, or photographed ; to seals, plates, or stones on which in- scriptions are cut or engraved ; to photographs and pictures ; to 566 IS an m- strnment on which facts are recorded. CHAP. IX.] DOCUMENTS. [§ 614. maps and plans. ^ So far as concerns admissibility, it makes no difference what is the thing on which the words or signs offered may be recorded. They may be, as is elsewhere seen, on stone or gems,^ or on wood,^ as well as on paper or parchment. ^ Sir J. Stephen (Ev. 2, 3) defines a document as " any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of these means, in- tended to be used, or -which may be used, for the purpose of recording that matter." A reviewer in the So- licitors' Journal of September 2, 1876, questions the propriety of styling a document, in the above definition, as the " matter " described. The " doc- ument," it is urged, is the substance on which is recorded the inscription. As a substitute, the following is sug- gested : " Document means any sub- stance having any matter expressed or described upon it by means of let- ters, figures, or marks, or by more than one of these means." " Documents of a public nature, and of public authority, are generally ad- missible in evidence, although their authenticity be not confirmed by the usual and ordinary tests of truth, the obligation of an oath, and the power of cross-examining the parties on whose authority the truth of the doc- ument depends. The extraordinary degree of confidence thus reposed in such documents is founded principally upon the circumstance that they have been made by authorized and accred- ited agents appointed for the purpose, and also partly on the publicity of the subject matter to which they relate, and in some instances upon their an- tiquity. Where particular facts are inquired into, and recorded for the benefit of the public, those who are empowered to act in making such in- vestigations and memorials are, in fact, the agents of all the individuals who compose the public ; and every member of the community may be supposed to be privy to the investiga- tion. On the ground, therefore, of the credit due to the agents so em- powered, and of the public nature of the facts themselves, such documents are entitled to an extraordinary de- gree of confidence, and it is not requi- site that they should be confirmed and sanctioned by the ordinary tests of truth; in addition to this, it would not only be difficult, but often utterly im- possible, to prove facts of a public nature by means of actual witnesses examined upon oath." Stark. Evid. 272-3, 4th ed. See ace. Merrick v. Wakley, 8 A. & E. 170; Doe d. France v. Andrews, 15 Q. B. 759, per Erie, J. 2 Supra, § 220. 3 Kendall v. Field, 14 Me. 30; Row- land V. Barton, 2 Harr. (Del.) 288. Wooden tallies were formerly in use in England for the purpose of notch- ing off the numbers, even on public accounts. Pepys, in the third volume of his Diary, frequently adverts to this practice. Tallies (see infra, § 684) continue to be used in this country by bakers and milkmen. The exchequer tallies, says Mr. Best, Evidence, 298, were used as acquittances for debts due to the crown, and for some other purposes. A piece of wood, about two feet long, was cut into a particular un- even form, and scored with notches of different sizes to denote different de- nominations of coin, the largest denot- ing thousands of pounds, after which came respectively hundreds, tens, and units of pounds, while shillings and pence were designated by still smaller 657 § 616.] THE LAW OF EVIDENCE. [book II. Instrument is that which con- veys in- struction in writing or signs. § 615. By the Roman law, instrumentum is defined as omne id, quo causa instrui potest, even witnesses being in- cluded in the general term. In our own law, the term " instrument " has the same wide signification ; includ- ing whatever may be presented as evidence to the senses of the adjudicating tribunal. Hence as instru- ments of evidence may be mentioned not merely documents, in the sense in which the term has just been defined, but witnesses, and living things which may be presented for inspection.^ § 616. It has been sometimes intimated that ink is necessary to constitute a valid writing, when a writing, as such, is to be proved. But the mode of writing is imma- terial, if the thing written, as we have just seen, be legible ; and it has been frequently held that pencil writing, if identified, is sufficient to constitute a writing receivable in evi- dence ; 2 and this even under the statute of frauds.^ Pencil writing sufficient. notches. The wood was then split down the middle, into two parts, so that the cut passed through the notches. One portion was given out to the accountant, &c., which was called the "tally;" the other was kept by the chamberlain, and called the "counterfoil." The irregular form of the tally, together with the natural inequalities in the grain of the wood, rendered fabrication extremely difficult. 1 Supra, §§ 345, 347. The Roman commentators mention as an illustra- tion a sick horse, as in a case cited by Gluok under the redhibitorian action. Gliick, Pand. 22, pp. 3-8. So may be noticed a dog, as to whose charac- ter for mischief there may be a con- test. Supra, §§ 345-6. A tortoise, brought into court for the purpose of proving an inscription on his shell, would, according to Gliick's distinc- tion, be a " document; " and so would the Tichborne claimant, when exhib- ited to the jury, in order that the tat- too marks on his arms should be in- spected. 558 " Millett V. Marston, 62 Me. 477; True «. Bryant, 32 N. H. 241; Hill V. Scott, 12 Penn. St. 168; Gratz v. Beates, 45 Penn. St. 495; May v. State, 14 Ohio, 461; Rembert v. Brown, 14 Ala. 360; Kerr v. Farish, 52 Miss. 101. As to records, how- ever, see infra, § 645. ' Merritt v. Clason, 12 Johns. 106; Clason 17. Bailey, 14 Johns. 491. In a case in Pennsylvania, in 1875 (Woodward's Will, 1 Weekly Notes, 177), it was left undecided whether a pencil writing on slate would con- stitute a will, the case not requiring the point to be ruled; but it is diffi- cult to see why, if pencil marks on paper would stand, pencil marks on slate should fail. Bacon's Abr. tit. Wills, § 307, pi. 1; In re Goods of Dyer, 1 Haggard, 219; S. C. 3 Ecc. Rep. 92; Dickenson v. Dickenson, 2 Phillimore, 173; S. C. 1 Ecc. Rep. 222; Menoe v. Mence, 18 Vesey Jr. 848; Green v. Skipworth, 1 Philli- more, 53; S. C. 1 Ecc. Rep. 83. CHAP. IX.] DOCUMENTS. [§ 618. § 617. It is elsewhere mentioned,^ that letters and telegrams may be received as dispositive admissions by the parties Detached from whom they emanate. It is hardly necessary to Z'^g!iet^ recall the fact that when taken in connection with a tlSgrams, letter, or telegram, or other communication, on the "^Jjg™„. other side, a letter may constitute part of a contract, tract. and is to be construed as such.'^ The contract may be gathered from a series of connected papers and memoranda ; ^ but where a person seeks to prove the terms of a contract by a series of let- ters, he must take the whole of each letter, and cannot pick out part and reject the rest.* A single telegram sent by a purchaser may, if accepted, constitute a sufficient memorandum, within the statute of frauds.^ To satisfy the statute, the memorandum need only be signed by the party charged ; and, if so signed, is good against him, though not against the other party ; and where a written proposal signed by one contracting party is orally as- sented to by the other, it is a memorandum, within the statute, sufficient to charge the party signing.^ A mere insulated tele- gram, however, cannot be introduced to prove a contract.^ § 618. By the Roman law a writing in itself incomplete, but referring to another, cannot be received without the „ . writing to which reference is so made. Documentum writing in- referens sine relato nihil probat ; or, as the rule is more without accurately stated, a relative document, documentum ''°"**"^^- ref evens, is not by itself evidence without its complementary doc- ument, documentum relatum, unless the absence of the latter in- strument be satisfactorily accounted for and its contents proved.^ Several reasons are given for this rule. The non-production of the complementary writing, it is sometimes argued, is to be re- garded as a fraudulent suppression of evidence, so as to deprive, ' Infra, §§ 1127-8. affirmed, L. R. 7 Ch. 406 ; 43 L. J. " Coupland v. Arrowsmith, 18 L. Ch. 551 ; Moore v. Hawks, 56 Ga. T. (N. S.) 755; Unthank v. Ins. Co. 557. 4 Biss. 367; Dunning v. Roberts, 35 ' Godwin v. Francis, L. R. 6 C. P. Barb. 463; Taylor v. Robt. Campbell, 293; 39 L. J. C. P. 121. Infra, § 872. 20 Mo. 254 ; Crane v. Maloney, 39 ' Reuss v. Pickley, L. R. 1 Ex. Iowa, 39. 342; 4 H. & C. 588; Powell's Evi- » Bauman ti. James, L. R. 3 Ch. dence, 4th ed. 380. See, as to broker's 108. books, supra, § 75; infra, § 872. " Infra, § 1103. Nesham v. Selby, ' Beach v. R. R. 37 N. Y. 467. L. R. 13 Eq. 191; 43 L. J. Ch. 173; 8 Nov. 119. cap. 3. 659 § 619.] THE LAW OF EVIDENCE. [BOOK II. on grounds of policy, the party claiming under the dependent paper of a standing in court. The adjudicating tribunal, it is further insisted, has a right to infer that the suppressed writing would, if in evidence, have defeated the effect of that produced. But these reasons go too far. Of course when the documentum ref evens designates the documentum relatum as giving essential interdependent features of the transaction to which the two re- late, then the first cannot be received in evidence without the other, because the first is in itself incomplete. But it is other- wise when the documentum referens professes to be complete in substance, though condensed in form.^ The following distinc- tion, however, is to be noticed. When the documentum referens emanates from the party against whom it is offered, then it is not necessary for the party offering to prove the authenticity and accuracy of the documentum relatum, for these must be regarded as conceded by the party making the documentum referens. Where, however, the documentum referens emanates from a third party, then the validity of the documentum relatum must be proved by the party offering the documentum referens. In cases of certificates of public officers, this may be done by the certifi- cate itself. But the certificate must purport to be complete.^ § 619. In our own law this rule has been applied in various Admission relations,^ and it is fully settled that when one writing of part in- refers directly or indirectly to another for a fuller de- volves ad- . . ■' .... mission o£ scription, the admissibility of the first writing involves the admissibility of the second.* So, also, the admis- sion of a writing involves the admission of all self-disserving in- dorsements thereon made by the holder or with his permission.^ Thus, where a note is received in evidence, this brings in as evi- dence all self-disserving indoi'sements of payment on the note.® 1 See this topic fully discussed in- 104; Satterlee v. Bliss, 36 Cal. 489; fra, §§ 1103-1109. Jordan v. Pollock, 14 Ga. 145; Smith 2 See L. 14, C. iv. 2] ; Weiske's v. Chenault, 48 Tex. 455, and cases Rechtslexicon, xi. 669. See fully su- cited infra, §§ 924, 1103-5. pra, § 138. 6 pjarper v. West, 1 Cranch C. C. 8 See infra, §§ 924, 1103-5. 192; Clarke v. Page, 1 Har. & J. 318; ^ Nesham v. Selby, cited supra, § Gilpatriok v. Foster, 12 111. 355; Lloyd 617; Clark v. Crego, 47 Barb. 599; v. McClure, 2 Greene, Iowa, 139; Ca- Commissioners v. Washington Park, rey v. Phil. Co. 33 Cal. 694. 62 JST. Y. 131; Blair v. Hum, 2 Rawle, e piumer v. French, 22 N. H. 450: 660 CHAP. IX.] DOCUMENTS. [§ 621. § 620. The most striking illustration of the principle before us, however, is in respect to accounts. It would be Onepartof manifestly unfair to permit one item in an account to cannorbe" be read, and to suppress the rest. Hence, when a party ^^™'^f puts in evidence the debits in an account stated by the the rest. opposite party, then the opposite party has a right to call for the reading of the credits. In other words, a party, by putting a part of an account in evidence, enables his opponent to put in the whole.i Detached items in accounts, however, are not neces- sarily so connected that the one drags in the other.^ II. INTERLINEATIONS AND ALTERATIONS. § 621. By the German notarial ordinance of 1512, which has acquired international force, and which is the basis of gy Roman much subsequent extra-territorial adjudication, it is ^^^' P™- provided that when a document is complete, and has is against ^ ■,..-, corrections been acknowledged before a notary, nothing further and inter- is to be added to it, even though with the consent of the parties ; the object being to give solemnity and finality to the notarial act. It is further -required that all interlineations, corrections, or emendations, prior to acknowledgment, shall be specially certified in the attestation of the document ; and this is declared to be peculiarly obligatory in cases where the inter- lineation or correction in spatio is not by the hand by which the document is engrossed. The ordinance, however, is directory, not prohibitory, containing no provision that the validity of docu- ments is destroyed by irregular corrections or emendations. A Brown u. Hunger, 16 Vt. 12; Flint v. Davis, 3 Cranch C. C. 4; Morris v. V. Flint, 6 Allen, 34; Saunders v. Mc- Hurst, 1 Wash. C. C. 432; Prince v. Arthy, 8 Allen, 42 ; Kingman v. Tir- Swett, 2 Mass. 569 ; Com. v. Davison, rell, 11 Allen, 97; Long v. Kingdon, 1 Cush. 33; Walden v. Shelburne, 15 25 111. 66; Hopkins v. Chittenden, 36 Johns. R. 409; Winants v. Sherman, 111. 112; Baldwin v. Walden, 30 Ga. 3 Hill, 74; Low t;. Payne, 4 N. Y. 829; Clark v. Simmons, 4 Port. 14. 247; Dewey v. Hotchkiss, 30 N. Y. See infra, § 1103; Harrell u. Dur- 497; Jones v. Jones, 4 Hen. & M. 447; ranee, 9 Fla. 490. And as to efiect Freeland v. Cocke, 3 Munf. 352; of indorsements of payment to take Young v. Bank, 5 Ala. 179; Lewis a document out of the statute of lim- v. Dille, 1 7 Mo. 64 ; White v. Jones, itations, see supra, §§ 228-30; infra, 14 La. An. 681. § 1135. ^ See infra, §§ 1135-1140. 1 See infra, §§ 1103-6, 1135. Bell VOL. I. 36 561 § 621. J THE LAW OF EVIDENCE. [BOOK H. notary, indeed, who disobeys the ordinance, is subjected to pun- ishment ; but whether the document itself is thereby avoided, depends upon the hona fides of the transaction. The entering, in the margin of the document, or between its lines, of words evidently necessary to complete the sense of the body of the text, has been regarded as not in itself working invalidity. It is otherwise, however, when the interlineation or addition incor- porates new matter, varying the sense of the body of the docu- ment ; and in such case, to support the document as thus cor- rected, it must be shown that the correction had the assent of the party bound. It is not to be presumed, without evidence, that a party would sign a solemn document, in which material clauses are interlined, or written in the margin ; and this presumptipn is strengthened when the interlineations or additions are written in a different hand, or with different ink, from the body of the text. Nor do such corrections carry with them any evidence as to their date. The very fact that they are corrections is a pre- sumption, so the Roman jurists argue, that they were written after the body of the document ; and this negative proof is all that the instrument (unless there be a special memorandum as to the date of the correction) affords. Hence, by the present practice of the Roman common law, if on producing a document there should appear on it unattested interlineations or corrections which are not necessary to complete the sense of the body of the text, or which are otherwise suspicious, the party producing is required to sustain the genuineness of such interlineations or additions. In other words, a party who claims a right by virtue of such interlineations or additions is required to show that they were made before execution. If, however, a right is grounded on their supposed nullity, and the plaintiff claims upon the doc- ument as it stands without such corrections, and the defendant pleads that such corrections are genuine and valid, it has been much discussed on which side lies the burden of proof.i The question is one admitting of much subtlety of argument, for, adopting the maxim, Aetore non probante, reus absolvitur, it has to be determined who, as to the point of the validity of the cor- rections, is the actor. The better solution is, that if the correc- tions impart a new sense to the document, and are not mere * See Weiske's Rechtslex. xi. 676. 562 CHAP. IX. J DOCUMENTS : ALTERATIONS. [§ 622. insertions of omitted words, they are, primd facie, to be treated as outside of the instrument, and hence the plaintiff may treat them as nullities. In such case the burden is on the party rely- ing on them to prove their validity.^ § 622. By Anglo-American common law, a material alteration made in a dispositive document (i. e. a document Material sought to be enforced as disposing of rights), when such made^n" document was either actually or constructively in the ^''Positive J J document control of a party offering it in evidence, precludes avoids it. such party from availing himself of the document, if the altera- tion was not made at or before the execution of the writing, or by consent of the parties.'^ Were this rule not maintained, a party holding a document might execute or connive at material alterations in its terms, and then take the chance of the altera- tions being detected, with the consciousness that in case of de- ^ See to this point Chesley «. Frost, 1 N. H. 145; Johnson v. McGehee, 1 Ala. 186 ; Carson v. Duncan, 1 Greene (Iowa), 466 ; Page v. Danaher, 43 Wis. 221 ; North v. Henneberry, 44 Wis. 306. 2 Pigot's case, 11 Kep. 27 ; Master V. Miller, 4 T. R. 330; 2 H. Bl. 141; Powell V. Divett, 15 East, 29 ; MoUett V. Wackerbarth, 5 C. B. 181; Fal- mouth V. Roberts, 9 M. & W. 471; Davidson v. Cooper, 11 M. & W. 778; Parry v. Nicholson, 13 M. & W. 779; Campbell v. Christie, 2 Stark. R. 64; Forshaw v. Chabert, 3B.&B. 166;6 Moore, 369 ; Clifford v. Parker, 2 M. & Gr. 910; Smith v. U. S. 2 Wall. 219 ; Sargent v. Pettibone, 1 Aik. 355; Austin v. Boyd, 24 Pick. 64; Doane v. Eldridge, 16 Gray, 254; Stoddart ». Penniman, 108 Mass. 366; Draper u. Wood, 112 Mass. 315; Nor- wich Bank v. Hyde, 13 Conn. 279; Booth t>. Powers, 56 N. Y. 22; Church- man V. Smith, 6 Whart. R. 146; Hill V. Cooley, 46 Penn. St. 259; Diehl r. Emig, 65 Penn. St. 320; Charles v. Huber, 78 Penn. St. 448; Farmers' Ins. Co. V. Bair, 82 Penn. St. 33; Cochran e. Nebeker, 48 Ind. 459; Walters v. Short, 10 111. 252; Bene- dict V. Miner, 58 111. 19; Johnson v. Pollock, 58 111. 181 ; Comstock v. Smith, 26 Mich. 306; Caldwell v. Me- Dermitt, 17 Call, 464; Blake v. Lowe, 3 Desau. (S. C.) 263; Doster v. Brown, 25 Ga. 24 ; Hill v. Nisbet, 58 Ga. 586 ; Washington Bk. v. Ecky, 51 Mo. 272; Whitesides v. Bank, 10 Bush, 601 ; Lochnane v. Emmerson, 11 Bush, 69. See Kimball v. Lam- son, 2 Vt. 138. In Force v. Elizabeth, 28 N. J. Eq. 403, it was held that when municipal bonds are payable to bearer, and are only distinguished from each other by their numbers, the alteration of a num- ber avoids the bond in the hands of the person by whom the alteration is made, and of all claiming under him. See on this topic two learned arti- cles in the Albany Law Journal for 1877, pp. 64, 80. That time and intent are for the jury, see 2 Pars, on Cont. 721, subject to the presumptions hereafter stated. Infra, § 629. 663 § 624.] THE LAW OF EVIDENCE. [BOOK II. tection he would be no loser, but could fall back on the instru- ment in its original frame. So highly is such spoliation of instruments reprobated, that a person who designedly alters in his own favor a note in his hands will not be permitted to prove the debt represented by the note by other evidence.^ It need scarcely be added that where an alteration is noted in the attes- tation of the instrument this accounts sufficiently for the alterar tion, virtually incorporating it in the text.^ § 623. It sometimes happens that an alteration that is merely „ immaterial is made by a party either intentionally or Document . . n , , • , , , not avoid- unintentionally, though without the other party s con- immaterial sent, after the execution of a document. It would be a a era ion. j^^^.^ measure to make such an alteration, innocent in purpose and in effect, operate as an avoidance ; and hence, fol- lowing in this the Roman law, as already given,^ our courts have ruled that such alteration, when the object of the alteration is to correct an obvious error, shall not be regarded as working such an avoidance.* A fortiori is this the case when the altera- tion is merely formal.^ And the same conclusion is reached where the alteration goes to the substance, but where the altered document is not relied on as the foundation of a right.® § 624. Nor, unless in those cases where a statute makes cer- tain formalities essential, is a document affected by its alteration, 1 Martendale v. Follet, 1 N. H. 95. 426; 4 Moore, 42 ; Clapham v. Colo- See infra, § 1265. gan, 3 Camp. 382; Waugh v. Bussell, 2 See Taylor's Ev. § 1616; Re- 5 Taunt. 707; Keane v. Smallbone, forn^ed Dutch Church u. Ten Eyck, 17 C. B. 179; Aldous v. Cornwell, L. 25 N. J. L. 40; Lazier v. Westcott, K. 8 Q. B. 573; Smith v. Crooker, 26 N. Y. 146. 5 Mass. 538 ; Brown v. Pinkhara, 18 « Supra, § 621. Pick. 172 ; Woolfolk w. Bank, 10 Bush, * Bluck V. Gompertz, 7 Exch. R. 504; Moye k. Herndon, 30 Miss. 120; 862 ; Clapham v. Cologan, 3 Camp. Allen v. Sales, 56 Mo. 28. 382; Keane v. Smallbone, 17 C. B. « Hutchins w. Scott, 2 M. & W. 809; 179 ; Waugh v. Bussell, 5 Taunt. 707; Falmouth v. Roberts, 9 M. & W. 471; Major !). Hansen, 2 Biss. 195; Her- Davidson v. Cooper, 11 M. & W. 800; rick V. Baldwin, 17 Minn. 209; Gist Agr. Cattle Ins. Co. v. Fitzgerald, 16 V. Gans, 30 Ark. 285. But see Hunt Q. B. 432; Ward ^. Lumley, 5 H. & V. Gray, 6 Vroora, 227; and Force v. N. 87; Cutts w. U. S. 1 Gall. 69; U. Elizabeth, 28 N. J. Eq. 403, cited S. v. Spalding, 2 Mason, 478. As to supra, § 622. And see Turner u. Bel- distinction between evidential and dis- lagram, 2 Cal. 523. positive documents, see infra, §§ 923, 5 Sanderson v. Symonds, 1 B. & B. 1082. 664 CHAP. IX.] DOCUMENTS : ALTEKATIONS. [§ 625. by consent of the parties, subsequent to its execution. What they have made they have a right to vary. Of course, ^^ where the execution of the document must be in a teration of particular form, there the alteration, to be operative, mentby must be in the same form.^ But unless there be such ''°°*^° ■ prohibition, the parties may alter in any way as to which they may agree. Thus, where the words " or order," which had been left out by mistake, were inserted by consent in a note intended to be negotiable, this was held neither to avoid the note, nor to require the imposition of a new stamp.^ The same rule applies where the alteration is one in conformity with local cus- tom, as where the custom is, when a draft is taken up by the acceptors, to erase all the names therein. ^ § 625. The period after which alterations, not mutual, are fatal, is that of the final delivery of the document. Very often a document may require the signature of several terations successive parties before its completion, and if so, an ing nego- alteration may be made, without invalidating it at any time before its final delivery, provided this does not affect the rights of persons who have executed it before the alteration.* In other words, an alteration after A., B., and C. have signed, though made without their consent, may be good as to E. and F., subsequent signers, whom it materially affects, and good also as to A., B., and C, prior signers, whom it does not materially affect." So an alteration may be made of a document delivered only as an escrow, provided the rights of prior parties without notice are not thereby affected ; ^ or, generally, as to a grantor who still 1 Jacob V. Hart, 6 M. & S. 142; » O'Flaherty, in re, 7 La. An. 640; Walter v. Cubley, 2 C. & M. 151; and see intra, § 632. Stevens v. Lloyd, M. & M. 292; Walr ^ Blake v. Coleman, 22 Wis. 415; bridge v. Ellsworth, 44 Cal. 363. Infra, Bernstien v. Ricks, 20 La. An. 409. § 901. ^ Davidson v. Cooper, 11 M. & W. " Taylor's Evidence, § 1620, citing 802, by Lord Abinger ; Taylor's Ev- Byrom U.Thompson, 11 A. & E. 31; idence, § 1628, citing also West v. Hamelineu. Brack, 9 Q. B. 306; Far- Steward, 14 M. & W. 47. See Little quhar v. Southey, M. & M. 14; Ea- v. Herndon, 10 Wall. 26; Walls v. gleton V. Gutteridge, 11 M. & W. McGee, 4 Harr. (Del.) 108. 465; Vose v. Dolan, 108 Mass. 153; « West u. Steward, 14 M. & W. 49; Plank R. R. v. Wetsel, 21 Barb. 56. Gudgen v. Bassett, 6 E. & B. 986. As to filling up blanks, see infra, § 632. 565 § 626.] THE LAW OF EVIDENCE. [BOOK II. retains control of a deed, either actually or constructively, and who may be understood to reserve the right to alter the instru- ment, even though signed by himself, at any time before it passes from him.^ "What is thus said as to deeds has been applied to marriage settlements,^ and to bonds.^ In fine, wher- ever several parties, as in insurance policies and composition deeds, join in a written instrument, the instrument is not re- garded as completed, so as to make it open to the application of the rule before us, until executed by all the parties. Until so executed, alterations may be made without invalidating the writ- ing as to the parties previously executing, provided nothing in the alteration affects their rights.* § 626. As to bills and notes, the rule is, that a note or bill becomes closed to alteration as soon as it is available. As to ne- ... gotiable though not before. Tliis question arises in England chiefly under the stamp laws ; and under these acts it has been held generally that every material alteration, whether made before or after acceptance, or with or without consent, will invalidate a bill, as soon as such bill, whatever may be its char- acter as to original consideration, passes to a party who, as a bond fide holder for a valuable consideration, is entitled to sue any prior party .^ On the other hand, an unindorsed bill for value is not considered complete until it is accepted and returned to the payee.^ A fortiori, an accommodation bill is not in this view complete, and, so far as concerns parties with notice, may be altered, under the stamp act, after it has been drawn, ac- cepted, and indorsed.' But, so far as concerns either of the parties, it cannot, of course, as against such party, be altered at 1 Jones V. Jones, 1 C. & M. 721; per Lord Abinger; West v. Steward, 3 Tyr. 800 ; Doe v. Knights, 5 B. & 14 M. & W. 47 ; Doe v. Bingham, 4 C. 671; Xenos v. Wickham, L. R. 2 B. & A. 675. H. L. 296; Richards i>. Lewis, 11 C. ^ Outhwaite v. Lumley, 4 Camp. B. 1046; Little v. Herndon, 10 Wall. 179 ; Walton v. Hastings, 4 Camp. 26- 223; Chitty on Bills, 186; Taylor's 2 Jones V. Jones, 1 C. & M. 721; Evidence, §1629. 3 Tyr. 890 ; Taylor's Evidence, § « Ibid. ; Kennerly v. Nash, 1 Stark. 1630. R. 452; Sherrington v. Jermyn, 3 C. " Matson v. Booth, 6 M. & Sel. & P. 374. 223. ' Tarleton v. Shingler, 7 C. B. 812; * Taylor's Evidence, § 1622, citing Doe v. Bingham, 4 B. & A. 675. See Davidson v. Cooper, 11 M. & W. 802, Page v. Donaher, 43 Wis 221 566 CHAP. IX.J DOCUMENTS : ALTERATIONS. [§ 626. any time after he has signed it, so as to bind him to terms he did not himself adopt.^ In an English case decided in 1876, the evidence was that a person intrusted with a check by the payee to pay into a bank absconded with it, and after altering the date from the 2d of March to the 26th of March passed it to the plaintiff for value. The check was not paid, and the plaintiff, who had not been guilty of any negligence in taking the check, sued the drawer. It was held that the alteration invalidated the check ; and that the circumstance that the plaintiff had not been guilty of negligence in taking it was immaterial.^ Negotiable paper, even in the hands of an innocent holder,^ 1 As to filling up blanks in nego- tiable paper, see infra, § 632. As to burden of proof in such oases, see infra, § 629. " So tar as concerns negotiable pa- per, if an alteration appear to have been made contemporaneously with the instrument, or if it be made subse- quently to its execution, with the priv- ity of the parties, and there be no fraud on, or evasion of, the stamp laws, its validity may be maintained. But if the alteration be material; Gardner v. Walsh, 5 E. & B. 83, overruling Cat- ton V. Simpson, 8 A. & E. 136; as of the date; Clifford v. Parker, 2 M. & Gr. 905 ; or amount or time of pay- ment of a bill of exchange be altered; Warrington v. Early, 2 El. & Bl. 763; or a joint responsibility converted into a joint and several responsibility ; Al- derson v. Langdale, 3 B. & Ad. 660; the instrument will be void, unless the alteration was made by consent of the parties ; and equally so, although made with consent, if the stamp laws are infringed. Perring v. Home, 4 Bing. 28. So, where a bill has been altered, with the privity of an indorser and his indorsee, but without the privity of the acceptor, the latter is dis- charged. Master v. Millor, 1 Smith L. C. 796, and notes. The same rule holds when the alteration is acciden- tal; Burchfield v. Moore, 3 E. & B. 683 ; or by a stranger without the privity of either party. Davidson u. Cooper, 11 M. &. W. 778; S*. C. 13 M. & W. 352; Crookwit v. Fletcher, 1 H. & N. 293. Parol evidence may be called to show that a variation be- tween a bought note and a sold note is immaterial. Holmes v. Mitchell, 7 C. B. N. S. 361." Powell's Evidence (4th ed.), 433. ' Vance v. Lowther, L. E. 1 Ex. D. 176. » In Brown v. Reed, 79 Penn. St. 370, it was held that a promissory note negotiable in form is not rendered invalid in the hands of a bond fide holder, because shown to have been detached or torn from another paper containing a contract between the original parties to it, the terms of which would, if known to the holder, have debarred him from suing. It was, however, ruled that the muti- lation of a written contract, by cutting or tearing off a portion of it so as to make the separated portion resemble a promissory note, is a. forgery, and, unless negligence in the maker, in signing such an instrument, be shown, a holder, though bond fide, and with- out notice, cannot recover thereon. The principle of the cases, said Sharswood, J., " is, that if the maker of a bill, note, or check, issues it in such a condition that it may easily be 567 § 626.] THE LAW OF EVIDENCE. [book II. has been held to be invalidated, so far as concerns the liability of parties not consenting,^ by the adding, after issue, of an addi- tional maker's name to a joint and several note,^ by the convert- altered without detection, he is liable to a bona fide holder who takes it in the usual course of business, before maturity. The maker ought, surely, not to be discharged from his obliga- tions by reason, or on account of, his suing a note that invited tampering with. These cases did not decide that the maker would be bound to a hona fide holder on a note fraudu- lently altered, however skilful that alteration might be, provided that he had himself used ordinary care and precaution. He would no more be responsible upon such an altered in- strument than he would upon a skil- ful forgery of his handwriting. The principle to which I have adverted is well expressed in the opinion of the court, in Zimmerman v. Rote, 75 Penn. St. (25 P. F. Smith), 191. It is the duty of the maker of the note to guard not only himself but the pub- lic against frauds and alterations, by refusing to sign negotiable paper made in such a form as to admit of fraud- ulent practices upon them with ease and without ready detection. But would the facts offered to be given in evidence, and rejected by the court below, have brought the case within the line of these decisions? We think not. In Phelan v. Moss, and in Zim- merman V. Rote, the party signed a perfect promissory note, on the mar- gin of, or underneath which, was writ- ten a condition which, as between the parties, was a part of the contract, and destroyed its negotiability. But it could easily be separated, leavino' the note perfect, and no one would have any reason to suspect that it had ever existed. " In Garrard v. Haddan, 67 Penn. 568 St. (17 Smith) 82, the note was ex- ecuted with a blank, by which the amount might be increased without any score to guard against such an al- teration. In all these cases the defend- ants put their names to what were on their faces promissory negotiable notes. In the case before us, on the defend- ant's offer, he did not sign a promissory note, but a contract by which he was to become an agent for the sale of a washing machine. It was, indeed, so cunningly framed that it might be cut in two parts, one of which, with the maker's name, would then be a per- fect negotiable note. Whether there was negligence in the maker was clearly a question of fact for the jury. The line of demarcation between the two parts might have been so clear and distinct, and given the instrument so unusual an appearance, as ought to have arrested the attention of any prudent man. But it may have been otherwise. If there was no negligence in the maker, the good faith and ab- sence of negligence on the part of the holder cannot avail him. The alter- ation was a forgery, and there was nothing to estop the maker from al- leging and proving it The ink of a writing may be extracted by a chem- ical process so that it is impossible for any but an expert to detect it; but surely in such a case, it cannot be pretended that the holder can rely upon his good faith and diligence." See, also, Lochnane v. Emmerson, 11 Bush, 69. 1 See Chitty on Bills, 181-185 ; 1 Smith's L. C. 776, 811. Myers ii. Nell, 84 Penn. St. 379. " Gardner v. Walsh, 5 E. & B. 63, 83 ; overruling Catton u. Simpson, 8 A. & E. 136; 3 N. & P. 248, S. C. CHAP. IX.] DOCUMENTS : ALTERATIONS. [§ 626. ing a joint into a joint and several indebtedness,^ by the erasure or excision of the signature of one of several co-promisors in a joint and several note,^ hj changing one place of payment for another,^ by altering or limiting the relations of the parties ; * by changing the date ; ^ by inserting the words, " with interest," ^ by inserting a specific rate of interest,'' by changing the time of pajuiient,^ by the introduction of a place of payment, though the acceptance still remains a general acceptance,® by the alteration See Gould v. Coombs, 1 Com. B. 543 ; Ex parte Yates, in re Smith, 27 L. J. Bank'y, 9; 2 De Gex & J. 191, S. C; McVean v. Scott, 46 Barb. 379; Wal- lace V. Jewell, 21 Ohio (N. S.), 163 ; Haskell v. Champion, 30 Mo. 136. It has, however, been held in New York, that the adding a new name where there is but one maker does not dis- charge the maker. Partridge v. Col- by, 19 Barb. 248; MeVean v. Scott, 46 Barb. 379; Muir v. Demaree, 12 Wend. 468 ; McCaughey v. Smith, 27 N. Y. 39 ; Miller v. Finley, 26 Mich. 249. See 2 Pars. Notes, 559; 2 Dan. on Neg. Inst. § 1388. ' Perring v. Hone, 4 Bing. 28; 12 Moore, 135; 2 C. & P. 401, S. C. 2 Mason v. Bradley, 11 M. & W. 590. See Nicholson v. Revill, 4 A. & E. 675; 6 N. & M. 192, S. C. ; Cum- berland Bank v. Hall, 1 Halst. 215. See Mahaiwe Bank v. Douglass, 31 Conn. 170; Davis v. Coleman, 7 Ired. 424. « Tidmarsh v. Grover, 1 M. & Sel. 735 ; R. V. Treble, 2 Taunt. 329 ; S. C. R. & R. 164 ; Nazro v. Puller, 24 Wend. 374; Walker v. Bank, 13 Barb. 637; Sharpe v. Bellis, 61 Penn. St. 69; but seeMilleri). Reed, 27 Penn. St. 244, where it was held that the interlineation of the words, " or either of us," in a joint note, was not a ma- terial alteration, and did not avoid the note, under the Act of 1848 oblit- erating the distinction between joint and joint and several obligations. Adding the residence of an indorser does not avoid the note. Struthers 0. Kendall, 41 Penn. St. 214. See Sudler V. Collins, 2 Houst. 38. * Knill H. Williams, 10 East, 431. 5 Master v. Mille, 4 T. R. 320; 2 H. Bl. 140, S. C; Outhwaite v. Lunt- ley, 4 Camp. 179, per Ld. Ellenbor- ough; Walton o. Hastings, Ibid. 223; 1 Stark. R. 215, S. C. per Ibid.; Card well v. Martin, 9 East, 180 ; Wood V. Steele, 6 Wall. 80; Stephens v. Graham, 7 S. & R. 505 ; Owings v. Arnot, 33 Mo. 406; Brittou v. Dier- ker, 46 Mo. 591. s McGrath . Steward, 14 M. & W. 48; Revett, 5 Bing. 388; 2 M. & P. 663 though see England u. Downs, 2Beav. Tupper v. Foulkes, 9 C. B. N. S. 797, 522; Halsey v. Whitney, 4 Mass. 219; ° Ball v. Dunsterville, 4 T. E. 313 Keyes v. Brush, 2 Paige, 311. Harrison v. Elvin, 3 Ad. & El. 117 2 Upton V. Archer, 41 Cal. 85; Gardner v. Gardner, 5 Gush. 483; Schintz V. McManamy, 33 Wis. 299. Hanford u. McNair, 9 Wend. 56. » Supra, §624; infra, § 901. ' See supra, §§ 286-292; Whiton * German Ass. v. Sendmeyer, 50 v. Ins. Co. 109 Mass. 30, quoted in- Penn. St. 67. See, also, Wiley v. fra, § 638; Henthorn «. Shepherd, 1 Moor, 17 S. & R. 438 ; and see cases Blackf. 157. See State v. Sartor, 2 to the same efl'ect in reference to Strobh. 60. promissory notes, cited supra, § 632. ^ g, „. pg Berenger, 3 M. & S. 67. On this principle alterations have been But would not judicial notice of the sustained in Com. Bk. v. Kortright, 22 war be taken without the statute ? Wend. 348; and Hudson v. Revett, 5 Supra, § 339. Bing. 388. » R. „. Sutton, 4 M. & S. 532. ' Skinner v. Dayton, 19 Johns. 513; " R. v. Greene, .6 A. & E. 548. Cady V. Shepherd, 11 Pick. 400. See 578 CHAP. IX.] PUBLIC DOCUMENTS : STATUTES. [§ 638. § 636. As long as, in England, the passage of private statutes was conditioned on the approval of the judges, recitals jjg^ijjjig ;„ in such statutes were admitted as evidence of the facts P"™te statutes they stated.^ When, however, this prerequisite was no not usually GvidsncBi longer insisted on, such recitals were held only to im- ply notice in the parties, such notice not reaching to strangers.^ Such is no doubt the rule in the United States.^ As against the party for whose relief the statute was passed ; * and as against the state ; ^ such recitals are primd facie proof ; but they are not evidence against strangers. § 637. The journals of Congress, and of the state legislatures, are the proper evidence of the action of those bodies.^ ^ , , ^ ^ _ , Journals of As a rule, they are primd facie proof of the facts they legislature recite.'^ They are records, to be proved by inspection,^ and cannot ordinarily be corrected by parol. ^ § 638. The official proclamation and other public documents issued by the executive are to be received as primd facie proof of facts stated in them, when such facts are rele- eoutive vant.i" State papers, when published under the author- ity of Congress, have a like effect.^' Thus the diplomatic corre- 1 Supra, § 292; Wharton Peerage, be confined to incidents of legislative 12 CI. & F. 302 ; Shrewsbury Peer- action, and not to opinions expressed age, 7 H. of L. Cas. 13. in preambles of resolutions. ^ Shrewsbury Peerage, 7 H. of L. * Coleman v. Dobbins, 8 Ind. 156. Cas. 13; Beaufort v. Smith, 4 Ex. R. » Wabash R. R. v. Hughes, 38 111. 450; Cowell i.. Chambers, 21 Beav. 176; Covington v. Ludlow, 1 Mete. 619; Mills v. Colchester, 36 L. J. C. (Ky.) 295. Infra, § 980 a. P. 214; Tayler v. Parry, 1 M. & Gr. i» Thelusson u. Cosling, 4 Esp. 266; 604; Ballard v. Way, 1 M. & W. 329. R. v. Franklin, 17 How. St. Tr. 638 ; ' Elmendorff v. Carmichael, 3 Litt. Talbot ». Seeman, 1 Cranch, 1 ; Ross (Ky.) 472. II. Cutchall, 1 Binney, 399. * State V. Beard, 1 Ind. 460. " Watkins v. Holman, 16 Pet. 26 « Lord V. Bigelow, 8 Vi. 460. Bryan v. Forsyth, 19 How. U. S. 334 « Supra, §§ 290-295; Jones v. Ran- Gregg v. Forsyth, 24 How. U. 8. 179 dall, ] Cowp. 17. Dutillet v. Blanchard, 14 La. An. 97 ' Albertson v. Robeson, 1 Dall. 9 ; Nixon v. Porter, 34 Miss. 697. As to Root V. King, 7 Cow. 613; Miles v. judicial notice, see § 317; Whiton v. Stevens, 3 Penn. St. 21; Green v. Ins. Co. 109 Mass. 24; Radcliff u. Ins. Weller, 32 Miss. 650. See R. v. Co. 7 Johns. 38. Franklin, 17 How. St. Tr. 637. See, "Acts of Congress, and proclama- as to judicial notice of legislative ac- tions issued by the secretary of state tion, supra, §§ 290, 295. It should be in accordance therewith, are the ap- added, that the rule in the text should propriate evidence of the action of the 679 § 639.] THE LAW OF EVIDENCE. [BOOK II. spondence communicated by the President to Congress has been held in this sense evidence of the facts communicated.^ So the ordinances of foreign states, promulgated by Congress, are held proved by force of such promulgation.^ Army registers, when authenticated by the secretary of war, have been held to be proof of the names of oflEicers, of the dates of their commissions, and of their resignations, though they cannot be received to show the pay and emoluments of officers.^ The proclamation of a gov- ernor of a state is primd facie evidence of the result of the elec- tions which it recites.* The printed report of a state comptroller to the legislature is primd facie evidence of the pertinent facts recited ; * and so is the charter of a city.^ But it has been held that a report of the register of the state land ofBce cannot be received to prove that lands have been patented to a railroad company.'^ IV. NON-JUDICIAL REGISTRIES AND RECORDS. § 639. Where a statute requires the keeping of an official Official record for the public use, by an officer duly appointed cefvableTn ^^^ t^® purpose, and subject not merely to private suit evidence, b^j ^q official prosecution for any errors, such record, so far as concerns entries made in it in the course of business, is admissible in evidence as primd facie proof of the facts it con- tains.^ Nor is it necessary to verify such record by the oath of the person keeping it. That it is directed by statute to be kept for the public benefit, and that it is kept, so far as appears on its national government. Taylor on Ev. J., Whiten v. Insurance Co. 109 Mass. (5th ed.) § 1473; 1 Greenl. Ev. §491. 30. And the volume of public documents, i Bryan v. Forsyth, 19 How. U. S. printed by authority of the Senate of 334 ; Radeliff v. Ins. Co. 7 Johns. 38. tlie United States, containing letters '^ Talbot i>. Seeman, 1 Cranch, 1. to and from various officers of state, ' Wetmore v. U. S. 10 Pet. 647. communicated by the President of the As to judicial notice of military law. United States to the Senate, was as see supra, § 297. competent evidence as the original * Lurton v. Gilliam, 1 Scam. (III.) documents themselves. The King «. 577. Holt, 5 T. R. 436, and 2 Leach (4th ' Dulaney i'. Dunlap, 8 Coldw. 307. ed.), 593; Watkins v. Holman, 16 o Howell' u. Ruggles, 5 N. Y. 444; Peters, 25, 55, 56 ; Bryan v. Forsyth, but see State v. Threadgill, 76 N. C. 24 How. 334; Gregg v. Forsyth, 24 17. How. 179; Radeliff' ». United Insur- ' Gordon v. Bucknell,38 Iowa, 438. ance Co. 7 Johns. 38, 50." Gray, 8 Supra, § 120; infra, § 649. 580 CHAP. IX.] NON-JUDICIAL RECORDS. [§ 639. face, with regularity and accuracy, entitles it to be received in evidence, and throws the burden of impeaching it on the opposite side.i To make the record itself evidence, it is only necessary that it should be produced, and that it should be proved to have come from the proper depositary .^ Thus, under this rule, the English courts have admitted custom-house registries and oflBcial papers ; ^ the public registries of municipal and similar corpora- tions ; * the registries of parliamentary voters which are in the proper public custody ; ^ the registries of the coast guard noting changes of wind and weather,® and light-house journals for the same purpose.'' So, also, land-tax assessments have been held admissible to prove the assessment of the taxes upon the indi- viduals and for the property therein mentioned ; ^ and in Ireland, poor law valuations have been received as evidence of value.^ So the courts have admitted the books of the Sick and Hurt Office, to prove the death of a seaman, and the time of such death ; ^^ and the registries of public prisons, or penitentiaries, to prove the stay of a prisoner,^^ though not to prove the cause of commitment.^^ An entry in a vestry-book, stating the election of a treasurer of the parish at a vestry duly held in pursuance of notice, is evidence of the election, and of its regularity.^^ On 1 Greenleaf's Ev. § 483; Taylor's « The Catherina Maria, 1 Law Rep. Ev. § 1429. Supra, § 120. Adm. & Ecc. 53. See De Armond v. " See infra, §§ 649 et seq. ; Atkins Neasmitli, 32 Mich. 231. V. Halton, 2 Anst. 387-; Armstrong v. ' The Maria das Dorias, 32 L. J. Hewett, 4 Price, 216; Pulley v. Hil- Pr., Mat. & Adm. 163, per Dr. Lush- ton, 12 Price, 625; Croughten u. ington; B. & Lush. Adm. R. 27, S. Blake, 12 M. & W. 208; Kyburg v. C. nom. The Maria das Dores. Perkins, 6 Cal. 674; Haile u. Palmer, » jJoq „. Seaton, 2 A. & E. 170, 5 Mo. 403. As to baptismal registries, 178 ; Doe v. Arkwright, Ibid. 182, n.; see infra, § 653. 5 C. & P. 575; 1 N. & M. 731, S. C. ; 8 Tompkins v. Atty. Gen. 1 Dow, Doe v. Cartwright, Ry. & M. 62; 1 C. 404. & P. 218, S. C. See RonkendorfiF ». * Marriage v. Lawrence, 3 B. & Taylor, 4 Pet. 349, 360. A. 142; R. V. Mothersell, 1 Str. 93; » Swift v. MeTiernan, 11 Ir. Eq. Thetford's case, 12 Vin. Abr. 90, pi. R. 602, per Brady, Oh.; Welland v. 16; Warriner v. Giles, 2 Str. 954. As Ld. Middleton, Ibid. 603, per Sugden, to other corporation books, see infra, Ch. § 661. 10 Wallace v. Cook, 5 Esp. 117. ' Reed v. Lamb, 29 L. J. Ex. 452; " Salte v. Thomas, 3 B. & P. 188; 6 H. & N. 76, S. C. See Mead v. R. v. Aikles, 1 Leach, 391. Robinson, Willes, 422 ; R. v. Hughes, " Ibid. cited Ibid.; R. v. Davis, 2 Str. 1048. " R. v. Martin, 2 Camp. 100; Hart- 681 § 639.] THE LAW OF EVIDENCE. [BOOK II. the other hand, on the ground that the document was not kept under statute for public use, admission has been refused to a report stating the burden of a foreign ship, and the number of the crew, which was made by the master to the authorities of the custom-house, and was there filed, when the report was ten- dered in evidence as a public document to prove the burden of the ship ; and also to a certificate filed at the custom-house, which was signed by a party who certified that he had measured the vessel, and stated the amount of the tonnage.^ So, on the same reasoning, Lloyd's Register of Shipping has been rejected ;2 and so have a registry of attendance kept by the medical officer of a union as a check upon himself ; ^ and the book called Arms and Descents of the Nobility, E., 16, though produced from the Heralds' College,* and an Odd Fellows' minute-book for the pur- pose of showing the age of a member.^ Admittance has also been refused to a registry produced from the office of the secretary of bankrupts, in which entries were made of the allowance of cer- tificates, for the reason that the book was not kept under the authority of any official order, nor were the entries made in the course of official duty.^ On the same reasoning, it has been held in a Maryland case that police records, kept by the detective police of a city, in order to show charges made against particular individuals, can- not be put in evidence by a party so accused, in order to prove the injury done him by being charged with theft ; such records not being prescribed by statute, nor in any way traceable to the party sued for the injury.'^ ley D. Cook, 5 C. & P. 441. See, also, of a vessel. See, also, Eicbardson Price V. Littlewood, 3 Camp. 288; v. Mellish, 2 Bing. 241, per Best, though it is otherwise with entries not C. J. made in discharge of any public duty. ' Merrick v. Wakley, 8 A. & E. Cooke V. Banks, 2 C. & P. 478. 170. 1 Huntley v. Donovan, 15 Q. B. 96. < Shrewsbury Peer. 7 H. of L. Cas. 2 Freeman v. Baker, 5 C. & P. 482. 24. See Kerr v. Shedden, 4 C. & P. 531, « Connecticut Ins. Co. v. Schwenk, n. a. But in Bain v. Case, 3 C. & P. 94 U. S. 593. 496, this book was admitted to prove * Henry v. Leigh, 3 Camp. 499. that the coast of Peru was in a state ' Garvey v. Wayson, 42 Md. 187. of blockade at a particular time ; and " The fact that, pursuant to the in Abel v. Potts, 3 Esp. 242, it was regular custom of the detective police received as evidence of the capture department, the appellant's name was 582 CHAP. IX.J NON-JUDICIAL RECORDS. [§ 640. But In all such cases it is essential to remember, that however inadmissible entries may be per se, or however incompetent may be the book in which they are made, they may become evidence when made by a deceased person against his interest,-^ or in dis- charge of a business duty.^ § 640. In this country we have numerous cases tending to show that official records, duly kept by public administra- Records tive officers, are, as to third parties, primd facie evi- admLis- dence of the facts entered duly by such officers in the ^g^™ ^^_ course of their duties, as well as of documents recorded.^ missibie. Even a public officer's entry, when in the regular discharge of his duties, in a book he is by law required to keep, is primd facie evidence in his own favor when the performance of the acts regis- tered is at issue.* This attribute of primd facie admissibility has been applied to entered upon the detective police an- nals of the city, and open to the in- spection and use of the police force, as tending to show the publicity of the charge made against him, and the consequent injury to him, was clearly not admissible evidence against the appellee, unless there was some law requiring such a record to be kept, or unless the appellant was prepared to show by proof that the appellee knew that the name of the appellant would be so entered as the consequence of the charge of theft being preferred against him. The acts of the detec- tive force were certainly not admis- sible for the purpose of inflaming the damages against the appellee, without further proving that there was some law, of which the appellee would be bound to take notice, requiring an en- try on their books of the name of any party against whom a criminal charge might be preferred, or that it was their custom to make such entry, and that the appellee had a knowledge of that fact. There was no error in the rul- ing in this exception." Garvey v. Wayson, 42 Md. 187, Grason, J. I Supra, § 226. ^ Supra, § 238. » Cases cited in § 639; U. S. v. How- land, 2 Craneh C. C. 508; U. S. v. Kuhn, 4 Craneh C. C. 401 ; Wakefield V. Alton, 3 N. H. 378; Hayward v. Bath, 38 N. H. 179; Gilbert v. New Haven, 40 Conn. 102; Thompson v. Chase, 2 Grant (Penn.), 367; Chap- man r. Herrold, 58 Penn. St. 106 ; Erickson, v. Smith, 2 Abb. (N. Y.) App. Dec. 64; Taliaferro v. Prior, 12 Grat. 277; Westerhaven v. Clive, 5 Ohio, 136; Dixon v. Doe, 5 Blackf. 106; Daniels v. Stone, 6 Blackf. 451; McNeely «. Rucker, 6 Blackf. 391; Holcroft V. Halbert, 16 Ind. 256; St. Charles v. O'Mailey, 18 111. 407 ; Hinerw. People, 34 111. 297; Weisbrod V. Chicago R. R. Co. 21 Wis. 602; Lumsden v. Cross, 10 Wis. 282; Sou- lard V. Clark, 19 Mo. 570 ; Kyburg v. Perkins, 6 Cal. 674 ; Pralus v. Pacific Co. 35 Cal. 30 ; Conner o. McPhee, 1 Mon. T. 73 ; Stroud v. Springfield, 28 Tex. 649. See supra, § 111. * Bissell V. Hamblin, 6 Duer, 512. 583 5 641.1 THK LAW OF EVIDENCE, [BOOK II. the registry of incumbrances in the proper records ; i to the rec- ords of a land office ; '^ to the blotters of a land office ;3 to the plats recorded in a surveyor general's office ; * to the public records of a city showing authority to widen streets ; ^ to the book of accounts kept in the office of an alcade ; « to the alcade's book of grants ; '' to the record of a court-martial ; » to the record of reg- istered letters in the post-office ; » to a municipal book kept for the registry of hacks ;io to the registry of tax sales by county commissioners ; " to the registry of tax sales by a county treas- urer ; 12 to the record of redemption of taxes in an auditor's office ; 13 to the record of county supervisors ; i* to the record of the assessment of property by selectmen or other sworn officers ; ^^ to poll-books ; ^^ to the returns of a deceased person of his prop- erty to the receiver of taxes ; " though as to the value of taxed property the tax books are not themselves evidence.^* Even the registries of weather kept by public institutions have been re- ceived, as will be presently seen, in order to prove the weather at certain distant periods.i^ It should at the same time be re- membered that public acts of this class cannot be put in evidence to affect strangers dispositively.^" § 641. The same authority is assigned the records of town meetings ; ^^ to the books of municipal corporations ; "^ and to 1 Metcalf V. Munsen, 10 Allen, 491; " People v. Bircham, 12 Cal. 50. Conway v. Case, 22 111. 127. Supra, " Pittsfield v. Barnstead, 40 N. H. § 111. 477; Cravens v. Duncan, 55 Ind. 347. 2 Gait V. Galloway, 4 Pet. 332 ; See supra, § 639. Beauvais v. Wall, 14 La. An. 199. " Phelps v. Schroder, 26 Ohio St. » Strimpfler v. Roberts, 18 Penn. 549. St. 283. " Lynch !). Lively, 82 Ga. 575. See < Ott V. Soulard, 9 Mo. 581 ; Smith supra, § 639. u. Hughes, 23 Tex. 248. '^ Com. v. Heffron, 102 Mass. 148, ' Barker v. Fogg, 34 Me. 392. 154; Randidge v. Lyman, 124 Mass. = Kyburg v. Perkins, 6 Cal. 674. 361 ; Hanover Co. v. Iron Co. 84 ' Downer !'. Smith, 24 Cal. 114. Penn. St. 279; Lockhart v. Woods, 8 Brooks V. Daniels, 22 Pick. 498. 38 Ala. 631. But see State v. Gor- 8 Gurney v. Howe, 9 Gray, 404. ham, 65 Me. 270; Winter v. Bandel, i" Cora. V. Matthews, 122 Mass. 60. 30 Ark. 362. See supra, § 639. 11 Dikeman u. Parrish, 6 Penn. St. i' See infra, § 647. 210; Cuttle v. Brookway, 24 Penn. "o gge supra, § 176. Sewall v. St. 145. Sewall, 122 Mass. 156. 12 Groesbecki). Seeley, 13Mich.329. " Cass v. Bellows, 31 N. H. 501; " Lane v. Sharpe, 3 Scam. 566. Saxton v. Nimms, 14 Mass. 315 ; ^ Frazer v. Charleston, 8 S. C. 818. 584 CHAP. IX.J NON-JUDICIAL KECORDS. [§ 643. the books of the selectmen of a town, proving payments in sup- port of a pauper.i But the reports of a town committee Records as to a highway, and the votes of the town as to such meetinKs highway, are not admissible in an action against the admissible. town for damages produced by a defect in the highway, to prove an admission of defectiveness by the town.^ § 642. When properly made, the record includes all its usual incidents.^ A receipt on a record, for instance, be- „ , . . . Record in- comes part of the record.* Such a record is the pn- eludes its mary evidence of the proceedings to which it relates, being in this respect treated as other records, only to be proved by parol in cases of loss or destruction, though open to parol ex- planation so far as concerns ambiguities and matters collateral.^ § 643. But a record, to be thus admitted, must be of a class authorized by the statute or by common law,® though Record a special authorization by name is not necessary .'' It "assau-" must be kept by the proper officer.^ Records relating ^"J^^^'^ Thayer v. Stearns, 1 Pick. 109; Gil- more u. Holt, 4 Pick. 259 ; Bridge- water V. W. Bridgewater, 7 Pick. 191; Waters v. Gilbert, 2 Cush. 27; Isbell V. R. K. 25 Conn. 556 ; People v. Zeyst, 23 N. Y. 140; Sanborn v. School Dist. 12 Minn. 17. 1 Thornton v. Campion, 18 N. H. 20. And so as to school-board min- utes. The records of a school-district meeting are the best evidence of the business transacted thereat; and there is no error in rejecting oral evidence of the business transacted at such a meeting. Monaghan v. School Dis- trict, 38 Wis. 101. " Collins V. Dorchester, 6 Cush. 396 ; Wheeler v. Framingham, 12 Cush. 287. » Supra, § 619. * See infra, §§ 830, 832; Lothrop V. Blake, 3 Penn. St. 483; Lawrence Co. V. Dunkle, 35 Mo. 396. 6 See infra, §§ 982, 986, 991; Long- ley V. Vose, 27 Me. 179; Bishop v. Cone, 3 N. H. 513 ; Cabot v. Britt, 36 Vt. 349 ; Benninghoof v. Finney, 22 Ind. 101; Lane v. Sharpe, 3 Scam. 566; Sanborn v. School District, 12 Minn. 17; Monaghan v. School Dist. 38 Wis. 101. « Supra, § 639 ; Wetmore r. U. S. 10 Pet. 647; State v. Berry, 21 Me. 169; Hardy v. Houston, 2 N. H. 309; Gurney v. Howe, 9 Gray, 404 ; People V. Denison, 17 Wend. 312; Bouchaud V. Dias, 3 Denio, 238 ; Shortz v. Unangst, 3 Watts & S. 45; Fitler v. Shotwell, 7 Watts & S. 14; Foresman V. Marsh, 6 Blackf. 286; Smith v. Lawrence, 12 Mich. 431; Com. v. Rhodes, 1 Dana, 595; Haile v. Palmer, 5 Mo. 403; Trammell v. Thurmond, 17 Ark. 203. ' Strimpfler u. Roberts, 18 Penn. St. 283 ; Groesbeck v. Seeley, 13 Mich. 329 ; Highsmith v. State, 25 Tex. Supp. 137 ; Hatchett v. Conner, 30 Tex. 104. 8 Supra, § 639 ; U. S. v. Kuhn, 4 Cranch C. C. 401 ; Waters v. Gilbert, 2 Cush. 27 ; Allen v. Vincennes, 25 Ind. 531. 685 § 645.] THE LAW OF EVIDENCE. [BOOK II. to real estate must be recorded in the office rei sitae, and by the proper local officer.^ Thus an alcade's book must bear the signatures of the alcade and clerk for the time being, and be kept in the proper county.^ It has been held in Massa- chusetts, that where it was proved by a witness that a book of records of the proprietors of certain common lands came to him from his grandfather, there being no evidence of the appointment of a clerk to keep the records, and no place appointed by law for their keeping, such book could be admitted in evidence, the pre- sumption from lapse of time being that the witness was their proper custodian.^ A book where mining claims are recorded according to miners', rules, as established in a mining district, may be received, it has been held in California, to prove compliance with the rules requiring the recording of transfers.* § 644. To entitle a record or registry to admission, to prove Such pertinent facts, it must not only come from the proper mustte officer, and be taken from the proper custody,^ but it identified nQust be properly attested and identified.'' A break in complete, such custody may be explained by parol proof.^ The record must be complete in itself ; and one portion of it cannot be received without the entire relevant context.^ § 645. A registry, also, as well as a judicial record, must on its face indicate accuracy.^ The custom being to en- It must in- . . ■' . . . ° dicate ac- gross registries and records in ink, pencil memoranda *'^^' of entries will be regarded as merely provisional. Thus, 1 Eoyoe v. Hurd, 24 Vt. 620; Don- v. Emerson, 4 Pick. 160; Welles v. aldson v. Phillips, 18 Penn. St. 170; Battelle, 11 Mass. 477; Franey v. and cases cited Whart. Confl. of Laws, Miller, 11 Penn. St. 434 ; Downer v. § 372. See supra, § 111. Smith, 24 Cal. 114; Sanborn v. School 2 Downer v. Smilh, 24 Cal. 114; Dist. 12Minn. 17. Secrest v. Jones, 21 Tex. 121. ' Herndon v. Casiano, 7 Tex. 322. 8 Tolman v. Emerson, 4 Pick. 160. See supra, §§ 194 et seq. As to the question of the proper custo- ' Supra, § 619. See infra, §§ 828, dian of a document, see fully supra, 830; Morrill v. Foster, 83 N. H. 379; §§ 194, 197. Miles v. Wingate, 6 Ind. 450 ; Loper * Attwood V. Fricot, 17 Cal. 37. v. State, 3 How. (Miss.) 429. See McGarrity v. Byington, 12 Cal. " Monumoi Beach v. Rogers, 1 426; English v. Johnson, 17 Cal. Mass. 159; Sprague v. Bailey, 19 107. Pick. 436; Kinney «. Doe, 8 Blackf. 5 See supra, § 197. 850 ; Ewbanks v. Ashley, 36 111. 177 ; « Foxcroft V. Crooker, 40 Me. 308 ; Walls v. McGee, 4 Harr. (Del.) 108. Bean v. Smith, 20 N. H. 461; Tolman See infra, § 982. 586 CHAP. IX.] NON-JUDICIAL RECORDS. [§ 647. pencil memoranda on records have been held inadmissible.^ But defects of form, in recording of ancient deeds, may be ex- plained by parol.2 And to all cases the ordinary presumption of regularity will be applied.^ § 646. The rule establishing the admissibility of records of this class has been held not to extend to cases where such Record records are themselves secondary evidence.* Thus, the be"ftself' army register of the United States is not evidence of secondary, the pay of officers of the army, such pay being determined by statute.^ So a tax duplicate is not a record that proves itself,^ but its authority, even if it be admissible, must first be estab- lished by parol.7 The rule which allows lost records of courts to be supplied by parol applies to records kept by public admin- istrative oflicers.^ § 647. We have already seen^ that a registry or record, kept for public use, by an ofiBcer authorized by statute or by 1 .1 IT .. ^ • •^ 1 • Books and common law to keep such document, is admissible evi- registries dence of pertinent facts it records. It may, however, ceased'^per- happen that a registry of current events kept in a pub- sons and lie voluntary institution may be the only evidence at- stitutions . , , - , . ,. . . -r^ ■, . . , admissible. tamable of a fact in litigation. If so, on the principle that the best evidence is always admissible evidence,^" such evi- dence should be admitted as primd facie proof. In accordance with this view, a record of weather kept at a public institution has been held admissible to prove the temperature on a day as to which witnesses could not accurately speak. '^ Such entries, 1 Meserve v. Hicks, 24 N. H. 295 ; Ins. Co. 2 Wash. C. C. 152; Stratford but see Pail v. Presley, 50 Ala. 342. v. Sanford, 9 Conn. 275. See supra, § 616. ^ Wetmore v. U. S. 10 Pet. 647. " Infra, §§ 1307-11; Booge v. Par- " State v. Smith, 30 N. J. L. 449. sons, 21 Vt. 57 ; Bettison v. Budd, 21 ' See supra, §§ 77 et seq. Ark. 578. * Supra, § 135; Norris v. Russell, 8 R. V. Catesby, 2 B. & C. 814; R. 5 Cal. 249. V. Whitechurch, 7 B. & C. 573; R. v. » Supra, §§ 640-3. Upton Gray, 10 B. & C. 804 ; Nelson l" See supra, §§72, 170-2. u. Moon, 3 McLean, 319 ; Sumner u. ^^ DeArmondu. Neasmith, 32Mich. Sebec, 3 Greenl. 223 ; Isbell r. R. R. 231. See The Catherina Maria, L. R. 25 Conn. 556 ; Farr v. Swan, 2 Penn. 1 Ad. & Ec. 53 ; and see supra, §§ St. 245 ; Byington v. Allen, 11 Iowa, 639, 640. 3. See fully infra, § 1314. " The plaintiff's counsel offered in * See supra, §§ 60-77. Watson v. evidence a record of the weather kept 587 § 649.] ' THE LAW OF EVIDENCE. [BOOK II. however, must be subjected to the same tests, as to genuineness and primariness, as will presently be noticed in respect to parish records. If not the best evidence procurable, they are inadmis- sible.i § 648. Under certain acts of Congress, log-books may be evi- dence of the facts they state. Their admissibility, admissible however, IS limited to the points the statutes desig- of"coQ-° nate ; ^ and they must be identified as duly kept.^ But gress. independent of the statutory provisions, a log-book is admissible when kept by a deceased ofBcer, when in the per- formance of his duties,* or by an officer whose attendance is unobtainable,^ when the entries were immediate.® V. EECOEDS AND REGISTRIES OF BIRTH, MARRIAGE, AND DEATH. § 649. In all states subject to the Roman law, with the excep- tion of France, parish records are regarded as primary ords ad- evidence of births, marriages, and deaths. Ecclesias- missibleby ... , -ni t-iti Roman and tics, it IS argued, are specially charged with the duty of keeping such records, and may be expected to keep them conscientiously. From a period as remote as the third century, baptismal registries have been kept by the parish clergy, and have been regarded as primd facie proof of the facts which they certify. Among the consequences of the Reformation may be enumerated an increased vigilance in guarding this class of records. The reformed churches, acting in most part in con- cert with the state, established stringent rules for the direction at the insane asylum for a number of 427; Barber v. Holmes, 3 Esp. 190; years, for the purpose of showing the Watson v. King, 4 Camp. 275 ; R. «. temperature of the weather in March, Fitzgerald, 1 Leach, 20 ; R. v. Rhodes, 1868. We think the record was ad- Ibid. 24 ; and see, also, Heathcote's missible, and comes within the prin- Divorce, 1 Macq. S. Cas. H. oE L. 277, ciple of Sisson v. Cleveland & Toledo where a log-book was held insufficient R. R. Co. 14 Mich. 497." De Armond to prove that an officer of the ship was V. Neasmitb, 32 Mich. 231, 233. at a certain place on a given time. 1 Wilson V. School, 44 Conn. 157; The Sick and Hurt Books, kept Butler V. Ins. Co. 45 Iowa, 93. under act of parliament, are evidence ^ U. S. V. Gibert, 2 Sumn. 19; U. to show the vessel to which a sailor S. V. Sharp, Pet. C. C. 418. belonged, and the amount of wages « U. S. V. Mitchell, 2 Wash. C. C. due to him. R. v. Fitzgerald, 1 Leach, 478. 20; R. v. Rhodes, Ibid. 24. * See supra, § 238. 8 The Henry Coxon, cited supra, ' See D'Israeli v. Jewett, 1 Esp. § 238. 688 CHAP. IX.J BAPTISMAL AND MAREIAGE REGISTRIES. [§ 651. in this respect of the parish minister, who was at the same time subjected to civil responsibility for error in the making up of his records, and the Council of Trent adopted special measures to effect the same end.^ By the action of this council, it must be remembered, as bearing on the form of Roman Catholic regis- tries, it is sufficient if the names of the child and of the god- parents are inscribed. In many dioceses, however, more minute regulations have been made, it being provided that the time of the birth, the names and the date and place of the marriage of the parents, should be specified, and that these details should be certified to by the father and god-parents. The regulations of the several Protestant churches present in this respect much diversity, sometimes prescribing that merely the baptism should be recorded, with the parents' names, sometimes requiring the date and place of the parents' marriage to be given. § 650. Parochial registries of death were made at a very early period of the church, and are prescribed, in part by general councils, in part by particular synods, in part by local territorial laws. § 651. Parochial registries of marriages are of later origin, as marriages without ecclesiastical interposition frequently took place prior to the Reformation and the Council of Trent ; and even when the benediction of a priest was given, this, according to the better opinion, did not go to the essence of the institu- tion.^ The Council of Trent, however, established a limitation which it is important to keep in mind when we examine the marriage registries of Roman Catholic parishes. By that coun- cil it was ordained,^ " habeat parochus librum, in quo conjugum et testium nomina diemque et locum contracti matrimonii descri- bat, quern diligenter apud se custodiat." By particular councils further details have been exacted,- it being required that the priest should register the names of the parents of the persons married, the conditions of the latter as to prior marriages ; the time of publishing the banns, when such are imposed by law ; and the nature of any dispensations which may have been issued ' See Concil. Trident, sess. 24, ' Concil. Trident, sess. 24, cap. 1, cap. 2. de reformat. " See Wharton's Confl. of Laws, § 169 ; and also App. B. 589 § 653.] THE LAW OF EVIDENCE. [BOOK II. to facilitate the marriage. By several Protestant communions similar duties have been imposed. ^ § 652. The authority of such registries as evidence, in the modern Roman law, is, by the better opinion, solely the result of usage; and the same usage, according to the same law, has sanc- tioned the reception in evidence of copies of such books, duly certified by the proper parish authority. But for such evidence another reason can be given. In many cases (e. g. those of legitimacy), it is the best if not the only evidence that can be obtained, and in such cases it should be received for what it is logically worth. Eminently is this the case as to periods and places where the state gives the making of such registries exclu- sively to the ecclesiastical officers of a parish ; and where such officers, therefore, feel themselves bound to keep their records with scrupulous accuracy and fairness. The Roman law, as now settled, however ,2 makes it essential to the admission of such records : first, that the books should be officially kept, in the manner prescribed by law ; secondly, that the entries should have been made by the priest or pastor himself, or that each en- try should be signed by him. If there is no priest or pastor in charge at the time of the entry, then the authority of the per- son making the entry must be specially proved. Thirdly, the authority of such entries is dependent upon the disinterestedness of the person by whom they are made ; and if the entry be made by a person who thereby sustains any personal claims of his own, this discredits the entry. § 653. So far as concerns the law of England and the United When duly States, an official registry is admissible, when kept in re'listriea'' Conformity with law, and, when duly authenticated, to sibie^'tr''" P^°^^ ^'^'^ ^^°*s ^^ *b^ ^^^ requires to be registered, prove facts. It foUows that whenever a baptismal, marriage, or burial registry is kept in accordance with statute, such regis- try, being duly authenticated, is admissible to prove the facts which are within the statutory authority .^ Even though there 1 See Boehmer, Jus paroeh. sect. 4, P. C. 564; Doe u. Barnes, 1 M. & cap- "'• § 8. Rob. 389. See State v. Wallace, 9 » Weiske, Rechtslex. in loco. N. H. 515 ; State u. Horn, 43 Vt. 20; » Gilb. Ev. (3d ed.) 77 ; Wihen w. Jackson v. People, 2 Scam. 232; Glenn Law, 3 Stark. R. 63 ; May v. May, 2 v. Glenn, 47 Ala. 204. Stra. 1073; DraycottB. Talbot, 3 Bro. "Parish registers are in the nature 590 CHAP. IX.] BAPTISMAL AND MARRIAGE REGISTRIES. [§ 653. be no enabling statute, there is much strength in the position that as the canon law, so far as concerns the law of marriage, is part of Anglo-American common law,^ and as parish records are public records by the canon law, they are to be regarded by us as public records, and hence admissible in evidence, by our own common law.^ Yet as this position is open to doubt, and is in conflict with English rulings excluding registries by dissenting religious bodies, unless supported by proof aliunde as to their accuracy ; ^ it is proper, in order to authenticate the facts stated in such records, to call the person by whom they were made, if living, to testify to their accuracy, or if he be dead, to prove that the entries were made by him in discharge of his du- ties. It should at the same time be remembered, that a copy of a foreign registry will be admitted wherever such registry is kept in accordance with the local law, and its genuineness, and the signature of the registrar, and his authority by the local law, are duly proved.* of records, and need not be produced, or proved by subscribing witnesses." Per Lord Mansfield, C. J., Boit v. Barlow, Doug. 172. They are, there- fore, provable under 14 & 15 Vict. c. 19. Re Hall's Estate, 7 Hare, App. xvi. A burial entry is evidence to prove death. Lewis v. Marshall, 5 Peters, 470. 1 See Wharton's Confl. of Laws, §§ 169 etseg. ' Steyneru. Droitwich, 1 Salk. 281; S. C. 12 Mod. 86; Holt, 290; Chou- teau V. Chevalier, 1 Mo. 243; King- ston V. Lesley, 10 S. & K. 383; Am. Life & Trust Co. v. Rosenagle, 77 Penn. St. 507; and see argument of court in Kennedy v. Doyle, cited in- fra. " Birt V. Barlow, 1 Doug. 191; Taylor, ex parte, 1 Jac. & Walk. 483 ; S. C. 3 Man. & Ry. 430, n.; Whit- tuck V. Waters, 4 C. & P. 3 75 ; D'Aglie V. Fryer, 13 L. J. N. S. Ch. 398; Doe V. Andrews, 15 Q. B. 759 ; Athlone's Claim, 8 CI. & F. 262 ; Coode v. Coode, 1 Curt. Ec. L. 764. So as to the Fleet records. Reed v. Passer, 1 Esp. 213 ; S. C. Pea. R. 303; Doe V. Gutacre, 8 C. & P. 478. So as to Irish register.^ ; Stock- bridge V. Quicke, 3 C. & K. 305. So as to Jewish registries; Davis V. Lloyd, 1 C. & K. 275. * Perth Peer. 2 H. of L. Cas. 865, 873, 874, 876, 877; Abbott v. Abbott & Godoy, 29 L. J. Pr. & Mat. 57; 4 Swab. & Trist. 254, S. C; Am. Life & Trust Co. V. Rosenagle, 77 Penn. State, cited infra, § 658. In the ab- sence of such proof, a copy of a bap- tismal register in Guernsey has been rejected in England. Huet v. Le Mesurier, 1 Cox. Ch. R. 275. This re- jection, according to Dr. Lushington, was "because it did not appear by what authority the register was kept. Supposing it had been proved that Guernsey was part of the diocese of Winchester, which it is, and by an- cient custom a register was required 691 § 654.] THE LAW OF EVIDKNCE. [BOOK 11. § 654. We have already seen that entries kept by a deceased Admissi person in the course of his business are admissible as bie also, -primd fade proof of all facts relating to such business, when kept . ,, . , . , ,, , • i ' • by de- u\ all cases in which the entries bear genuineness on sonfiJi^th'e their face, and were made at or near the time of the SVusi- events they register.^ Independently of statutory pre- ness. scriptions, the entries regularly made in his own books, or his official books, by a clergyman, or by the recording officer of a parish, or by the proper functionary of a religious society, are, after his decease, evidence of all facts which it was his duty officially to enter.^ to be kept there, different considera- tions might have applied to the case. .... I am of opinion that there is no ground of distinction, supposing the register had been kept by order of a competent authority, between registers kept in Guernsey and in this country." Coode v. Coode, 1 Curt. 766. But unless the conditions stated in the text exist, the registry is inad- missible. State V. Dooris, 40 Conn. 145. So the English courts have rejected a copy of the marriage register kept in the Swedish ambassador's chapel at Paris; Leader v. Barry, 1 Esp. 353; and a copy of the register of the British ambassador's chapel at the same place. Athlone Peerage, 8 CI. & F. 362. See, also, DuSerin Peer. 2 H. of L. Cas. 47. They have, however, received an examined copy of a marriage register in Barbadoes, it appearing that by the law of that colony such register was kept. Coode v. Coode, 1 Curt. 755, 766, 767, per Dr. Lushington. A book found in the hands of a town clerk, purporting to be a record of the births and marriages in a town, though without title or attestation, has been received in evidence as primd, facie proof in a civil issue. Sumner V. Sebec, 3 Greenl. 223. See Jacoks V. Gilliam, 3 Murph. (N. C.) 47. 592 1 Supra, § 238. ^ The cases on this topic are fully presented in an opinion by Gray, J., in Kennedy v. Doyle, 10 Allen, 162, from which we extract the following : " The English judges, adhering to the principle of admitting in evidence as public documents those registers only which the law required to be kept, have considered all others as mere private memoranda, and have refused to admit registers regularly kept by dissenters unless supported by the tes- timony of the person keeping them or other witnesses. Birt v. Barlow, 1 Doug. 171; Newham v. Raithby, 1 Phillim. R. 315; Ex parte Taylor, 1 Jac. & Walk. 483; S. C. 3 Man. & Ry. 430, note; Doe v. Bray, 8 B. & C. 813; S. C. 3 Man. & Ry. 428; Whittuck V. Waters, 4 C. & P. 375. Vice Chancellor Shadwell refused even to admit an entry in the register of the Roman Catholic chapel of the Sardinian ambassador in London as evidence of the baptism of the am- bassador's son. D'Aglie u. Fryer, 13 Law Journal N. S. Ch. 398. ' The principle on which entries in a reg- ister are admitted,' said Mr. Justice Erie in a recent case, ' depends upon the public duty of the person who keeps the register to make such en- tries in it, after satisfying himself of their truth.' Doe v. Andrews, 15 Q. CHAP. IX.] BAPTISMAL AND MARRIAGE REGISTRIES. [§ 656. § 655. A registry of baptisms, however, has been ruled not to be proof of the alleged time of the child's birth, but Registry onl}' that he was born at the date of the baptism ; ^ 18 roves acts that it was tile though it seems that it may be used, with other indi catory evidence, to show the place of birth,^ to indicate "^^f^K^ age,^ and to infer illegitimacy.* B. 759. See, also, Conway v. Beaz- ley, 3 Hagg. Eccl. 651; Athlone's Claim, 8 Clark & Fin. 262; E?,rldoin of Perth, 2 H. L. Cas. 873, 874; Coode V. Coode, 1 Curt. Eccl. 764- 767: Hubback on Succession, 161, 365, 366,514 " Lord Chancellor Plunket repeat- edly admitted the books of a Koman Catholic chapel in Dublin, made by Roman Catholic priests whose deaths and handwriting were proved, as evi- dence of marriages and baptisms ; and on the last occasion, after argument, gave this reason for their admission: ' They are the entries of deceased persons, made in the exercise of their vocation, contemporaneously with the events themselves, and without any in- terest or intention to mislead.' O'Con- ner v. Malone, 6 Clark & Fin. 576, 577; Malone v. L'Estrange, 2 Irish Eq. R. 16. In some modern English cases, the judges have shown an inclination to limit the admission of entries made in the course of business; and to rest the earlier decisions, more than those who made them did, on the hypothesis that the entries were against the in- terest of the person making them. This tendency appears very strongly In Massachusetts it record. in the judgment of Lord Denman. Chambers v. Bernasconi, 1 Cr., Mees. & R. 347; S. C. 4 Tyrwh. 531; Rex V. Cope, 9 C. & P. 727. " It has been repeatedly held in this commonwealth that the book of a bank messenger or a notary public, kept in the usual course of business, though not required by law, is competent evi- dence after his death. Welsh v. Bar- rett, 15 Mass. 380; Porter v. Judson, 1 Gray, 175. Similar decisions have been made by the Supreme Court of the United States, and by other Amer- ican courts of authority. NichoUs v. Webb, 8 Wheat. 326; Gale v. Norris, 2 McLean, 471; Augusta ». Winsor, above cited; Sheldon v. Benham, 4 Hill (N. Y.), 131; Nourse v. McCay, 2 Rawle, 70. " In the case before us the book was kept by the deceased priest in the usual course of his office, and was produced from the custody of his suc- cessor; the entry is in his own hand- writing, and appears to have been made contemporaneously with the performance of the rite, long before any controversy had arisen, with no inducement to misstate, and no inter- est except to perform his official duty. 1 R. V. Clapham, 4 C. & P. 29; Burghart v. Angerstein, 6 C. & P. 690; Wihen v. Law, 3 Stark. R. 63; Mor- rissey v. Ferry Co. 47 Mo. 521 ; though see Wintle, in re, L. R. 9 Eq. 373. 2 R. V. North Petherton, 5 B. & C. 508. See Clark v. Trinity Church, 5 W. & S. 266; R. 0. Lubbenham, 5 B. & Ad. 968. » R. V. Weaver, L. R. 2 C. C. R. 85 ; Whitcher v. McLaughlin, 115 Mass. 168. * Cope V. Cope, 1 M. & Rob. 271. The registry of baptism is no proof of the child's legitimacy. Blackburn v. Qrawfords, 3 Wall. 175. 59'3 § 656.] THE LAW OF EVIDENCE. [book II. has been accepted, cumulatively with other evidence, to prove the date of birth.i Where, however, the statute provides that births shall be registered, then the registry is primd facie proof of the birtli and its date.^ The identity of the person referred to, it need scarcely be added, must be proved aliunde? The marriage registry proves not only the fact of marriage but the time of celebration.* The mode of proving marriage is more fully discussed in a prior chapter.^ § 656. To make entries in such a registry admissible, however, Entries ^^^7 '^"^'' ^^ made at first hand.^ Thus, a minister's ""St be entry of a baptism, administered by another person be- and fore his own official service began, the information of the baptism having been given him by the clerk, has been ruled inadmissible.'^ Yet if an entry be of a fact occurring within the certifying party's term of office, it is not fatal that the act certified to was done by a third person, if such third person could be considered as in any sense the agent of the incumbent who certifies. Thus an entry of a burial in a parish book, kept in the proper depository, has been admitted, though the incum- bent did not himself attend the burial, and made the entry on the report of the person officiating.^ When the entry is made by the proper officer, a short delay in entering is not fatal.^ It The addition of a memorandum, that he had been paid a fee for the cere- mony, could not have added anything to the competency, the credibility, or the weight of the record as evidence of the fact. An entry made in the performance of a religious duty is cer- tainly of no less value than one made by a clerk, messenger, or notary, an attorney or solicitor, or a physician, in the course of his secular occupa- tion." Gray, J., Kennedy v. Doyle, 10 Allen, 165. That a record of an Odd Fellows' Society is inadmissible to prove the age of a member, see Connecticut Ins. Co. V. Schwenck, 94 U. S. 593. Supra, § 208. 1 Whitcher v. McLaughlin, 115 Mass. 167. = Derby u. Salem, 30 Vt. 722; Stoe- 594 ver V. Whitman, 6 Binney, 416. See Carskadden v. Poorman, 10 Watts, 82. * Morrissey v. Ferry Co. 47 Mo. 521. Identity must be shown extrin- sically, in the case of a marriage either by proving the handwriting of the parties, or by calling a witness who was present at the marriage ; Birt V. Barlow, Doug. 272 ; but the handwriting may be spoken to with- out producing the register. Sayer v. Glossup, 2 Exch. 409. See fully supra, §§ 77 ^t seq. * Doe V. Barnes, 1 M. & Rob. 386 ; R. V, Hawes, 1 Den. C. C. 270. » Supra, §§-84, 85. « See supra, § 246. ' Doe V. Bray, 8 B. & C. 813; Walker v. Wingfield, 18 Ves. 443. 8 Doe ti. Andrews, 1 M. & Rob. 386. » Derby v. Salem, 80 Vt. 722. CHAP. IX.] BAPTISMAL AND MARRIAGE REGISTRIES. [§ 658. should appear that the original is in the proper custody,^ which, in England, in the case of marriage, baptismal, and death regis- ters, is with the incumbent, and not the parish clerk.^ § 657. At common law, as we have already seen, a certificate from a party, even when acting officially, that he has certificate done a particular thing, is inadmissible to prove such ?' common ^ , , '^ -^ law inad- thing. If living he must be called to prove the fact ; missibie. if dead, it may be proved by his official entries.^ This rule ap- plies to certificates of marriage and of birth. Thus the certificate of a clergyman, given sixteen years after a marriage, that he had married the husband to one claiming to be a prior wife, cannot, by itself, be received to establish such prior marriage, there being no record of such marriage in the register of the church.* Under the Connecticut statute, however, it has been intimated that the certificate of baptism, by a duly authorized minister, is conclu- sive ; ^ and such seems to be the rule under the Maine statute.^ Generally, when authorized by statute, such certificates become only primd facie proof of the facts they duly set forth.'^ § 658. Unless there be an enabling statute, copies are inadmis- sible when the original can be had. Thus, a sworn copiegi„. copy of a marriage contract, executed in the presence admissible. of the lieutenant governor and Spanish commandant of Upper Louisiana, with a certificate of the commandant that the original was deposited in the archives of the territory, is not admissible to prove the marriage.^ Yet when the original cannot be had, an exemplification is admissible, for the reason it is the best evi- dence attainable.® Thus in Pennsylvania, a certified copy of an English register kept by the Society of Friends (or Quakers) has been received. i" So where a pastor of a church in a foreign country testified that his church records of marriages and births 1 Supra, §§ 194 et seq. See Beates v. Retallick, 23 Penn. St. 2 Doe V. Fowler, 19 L. J. Q. B. 288. 151. ^ Chouteau v. Chevalier, 1 Mo. 343. * See supra, § 120. See State v. Dooris, 40 Conn. 145. * Gaines v. Relf, 2 How. (U. S.) » Alivon v. Furnival, 1 C, M. & R. 619. 277; Boyle v. Wiseman, 10 Ex. R. 5 Huntly V. Comstock, 2 Root, 99. 647 ; Quilter v. Jones, 14 C. B. (N. « Dole u. Allen, 4 Greenl. 527. S.) 747; Coode v. Coode, 1 Curtis, ' Derby v. Salem, 30 Vt. 722; 765. Supra, § 130. Jones's Succession, 12 La. An. 397. m Hyam v. Edwards, 1 Dall. 2. 595 § 661.J ^THE LAW OF EVIDENCE. [book II. had been kept according to the laws of the country, and he was the proper custodian of them, and that they were received by him from his predecessor, it was held that extracts from the rec- ords giving the genealogy of a family, sworn by him to be cor- rect, were evidence in a question of identity.^ § 659. Where a statute requires the return of a certificate of marriage to be made by the ofBciating minister to the county clerk for record, the proper mode of proving such fact is by an exemplification of the certificate.^ But an exemplification of a foreign certificate of marriage will not be received unless it be proved that the record was kept in conformity with law, and that the person officiating was authorized to officiate.^ § 660. We have already observed that for the purpose of prov- ing pedigree, and other matters of family interest, fam- ily bibles and other records may be received.* For the same purpose a family chart, regarded as authoritative by the family, may be put in evidence.^ Family records ad- missible to prove' fam- ily events. VI. COEPOEATION BOOKS. § 661. Where a corporation keeps books, in which its proceed- ings are entered, then these books, when duly proved, corporation are primary, but usually only primd facie evidence of admissible against members, such proceedings, so far as concerns the members of the corporation, as between each other, or as against the corporation.^ So a banker's books may be used against a de- ^ American Life Ins. & Trust Co. V. Rosenagle, 77 Penn. St. 507. ' Niles V. Sprague, 13 Iowa, 198. * State V. Dooris, 40 Conn. 145. 4 Supra, § 219. 5 North Brookfield v. Warren, 16 Gray, 171. « R. V. Mothcrsell, 1 Str. 93 ; Mar- riage V. Lawrence, 2 B. & Aid. 144 ; Owings V. Speed, 5 Wheat. 420; War- ner V. Daniels, 1 Wood. & M. 90; Cof- fin V. Collins, 17 Me. 440; Methodist Chapel V. Herrick, 25 Me. 354; Slack V. Norwich, 32 Vt. 818; Brown v. Bank, 119 Mass. 69; Goodwin v. Ann. Co. 24 Conn. 591 ; Lane v. Brainerd, 30 Conn. 565 ; Highland Turnpike «. 696 McKean, 10 Johns. R. 154 ; Partridge V. Badger, 25 Barb. 146 ; Van Hook V. Man. Co. 1 Halst. Eq. 137 ; Devling V. Williamson, 9 Watts, 311; Den- nison v. Otis, 2 Rawle, 9; Pittsburg V. Clarke, 29 Penn. St. 146; Baving- ton V. R. R. 34 Penn. St. 368 ; North Am. Co. V. Sutton, 35 Penn. St. 463 ; McHose V. Wheeler, 45 Penn. St. 32; Grove V. Fresh, 9 Gill & J. 280 ; Fitch V. Pinckard, 5 111. 69 ; Fortin v. En- gine, 48 111. 451 ; Merchants' Bk. v. Rawls, 21 Ga. 334 ; Duke v. Nav. Co. 10 Ala. 82 ; Rayburn v. Elrod, 43 Ala. 700. See Weber v. Fickey, 47 Md. 197; State v. Thomas, 64 N. C. 74. CHAP. IX.J CORPORATION BOOKS. [§ 662. posltor, when such books are supported by the oath of the book- keeper.^ But without such verification the books of account of a bank are not evidence of the facts indicated by the entries.^ Like other books of accounts, however, when of original entry, they may be put in evidence on proof of the death or non-pro- ducibility of the person who kept them.^ § 662. Corporation books, however, when res inter alios acta, cannot at common law be used to sustain a claim of the But not as corporation against persons not members of the corpo- against ration, or defeat a claim of such persons against the ^ "^^"^^ corporation, or in any way to affect strangers.* Nor can they, when the oflELcers of the corporation can be produced to verify the facts, be used in suits by strangers against members of the corporation, or the converse.^ Nor can they, even in suits by a corporation against its members, be used as proving, in behalf of the corporation, self-serving entries ; ^ nor can they be used to prove, against the corporation, mere private agreements of the stockholders.^ But the minute book of a corporation may be put 1 Jordan v. Osgood, 109 Mass. 457. " One of the issues involved was the insolvency of the defendant before and at the time of his purchases. It was competent to show what money he had in the bank at those times. For this purpose the books of the bank, supported by the oath of the book- keeper, were admissible. Briggs v, Eafferty, 14 Gray, 525; Adams v. CouUiard, 102 Mass. 167." Morton, J., Jordan v. Osgood, 109 Mass. 464; and see Anderson v. Edwards, 123 Mass. 273. 2 White V. Ambler, 4 Seld. 170; Brewster v. Doane, 2 Hill, 537; Ocean Nat. Bank of N. Y. v. Carll, 55 N. Y. 441. " As the officers of the bank could not speak from personal knowledge, it was necessary to resort to the entries made by the discount clerk. These could only be proved by the clerk making them, as it appeared he was alive and within the state. This rule of authenticating records of this char- acter has never been departed from in this state. 4 Seld. 170; 2 Hill, 531, 537." Church, Ch. J., Ocean Nat. Bank of N. Y. v. Carll, 55 N. Y. 441. " Bunker v. Shedd, 8 Met. (Mass.) 150; Bowker v. Hoyt, 18 Pick. 561 ; Poor u. Robinson, 13 Bush, 290. See supra, §§ 238-251. * London v. Lynn, 1 H. Bl. 214; Wheeler v. Walker, 45 N. H. 355; Highland Turnpike Co. v. McKean, 10 Johns. 154 : New England Co. v. Van- dyke, 1 Stockt. (N. J.) 498 ; Com. v. Woelper, 3 S. & R. 29 ; Graff v. R. R. 31 Penn. St. 489 ; Chase v. R. R. 38 111. 215; Ritchie v. Kinney, 46 Mo. 298 ; Union Bk. v. Call, 5 Fla. 409. In England, by statute, such books have in several cases been made ad- missible. Taylor's Ev. § 1581. 6 Mudgett V. Horrell, 33 Cal. 25. « Haynes v. Brown, 36 N. H. 445. See Marriage v. Lawrence, 3 B. & A. 144. ' Black V. Shreve, 13 N. J. Eq. 597 § 664.] THE LAW OF EVIDENCE. [BOOK II. in evidence, as against strangers, to prove its regular organiza- tion ; 1 or other evidential (as distinguished from dispositive) facts.2 And as admissions by members, to whose inspection such books are open, entries in corporation or club books are always admissible.3 The mode of proving such books is elsewhere no- ticed.* The records of municipal corporations and towns have been already considered.^ § 663. In matters incidental to the action of a corporation, as When pro- to which it is not to be presumed a record would neces- ceedings of gj^pjiy jje made, parol evidence of the action of the cor- tion can be poration is admissible ; ^ and so when it is proved that parol. a record, though proper, was never made ; ^ and when a corporation refuses to produce its books, these may be proved by parol.^ When a corporation acknowledges an agent as such, it is not necessary to prove his appointment.^ It is otherwise when it is sought to charge the corporation with the insulated act of a special agent.-'" VII. BOOKS OF HISTORY AND SCIENCE ; MAPS. § 664. A book published by a private person involving state- ments of recent facts cannot, unless as against the au- bo^kTof thor, be received as evidence of the facts which it states, eeoeraphv '^° prove Such facts the author must be called as a wit- by de- ness whenever he is within the process of the court.^^ ceased au- thors re- Nor Can such book be received when secondary ; thus OfiiTrfl-liifl Dugdale's Monasticon Anglicanum has been rejected 455. See Marriage v. Lawrence, 3 v. Badger, 26 Barbour, 146 ; Smiley B. & A. 144. V. Mayor, 6 Heiskell, 604. Supra, 1 Angell & Ames on Corp. 573 ; § 77. Grant «. Coal Co. 80 Penn. St. 208. ' RatclifiE v. Teters, 27 Ohio St. 66; See Dennison v. Otis, 2 Rawle, 9; Reynolds w. Schweinefuss, 27 Ohio St. Devling I'. Williamson, 9 Watts, 311. 311 ; Taymouth v. Koehler, 35 Mich. 2 Breton u. Cope, Pea. R. 30; Marsh 22; Prothro v. Seminary, 2 La. An. V. Colnett, 2 Esp. 665; Woonsocket v. 939. Sherman, 8 R. 1. 564. 8 Supra, § 153; Thayer v. Ins. Co. « Infra, § 1131. 10 Pick. 326. * Ibid. Wharton on Agency, §§ 40, 59; 5 Supra, § 641. Maine Stage Co. v. Longley, 14 Me. •Bank U. S. V. Dandridge, 12 444. See supra, § 77; infra, § 1315. Wheat. 64; Davidson v. Bridgeport, i" Haven v. Asylum, 13 N. Hamp. 8 Conn. 472; Commercial Bank v. 532. Kortright, 22 Wend. 348; Partridge " Morris v. Harmer, 7 Pet. 554; CHAP. IX.] HISTORIES AND ANNALS. [§ 664. as evidence to show that the Abbey de Sentibus was an inferior abbey, because the original records were producible.^ But where the author is out of the reach of process, then a primary book of history, travels, or chronicles is admissible for what it is worth, so far as concerns facts out of the memory of living men.^ And as a general rule, any approved public and general history (and of the fact of approval the court will take judicial notice^) is ad- missible to prove ancient facts of a public nature either at home or abroad.* It is otherwise, however, as to matters of a private U. S. I). Jackalow, 1 Black U. S. 484; Fuller u. Princeton, 2 Dane Ab. ch. 48, 49 ; Morris v. Edwards, 1 Ohio, 524 ; Houghton v. Gilbart, 7 C. & P. 701. " A book published in this country, by a private person, is not competent evidence of facts stated therein, of recent occurrence, and which might be proved by living witnesses, or other better evidence ; and the book in ques- tion, not being shown to have been approved by any public authority, or to be in general use among merchants or underwriters, had no tendency to show that the island of Navassy was commonly called and known as a guano island." Gray, J., Whiton v. Ins. Co. 109 Mass. 31. As to how far a court will take ju- dicial notice of past history, see supra, § 338. 1 Salk. 281. " Brounker u. Atkins, Skin. 14; Neale v. Fry, 1 Salk. 281 ; 1 Mod. 86 ; Picton's case, 30 How. St. Tr. 492; Morris v. Harmer, 7 Peters U. S. 554; Missouri v. Kentucky, 11 Wall. 395; Bogardus v. Trin. Church, 4 Sandf. Ch. 633; Com! v. Alburger, 1 Whart. K. 469 ; State v. Wagner, 61 Me. 181; Charlotte v. Choteau, 33 Mo. 194. See Woods v. Banks, 14 N. H. 101 ; McKinnon v. Bliss, 21 N. Y. 206'. " Supra, § 282. * B. N. P. 248-9 ; Case of Warren Hastings, referred to by Ld. Ellen- borough in Picton's case, 30 How. St. Tr. 492; 2 Ph. Ev. 123 ; Ld. Bridge- water's case, cited Skin. 15; Brounker V. Atkins, Skin. 14; St. Catherine's Hospital case, 1 Vent. 151 ; Neale v. Fry, cited 1 Salk. 281; S. C. nom. Neal u. Jay, cited 12 Mod. 86; S. C. nom. Lady Ivy and Neal's case, cited Skin. 623. The authority, however, of the three last cited reports is weak- ened by the fact that, in Mossam v. Ivy, 10 How. St. Tr. 555, apparently the same case, while no chronicles ap- pear to have been offered in evidence, a history was tendered to show when Charles the Fifth resigned; Jeffries, C. J., however, rejected the history contemptuously, blurting out that it was " a little lousy history," and then asking, "Is a printed history, written by 1 know not who, an evidence in a court of law?" P. 625. See Pea. Ev. 82, 83. In the short-hand report of R. v. Bradlaugh, Queen's Bench Div. 1877, 16 Alb. L. J. 221, we have the follow- ing:— " Mrs. B. then resumed her address precisely at the disconnected point of illustration. A question soon arose that is often raised at Nisi Prius, particu- larly in cases where insanity is dis- cussed. Mrs. Besant offers Tristram Shandy to the jury to read a passage; when the solicitor general intervenes 699 § 664.] THE LAW OF EVIDENCE. [book II. nature ; such as the descent of families, or even the boundaries of counties.! College catalogues,^ and peerage lists, and army and navy lists,^ are likewise inadmissible, if offered as to matters which could be proved by living witnesses. So the fact of Sir William Johnson's ownership of the " Royal Grant " is a private rather than a public incident, and cannot be proved by a volume of history, it being open to proof by better testimony.* So the Gazetteer of the United States, without further authentication. with : ' I am reluctant to interpose, my lord, but I must take your judg- ment whether or not such passages ought to be read.' The Lord Chief Justice, after lunch, ruled : ' I have been consulting with my learned broth- ers, and they agree with me I am bound to reject every publication as evidence, but that I cannot prevent the defendant from committing a pas- sage to memory and reciting it as part of her speech, nor from reading the hook as if reciting from memory. But the book is not evidence, and need not to be proved, nor must it be handed to the jury.' "Accordingly, throughout her speech, extracts were read out of all manner of popular books, from the Bible and Jeremy Taylor to Fielding, and news- papers; and in order to illustrate what may be called the text of Mrs. Be- sant's speeches : ' When the whole scope, effect, and aim of a book is to produce laudable' results, the fact that passages of it are couched in coarse language, or with indelicate reference, cannot make it obscene, nor is that obscene which meets with general pop- ular toleration.' " In a Maine case we have the fol- lowing: — " General histories of painstaking authors, long since deceased, and of established reputation, like those of Williamson and Belknap, are compe- tent evidence upon a question of this nature. No one claims them as con- 600 elusive or infallible; but carefully used as aids and guides, and accepted as true where their statements are uni- form and consistent with the evidence of original records, and admitted or well known facts, they will be found of great service in arriving at a satis- factory conclusion. " The case of Evans v. Getting, 6 Car. & P. 586, which was cited at the trial against their admission, and which seems, also, to be the basis of the remark in Greenleaf's Evidence, vol. i. § 497, to the effect that, in re- gard to the boundaries of a county, they are not admissible, would be found, on examination, by implication, to favor the admissibility of general histories of states, like those of Wil- liamson and Belknap. In that case it was a history of Brecknockshire that was offered to prove the boundary between that county and Glamorgan; and Alderson, B., rejected it with the remark : ' The writer of this history, probably, had the same interest in en- larging the boundaries of the county as any other inhabitant of it. It is not like a general history of Wales.' " BaiTows, J., State v. Wagner, 61 Me. 188. ^ Steyner v. Droitwich, Skin. 623; 1 Salk. 281; 12 Mod. 85; Evans v. Getting, 6 C. & P. 586. = State II. Daniels, 44 N. H. 383. ' Marchmont Peer. Min. Ev. 62, 77 ; Wetmore v. U. S. 10 Pet. 647. * McKinnon v. Bliss, 21 N. Y. 206. CHAP. IX.] SCIENTIFIC TKEATISES. [§ 665. cannot be received to prove the relative distances of geographical points.^ But to illustrate the meaning of words and allusions, books of general literary history may be referred to.^ Thus in a case be- fore the English Court of Exchequer ,3 it was ruled that works of standard authority in literature may, provided the privilege be not abused, be referred to by counsel or a party at a trial, in order to show the course of literary composition, and explain the sense in which words are used, and matters of a like nature ; but that they cannot be resorted to for the purpose of proving facts relevant to the cause. And Sir Edward Coke lays down, " Au- thoritates philosophorum, medicorum et poetarum sunt in causis allegandae et tenendae." * § 665. For several reasons, treatises on such of the inductive sciences as are based on data which each successive year „ , , . . Books of corrects and expands must be refused admission when inductive offered to prove the truth of facts contained in such usually ad- treatises. In the first place, a sound induction last year ™'^^' ®" is not necessarily a sound induction this year ; and as a matter of fact, works of this class, when they do not become obsolete, are altered in material features from edition to edition, so that we cannot tell, in citing from even a standard author, whether what we read is not something that this author afterwards rejected.^ 1 Spalding v. Hedges, 2 Penn. St. were remodelled. A quotation from 240. In the Tichborne trial, maps of one of the earlier editions may not Australia were received to show where improbably be searched for in vain in the defendant lived. Steph. Ev. art. tJwse which subsequently left his hands ; 37. and there are not wanting instances in 2 Supra, § 282. which an opinion, contested by compe- ' Darby v. Ouseley, 1 H. & N. 1. tent adversaries, was quietly dropped * Co. Lit. 264 a; Best's Evidence, without any formal parade. Hisjudg- 802. ment was always open to appeal, and * "The great representative, in his clear and manly intellect acknowl- late years, of British geology, is the edged no finality in matters of opinion ; late Sir Charles Lyell. But a few therefore, on matters which we know to months before his death he published have been brought before him, with their the new edition of his Principles of accompanying evidence, we may con- Geology. While he lived he bestowed sider ourselves as possessing his final upon the correction of his works un- verdict. It would not be fair, when wearied labor. Edition after edition quoting, as we must do, comments un- was called for, and in each whole pas- favorable to some of the conclusions sages — sometimes whole chapters — at which Sir Charles Lyell arrived, 601 § 665.] THE LAW OF EVIDENCE. - [BOOK II. In the second place, if such books are admitted as a class, those which are compilations must be admitted as well as those which contain the results of original research ; the purely speculative must come in side by side with the empirical ; so that if such treatises are admitted at all, it will be impossible to exclude those which are secondary evidence of the facts they state. In the third place, such books, without expert testimony, cannot gen- erally be pointed to the concrete case ; with expert testimony, they become simply part of such testimony, and lose their in- dependent substantive character as books. In the fourth place, the authors of such books do not write under oath, and hence write often tentatively ; nor are they examined under oath, and hence the authorities on which they rest cannot be explored, nor their processes of reasoning tested. Lastly, such works are at the best hearsay proof of that which living witnesses could be produced to prove. Books of this class, therefore, though admis- sible, if properly authenticated, to prove the state of science at a particular epoch, are inadmissible as independent substantive evidence, to prove the facts they set forth.^ In an argument to a court, such works may be read, not as establishing facts (unless such books are regarded as matters of notoriety, as are ordinary dictionaries), but as exhibiting distinct processes of reasoning which the court, from its own knowledge' as thus refreshed, is to refrain from acknowledging the R. 3 Bosw. (N. Y.) 7 ; Spalding v. care with which his opinions were Hedges, 2 Penn. St. 240; Yoe v. Peo- forraed, and the candor with which pie, 49 111. 410; Carter v. State, 2 they were surrendered if ever his Ind. 617; Huffman v. Click, 77 N. C. better judgment considered them un- 55; Gehrke v. State, 13 Texas, 568; tenable." London Quarterly Rev. Fowler w. Lewis, 25 Texas, Supp. 381. July, 1876, Amer. ed. p. 115. See, As indicating a contrary practice, see also, the changes of stand-point of Ordway v. Haynes, 50 N. H. 159 ; Prof. Huxley, as given in Contempo- Bowman v. Woods, 1 Greene (Iowa), rary Review, 1876, p. 122. And see 441; Bowman v. Torr, 3 Iowa, 571; generally Mill's Dissert, vol. i. (1867) Broadhead v. Wiltse, 35 Iowa, 429 pp. 114-117; Fox Bourne's Life of (by statute); Bowman v. Wood, 1 Locke, vol. i. (1876) p. 136. Ind. 441 ; Cory v. Silcox, 6 Ind. 39; 1 Collier V. Simpson, 5 C. & P. 73; Luning v. State, 1 Chand. (Wis.) 264; Terry v. Ashton, 34 L. T. 97 ; Ash- Ripon v. Bittel, 80 Wis. 614; Stou- worth V. Kittridge, 12 Cush, 193; denmeier u. Williamson, 29 Ala. 558; Washburn w. Cuddihy, 8 Gray, 430; Merkle w. State, 37 Ala. 139. Seeob- Whiton V. Ins. Co. 109 Mass. 24; servations in 5 Cent. L. J. 439; and Com. V. Brown, 121 Mass. 9; State in 1 Redfield on Wills, 146, sec. 15, V. O'Brien, 7 R. I. 386 ; Harris v. R. sub. sec. 1. 602 CHAP. IX.J SCIENTIFIC TREATISES. [§ 667. able to pursue.^ But if read to establish facts, capable of proof by witnesses, sucb books cannot be received. " Thus it is not competent, in an action for not farming according to covenant, to refer to books for the purpose of showing what is the best way of farming. Nor in an action on the warranty of a horse, would it be allowable to refer to works of a veterinary surgeon to show what is unsoundness." ^ So in an action for a libel, charging the plaintiff with being a rebel and traitor, "because he was a Roman Catholic," the defendant was not allowed to justify by citing books of authority among the Roman Catholics which seemed to show that their doctrines were inimical to loyalty.^ § 666. It has indeed been held, that an expert, when called to state the sense of his profession on a particular topic, may cite authorities as agreeing with him, and may refresh his memory by referring to standard works in his specialty.* But such wit- nesses are not permitted, in their testimony, to read extracts from books on physical philosophy as primary proof.^ It is clear, however, that when- an expert cites certain works as authority, they may be put in evidence to contradict him.^ § 667. The reasons just stated, however, fail in their force when we approach books of exact science, in which otherwise conclusions from certain and constant data are reached "^ *° ^°°^ of exact by processes too intricate to be elucidated by a witness science, when on examination on a stand. The books containing such processes, if duly sworn to by the persons by whom they are made, are the best evidence that can be produced in that partic- ular line.^ When the authors of such books cannot be reached, 1 See fully supra, §§ 282, 335; Har- Torr, 3 Iowa, 571 ; Eipon v. Bittel, vey K. State, 40 Ind. 516. But see SO Wis. 614; State v. Terrell, 12 contra, Huffman v. Click, 77 N. C. Rich. (S. C.) 321 ; Merkle v. State, 55. 37 Ala. 139. " Per Pollock, C. B., Darby v. = Com. v. Wilson, 1 Gray, 337; Ousely, 1 H. &N. 12. Washburn v. Cuddihy, 8 Gray, 430; 8 Darby v. Ousely, 1 H. & N. 1; Com. v. Sturtivant, 117 Mass. 122. Powell's Evidence, 4th ed. 105. See fully supra, § 438. * Supra, § 438; Cocks v. Purday, 2 ^ Eipo„ „. Bittel, 30 Wis. 614. C. &K. 270; Collier u. Simpson, 5 C. ' See supra, § 134. Even as to & P. 74; McNaghten's case, 10 CI. & these there should be verification. Fin. 200; Pierson v. Hoag, 47 Barb. For illustrations of blunders in books 243; Cory J). Silcox, 6 Ind. 39; Har- of this class, see Jevons' Philos. of vey V. State, 40 Ind. 516 ; Bowman v. Science, I. 244. 603 § 667.] THE LAW OF EVIDENCE. [BOOK II. the next best authentication of the books is to show that they have been accepted as authoritative by those dealing in busi- ness with the particular subject. Hence the Carlisle and North- ampton Tables have been admitted by the courts as showing what is the probable duration of life under particular condi- tions.i In order to verify the book it is proper to prove, by a witness qualified to speak to the point, that it is in use in the particular line of business to which the book relates.^ It 1 Mills V. Catlin, 22 Vt. 106 ; Schell V. Plumb, 55 N. Y. 598 ; Sauter v. R. K. 66 N. Y. 50 ; Bank v. Hogendob- ler, 3 Penn. L. J. 37; S. C. i Penn. L. J. 392 ; Bait. R. R. v. State, 33 Md. 542; Williams's case, 3 Bland Ch. 221 ; Donaldson v. R. R. 18 Iowa, 280; Walters u. R. R. 41 Iowa, 71; David V. R. R. 41 Ga. 223. " An exception was taken by the counsel to the reception of the North- ampton Tables as evidence tending to show the probable duration of the life of the plaintiff. It may be remarked that the objection thereto was general, not based upon the want of prelimi- nary proof, showing their genuineness or want of identity with those long in use by insurance companies and courts for this purpose. These tables were used by the Supreme Court in Wagner v. Schuyler, 1 Wend. 553, for this very purpose, in an action of covenant, where the probable duration of life was determined by the court in this way, upon a verdict subject to the opinion of the court. That they have been long so used by the Court of Equity in England is too well known to require any citation of cases. They have been adopted by a rule of the Supreme Court for this purpose. Rule 85. It would be singular, in- deed, if, under these facts, they were to be held inadmissible, when the same fact was to be determined by a jury. They were competent, in connection with the proof given as to the health, eori constitution, and habits of the plain- tiff. No complaint is made of the charge in this respect.'' Grover, J., Schell V. Plumb, 55 N. Y. 598. 2 Rowley v. R. R. L. R. 8 Exch. 226. In this case it was said by Blackburn, J.: — " Now, with the view of ascertain- ing the probable duration of a partic- ular lite at a given age, it is material to know what is the average duration of the life of a person of that age. The particular lite on which an an- nuity is secured may be unusually healthy, in which case the value of the annuity would be greater than the average; or it may be unusually bad, in which case the value would be less than the average ; but it must be ma- terial to know what, according to ex- perience of insurance companies, the value of an annuity secured on an av- erage life of that age would be. In the present case, with a view of ena- bling the jury to estimate the value of the annuity, a witness was called who stated that he was an accountant, ac- quainted with the business of insur- ance companies, and who referred to the Carlisle Tables, to which, he said, life insurance companies referred for obtaining information as to the aver- age duration of lives. He gave evi- dence that, according to those tables, the average and probable duration of a life of forty years is 27.6, and that of a life of sixty-one is 13.82 years; and that the sum which would pur- CHAl'. IX.] SCIENTIFIC TABLES : MAPS. [§ 668. should at the same time be remembered that while the Carlisle and other tables may be received to prove certain results of a large induction, they cannot be permitted to control a litigation, as to the value of a life estate, so as to work substantial injustice.^ § 668. No matter what may be the age or apparent accuracy of a map, it is not receivable in evidence of reputation, . , ,. unless it be traceable to or shown to have been recog- cated maps , , , . . . . admissible nized by persons who were in some way interested in to prove or likely to have had knowledge of the locality which "^^^^ the map describes.^ Where, however, a map was shown to have been made thirty years before the trial by a surveyor, upon in- formation derived from an old parishioner, who had pointed out to the surveyor the boundaries, it has been held in England that the map becomes admissible on proof of the surveyor's death.^ chase an annuity of £200 on the life of a person of sixty-one years is £2,000. It is observable that as the mother's annuity was for the joint lives of herself and son, not for her own life, this last question was not relevant, but that seemed to have es- caped notice. " The first exception is as to the re- ception of this evidence. We think the probable and average duration of a life of that age was material, and we do not see how that could be better shown than by proving the practice of life insurance companies, who learn it by experience. It was objected that the witness was not an actuary, but only an accountant; but as he gave evidence that he was experienced in the business of life insurance, we think his evidence was admissible, though subject to remarks on its weight. We therefore think that the first excep- tion cannot be maintained." See, also, Ordway v. Haynes, 50 N. H. 159, where it was said that engrav- ings of scientific results might be used to illustrate an argument. 1 In Shippen's Appeal (Piatt's Est.), 80 Penn. St. 391, where the evidence was that a husband and wife executed a mortgage of the wife's land for $12,000, of which amount the hus- band appropriated $4,221 to his own use, and subsequently made an as- signment for the benefit of his cred- itors ; and after the death of the wife the land was sold by the sheriff under the mortgage, after payment of which there remained for distribution $12,- 000, which was claimed by a devisee of the wife, and also by the husband's assignees ; it was ruled by the Su- preme Court of Pennsylvania, that the value of the husband's life interest as tenant by the curtesy was to be com- puted at one third the fee, and not ac- cording to the Carlisle Tables. ' See supra, § 194; Hammond v. Bradstreet, 10 Ex. R. 390. See Pipe V. Fulcher, 1 E. & E. Ill; Johnston V. Jones, 1 Black (U. S.), 209; Jack- son V. Frost, 5 Cow. 346; Jackson v. Vandyke, 1 Coxe (N. J.), 28 ; Denn v. Pond, 1 Coxe (N. J.), 379; Pfotzer w. MuUaney, 30 Iowa, 197; Avary v. Searcy, 50 Ala. 54. 8 R. V. Milton, 1 C. & K. 58. See, however. Pollard v. Scott, Pea. R. 19. And see Dunn v. Hayes, 21 Me. 76 ; Stein V. Ashby, 24 Ala. 521 ; and su- pra, §§ 194-199. 605 § 668.] THE LAW OF EVIDENCE. [BOOK II. A map made by an official surveyor is evidence if fortified by his oath, if his evidence be procurable, or if not, by proof of his official station and of his handwriting.^ A long acceptance and practical adoption by the public, also, may be a ground for the admission of a map which is ancient, and taken from the proper depository.^ Thus an ancient map or survey reputed to be such, and regarded as authority in respect to the land described, and recorded as a public document in the proper office or archives, can be received as primd facie proof of public boundaries and streets.^ So the map of the village of St. Louis, made by Au- guste Chouteau, a reputed founder of the village, in 1764, which was about the time the village was founded, and placed by him in the United States office for the record of land titles, having been generally regarded as a public paper for many years, and kept as such in the record office, may be received as primd facie evidence of the plan of the village.* But for the purpose of proving the location of streets, a map made even by a city sur- veyor and registered in the proper office will not be received, if such map was made without authority, express or implied, and has not the authority of age and acceptance.'' A fortiori, such maps unacted on and unrecorded cannot be received when made by a stranger.® 1 Supra, § 238; Smith v. Strong, 14 of J. K., from a map published in 1736 Pick. 128 ; Com. v. Alburger, 1 Whart. by J. K., who then tools an accurate R. 469; Chisholm v. Perry, 4 Md. Ch. survey of the whole country, was ten- 31; Cline v. Catron, 22 Grat. 378; dered to show that the locus in quo Surget V. Doe, 24 Miss. 118; Gates v. was not in Suflfolk. It was produced Kieff, 7 Cal. 1 24 ; Doherty v. Thayer, by a magistrate of both Norfolk and 31 Cal. 140. Suffolk, who had purchased it twelve ^ Supra, §§ 194-7. or fourteen years previously, and be- » Whitehouse v. Bickford, 29 N. H. fore any dispute as to the boundaries 471. had arisen. The court rejected the * St. Louis r. Erskine, 31 Mo. 110; evidence, chiefly on the ground that Schools V. Risley, 10 Wall. 91. the new editors did not appear to have 5 Harris v. Com. 20 Grat. 833. had any personal knowledge of the • Marble v. McMinn, 57 Barb. 610. subject, nor to be in any way con- In a case in the Exchequer Cham- nected with the district, so as to make her (Hammond v. Bradstreet, 10 Ex. it probable that they had such knowl- 890), on aquestion in replevin whether edge. We must consequently hold, goods were taken in Norfolk or Suf- in accordance with the distinction folk, a map of Suffolk, purporting to heretofore stated (supra, §§ 194-7), have been republished in 1766, with that before ancient documents can be corrections and additions, by the sons received as evidence of reputation, it 606 CHAP. IX.] MAPS AND SURVEYS. [§ 699. § 669. These conditions, however, may be relaxed as to an indisputably ancient map obtained from its natural custodians. ^ Thus on these grounds a document purporting to be a survey of a manor, while it was part of the possessions of the duchy of Cornwall, and coming out of proper custody, was admitted by Lord Romilly, in a late case,^ as evidence of the boundaries and customs of the manor .^ But the testimony of a recorder' clerk, that a town plan, offered as a link in a chain of title, had been in deposit in the office for more than six years, but no longer, is not, without further verification, proof of authenticity.* And such maps will not be received to impeach public recorded grants under which there has been long possession.^ What has been just said, it should be remembered, applies to questions of boundaries and public landmarks.® When a map is introduced as a link of title, it must be proved in the way that any other documentary link is proved.'^ must be proved that they have come from the custody of a person who is presumptively connected sufficiently by knowlege with the matter in dis- pute, so as to render him an authority. They must also bear the plain marks of authenticity. Powell's Evidence, 4th ed. 157. But the map must go to the spe- cific point in issue. Thus to prove a public right of way over a manor, a map of the manor, which had been made by a deceased steward of the manor, was given in evidence. The map showed lines made by the de- ceased witness, which indicated clearly some kind of way over the locus in quo, but contained nothing to show whether the way was a public one, or only one of several occupation ways such as ex- isted on the manor. If the way had been an occupation way, it would have been of a private nature, and, it was admitted, could not be proved by the evidence which had been given; and as there is nothing on the face of the map to show that it was a public way, and the map had been used only to settle the boundaries of the copyholds of the manor, it was held to be inad- missible. Pipe V. Fulcher, 1 E. & E. 111. 1 See supra, §§ 190-7 ; Adams v. Stanyan, 24 N. H. 405 ; Com. v. Albur- ger, 1 Whart. R. 469 ; Penny Pot Land- ing w. Philadelphia, 16 Penn. St. 79. ' Smith V. Earl Brownlow, L. R. 9 Eq. 241; 39 L. J. Ch. 636; 18 W. R. 271. " Powell's Evidence (4th ed.), 158. * Franey v. Miller, 11 Penn. St. 434. See Pipe v. Fulcher, 1 E. & E. 111. 5 Penny Pot Landing v. Phila. 16 Penn. St. 79. 8 See fully supra, §§ 185-191. ' '• Pedigree and boundary are the excepted cases wherein reputation and hearsay of deceased persons are re- ceived as evidence. The statements of deceased persons, relative to boun- daries of which they spoke from act- ual personal knowledge, have been frequently received as evidence in this 607 § 671.J THE LAW OF EVIDENCE. [book II. Maps ad missible § 670. A map of boundaries, also, is admissible against against the party by whom it is made and published, parties and and against his successors in title.^ Such maps, how- ever, must be properly identified.^ VIII. GAZETTES AND NEWSPAPEES. § 671. In England, by the Documentary Evidence Act, the /I government or oiEcial gazette is "^riOTf:? /aci'e evidence evidence of of any proclamation, order, or regulation of the gov- public oifi- •' '■ ,., ,. ciai docu- ernment, or of any or its departments. At common ™'° '' law, a distinction is taken in this connection between grants or commissions to an individual, and the correspondence of the crown with the public as a body. The gazette is not at common law evidence of the grant of land to a subject,^ nor of the commissioning of an officer of the army ; * but it is admissi- ble to prove proclamations, and addresses received by the crown, and other matters of exclusively public importance, and as to competent evidence to aid in ascer- taining and identifying that boun- dary." Agnew, J., McCausland v. Fleming, 63 Penn. St. 38. 1 Bridgman v. Jennings, 1 Ld. Ray. 734; Earl v. Lewis, 1 Esp. 1; Wake- man V. West, 7 C. & P. 479; Doe v. Lafcin, 7 C. & P. 481; Johnston v. Jones, 1 Black U. S. 209 ; Crawford V. Loper, 25 Barb. 449 ; Kingsland v. Chittendon, 6 Lans. 19; Burnett v. Thompson, 13 Ired. L. 379 ; Chic. R. R. V. Banker, 44 111. 26. See, how- ever, Bearce v. Jackson, 4 Mass. 408. That a land-owner may adopt a city map, by making sales on its basis, so as to bind himself to the dedica- tion of the streets, see Clark v. Eliza- beth, 10 Vroom, 172. ^ See supra, § 644 ; Sherras v. Caig, 7 Cranch, 84 ; Chirac v. Reinecker, 2 Pet. U. S. 619. See Carroll i-. Smith, 4 Har. & J. 128. Infra, § 1156. » R. V. Holt, 5 T. R. 443. * R. V. Gardner, 2 Camp. 613. state. Caufman v. Cedar Spring Con- gregation, 6 Binn. 62, 63; Buchanan V. Moore, 10 S. & R. 281 ; Bender v. Pitzer, 3 Casey, 335. And ancient maps and surveys are evidence to elu- cidate and ascertain boundary and fix monuments. Penny Pot Landing, &c. V. City of Philadelphia, 4 Harris, 91; Sample v. Robb, Ibid. 319. The dis- tinction is stated by Coulter, J., in the last case, to bo between drafts when offered for title and when of- fered for boundary. For the former purpose none but such as are shown to bear an official character will be received. These must be traced to the possession or office of the sur- veyor, and appear to have been made in an official character. TJrket v. Coryell, 5 W. & S. 79; Woods v. Ege, 2 Watts, 336-7; Blackburn v. Holli- day, 12 S. & R. 140. The question here being one of the possession, and the extent of it, by the boundary known as Taylor's line, the draft be- ing properly proved and traced, was 608 CHAP, IX.] DOCUMENTS : NEWSPAPERS. [§ 673. ■which there is no private record kept.^ The same distinction has been recognized in the United States.^ § 672. It is frequently important that a party should be shown, either directly or inferentially, to be familiar ug^g.^. •with certain facts. Did the claimant in the Tichborne P^.''^?*- ^ missible to case, for instance, when in Australia, know of the ad- impute vertisements calling for information as to Roger Tich- of facts to borne, and of the circumstantial account of the Tich- ''" ^" borne family published about that time in the London Illustrated News ? In order to afford a basis from which knowledge of facts so published can be inferred, it is necessary, first, to prove the publication in the newspaper ; and secondly, incidents which make it probable that the publication was seen by the person whom it is sought to infect with notice. In the Tichborne trial, Cockburn, C. J., examines with great acuteness the probabilities of notice under such circumstances, as helping out the hypothesis that the claimant, an adroit impostor, was in this way stimulated and in some way prepared to undertake the work of simulation. If there is any evidence making it probable that a newspaper reached the eye of a particular person, it would seem that the question of notice is one for the jury. § 673. It is held that so far as concerns those who have never dealt with a firm, notice of its dissolution in the Ga- Newspaper zette (or, it would seem, in any other public newspa- Sissofution per in which such notices are usually printed), will be of partncr- admissible ; ^ and that even as to persons having had sibte. old and familiar dealings with the firm, the newspaper may be received as cumulative evidence of notoriety of dissolution, after first proving the fact of dissolution by deed or otherwise.* By the same process may be inferred knowledge of the arrival of a stage-coach at a particular hour.^ But in order, in the latter * Atty. Gen. v. Theakstone, 8 tol v. Sprague, 8 Wend. 423; "Vernon Price, 89; Van Omeron v. Dowick, r. Manhattan Co. 22 Wend. 183. As 2 Camp. 44. See supra, § 127. to notice by publication in general, " Brundred v. Del Hoyo, 20 N. J. L. see a learned article in Central Law 328; Lurton a. Gilliam, 1 Scam. 577. Journal for March 9, 1877, p. 221. ' Newsorae u. Coles, 2 Camp. 617 ; See infra, § 675. Hart V. Alexander, 7 C. & P. 753 ; * Hart v. Alexander, 7 C. & P. Simmards v. Strong, 24 Vt. 642; Rob- 753. erts V. Spencer, 123 Mass. 397 ; Bris- ^ Com. u. Robinson, 1 Gray, 555. VOL. I. 39 609 § 674.] THE LAW OF EVIDENCE. [book n. class of cases, to enable the newspaper to be received as ade- quate proof of notice, it is necessary that it should in some way be brought home to the party.^ How this may be done will be presently seen. § 674. A newspaper whose office it is to procure and publish market prices, and whose editors are proved to apply to brokers and others dealing with the staple for infor- mation, is primd fade evidence of such prices, at a time when living witnesses to the fact cannot be obtained. Such evidence is the best procurable, and may be re- garded in the same light as are registries kept by persons in dis- charge of their business duties. ^ But such publications are not admissible without evidence showing that the prices current are drawn from reliable sources.^ News- paper, when veri- fied, ad- missible to prove price current. * As to what constitutes a newspa- per, see Kerr v. Hitt, 75 111. 51 ; Kel- logg V. Corrico, 47 Mo. 157. ^ Cliquot's Champagne, 3 Wallace, 117. « Whelan v. Lynch, 60 N. Y. 469. See Whitney v. Thacher, 117 Mass. 523 (cited at large, supra, § 449) ; Sisson V. Cleveland R. K. 14 Mich. 489 ; Payson v. Everett, 12 Minn. 216. From Whelan v. Lynch, 60 N. Y. 474, we extract the following: -^ "Independent of the charge, the court was also in error, I think, in ad- mitting the shipping and price current list as evidence of the value of the wool, without some proof showing how or in what manner it was made up, where the information it contained was ohtained, or whether the quota- tions of prices made were derived from actual sales or otherwise. It is not plain how a newspaper, contain- ing the price current of merchandise, of itself, and aside from any explana- tion as to the authority from which it was obtained, can be made legitimate evidence of the facts stated. The ac- curacy and correctness of such pub- lications depend entirely upon the 610 sources from which the information is derived. Mere quotations from other newspapers, or information obtained from those who have not the means of procuring it, would be entitled to but little if any weight. The credit to be given to such testimony must be gov- erned by extrinsic evidence, and can- not be determined by the newspaper itself without some proof of knowl- edge of the mode in which the list was made out. As there was no such tes- timony the evidence was entirely in- competent, and should not have been received. The authorities cited to sustain the ruling of the judge in regard to the admission of this evi- dence do not include any such case. "In Lush u. Druse, 4 Wend. 314, the witness who testified as to the market price had inquired of mer- chants dealing in the article, and ex- amined their books, thus giving the source of his knowledge. In Terry v. McNiel, 58 Barb. 241, it does not ap- pear in what form the question was presented, or whether any preliminary evidence had been introduced to show the accuracy of the newspaper quo- tations. In Cliquot's Champagne, 3 Wallace, 117, it appeared that the CHAP. IX.J GAZETTES AND NEWSPAPERS. [§ 674 a. § 674 a. Where advertisements in a newspaper can be traced price current was procured directly from dealers in the article, and was verified by testimony which tended to show its accuracy. The objections made to the evidence were sufficient, and its admissibility cannot be upheld within these cases cited." Miller, J., Whelan v. Lynch, 60 N. Y. 474. In reference to this case we find, in the Albany Law Journal for 1876, p. 317, a communication in which it is stated that the recital, in the above opinion, of the facts in Terry t>. Mc- Niel, 58 Barb. 241, is incomplete, and that in the latter case there was no preliminary evidence showing the ac- curacy of the newspaper quotations. It is also stated that the latter case was " unanimously afiirmed on the opinion of Judge Piatt Potter, as found in 58 Barbour, 241. It will be perceived, therefore, that if the Court of Appeals are right in their decision in 60 N. Y., they were wrong in their disposition of 58 Barb. 241." The ruling in Cliquot's Champagne is thus explained in a subsequent judg- ment of the Supreme Court : — " The cases of Fennerstein's Cham- pagne and Cliquot's Champagne, re- ported in the 3d Wallace, 114, 145, do not infringe upon this rule. Those were cases where it became necessary to establish the market value of cer- tain wines in France, and such value could only be ascertained by sales made by dealers in those wines in dif- ferent parts of the country, and the prices at which they were offered for sale, and circumstances affecting the demand for them. It would not be proved by a single transaction, for that may have been exceptional ; the sale may have been made above the market price, or at a sacrifice below it. Market value is a matter of opin- ion, which may require for its forma- tion the consideration of a great va- riety of facts. To arrive at a just conclusion prices current, sales, ship- ments, letters from dealers and man- ufacturers, may properly receive con- sideration. A party, without having been previously engaged in any mer- cantile transaction, may be able to give with great accuracy the market value of an article the dealing in which he has watched ; and in stating the grounds of his opinion as a wit- ness, he may very properly refer to all these circumstances, and even the ver- bal declarations of dealers. Alfonso V. United States, 2 Story, 426. Now, in the cases in 3d Wallace, statements of dealers in the champagne, or of agents of dealers, made in the course of their duties as agents, and letters from dealers, and prices current, were admitted as bearing upon the point sought to be established, the market value of the wines. There is no anal- ogy between these cases and the one at bar. What was the market value of the wines in France was, as already said, a matter of opinion. Whether the defendants had in their possession or custody, between certain dates, 200,000 gallons of distilled spirits, or any other quantity, for the purpose of selling the same with a design to avoid the payment of the duties thereon, was a question of fact and not of opin- ion. '' If now we apply the rule which we have mentioned to the certificate books of the canal collectors, their in- admissibility is evident. They were not competent evidence as declara- tions of the collectors, for the collec- tors had no personal knowledge of the matters stated ; they derived all their information either from the bills of lading or verbal statements of the captains. Nor were the books com- 611 § 675.J THK LAW OF EVIDENCE. [BOOK II. to a particular party, so as to show that he is their author, such But not advertisements are evidence against him, but not other- generaily wise.^ When, however, the object is to charge a partic- purposes. ular advertisement on a particular person as its author, it is necessary — so it has been ruled in Pennsylvania — to pro- duce the original manuscript. It is only when the latter is non- producible that the printed copy can be received.^ So far as con- cerns ordinary events, it need scarcely be added, a newspaper cannot be produced as evidence.^ Thus the identity or history of a person cannot be proved by a newspaper notice ; * although, as we have seen, it is admissible to show such an advertisement, for the purpose of explaining, as in the Tichborne case, the ac- tion of another person having notice of such death. § 675. It has been held not enough, in order to bring home to Knowledge a party knowledge of a newspaper notice, to show that paperno- ^he newspaper was circulated in the neighborhood of ticemaybe ^.jjg party's residence.^ But it will be enough, to enable proved in- J^ "^ ^ . ferentiaiiy. the newspaper to go to the jury, to prove that it was taken by the party on whom it is sought to prove notice,^ or that he attended habitually a reading room where it was, or was shown in some other way to have been familiar with the paper ; '^ or that the newspaper is one with which it is his duty to be familiar, as are underwriters with Lloyd's Shipping List.* petent evidence as declarations of the 28; Dennis v. Van Vay, 28 N. J. L. captains, because it does not appear 158; Berry v. Mathewes, 7 Ga. 457. that the bills of lading were pre- 2 Sweigart v. Lowmarter, 14 Serg. pared by them, or that they had per- & E. 2OO. sonal knowledge of their correctness, s See Ring v. Huntington, 1 Hill or that their verbal statements, when (S. C.) 162. the bills of lading were not produced, « Fosgate v. Herkimer Man. Co. 9 were founded upon personal knowl- Barb. 287. edge; and besides, many of the cer- 6 Norwich Nav. Co. v. Theobald, tificates were admitted without call- N. & M. 163; Kellogg v. French, 15 ing the captains who signed them, Gray, 854. Supra, § 673. and without proof of their death or ^ Godfrey v. Macaulay, Pea. R. 155, inaccessibility." Field, J., Chaffee w. n.; Jenkins w. Blizard, 1 Stark. R. U. S. 18 Wall. 541. 419; Hart v. Alexander, 2 M. & W. 1 See Somervell v. Hunt, 3 Har. & 484 ; Leeson v. Holt, 1 Stark. R. M. 113; Freno v. Freno, 1 Weekly 186. Notes of Cases, 166; Henkle v. ' Ibid. Smith, 21 111. 238; Stringer v. Davis, 8 Mackintosh v. Marshall, 11 M. & 85 Cal. 25; Mann 1.. Russell, 11 111. W. 116. 586; Lee v. Flemingsburg, 7 Dana, 612 CHAP. IX.] PICTURES AND PHOTOGRAPHS. [§ 676. IX. PICTURES AND PHOTOGRAPHS; PLANS AND DIAGRAMS. § 676. Of persons who are dead, or cannot for other reasons be produced in court, duly authenticated pictures ^ and photographs ^ are admissible in questions of pedigree and photo- and identity ; though they are open to parol explana- are admia- tion. Photographs of places may, in like manner, be '' ^' admitted when relevant ; ^ though the impression they give of depths and distances may require to be corrected aliunde by measurement.* Such photographs, also, must be verified by proof that they are true representations before they can be ad- mitted by the court.^ Photographs of handwriting are in like manner admissible ; ^ though in cases involving delicate ques- tions of identity of hands, a photograph should not be relied on without investigating the refractive power of the lens, the angle at which the original was inclined to the sensitive plane, the ac- curacy of the focussing, and the skill of the operator.' Engrav- ^ Camoys Peerage case, 6 CI. & F. 801. 2 Whart. & St. Med. Jur. ii. § 123 ; RulofFw. People, 45 N. Y. 215 ; S. C. 5 Lansing, 261 ; Udderzook's case, 76 Penn. St. 340; S. C. Whart. on Hom- icide, Appendix ; Sliaible v. Ins. Co. 9 Phil. R. 136 ; aff. 1 Weekly Notes of Cases, 369; Luke v. Calhoun Co. 52 Ala. 115. See Beers v. Jackman, 103 Mass. 192, ruling that evidence of similarity was inadmissible in bastardy suits. As to the secondary character of photographs, see supra, § 91. The admission of photographs, as a means of identification, is sustained in Udderzook's case, 76 Penn. St. 340. * Cozzens v. Higgins, 1 Abb. (N. Y.) App. 451; Locke v. R. R. 46 Iowa, 109 ; Church v. Milwaukee, 31 Wis. 512. * Tichborne Trial, Cockburn, C. J., Charge, II. 640. ^ Marcy v. Barnes, 16 Gray, 161; Hollenbeck •>. Rowley, 8 Allen, 473; Com. V. Coe, 115 Mass. 481 ; Walker V. Curtis, 116 Mass. 98; Blair v. Pel- ham, 118 Mass. 420; RulofE v. People, 45 N. Y. 215. ' Marcy v. Barnes, 16 Gray, 161. Infra, § 720. ' Taylor Will case, 10 Abb. N. Y. Pr. N. S. 300; Tome v. R. R. 39 Md. 36, quoted infra, § 716. See Daly v. Maguire, 6 Blatch. 137. In Foster's Will, 34 Mich. 21, Campbell, J., said: — ' ' If the court had permitted photo- graphic copies of the will to be given to the jury, with such precautions as to secure their identity and correct- ness, it might not, perhaps, have been error. Nevertheless, it is not always true that every photographic copy would be safe on any inquiry requiring minute accuracy. Few copies can be so satisfactory as a good photograph. But all artists are not competent to make such pictures on a large scale, and all photographs are not absolutely faithful resemblances. It is quite pos- sible to tamper with them, and an impression, which is at all blurred, 613 § 676.] THE LAW OF EVIDENCE. [book II. ings of scientific results may, it seems, be admitted to illustrate an argument.! But as to all forms of pictorial or photographic representation, whether the representation is correct must be de- termined by the court before it can be received; and the ruling of the court below in this respect is not, it is said in Massachu- setts, open to exception in error.^ ■would be very apt to mislead on ques- tions of handwriting, where forgery is claimed. Whether it would or would not be permissible to allow such docu- ments to be used, their use can never be compulsory. The original, and not the copy, is what the jury must act upon, and no device can properly be allowed to supersede it. Copies of any kind are merely secondary evidence, and, in this case, they were intended to be used as equivalent to primary evidence in determining the genuine- ness of the primary document." As to inaccuracy of photographs of signatures, see evidence in Greene V. Manderson, U. S. Cir. Ct. Boston, 1868, Pamph. R. p. 683. > Ordway v. Haynes, 50 N. H. 159. * " A plan or picture, whether made by hand of man or by photog- raphy, is admissible in evidence, if verified by proof that it is a true representation of the subject, to assist the jury in understanding the case. Marcy 17. Barnes, 16 Gray, 161; Hol- lenbeck v. Rowly, 8 Allen, 473; Coz- zens V. Higgins, 1 Abbott N. Y. 451; Kuloff V. People, 45 N. Y. 213; Ud- derzook v. Commonwealth, 76 Penn. St. 340; Church ii. Milwaukee, 31 Wis. 512. Whether it is sufficiently verified is a preliminary question of fact, to be decided by the judge pre- siding at the trial, and not open to exception. Commonwealths. Coe, 115 Mass. 481, 505." Walker v. Curtis, 116 Mass. 98. In illustration of the use of photog- raphy, in connection with the pro- duction of evidence, the following 614 cases, for which I am indebted to an eminent scientist, will be of value. " In the case of the Rumford Chem- ical Works V. Hecker, 11 Blatch. 652, the question was raised as to the rela- tive porosity of bread made with yeast in the usual manner, and that prepared with the baking powder of the com- plainants. Evidence was introduced by defendants as follows: President Henry Morton, of the Stevens Inst, of Technology, Hoboken, N. J., who organized the photographic observa- tions of the eclipse of 7th August, 1869, under the Nautical Almanac Office, and otherwise an expert in photography, was produced, and de- posed to having prepared sections of both varieties of bread of exactly equal thickness, and to having made micro- scopic or highly enlarged photographs of the same, under identical condi- tions. The original negatives of these, and also positive prints from the same, were received and filed as exhibits. " In the case of H. D. Cone v. Porter & Bambridge, a question being raised as to the identity in character in em- bossed lines on vfriting paper claimed to infringe a patent for such lines when made of an ' ogee ' form, the same expert above named was pro- duced, and deposed to having prepared slips of each variety of paper under consideration, attaching the same side by side in the four positions, which would give every possible variety to the arrangement of light and shade in the experiment, and then making pho- tographs of the entire sheet, or card, with a very oblique illumination. CHAP. IX.] PHOTOGRAPHS AND PLANS. [§ 677. § 677. Secondary evidence may be received of buildings, monuments, and other obiects which cannot be brought . , into court. For this purpose, authenticated plans or plans and diagrams of the loous in quo are admissible ; ^ and may go to the jury .2 diagrams. " By this means the variations of surface in the embossed lines were strongly marked by light and shade, and the identity or difference of the various samples clearly shown. " In the case of Funcke v. N. York Mutual Life Insurance Co., in 1876, in the Superior Court of New York city, a question arose as to the altera- tion of a check from $100 to Si, 500. The alteration had been confessed by a notorious forger, who had been em- ployed to make it, but who was under sentence for another offence. Photo- graphs were exhibited, showing de- cided traces of the original writing, es- pecially of the word " One," under the newly written " Fifteen." It was ob- jected that these traces of the orig- inal writing, which were not visible on the check itself, were also invisible on certain of the photographs. It has been suggested to us by President Morton, that this was probably due to a too long exposure of the negatives not showing the traces. The ink, which had been obliterated by the use of dilute sulphuric acid and hypochlo- ride of soda (Labaraque's solution), had left only a very faint trace of oxide of iron, which, by reason of its yellow color, would have a special absorbing power for the actinic or photographic rays ; but yet even in this regard the difference between this remnant of the ink and the white paper was very slight, and if the exposure was at all too long, even the yellow traces re- flected light enough to render the neg- ative film opaque. It was therefore necessary that just time enough should be given to allow the white paper to produce its effect, when the slightly yellow parts would be distinguishable by their inferior action." The following is from the Albany Law Journal of June 10, 1876 : — " A novel application of the art of photography was made in a cause on trial before Mr. Justice Dykman, in the Supreme Court, New York, on Friday, June 2, 1876. The question at issue was, whether the certifica- tion of a check, purporting to have been made by the teller of the bank on which it was drawn, was genuine 1 Jones V. Tarleton, 9 M. & W. 84 ; R. V. Fursey, 6 C. & P. 84; Wood i;. Willard, 36 Vt. 81 ; Blair v. Pelham, 118 Mass. 420; Stuart v. Binsse, 10 Bosw. (N. Y.) 436 ; Rippe v. R. R. 23 Minn. 18; Vilas v. Reynolds, 6 Wis. 214; Shook v. Pate, 50 Ala. 91. As to plats in relation to title, see Thompson v. Thornton, 50 Cal. 142. Of diagrams of buildings, &c., see several instances given in Bemis's Webster Trial, and in the Tiohborne case. ' " The submission to the jury of the plan, unaccompanied by the tes- timony of the surveyor who made it, and of the complainant, ' not as an ac- curate plan of the premises,' but as ' showing generally the situation and area of the premises flowed,' was with- in the discretion of the presiding offi- cer. Hollenbeck v. Rowley, 8 Allen, 473; Clapp v. Norton, 106 Mass. 38; Commonwealth «. HoUiston, 107 Mass. 232." Gray, J., Paine v. Woods, 108 Mass. 168. 615 § 678.] THE LAW OF EVIDENCE. [book II. §678. Shop- books ad- missible when veri- fied by oath of party. X. SHOP-BOOKS. By the Roman law, as is elsewhere noticed, the book of original entries kept by a shop-keeper, when verified by his oath, is primd facie evidence of the sales or other immediate business transactions it notes. This rule now exists in those European states in which the Ro- man law is in force.^ In England, a statute passed in 1609 recognized a similar admissibility of tradesmen's books ; but this statute appears never to have been acted on by the courts, though in 1863 it was "revivified and rendered perpetual." ^ Independent, however, of these statutes, shop-books, we are told, have been admitted as primd facie evidence in cases " where accounts have been required to be taken, and vouchers have been lost." ^ By the Chancery Amendment Act, courts of equity are empowered to direct that, in taking accounts, the book in which the accounts required to be taken have been kept shall be primd facie proof.* In the United States, a tradesman's book of original entries is, in most jurisdictions, received in evidence as primd facie proof, when supported by the tradesman's oath.^ or a forgery. The teller swore that It was not his certificate, and several experts pronounced the signature a forgery ; while other experts, called by the holder of the check, were equally positive that the signature was gen- uine. Thereupon the court room was darkened, and ' Prof. Combs,' with the aid of a calcium light magic lantern, threw an image, from a photographic negative, of the check in question, upon the wall, to show that the writ- ing was free and flowing, and not the labored and retouched signature, which is the usual accompaniment of forgeries, and which some of the ex- perts insisted appeared in this case. This exhibit seems to have had the desired effect, as the jury found that the signature was genuine." See in- fra, § 720. 1 See Wharton Confl. of Laws, §§ 753-56. " Taylor's Evidence, 641. 616 ^ Lodge V. Prichard, 3 De Gex, M. & G. 908. < Taylor's Ev. § 641 6. ' Prince v. Smith, 4 Mass. 455 ; Ball V. Gates, 12 Met. 491; Swift v. Pierce, 13 Allen, 136; Case v. Potter, 8 Johns. R. 211; Linnell v. Suther- land, 1 1 Wend. 568 ; Poultney v. Ross, 1 Dall. 239; Linn v. Naglee, 4 Whart. R. 92; Funk v. Ely, 45 Penn. St. 444; Fitzgibbon v. Kinney, 3 Harr. (Del.) 817; Myer u. Grafflin, 31 Md. 350; Kerr V. Love, 1 Wash. (Va.) 172; James V. Richmond, 5 Ohio, 338; Karr v. Stivers, 34 Iowa, 123; Winne v. Nick- erson, 1 Wis. 1 ; Sherwood v. Sissa, 5 Nev. 349. In Michigan by statute. Morse v. Congdon, 3 Mich. 549. In Iowa by statute. Anderson v. Ames, 6 Iowa, 486. Foster v. Sinkler, 1 Bay S. C. 40; Herlock v. Riser, 1 McCord, 481 ; Thompson v. Porter, 4 Strob. Eq. 58; Landis u. Turner, 14 Cal. 573; Bower v. Smith, 8 Ga. 74. As to stat- CHAP. IX.] SHOP-BOOKS. [§ 679. Even a marshal's book of private original entries has been held admissible to prove his sales.^ In North Carolina, under the statute, book accounts, supported by party's oath, are only proof of small debts, when delivery is proved aliunde? In Maine, such books, in the handwriting of the party himself, are only admissible to the extent of forty shillings,* or after the death of the party, on proof of his handwriting.* § 679. It must at the same time be kept in mind that by the statutes enabling parties to be witnesses, books of orig- Alteration inal entries have lost the peculiar significance formerly \^^^^^^ en- attached to them. Under such statutes they are not ^es'tobo'^' simply exceptionally adinissible, by statute or custom, witnesses. but are generally admissible, under the rule that a witness may refresh his memory by proper memoranda.^ " Questions in rela- tion to book entries as evidence," as is well said by the Supreme Court of Pennsylvania in 1875,^ " since the Act of 1839 making the parties witnesses, stand upon a different footing than that on which they stood before. Then the book itself was the evidence, and the oath of the party was merely supplementary. Now the party himself is a competent witness, and may prove his own claim as a stranger would have done before the Act of 1869. That the facts contained in the book, either of charge or dis- charge, of cash or goods, or whatever else is in his personal knowledge, might be proved by a stranger, no one doubts. A ute, see Ganahl v. Shore, 24 Ga. 17. ^ Alexander v. Smoot, 13 Ired, 461. In Florida by statute. Hooker v. John- ^ Dunn v. Whitney, 1 Fairf . 9 ; Kel- son, 6 Fla. 730. Moodyu. Roberts, 41 ton i^. Hill, 68 Me. 114. Miss. 74 ; Johnson v. Price, 3 Head, ^ Leighton v. Manson, 14 Me. 208 ; 549 ; Irwin v. Jordan, 7 Humph. 167; Dow v. Sawyer, 29 Me. 117. See, for Forsee v. Matlock, 7 Heisk. 421 ; Ward a more extended rule, Codman v. Cald- V. Wheeler, 18 Tex. 249 ; Taylor v. well, 31 Me. 560 ; Lord v. Moore, 37 Coleman, 20 Tex. 772 ; Burleson v. Me. 208. As to limit in New Hamp- Goodman, 32 Tex. 229. Contra, Ed- shire, see Dodge v. Morse, 3 N. H. wards t). Nichols, 3 Day, 16; Nolley u. 232; Bassett v. SpofFord, 11 N. H. Holmes, 3 Ala. 642; Scott v. Coxe, 167; Rich v. Eldredge, 42 N. H. 153. 20 Ala. 294 ; Godbold v. Blair, 27 « See this rule discussed supra, § Ala. 592 ; Richardson v. Dorman, 28 516. Ala. 679. Otherwise when allowed by "Nichols v. Haynes, 78 Penn. St. Code. Hissrick v. McPherson, 20 174. See Barnet v. Steinhaeh, 1 Mo. 310; Burr v. Byers, 10 Ark. 398. Weekly Notes, 835; Henry v. Martin, 1 Linthicum «. Remington, 5 Cranch 1 Weekly Notes, 277. Hendersons. C. C. 646. Morris, 1 Oreg. 24. 617 § 681.] THE LAW OF EVIDENCE. [BOOK II. clerk, for instance, could prove the account, including cash items, from his own knowledge, and might use the book to refresh his memory. The party now stands, by force of the law, on the same plane of competency as the stranger stood upon, and there- fore may make the same proof. As a stranger could, he may also refer to entries made at the time of the transaction in cor- roboration of his testimony." Not neoes- § 680. Such entries are used to refresh the memory of the party swearing to them, and it is not necessary, therefore, that he should have an independent recollec- tion of the facts they narrate.^ § 681 . The charge proved must be in connection with the party's daily business, and not an insulated inde- pendent item.2 Thus a tradesman's book of original entries is not admissible to prove an item for money In South Carolina, it has been held that the statute authorizing a party to make proof by swearing to his books of original entry does not apply to a schoolmaster,* nor to a planter,^ nor to a scrivener,^ nor to the keeper of a billiard-table.'^ So it has been ruled in Tennessee, that where the services in contro- versy were such as to raise no presumption that compensation sary that "witness should have in- dependent recollec- tion. Charge must be in party's business. loaned.^ 1 Supra, § 518. " In Merrill v. The Ithaca & Owego Bailroad Company, 16 Wendell, 586, it was held that when original entries are produced, and the person who made them, and knew them at the time to be true, testified that he had made the entries, and that he be- lieved them to be true, although at the time of testifying he had no recol- lection of the facts set forth in the entries, such evidence is admissible as prima, facie evidence for the jury. In this case, Mr. Justice Cowen, who delivered the opinion of the court, ex- amined most of the authorities, Eng- lish and American, on the subject. The same doctrine is also sustained by the case of Guy v. Mead, 22 N. Y. 465." Nelson, J., Insurance Corn- pane V. Weide, 9 Wall. 677, 680, 681. S. P., Bullock V. Hunter, 44 Md.416; 618 Wolcott V. Heath, 78 111. 438 ; Newell V. Houlton, 22 Minn. 19. ' Winson v. Dillaway, 4 Met. 221 ; Corning i;. Ashley, 4 Denio, 354 ; Curren v. Crawford, 4 Serg. & R. 6 ; Shoemaker v. Kellog, 11 Penn. St. 310; Karr v. Stivers, 34 Iowa, 123; Lynch v. McHugo, 1 Bay S. C. 33. ' Wilson i>. Wilson, 1 Halst. 95; Carman v. Dunham, 6 Halst. 189; Ducoign V. Schreppel, 1 Yeates, 847; Veiths V. Hagge, 8 Iowa, 168; Cole V. Dial, 8 Tex. 847. As to limit in Massachusetts of $6.66, in charges of cash, see Union Bank v. Knapp, 8 Pick. 109 ; Davis v. Sanford, 9 Allen, 216. * Pelzer v. Cranston, 2 McCord, 828. ' Geter v. Comm. 1 Bay, 354. » Watson V. Bostwick, 2 Bay, 312. ' Boyd V. Ladson, 4 McCord, 76. CHAP. IX.] SHOP-BOOKS. [§ 682. ■was to be rendered therefor, — consisting in attention to an aged father in his last sickness, — it was not competent for the plain- tiff to show by his own oath that the services were performed under a promise of the deceased that they should be well paid for.i § 682. The book proved must be one of original entry ; a ledger, or other book into which such entries are tran- jj^^j^ ^„gt scribed, is inadmissible.^ That the book is in ledger be one of _ ' _ o original form is no objection.^ It has been held, however, that entry. the fact that entries are first made on a slate, and then trans- ferred to the book ofEered, does not exclude the book, when the slate entries are not preserved, and the transfer is immediate.* But where the slate entries are relied on by the party as in any sense original entries, then the book assumes a secondary char- acter, and is inadmissible.^ The distinction is this : memoranda made in rough on a slate, or on a mere temporary note-book, of which the object is merely to assist the memory until the entries are made in a day-book, are not books of original entry, and need not be produced, nor do they make the day-book secondary evidence ; though where such memoranda are made as perma- nent records of the sale, then they constitute a book of original entries, and must be produced.® The day-book, or blotter, on the other hand, into which loose memoranda are on the same day entered, is virtually the book of original entries, and must 1 Forsee v. Matlock, 7 Heisk. 421. 193; Lawhorn v. Carter, 11 Bush, 7; '^ Dwinel v. Pottle, 31 Me. 167; Neville v. Northcutt, 7 Coldw. 294. Godfrey v. Codman, 32 Me. 162; « Wells v. Hatch, 43 N. H. 246 ; Woodbury i'. Woodbury, 50 Vt. 152; Rodman v. Hoops, 1 Dall. 85; Thom- Faxon v. HoUis, 13 Mass. 427; Morris son v. Hopper, 1 W. & S. 468 ; Hoover V. Briggs, 3 Cush. 342; Whitney v. v. Gehr, 62 Penn. St. 138. Sawyer, 11 Gray, 242; Stetson u.Wol- * Hall it. Glidden, 39 Me. 445; cott, 15 Gray, 545; Bentley v. Ward, Pillsbury v. Locke, 33 N. H. 96; Fax- 116 Mass. 333; Case u. Potter, 8 Johns, on v. HoUis, 13 Mass. 427; Hartley R. 211; Burke v. Wolfe, 38 N. Y. u. Brookes, 6 Whart. R. 189; Ewart Sup. Ct. 263; Stroud a. Tilton, 4 w. Morrell, 5 Harr. (Del.) 126; Landis Abb. (N. Y.) App. 324; Kotwitz v. v. Turner, 14 Cal. 573. Wright, 37 Tex. 82; Wall o. Dovey, 6 Kessler v. McConachy, 1 Rawle, 60 Penn. St. 212; McCormick v. £1- 435; Forsythe v. Norcross, 5 Watts, ston, 16 111. 204; Karr v. Stivers, 34 432. See Davison u. Powell, 16 How. Iowa, 123; Marsh v. Case, 30 Wis. (N. Y.) 467. 531 ; Lynch v. Petrie, 1 Nott & McC. ^ n,ij_ . Breinigw. Meitzler, 23 Penn. 130; Toomer v. Gadsden, 4 Strobh. St. 156. 619 .§ 683.] THE LAW OF EVIDENCE. [book II. be produced, or its loss accounted for.^ Entries in books kept for other purposes have been held inadmissible.^ The entries must be in a book used continuously for the purpose ; ^ but a book of original entries is not vitiated by the fact that it con- tains entries not original.* In case of the loss of the book of original entries, a transcript, or the ledger, has been re- ceived.^ Freshness of entering is essential ; the entries must be made as soon after the transaction as is consistent with the due course of business, and in the handwriting of the party by whom they are proved. Each item must be severally entered when this is conformable to the nature of the transaction.® If the entry is made before the sale or delivery is complete, it cannot be received.^ But an employer may charge for his employee's services by the job ;^ and it has been held that when an employee is in constant employment for a year, an entry once a week is sufficient.^ When made by a salesman, and reported to the principal, who enters them, his en- § 683. The entries must have been con- tempora- neous. ^ Breinig v. Meitzler, 23 Penn. St. 156. ' Rogers v. Old, 5 Serg. & K. 404; Smith V. Lane, 12 Serg. & R. 80. « Kibbe v. Bancroft, 77 111. 18. * Ives V. Niles, 5 Watts, 323. ' Breinig «. Meitzler, 23 Penn. St. 156 ; Holmes v. Marden, 12 Pick. 169; Caulfield V. Sanders, 17 Cal. 569. ^ Lord V. Moore, 37 Me. 208 ; Luce V. Doane, 38 Me. 478; Cummings v. Nichols, 13 N. H. 420; Earle v. Saw- yer, 6 Cush. 142; Keath v. Kibbe, 10 Cush. 35; Gorman v. Montgomery, 1 Allen, 416 ; Dexter v. Booth, 2 Allen, 569; Com. u. Goodwin, 14 Gray, 55; Bentley v. Ward, 116 Mass. 333; Swing V. Sparks, 2 Halst. 59 ; Vance V. Caldwell, 1 Yeates, 321 ; Jones v. Long, 3 Watts, 325; Lonergan i.. Whitehead, 10 Watts, 249; Venning V. Hacker, 2 Hill S. C. 584; Bower V. Smith, 8 Ga. 74; Holliday v. Butt, 40 Ala. 178; Lynch v. Petrie, 1 Nott & MoC. 130; Townsend v. Coleman, 18 Tex. 418; Taylor i;. Coleman, 20 620 Tex. 772; Hooker v. Johnson, 6 Fla. 730. "Three mouths' service," in a single entry, do not form an admis- sible charge. Henshaw v. Davis, 5 Cush. 145. In Bolton's Appeal, 3 Grant (Penn.), 204; and Koch v. Howell, 6 Watts & S. 350, it was ruled that a paper-hanger's book of original entries could be admitted when the entry was made as soon as the quantity of paper was determined from its use, and the amount of work was measured. As to physicians' en- tries, see Knight v. Cunnington, 13 N. Y. Supreme Ct. 100. See, for a lib- eral rule as to a physican's charges, Clarke v. Smith, 46 Barb. 30; Bay v. Cook, 22 N. J. L. 343. ' Parker v. Donaldson, 2 Watts & S. 9 ; Rheem v. Snodgrass, 2 Grant (Penn.), 379. " Bolton's Appeal, 8 Grant (Penn.), 204. » Yearsley's Appeal, 48 Penn. St. 531. CHAP. IX.J SHOP-BOOKS. [§ 684. tries have been treated as original ; ^ and so when the goods are delivered by one person, and the entries made by another.^ But ordinarily the party making his entry must swear to his own writing.^ Where a witness cannot be certain whether or no the entry was written by himself, or by whom it was written, it can- not be used as evidence.* § 684. The book offered must be on its face regular. Muti- lated memoranda cannot constitute a book of original Book must entries. The entry must be complete in itself.^ Sheets ''^ "■«giiar. of paper, however, on which, when separate, entries have been made, have been received.^ The entries must be fair, and free from suspicious alteration. '^ But alterations or errors in one point, unless showing fraud, do not exclude other portions.^ Paper is not essential to the admissibility of book entries, if the instrument be kept for the especial purpose. Thus a notched 1 Taylor v. Tucker, 1 Ga. 231. ^ Kline V. Gundrum, 11 Penn. St. 242; Schollenberger v. Seldonridge, 49 Penn. St. 83 ; Long v. Conklin, 75 111. 32; Peters v. Gallagher, 37 Mich. 407. Supra, §§ 516-20. ' Douglass V. Hart, 4 McCord, 257; Harris v. Caldwell, 2 McMull. 133; Wheeler v. Smith, 18 Wis. 651. It must be kept in mind, that when the party is a general witness, he may swear to the facts, merely refreshing his memory by the entries. Supra, §§ 516, 526. * Halsey v. Sinsebaugh, 15 N. Y. 485 ; Gilchrist v. Grocers' Co. 59 N. Y. 495. The oath, in this relation, is indis- pensable. " Except in the action of book debt, and kindred proceedings in law and equity for the adjustment of matters of account, we believe this kind of evidence has never been re- ceived without the clerk or person making the entries, if living and within the jurisdiction, was called to verify them. If dead, or beyond reach, or incompetent, his testimony is dispensed with ex necessitate." Phelps, J., Bartholomew v. Farwell, 41 Conn. 109. ^ Gale V. Norris, 2 McLean, 469 Kiehardson o: Emery, 23 N. H. 220 See Mathes v. Robinson, 8 Met. 269 Hart V. Livingston, 29 Iowa, 217 Thayer v. Been, 2 Hill S. C. 677 McKewn v. Barksdale, 2 Nott & M, 17; Cheever t>. Brown, 30 Ga. 904 Hand v. Grant, 13 Miss. 508; Neville V. Northcutt, 7 Coldw. 294. ^ Hooper v. Taylor, 39 Me. 224; Smith V. Smith, 4 Harr. (Del.) 532 ; Taylor v. Tucker, 1 Ga. 231 ; though see contra, Jones v. Jones, 21 N. H. 219 ; Thompson v. McKelvey, 13 Serg. & R. 126. ' Supra, § 622. Sargeant v. Petti- bone, 1 Aik. 355 ; Lloyd v. Lloyd, 1 Redf. (JSr. Y.) 399; Churchman v. Smith, 6 Whart. R. 146; Caldwell V. McDermit, 17 Cal. 464; Blake v. Lowe, 3 Desau. S. C. 263 ; Doster v. Brown, 25 Ga. 24. ' Gosewich v. Zebley, 5 Harr. (Del.) 124. See Gardner v. Way, 8 Gray, 189 ; Jones v. De Kay, 2 Pen. (N. J.) 955 ; Rodenbourgh v. Rosebury, 24 N. J. L. 491. See infra, § 1264. 621 § 686.J THE LAW OF EVIDENCE. [book II. stick, such being the usage of the particular business, has been received when verified by the party's oath.i So lead pencil en- tries may be received.^ § 685. The efficiency of the charge is limited to the imme- diate transaction.^ Thus the consideration of a prom- Charge 7 must relate issory note cannot be thus proved,* nor a promise to ate trans- pay by the defendant;^ nor the nature of the credit a. Roberts, 13 How. 472; » Lunsford v. Lead Co. 54 Mo. 426. Woodman v. R. R. 50 Me. 549; Al- * R. V. St. Paul's Covent Garden, len v. R. R. 32 N. H. 446 ; Manches- 7 Q. B. 232; Woods v. Banks, 14 N. ter v. Slason, 18 Vt. 334; Hendee v. H. 101; Dewling v. Williamson, 9 Pinkerton, 14 Allen, 381; Curtis v. Watts, .811 ; Michenor v. Kinney, Leavitt, 15 N. Y. 9 ; Corrio-an ». Falls Wright (Ohio), 459 ; Underwood v. Co. 3 Halst. Ch. 489 ; PhFllips, in re, Dollins, 47 Mo. 259; State o. Thorn- 14 Bankr. Reg. 219. But printing son, 49 Mo. 188; Brooks u.Hartman, of fac-similes of corporation seals" Heisk. 36. Infra, § 1813 ; though see such printing being done in gross by Blackwell v. Hamilton, 47 Ala. 470. the usual process of a printing-press. CHAP. IX.] DOCUMENTS : PROOF OF SEALS. [§ 694. ply the actual absence of either seal or scroll,^ unless there is ground to infer that a seal had been attached, but is effaced.^ But where seals are a superfluity, they may be treated as a nul- lity.^ A seal of an agent may be deemed, in contemplation of law, the seal of the principal ; * but it is otherwise, as we will see, when the principal (a corporation) has an official seal, and the agent affixes what he describes as his private seal.^ § 694. For a corporation, a seal is the technically correct mode of executing a document, and the seal of the corpora- tion is primd facie proof of due execution.^ At the viewTs w same time it must be remembered the strict rule of the J?''?"'™- tions. common law in this respect has been much relaxed in England, and still more in the United States. In England, the modern practice is thus stated by Rolfe, B. : "A corporation which has a head may give a personal command and do small acts : as, it may retain a servant ; it may authorize another to drive away cattle damage-feasant, or make a distress, or the like. These are all matters so constantly recurring, or of so small importance, or so little admitting of delay, that, to require in every such case the previous affixing of the seal, would be greatly to obstruct the every day ordinary convenience of the body corporate, without any adequate object. In such matters, the head of the corporation seems from the earliest times to> have been considered as delegated by the rest of the members to act for them." "^ It has, however, been held that although a business corporation may employ subordinate servants by writings not under seal, it is otherwise with municipal and semi-municipal corporations ; and that the contract for the engagement of a clerk has been held, in Massachusetts, not to Dubois v. Canal Co. 4 Wend. 285 ; be a seal. Bates v. E. R. 10 Allen, 2.51. Mann v. Pentz, 2 Sandf. 271. 1 Chilton V. People, 66 111. 501. « Doe i'. Chambers, 4 A. & E. 410; " Crawford Peer. 2 H. of L. Cas. S. C. 6 N. & M. 539 ; St. John's Ch. 534; Sandilands, in re, L. R. 6 C. P. v. Steinmetz, 18 Penn. St. 273 ; Bar- 411. See infra, § 1313. ton v. Wilson, 9 Rich. (S. C.) 273. " Blanchard v. Blackstone, 102 See, also, Angell & Ames on Corp. Mass. 343. ' (10th ed.) § 224; Burrill v. Bank, 2 ^ Savings Bank v. Davis, 8 Conn. Met. 166; Com. Bank o. Kortright, 200. 22 Wend. 348 ; Berks. T. R. v. Myers, » Tippits u. Walker, 4 Mass. 597; 6 S. & R. 12. Geary v. Kansas, 61 Mo. 379; Ran- ' Mayor of Ludlovr v. Charlton, 6 dall i>. Van Veohten, 19 Johns. 60; M. & W. 821. 627 § 694.J THE LAW OF EVIDENCE. [BOOK II. to a master of a workhouse by a board of guardians must be under seal.^ But even in England, it is held that a contract not under seal binds in all matters incidental to the objects of the corporation. Thus seals are not necessary to contracts to repair the premises of the corporation,^ to buy or sell such goods as the corporation is formed to buy and sell,^ to purchase goods for its purposes.* To bills of exchange by corporations, seals are clearly unnecessary.^ On the other hand, when the goods to be supplied are not such as those in which the corporaticin usually deals ;^ or when the contract is of such a magnitude, and of such an unusual description, as to require reasonably the formal and express assent of the corporation, the fact must be proved by writing under the corporate seal ; "^ though it is conceded that magnitude per Be is not an element in deciding whether a con- tract not under seal is binding on the corporation.* It must also be kept in mind, that " although corporations can only con- tract under seal, they are bound by their conduct, and by the acts of their solicitors, after their contract, just as an individual would be ;" ® and so in torts. But the rule, whose ligatures in England are gradually dissolving, has in the United States ceased to exist ; and with us the practice is to require the affixing of a seal only in cases of the transfer of real estate, or in the appointment of officers to consummate such transfer ; and corporations are held liable on contracts made by mere resolution of their directors, without a seal, or by order of their agents, to whose appointment no seal has been attached.^" The private seal of the agent, as we 1 Austin V. Guardians of Bethnal ^ Murray v. East India Co. 5 B. & Green, L. E. 9 C. P. 91; 43 L. J. 0. A. 204. P. 100 ; 22 W. R. 406; cf. Dyte v. « Copper Miners' Co. v. Fox, 16 Q. Guardians of St. Pancras, 27 L. T. N. B. 229. S. 342; Powell's Evidence, 4th ed. ' Homersham v. Wolverhampton 3«5. See Wbart. on Agency, §§ 59 Railway Co. 6 Exch. 137. et seq. ' Per Erie, J., Henderson v. Aus- ^ Saunders v. St. Neot's Union, 8 tralian Steam Navigation Co. 5 E. & Q. B. 810. B. 409. * CJjurch V. Imperial Gaslight & o Per Lord St. Leonards, Eastern Coke Co, 6 A. & E. 846. Counties Railway Co. v. Hawkes, 5 * South of Ireland Colliery Co. v. H. L. Cas. 876. Waddle, L. R. 3 C. P. 463; L. R. m Bank Col. t. Patterson, 7 Cranch, 4 C. P. 617; 37 L.J. C. P. 211; 38 305; Bank U. S. «. Dandridge, 12 L. J. C. P. 338. Wheat. 68 ; Maine Co. v. Longley, 14 Me. 444; Lime Rock Bank v. Ma- 628 CHAP. IX.] WITNESSES : PROOF OF SEALS. [§ 695. have seen,^ cannot be substituted for the official seal of the cor- poration. It is otherwise, however, when the seal is not distinc- tively that of the agent, but is described in the document as the seal of the corpora tion.^ But it is not essential that the seal attached should be technically the corporate seal. For the pur- pose of a deed, the corporation may adopi a private seal, though it is essential that the document should aver or imply, " under their seal." ^ The record copy of a deed is not fatally defective because it does not copy the seal of the acknowledgment of the original.* § 695. As we have already seen, a public document, verified by an official seal, is infra-territorially proved by such seal.^ The law assumes that the public seals of the proves it- state are known to all its judicial officers ; nor, in view of the heavy penalties imposed on the falsification and forgery of such seals, will it be supposed, without proof, that any particular seal is either counterfeit, or impressed irregularly. Hence, it is the duty of a judge to hold that a writing duly authenticated by a public seal is genuine, unless the contrary is proved. If, how- ever, a seal is so defaced as to be uncertain, evidence may be received to determine its genuineness.® Even a foreign sover- eign's seal has been allowed, from the necessity of the case, to be primd facie proof of its own authenticity.'^ When a seal is so offered, it must be distinguishable ; ^ or at least capable of verifi- cation by parol .^ comber, 29 Me. 564; White v. Man. As to form of corporate seal, see in- Co. 1 Pick. 215; Peterson v. Mayor, fra, § 1313. 17 N. Y. 449; McGargell u. Coal Co. « Geary v. Kansas, 61 Mo. 379; 4 W. &. S. 424; Bank of Ky. v. Sch. citing Hedden o. Overton, 4 Bibb, Bk. 1 Parsons Eq. Cas. 251; Elysville 406; Griffin v. Sheffield, 38 Miss. V. Okisko, 1 Md. Ch. 392; and other 359; Sneed v. Ward, 5 Dana, 187; cases cited Ang. & Ames on Corp. Smith v. Dall, 13 Cal. 510. (10th ed.) § 238; Whart. on Agen. ^ See fully for authorities supra, §59. §319. 1 See authorities in last note of § « Weiske, Rechtslex. xi. 678. See 693. supra, § 693. s Flint 0. Clinton, 12 N. H. 433; » Supra, § 319. Mill Dam v. Hovey, 21 Pick. 428; « The Atlantic, 1. Abb. Adm. 451 ; Susquehanna Bridge v. Ins. Co. 3 Stephens v. Williams, 46 Iowa, 540. Md. 305; Phillips v. Coffee, 17 111. 154. See supra, § 320. « Jones V. Galway Commis. 11 Ir. » See Phillips, in re, 14 Bank. Reg. Law, 435; cited Taylor's Ev. § 128. 219. 629 § 696. J THE LAW OF EVIDENCE. [BOOK U. § 696. What force is to be assigned to the use of a mark, as Mark may distinguished from the writing of a name, depends upon fentlo'IJ- t^^ circumstances in which the mark is used. That a nature. mark may, in a proper case, bind the party making it, is illustrated in the Roman law by more than one ruling. An inventory, for instance, must, to be effective in that law, be signed by the heir ; and this signature, it is determined, may be made, when the heir cannot write, by Ms making the sign of the cross under the inventory, such mark being attested by a tahula- rius (registrar) who signs for him, in the presence of witnesses.^ It is subsequently provided that when a contracting party is incapable of writing, and signs his mark, this mark must be countersigned by a tabularius in the presence of witnesses.^ A mark, therefore, is by the Roman law recognized as equivalent, when a person cannot write, to the writing of his name ; but to prevent fraud or mistake, this mark must be peculiarly attested. In the Middle Ages, seals, and then scrolls, were accepted, as we have seen, as substitutes for autographic names ; and as the art of writing was then confined to a very few, documents were considered binding on parties who attached to them their seals. In our own times, although it has been argued with much force that a mark, instead of a seal, or of an autographic name, is no signature,^ we may consider the following positions as estab- lished : — 1. A party who intelligently makes a mark, in place of writing his own name, binds himself, as to parties bond fide accepting the document on the faith of such mark.* 2. When a document is produced in evidence, purporting to be signed by a third party, who is proved, or can be presumed, to be unable to write his name, such mark, if shown to have been made by the party, is to be treated as equivalent to his written name. The mark may be proved by a witness who had seen the party make previous similar marks.^ But there must be some proof aliunde to identify the party charged with the mark.^ 1 L. 22, § 2; C. vi. 30. Harr. (Del.) 543; Bussey u. Whitaker, 2 Nov. 73, cap. 8. 2 Nott & McC. 374. 8 See Spangenberg, von Urkunden- « George v. Surrey, 1 M. &M. 516; beweis, i. 238. Strong v. Brewer, 17 Ala. 706. * So, Zacharie v. Franklin, 12 Pet. « Whitelocke v. Musgrove, 1 C. & 151; McDermott v. McCormick, 4 M. 511; 3 Tyr. 541; Hays u. Hays, 6 630 CHAP. IX.] DOCUMENTS : PROOF OF MARKS : STAMPS. [§ 697. 3. When, however, a third party so making a mark is shown to be capable of writing, then the presumption is that the mark was not intended to bind him, but was put on the paper acciden- tally or as an intentionally incomplete sign. No party, however, can set up such a defence, against those who accepted his mark on the faith that it bound him, he giving such grounds as would impose upon a good business man. And it is always open to the party relying on such mark to show that it was made intelligently and intentionally, for the purpose of expressing formal assent to the document so subscribed.^ 4. An attesting witness's mark is to be verified as is the mark of a party .^ But in case of such attestation, the signature of the party himself ought, for greater safety, also to be proved.^ § 697. Under the federal statutes of 1864 and 1866,* provid- ing that instruments without stamps should not be re- ceived in evidence, the question frequently arose whether when nec- stamps were necessary prerequisities to the reception of must be instruments in state courts. As to this question, it is ""^"^ ^ ' now necessary only to say, that if the statutes in this respect con- trolled the state courts, then there would be no other department of state, or local law, whether as to principle or practice, which Congress, at least by subjecting litigation of the particular point to a tax, would not in like manner be able to control. To admit the constitutional right of Congress, therefore, to attach limita- tions to the reception of evidence in the state courts, would be to admit the right of Congress to control the materials on which Penn. St. 368 ; Ballinger v. Davis, 29 writing of the deceased, and signed Iowa, 512. See George v. Surrey, 1 with the christian and surname of W. M. & M. 516; Savage v. Hutchinson, P., having a cross between them; and cited infra, § 700. an affidavit was produced that P. was ^ See Weiske, Kechtslexicon, xi. a marksman, and that the signs or 673-4. marks on those documents were re- ^ George v. Surrey, 1 M. & M. 516. spectively the mark or sign of W. P., See Watts v. Kilburn, 7 Ga. 356. used by him in place of signing his * Ibid.; Gilliam v. Perkinson, 4 name; Shadwell, V. C, thought the Rand. 325. Infra, § 727. proof of the signature sufficient. In an equity case in England, where Pearcy i'. Dicker, 13 Jur. 997. See, it was sought to prove a debt due by also, Baker v. Dening, 8 A. & E. 94; a deceased person to one W. P., and to In the Goods of Bryce, 2 Curt. 325. prevent the debt from being barred by * See, for statutes imposing tax, U. the statute of limitations, receipts for S. Rev. Stat. §§ 3421-2; for repealing interest were produced in the hand- statute, 17 Stat, at Large, 256. 631 § 698.] THE LAW OF EVIDENCE. [book II. the decisions of the courts of particular states should be based. That the limitation in question was not within the power of Congress was ruled by a series of state courts.^ In other juris- dictions, however, this limitation of the scope of the statutes has been denied, though on reasoning which it is difficult to reconcile with the tenor of authorities in this branch of private interna- tional law or with the sovereignty conceded by the federal Con- stitution to the states in all matters of process and evidence.^ A stamp act has no force, on the principles of international law, un- less imposed by the local sovereign ; ^ and to concede sovereignty to the federal government as to the evidential rules of state courts is to surrender state sovereignty in one of its prime func- tions. § 698. Even where the statutes were held to apply, it was, In several instances, determined that if there was no intent to defraud, the document was admissible.* So, both in England 1 Carpenter v. Snelling, 97 Mass. 452; Green v. Holway, 101 Mass. 243; Moore V. Quirk, 105 Mass. 49; Grif- fin V. Ranney, 35 Conn. 239; People V. Gates, 43 N. Y.40; Moore v. Moore, 47 N. Y. 467; Hale v. Wilkinson, 21 Grat. 75; Wallace v. Cravens, 34 Ind. 534 ; Craiff v. Dimook, 47 111. 308 ; Wilson v. McKenna, 52 111. 43 ; Clem- ens V. Conrad, 19 Mich. 170; Sam- mons V. Halloway, 21 Mich. 162; Sporrer v. Eifler, 1 Heisk. 633 ; Whig- ham V. Pickett, 43 Ala. 140 (but see Mobile R. R. v. Edwards, 46 Ala. 267); Berry v. Duxberry, 54 Ala. 446; Bumpass v. Taggart, 26 Ark. 398 ; Daily v. Coken, 33 Tex. 815 ; Jacobs V. Spofford, 34 Tex. 152; Duffy v. Hobson, 40 Cal. 240. ^ Chartiers v. McNamara, 72 Penn. St. 278; Hugus !). Strickler, 19 Iowa, 413 ; Byington v. Oaks, 82 Iowa, 488. See Patterson v. Gile, 1 Col. T. 200; Hoops U.Atkins, 41 Ga. 109; Hum- phreys V. Wilson, 43 Miss. 328. See, however, Davis v. Richardson, 45 Miss. 499 ; Corrie v. Billiu, 23 La. An. 250. 632 In the Supreme Court of the United States, the point was presented in Oc- tober term, 1873, after the death of Chief Justice Chase and before his successor was appointed, and the eight associate justices were equally divided in opinion, so the matter is still left open for determination in the ultimate tribunal. Note hy the Reporter, Emery v. Hobson, 63 Me. 83. » Whart. Confl. of Laws, § 693 ; Fant V. Miller, 17 Grat. 47; Skinner V. Tinker, 34 Barb. 333. See infra, § 780. * Emery v. Hobson, 63 Me. 33 ; Baker v. Baker, 6 Lansing, 509; Corry Bank v. Rouse, 3 Pittsb. 18; Ricord V. Jones, 38 Iowa, 26 ; Timp v. Dock- ham, 29 Wis. 440; State u. Hill, 30 Wis. 416 ; Whitehill v. Schicklo, 43 Mo. 537. " To the admission of this instrument in evidence the defendant seasonably objected, upon the ground that it was not stamped as required by the acts of Congress of the United States. The plaintiff testified that the omission to stamp was with no intent upon his part to defraud the revenue, CHAP. IX.J DOCUMKNTS : STAMPS. [§ 700. and in this country, it is settled that the stamp acts apply only to documents which are introduced as the basis of an action and not to those which are introduced for other purposes.^ So, as proving the admission of a party, a document need not be stamped.^ § 699. Again, where a stamp is deemed essential, it is con- ceded that it is enough if it be placed on the document at any time before it is offered in evidence.^ Nor is it necessary, so it has been ruled, that the stamps should be cancelled, as required by the revenue laws, by the initials of the maker of the instru- ment.* So in Pennsylvania, where the authority of the stamp acts in general is yielded, it is held that a lost instrument can be proved by secondary evidence without showing that it was stamped.* In Mississippi, where it has been held that a docu- ment is unavailable for want of a stamp, the plaintiff can re- cover on ,the common counts for goods sold or money lent.^ It has also been ruled in Pennsylvania that the omission of a -stamp cannot be, used to indicate want of consideration.^ § 700. Since documents executed in foreign lands are to be presumed. to have been rightly attested until the con- pooumenta trary be shown,^ the burden of showing such contrary t" be.exe- nor with any other fraudulent intent Foster v. Holley, 49 Ala. 593; Frazer on his part. The instrument was v. Robinson, 42 Miss. 121; Morris v. properly admitted." Emery v. Hob- McMorris, 44 Miss. 441 ; Waterbury son, 63 Me. 33. It is enough if the u. McMillan, 46 Miss. 635; Vaughan stamp be subsequently aflSxed. Row- v. O'Brien, 39 How. (N. Y.) Pr. 515; land V. Plummer, 50 Ala. 182. See Long v. Spencer, 78 Penn. St. 303 ; Miller v. Wentworlh, 4 Weekly Notes, Logan v. Dils, 4 W. Va. 397; Alter v. 82. McDougal, 26 La. An. 245. See, 1 Mathewson v. Ross, 2 H. of Lds. however, Whigham v. Pickett, 43 Ala. 286; Atkins v. Plympton, 44 Vt. 21 ; 140 Moore v. Moore, 47 N. Y. 468 ; Hell- * D'Armond v. Dubose, 22 La. An. man t. Reis, 1 Cincin. 30 ; Reis v. 131 ; Schultz r. Herndon, 32 Tex. Hellraan, 25 Ohio St. 180. See infra, 390; Jacobs v. Cunningham, 32 Tex. §§ 1082, 1124. 774. 2 2 Phil. Ev. 3d ed. 897; 3 Parsons « Rees v. Jackson, 64 Penn. St. on Cont. 295; Mathewson v. Ross, 2 486. H. of Lords, 286; Cook w. Shearman, ^ Humphreys v. Wilson, 43 Miss. 103 Mass. 21; Moore v. Moore, 47 N. 328. Y. 468; Long u. Spencer, 78 Penn. St. ' Long v. Spencer, 78 Penn. St. 303; Rfis V. Hellman, 25 Ohio St. 180. 303. Infra, § 1124. " Infra, § 1313. * Edeck V. Ranuer, 2 Johns. 423 ; 633 § 700.] THE LAW OF EVIDENCE. [BOOK II. cording to is on the defence. No doubt, when an ordinary con- local laws. ^^^^^ .^ g^^^ ^^^ ^^^-^ pj,QQ£ g^g j.j^g i^^ j^gj.- requires will heprimdfaate sufficient to enable the contract to be put in evi- dence; the law being that the foreign law, with homogeneous jurisprudences, is presumed, until the contrary be shown, to be the same with the domestic.^ " If, therefore, a question arises be- fore the tribunal of one state, in which an instrument written in another state is produced in evidence, it is never rejected because such a kind of evidence is inadmissible, though the external form of the instrument, and the solemnities relating to it, may be made the subject of examination. But before this examination can be instituted, or the written instrument be received in evi- dence, a burden lies on the party producing it to show that the instrument has been executed, or is in conformity with the law of the place in which it was written. By what means this burden of proof shall be discharged is a question for the lex fori to de- cide." 2 In other words, the judex fori is to determine, by the lex fori, whether the instrument was duly executed according to the law of the place of execution. In our own practice, the judex fori, when the foreign jurisprudence is homogeneous with the domestic, may presume identity, so far as to dispense with specific proof of the foreign law. But when the two jurispru- dences are not homogeneous, then the foreign jurisprudence must be distinctively proved.^ " When the place of execution," says Sir R. Phillimore,* '• is once determined, the law of that place ought to govern both the question of the external formalities and the question of the au- thenticity of the act or instrument : 11 est du droit des gens que ce qui est authentique dans un pays le soit chez toutes les nations.^ In accordance with the principle which has been stated, an Eng- lish court has holden, that an erasure in a foreign affidavit in the recital of a death, the certificate of which was proved as an ex- hibit, was immaterial, notwithstanding the notary, before whom the affidavit was sworn, had not affixed his initials to the erasure ; 1 See supra, § 314. Bar, § 123; Story Confl. of L. §§ 352, = Phillimore Int. L. iv. 654. See, 565. also, P. Voet, x. § 8; Bouhier, ch. xxi. = Supra, §§ 314 et seq. Nos. 205, 206; Hertius, iv. 67; Mitter- * PhiU. Int. Law, iv. 659. maier, Im. Archiv. f. d. Civil Praxis, ^ Foelix, § 226. 13, p. 300; Walter, D. Privatr. § 44; 634 CHAP. IX.] DOCUMENTS : KOKMALITIES OF. [§ 700. and, in a case in which it was proved that the practice of verify- ing the mark of a marksman in an affidavit sworn abroad did not require, as in this country, the notary to insert in the jurat that the ' witness saw the deponent make his mark,' it was holden that the omission of these words was immaterial." ^ Savigny, whose authority in this respect is in Germany deserv- edly high, holds that merchants' book accounts are to be pigtingy^g iudged by the law of the place where they are kept, as view as to 1 • • ,1 T • , , • -T , • merchants' being inseparably connected with the juridical act it- book ac- self. The foreigner, he also argues, who deals with a "^""^ merchant, in a place where merchants' books are received as proof of a sale, subjects himself to the local law.^ Nor is this position without great strength ; for, in selling goods, the vendor views the security given as part of the contract, and this security his books are. If the vendee objects to them, he should do so at the time, so that some other security should be substituted. So has it been judicially decided by the Court of Appeals at Cassel.^ On the other hand, when the method of proving such books comes up, the questions whether the vendor's own oath is enough, whether the book was kept with business accuracy, and whether the entries were made with sufficient freshness, seem clearly mat- ters of process, to be determined by the lex fori. Judge Story touches this point, but leaves it open. " Sup- pose," he says, " that the books of accounts of merchants, which (as is well known) are by the laws of some states admissible, and by those of other states inadmissible, as evidence, are offered in the forum of the latter to establish debts contracted in the for- mer ; ought they to be rejected ? " * And he speaks, in a note, of the opposite opinions expressed on this point by the old jur- ists, apparently, however, inclining to the view of Paul Voet, that such accounts are primd facie proof. Sir R. Phillimore adopts Savigny's views on this point without dissent or qualifica- tion.^ A document void as a contract, it should be added, may be valid as an admission.^ ' Ibid. ; citing Savage v. Hutchin- * Confl. of Laws, § 635, n. son, 3 Eq. Rep. (1853) 368; 5. C. 24 ^ Pliil. iv. 658. L. J. Ch. 232. « Supra, § 698. Crawford v. Jones, = Savigny, Ebm. Recht, viii. § 381. 64 Ala. 459. 8 Ibid. 635 § 701.] THE LAW OF EVIDENCE. [book II. Identity of alleged signer of document must be proved. 701. It does not follow that because a document is signed A. B., a particular A. B., who is sued, is the signer of the document. Even supposing the name attached to the document to be genuine and not assumed, there may be several persons of the same name, and the per- son sued may not be the person who signed. Hence in such case there must be some kind of identification of the signer.^ Thus where a note was signed Hugh Jones, at Anglesea, Eng- land, and it appeared in evidence that there were several persons of the name of Hugh Jones at Anglesea, a plaintiff, who sued a particular Hugh Jones on the note, without any evidence to identify the defendant as the particular Hugh Jones who signed the note, was nonsuited.^ But where the name is uncommon,^ or where there is, to adopt the language of Parke, B., in another case, " similarity of name and residence, or similarity of name and trade," * then there is enough to throw the burden of dis- proving identity on the defendant.^ And it is now held that unless the defendant's signature is by a mark,^ or unless there be evidence, as in a case above cited, of a name being common in a country, or unless there be some other circumstance cal- culated to throw confusion on identity, mere identity of name is sufficient for a primd facie case.^ But some proof of identity there must be, though such proof be the mere similarity of name just noted.^ ^ See infra, § 739 a. ' Jones V. Jones, 9 M. & W. 75. See, also, Louden v. Walpole, 1 Ind. 319. ' Greenshields v. Crawford, 9 M. & W. 314; and see other cases cited infra, § 1273. * Smith V. Henderson, 9 M. & W. 801. See, also, Russell v. Smyth, 9 M. & W. 818; Mooers v. Bunker, 29 JSf. H. 420; Kinney v. Flynn, 2 R. I. 319. See Moss v. Anderson, 7 Mo. 337; and cases cited infra, § 1273. ' Hamsher r. Kline, 57 Penn. St. 397; Russell ». Tunno, U Rich. (S. C.) 303; Moss V. Anderson, 7 Mo. 337. Infra, §§ 739 a, 1273. 636 ' Whitelocke v. Musgrove, 1 C. & M. 511; 3 Tyr. 541. ' Infra, § 1273. Sewell v. Evans, 4 Q. B. 626; 3 G. & D. 604. See Murietta v. Wolfhagen, 2 C. & K. 744. * See infra, § 739 a. In Taylor's Evidence, § 165 7, we have the following remarks on the point of identity: " It may, however, here be observed that the description in the declaration cannot properly be said to prove the identity of the de- fendant. The question is, who was served with the writ, and who has pleaded to the action? and it is ob- vious that no description, which the plaintiff chooses to introduce into his statement of his own case, can in CHAP. IX.] DOCUMENTS : PROOF OF HANDWRITING. [§ 703. § 702. As we have already incidentally noticed, until a power is shown in an agent to execute a deed, or other docu- ^ ° . . Document menfc, such document cannot be put in evidence. Au- by agent thority from the principal to the agent must be shown proved as a condition precedent to the agent's act being proved.^ movkig By the practice of most jurisdictions, however, when a ^""^^^ "* suit is brought on a note signed by an alleged agent, the plaintiff is not obliged to prove the authority of the agent, unless it is denied under oath by the defendant.^ § 703. It is noticed in another section that the handwriting of attesting witnesses, after the lapse of thirty years. Documents need not be proved.^ The same rule is applied to years 'oid'^ strictness answer this question, or affect the defendant's interests. This remark is made, because in the case of Greenshields v. Crawford, 9 M. & W. 314, the court appears to have acted upon a similar mistake. The decision in Smith v. Henderson, 9 M. & W. 818, was right, not because the defendant was described by the plain- tiff as a pilot, but because the acci- dent was proved to have been caused by a pilot named Henderson, and a person answering that name and de- scription was present in court, and might fairly be presumed to be the same Mr. Henderson who had plead- ed to the action. In another case, in which a witness, called to prove the defendant's handwriting, had corre- sponded with a person bearini; his name, who dated his letters from Plymouth Dock, where the defendant resided, and where it appeared that no other person of the same name lived, the evidence of identity was held to be sufficient; Harrington u. Fry, Ry. & M. 90, per Best, C. J.; and in Warren r. Sir J. C. Anderson, Bart:, 8 Scott, 384, where the only proof of the defendant's signature to a bill was given by a clerk of Messrs. Coutts, who stated that two years be- fore the trial he saw a person, whom he did not know, but who called him- self Sir J. C. Anderson, Bart., sign his name ; that he had since seen checks similarly signed pass tlirough the banking house, and that he thought the handwriting was the same on the bill ; the court held that the evidence, weak as it confessedly was, might be submitted for the consideration of the jury. 1 Horsley v. Rush, 7 T. R. 209; Sanderson v. Bell, 2 C. & M. 313; Nicholson v. Patton', 2 Cranch C. C. 164 ; James ti. Gordon, 1 Wash. C. C. 333; Atkinson v. St. Croix, 24 Me. 171; Trull w. True, 33 Me. 367; Em- erson V. Providence Co. 12 Mass. 237 Lamb v. Irwin, 69 Penn. St. 436 Mech. Bk. v. Nat. Bk. 36 Md. 5 YarboTOUgh v. Beard, 1 Tayl. N. C< 25; Wahrendorff' u. Whittaker, 1 Mo- 205; Elliott V. Pearce, 20 Ark. 508 Carnall v. Duvall, 22 Ark. 136 Hughes V. HoUiday, 3 G. Greene, 30 Lowry v. Harris, 12 Minn. 255; Gash- wiler V. Willis, 33 Cal. 11 ; Wharton on Agency, §§ 48 et seq. 2 Bowen v. De Lattre, 6 Whart. R. 430; Delahay v. Clement, 3 111. 575; Thompson v. Abbott, 11 Iowa, 193; Brashear v. Martin, 25 Tex. 202. « See supra, §§ 194-5; infra, § 733. 637 § 703.] THE LAW OF EVIDENCE. [book II. prove them- selves, documents unattested by witnesses, and which are taken from proper depositaries.^ Thus in a leading English case,2 a paper was received which purported to be a statement by a confidential agent to a former tenant for life, of rent re- served in 1728, and as such had been indorsed by the latter. This was held to be evidence, in 1806, of the fact, for the plain- tiff, a tenant in tail, to whom it had been handed down with other muniments of title, to show that the rent reserved by a tenant for life, who had immediately preceded the plaintiff, was less than the rent originally reserved. " Ancient deeds," said 1 Doe V. Eawlings, 7 East, 279; Doe V. Sampton, 8 Ad. & El. 154; Evans V. Rees, 10 Ad. & El. 154; Doe v. Phillips, 8 Q. B. 158; Goodwin v. Jack, 62 Me. 414 ; Willets v. Mon- dlebaum, 28 Mich. 521 ; Johnson u. Shaw, 41 Tex. 428. See fully cases cited supra, §§ 194-9, and infra, § 732. " Courts have felt obliged from ne- cessity to depart from the strict rules of evidence in the admissions of ancient ■writings, documents, books, and rec- ords, to prove the existence of the facts they recite. The rule of evidence requiring the testimony of the lawful custodian of books of record offered in evidence, that they are of the de- scription claimed, before they are ad- missible, has repeatedly been relaxed in the case of ancient books of record of proprietors of land. In such in- stances, such books have been held to prove themselves. When ancient books, purporting to be the records of such proprietary, contain obvious internal evidence of their own verity, and there is no evidence of the pres- ent existence of the proprietary or of any person representing it, or any clerk or other person authorized to keep the records, they are admissible in evidence without proof of the legal organization of the proprietary, or of its subsequent meetings." Goodwin V. Jack, 62 Me. 416, Dickerson, J. 638 The Roman law recognized no pre- sumption of law in favor of the gen- uineness of documents, however an- cient or well guarded. The jurist was to inspect such documents with the same eye as did the historian. They might be ancient, and they might have been well guarded; but they might on their face contradict other monuments of unquestionable accu- racy and genuineness; they might on their face bear plain marks of falsifi- cation. That they appeared old did not tell in their favor, unless it could be shown that the marks of age were not forged, or that there were proofs which would connect the preparation of the documents with a specific era; that they were well guarded was no proof, unless the guardians were called as witnesses, or unless it should ap- pear that the guardians were not only vigilant but faithful. It was there- fore held that the law would interpose no arbitrary presumption in favor of the genuineness of such instruments, and it was required that persons offer- ing such instruments should give at least prima facie proof of genuineness. The question was one of fact, open to all the presumptions of fact which a sound and free logic would in such cases apply. See Endemann's Be- weislehre, 258. " Doe V. Rawlings, 7 East, 279. CHAP. IX.] DOCUMENTS : PROOF OF HANDWRITING. [§ 704. Lord Ellenborough, " proved to have been found amongst deeds and evidences of land, may be given in evidence, although the execution of them cannot be proved; and the reason given is, ' that it is hard to prove ancient things, and the finding them in such a place is a presumption they were fairly and honestly ob- tained, and reserved for use, and are free from suspicion of dis- honesty.' This paper, therefore, having been found amongst the muniments of the family .... accredited .... and pre- served .... we think that it was evidence to be left to the jury of the amount of the ancient rent at the time it bears date." 1 So in a subsequent authoritative ruling,^ Tindal, C J., said : " The result of the evidence, upon the bill of exceptions, we think is this : that these documents were found in a place in which, and under the care of persons with whom, papers of Bishop Dopping might naturally and reasonably be expected to be found, and that is precisely the custody which gives authen- ticity to documents found within it ; for it is not necessary that they should be found in the best and most proper place of de- posit."^ It should be remembered at the same time that while a particular link in a title can be thus proved, it is necessary to connect such link with the prior title. A deed from an adminis- trator, the deed being thirty years old, may be put in evidence, if taken from the proper depositary, without proving signature, but not without proving some title in the administrator to sell.* § 704. Where, for the purposes of verification, it is impor- tant to go back beyond thirty years, a person who gu^i, ^g^^. is familiar (from having had occasion to examine old be^y^pi"*/ deeds and other papers indisputably traceable to the by experts. party whose signature is contested) with the handwriting in question may be permitted to testify as to the genuineness of a 1 Powell's Evidence, 4th ed. 167. and one which affords reasonable as- ' Bishop of Meath v. Marquis of surance of the authenticity of the doc- Winchester, 3 Bing. (N. C.) 183. ument. Per Coleridge, J., Doe v. " "It appears from this case," com- Phillips, 8 Q. B. 158. But it is not ments Mr. Powell, " that it is not sufficient to produce the documents necessary that the custody should be without calling a witness to prove the that which is strictly proper ; it is custody from which they come. Ev- sufficient if it be one which may be ans v Rees, 10 Ad. & El. 154." Pow- reasonably and naturally explained ; ell's Evidence, 4th ed. 169. Doe I). Samples, 8 Ad. & EI. 154 ; * Fell v. Young, 63 111. 106. 639 § 705.J THE LAW OF EVIDENCE. [book II. document.! Thus when, in the Fitzwalter Peerage case,^ it was material to determine whether a family pedigree, produced from the proper custody, and purporting to have been made some ninety years before by an ancestor of the claimant, was written by him, and when the family solicitor was called, and it was shown that he had acquired a knowledge of the ancestor's writing, from having had occasion at different times to examine, in the course of his business, many deeds and other instruments pur- porting to have been written or signed by such ancestor, the court held this witness competent to prove the handwriting of the pedigree. Similar proof was admitted in a case^ of pedigree, where the genuineness of a marriage certificate, eighty-five j'ears old, was in issue, and where the Court of Queen's Bench held that it was sufficient, in order to establish the signature of " W. Davies," the curate signing the certificate, to show by the parish clerk that in the course of his official duty he had acquired a knowledge of the handwriting of Mr. Davies, from various sig- natures in the original register, and that the signature was gen- uine.* § 705. It has sometimes been said that the strongest testi- mony to be had to the genuineness of handwriting is that of the writer himself.^ This, however, is not necessarily the case. I may remember having written or signed a particular document, and this recollection, taken in connection with my recognition of ray own signature, forms strong evidence. But it by no means follows Hand- writing may be proved by tlie writer himself, or his admis- sion. 1 Fitzwalter Peerage case, 10 CI. & Fin. 193; Cantey v. Piatt, 2 McCord (S. C), 260 ; Jackson v. Brooks, 8 Wend. 426 ; Smith v. Kankin, 20 111. 14 ; Sweigart v. Richards, 8 Penn. St. 436. 2 Fitzwalter Peerage, 10 CI. & Fin. 193. See Crawford & Lindsay Peer- age, 2 H, of L. Cas. 536-58. 8 Doe V. Davies, 10 Q. B. 314. * In the Fitzwalter Peerage case, 10 CI. & Fin. 193, the House of Lords, qualifying in this respect earlier rul- ings (see Sparrow v. Tarrant, 2 St. Ev. 517, n. e, per Holroyd, J.; Doe v. 640 Lyne, 2 Ph. Ev. 258, n. 1, per Ibid.; Beer v. Ward, cited Ibid, per Dallas, C. J., and Ld. Tenterden ; Anon, per Ld. Hardwicke, cited B. N. P. 236, 6), held that expert testimony, not derived from business dealing with such documents, but from mere study, in view of the litigation, of the signa- tures, was inadmissible on the issue of genuineness. See, however, § 718, contra; Sweigart v. Richards, 8 Penn. St. 436; Bradt v. Brooks, 8 Wend. 426; A\ C. 15 Wend. 112. ' Taylor's Evidence, § 1660. CHAP. IX.] DOCUMENTS : PROOF OF HANDWRITING. [§ 706. that I am the person most able to distinguish my own writing from a skilful forgery. Those who are experts in respect to hand- writing are able to observe delicate shades which may be imper- ceptible to me, and to apply tests of which I may be ignorant. So a rude penman may be unable to frame his signature in such a way as to present to him any positive differentia. At the same time, the belief of persons accustomed to use their pens with ordinary frequency, as to the genuineness of their signa- ture, is entitled to great consideration ; and it is one of the benefits of the late statutes making parties witnesses, that the testimony of parties to their own signature can now be obtained by the ordinary common law processes.^ Much less weight, however, belongs to the casual, extra-judicial admission of a per- son that a certain writing is his. To make such an admission receivable, it must appear that the writing was shown to him ; and even then he may show that his admission was founded on mistake. But, in any view, such an admission is primd facie evidence.^ Authority in an agent to sign the principal's name may in like manner be proved by the principal's admission.^ § 706. In England, by statute, a person whose handwriting is in dispute may be called upon by the judge to write Party may in his presence, and such writing may be compared upo'J^'to'^ with the writing in litigation.* In this country simi- '^"'«- lar statutes have been adopted. No doubt occasional advantages ^ See infra, § 706. assumed so to have been on the trial, 2 Infra, §§ 725, 1089-1095. for the purpose of showing that he ° " Evidence was also given, against had authorized it to be done, from the defendant's exception, tending to which the jury might infer or presume prove that he had recognized the va- an implied authority to sign his name lidity and his liability for the payment to the note in question, if, as the judge of other notes to which his name, in at the circuit instructed the jury, he conjunction with that of his co-defend- ' was in the habit of recognizing these ant (who was his son), purported to notes which his son thus signed in be signed, but which he himself had his name as authorized and genuine not signed, after full knowledge that notes.' See, also, Cunningham v. the signature was not in his proper Hudson Kiver Bank, 21 Wendell, handwriting. This, within the prin- 559." Lott, Ch. C, Hammond v. ciple of the decisions in Weed v. Car- Varian, 54 N. Y. 400. penter, 4 Wend. 219; Same v. Same, * See Devine v. Wilson, 10 Moo. 10 Ibid. 404, was admissible, in con- P. C. R. 502; Cobbett v. Kilminster, nection with the fact that his name 4 F. & F. 490. was so signed by his co-defendant, or VOL. I. 41 g4]^ § 706.] THE LAW OF EVIDENCE. [BOOK II. may flow from the application of this test.^ " At the Greenwich county court," so Mr. Taylor tells us,^ " a plaintiff denied most positively that a receipt produced was in his handwriting. It was thus worded : ' Received the Hole of the above.' On being asked to write a sentence in which the word ' whole ' was introduced, he took evident pains to disguise his writing, but he adopted the above phonetic style of spelling, and also per- sisted in using the capital H. On being subsequently threatened with an indictment for perjury, he absconded." The practice of thus testing a party is vindicated by one of the most saga- cious of German jurists, Mittermaier, on grounds not only of expediency, but of authority.^ To the weight of such evidence, however, rather than to its admissibility, it may be objected that a person who is called upon to write, in a court-house, a piece for judicial inspection, may have strong motives to modify his usual style of writing, and in any view, such writing would be likely to be more formal and regular than a current business hand, and to perplex rather than convince experts. Nor should it be forgot- ten that nervousness, at such a moment, might, especially with women, subdue in the writing its usual characteristics. At the same time, on cross-examination of a witness who has denied his signature, such a practice is proper and efficient.* But it is clear that a party should not, on the other haiad, be per- mitted to manufacture evidence for himself by writing his name as a basis for a comparison of hands by a jury.^ It should be observed that evidence of handwriting by another is in no sense secondary to evidence of such handwriting by the writer him- self.« 1 See Chandler v. Le Barron, 45 of contradicting tlie witness. Doe v. Me. 534. Wilson, 10 Moore P. C. 502, 530 ; ' Taylor's Evidence, § 1669. Chandler v. Le Barron, 45 Me. 534; 8 See Nov. 73, cap. i. Taylor on Evidence, § 1669." Ames, * "There are cases to the effect J., King r. Donahue, 110 Mass. 155. that, where a witness has denied his ^ King v. Donahue, 110 Mass. 155; signature to a document, he may be but see Roe v. Roe, 40 N. Y. Sup. called upon, in cross-examination, to Ct. 1. write his name in open court, in order ^ R. v. Hazy, 2 C. & P. 458; R. v. that the jury may compare such writ- Hurley, 2 M. & Rob. 473 ; R. v. Bon- ing with the controverted signature ; son, 2 Camp. 508 ; Smith v. Prescott, but this is merely as a part of the 17 Me. 277; Ainsworth ». Greenlee, cross-examination, and for the purpose 1 Hawks, 190; McCaskle v. Amarine, 642 12 Ala. 17. Supra, § 894. CHAP. IX.] PROOF OF HANDWRITING. [§ 707. § 707. The most direct way in which one man can become acquainted with the handwriting of another is by see- „ . ■^ o J Seeing a ing such other person write. Yet we must not be led person ... write qual- away by the apparent closeness of connection that is ifies a wit- thus involved. I may see a person write several times speak as to without becoming by any means as familiar with his '''^^"'"'S- handwriting as I would be by maintaining with him a pro- tracted correspondence. I may watch him but listlessly, or at a distance, as one clerk may do another in a counting-room, with- out mastering the peculiarities of his penmanship. Still, with all these qualifications, the " presumption ex visu scriptionis," as Mr. Bentham calls it,^ not only lends to such testimony much weight, but makes it technically primary.^ It has, however, 1 Jud. Evid. iii. 598. 2 R. V. Tooke, 25 How. St. Tr. 71; Garrels v. Alexander, 4 Esp. 37; Ea- gleton V. Kingston, 8 Ves. 473 ; Lewis V. Sapio, M. & M. 39 ; Doe v. Sucker- more, 5 A. & E. 730; George v. Sur- rey, M. & M. 516 (a case of a mark) ; U. S. V. Prout, 4 Cranch C.'C. 301; Hopkins v. Megquire, 85 Me. 78 ; Rideout v. Newton, 17 N. H. 71 ; Hoitt u. Moulton, 21 N. H. 386; Bow- man V. Sanborn, 25 N. H. 87; Keith II. Lothrop, 10 Gush. 453 ; Magee v. Osborn, 32 N. Y. 669; Hammond o. Varian, 54 N. Y. 898 ; Hartung v. People, 4 Park. C. R. 319; Com. v. Smith, 6 Serg. & R. 568; EdSien u. Gough, 8 Gill, 87; Smith K.Walton, 8 Gill, 77 ; Pepper v. Barnett, 22 Grat. 405 (where the witness only saw the party write once) ; State v. Hess, 5 Ohio, 7 ; Woodford v. McClenahan, 4 Gilraan, 85 ; Board v. Misenheimer, 78 111. 22 ; Commis. v. Hanion, 1 Nott 6 McG. 554 ; State v. Stalmaker, 2 Brev. 1 ; State v. Anderson, 2 Bailey, 565; Strong v. Brewer, 17 Ala. 706 (case of a mark). As to familiarity with ancient sig- natures, see supra, § 704. " Abstractedly considered," says Mr. Best, "it is clear that a judgment respecting the genuineness of hand- writing, based on its resemblance to, or dissimilarity from, that of the sup- posed writer, may be formed by one or more of the following means : 1st. A standard of the general nature of the handwriting of the person may be formed in the mind, by having on for- mer occasions observed the characters traced by him while in the act of writ- ing, with which standard the hand- writing in the disputed document may, by a mental operation, be compared. 2dly. A person who has never seen the supposed writer of the document write may obtain a like standard, by means either of having carried on written correspondence with him, or having had other opportunities of ob- serving writing which there was rea- sonable ground for presuming to be his. 3dly. A judgment as to the gen- uineness of the handwriting to a doc- ument may be formed, by a compari- son instituted between it and other documents known or admitted to be in the handwriting of the party. These three modes of proof, — the admissi- bility and weight of which we propose to consider in their order, — have been accurately designated, respectively : ' Praesumptio ex visu scriptionis ; ' 643 § 707.] THE LAW OF EVIDENCE. [BOOK II. been said that such knowledge of handwriting, in cases where forgery is charged, must be before the commenceraent of the suit ; for it is argued that after a suit involving forgery has been instituted, a party is under too great a temptation to make evidence for himself to justify dependence on his samples of his penmanship. But this reasoning, as giving an absolute rule as to time, cannot now prevail in those states in which by statute interest is for the jury and not for the court, and parties are admitted to testify on their own behalf. Nor, on principle, can it be admitted as an inflexible test that evidence which a party has the opportunity of moulding in his own interests is to be ruled out. If all such evidence is to be excluded, comparatively little evidence could be let in.^ At the same time, as has been well obaerved,^ the knowledge must not have been acquired or communicated with a view to the specific occasion on which the proof is offered.^ Thus in a case involving the genuineness of the defendant's signature to a note. Lord Kenyon rejected the evidence of a witness who stated that he had seen the defendant write his name several times before the trial, he having written it for the purpose of showing to the witness his true manner of writing it, that the witness might be able to distinguish it from the pretended acceptance to the bill ; and the reason given was, that the defendant might through design have written diflEerently from his common mode of writing his name.* So where, on an indictment for sending a threatening letter, the only witness called to prove that the letter was in the handwriting of the accused was a policeman, who, after the letter had been received and suspicions aroused, was sent by his inspector to the accused to pay him some money and procure a receipt, in order thus to obtain a knowledge of his handwriting by seeing him write ; his evidence was rejected by Maule, J., on the ground, that " Knowl- edge obtained for such a specific purpose and under such a bias ' Praesumptio ex scriptis olim visis ; ' and Coleridge, JJ., in Doe d. Mudd and ' Praesumptio ex comparatione v. Suckermore, 5 A. & El. 703; S. P., scriptorum,' or ' ex ecripto nunc viso.' Keith v. Lothrop, 10 Cush. 453 ; and 3 Benth. Jud. E.v. 598, 599. infra, § 715. See, also, Doe v. New- 1 See Reid v. State, 20 Ga. 681. ton, 5 Ad. & El. 514. 2 Best's Ev. J 236. * Stanger v. Searle, 1 Esp. 14. » See the judgments of Patterson 644 CHAP. IX.] PROOF OF HANDWRITING. [§ 708. is not such as to make a man admissible as a quasi expert wit- ness." ^ § 708. Seeing another person write, therefore, though tech- nically the most direct way of becoming familiar with VV 1lT16S9 his handwriting, is not so generally reliable as the familiar acquaintance which one man, himseli experienced m other's penmanship, acquires from a familiarity with another's ing may writings. This familiarity may be based upon an in- p™^^ "■ terchange of correspondence with such other person. It may be based, as is that of a bank teller, upon the payment of checks. It may be based upon any ordinary business transactions in which writings are used.^ It may be utterly severed from any proof that the witness ever saw the party write. It is sufficient to admit such evidence that there is an acknowledgment, express " or implied, by the party writing, of the writings from which the opinion of the witness is drawn.^ If, for instance, W. writes to P. by the post, to P.'s usual address, and an answer, purporting to come from P., is received by W. by post, this, if the corre- spondence continues, raises a presumption that P.'s letter is genuine, and thus enables W. to take it as the basis of his opinion as to P.'s handwriting.* A clerk or servant taking his master's letters to the post, or an agent consulted as to his prin- cipal's writings, is in like manner entitled to form an admissible opinion ; ^ and so of a business correspondent who has taken ' E. V. Crouch, 4 Cox C. C. 163. Ired. L. 385; Jones v. Hugging, 1 Dev. ^ See supra, § 704, as to such ac- L. 223; Brace v. Crews, 39 Ga. 544. quaintance with ancient writings. * Carey v. Pitt, Pea. Add. Cas. 130; ' Tharpe v. Gisburne, 2 C. & P. Gould v. Jones, 1 W. Bl. 384; State 21; Greaves v. Hunter, 2 C. & P. 177; v. Shinborn, 46 N. H. 497; Chaffee v. Doe V. Suckermore, 5 A. & E. 731 ; Taylor, 3 Allen, 598; Jackson v. Van 5^. C. 2 N. & P. 46 ; U. S. v. Keen, 1 Dusen, 5 Johns. E. 144 ; Johnson v. .McLean, 429; U. S. u. 3109 Cases of Daverne, 19 Johns. 134; Baker v. Champagne, 1 Ben. 241 ; Hammond's Squier, 1 Hun, 448 \ S. C.Z S. C. 465; case, 2 Greenl. 33; Page v. Homans, Com. v. Smith, 6 S. & R. 568; Mc- 14 Me. 478; Burnham v. Ayer, 36 N. Konkey v. Gaylord, 1 Jones (N. C.) H. 182; Com. v. Peck, 1 Met. (Mass.) L. 94; South. Ex. Co. v. Thornton, 41 428 ; Com. v. Carey, 2 Pick. 47 ; Lyon Miss. 216 ; Reyburn v. Belotti, 10 Mo. ti. Lyman, 9 Conn. 55 ; U. S. v. Simp- 597. See Desbrow v. Farrow, 3 Rich, son, 3 Penn. 437; State v. Spence, (S. C.) 382; and see infra, §1323. 2 Harring. 348 ; Conley v. Conley, 27 ° Doe v. Suckermore, 5 Ad. & E. Grat. 313 ; Turnipseed v. Hawkins, 1 740. McCord, 272; Gordon v. Price, 10 645 § 708.] THE LAW OF EVIDENCE. [BOOK II. notes in the same writing to the alleged maker, who has paid the notes ; ^ and of a person whose official duty makes it incum- bent on him to act frequently on the signature of the alleged writer.2 Persons familiar with the signature of the officers of the bank to bank notes, such notes being proved to be treated by the bank as good, may be permitted to prove such signatures.^ It is scarcely necessary to add that the writings from which the witness draws his opinion must be identified as those of the party whose writing is contested on the trial.* It will not be enough that the witness obtains his knowledge from letters said to be genuine.^ It may be added that this kind of testimony is not 1 Johnson v. Daverne, 19 Johns. R. 134 ; Donaghoe v. People, 6 Parker C. R. 120; Hess v. State, 5 Ohio, 5. " Amherst Bank v. Root, 2 Met. 522 ; Willson v. Betts, 4 Denio, 201 ; Bank of the Com. v. Mudgett, 44 N. Y. 514 ; Sill V. Reese, 47 Cal. 294. 8 State o. Carr, 5 JST. H. 367; Am- herst Bank v. Root, 2 Met. (Mass.) 522; State v. Stalmaker, 2 Brevard, 1 ; State v. Chandler, 3 Hawks, 893 ; Allen V. State, 3 Humph. 367. * Doe V. Suckermore, 5 A. &. E. 731, by Patterson, J. ; Cochran v. Butterfield, 18 N. H. 115; McKeone V. Barnes, 108 Mass. 344; Com. u. Coe, 115 Mass. 481; Cunningham v. Bank, 21 Wend. 557; Boyle i>. Col- man, 13 Barb. 42; Magie v. Osborn, 1 Robt. (N. Y.) 689. We have this position pushed to a questionable extreme in an English case, in a suit on a joint and several promissory note against three persons. The signature of one of them was at- tempted to be proved by calling the attorney for the defendants, whose knowledge of the handwriting in ques- tion was founded on the circumstance that he had received a retainer pur- porting to be signed by his three cli- ents, and had acted upon it in defend- ing the action. It was held by the Court of Common Pleas that his tes- timony was inadmissible, as no proof 646 was given that the party had ever ac- knowledged the signature of the at- torney, and either of the other two defendants might have signed the re- tainer for him with his assent. Drew V. Prior, 5 M. & Gr. 264. So, the testimony of an inspector of franks, called to prove the handwriting of a member of parliament, has on two occasions been rejected, where the knowledge of the witness was simply derived from his having frequently seen franks pass through the post-of- fice, bearing the name of such mem- ber, but where he had never communi- cated with the member on the subject of franks; for, in this case, the super- scription of the letters seen by the witness might possibly have been forg- eries. Carey v. Pitt, Pea. Add. Gas. 130, per Ld. Kenyon ; Batcheldor i;. Honeywood, 2 Esp. 714, per Ibid. These last decisions, it is well added by Mr. Taylor (Evidence, § 1664), certainly carry the law to the verge of. impropriety, since they are founded on a presumption which not only is im- probable in the highest degree, but is in direct contradiction to the sound rule, that a crime is not to be pre- sumed, or so much as suspected, with- out special cause, in any single in- stance, much less in a number of un- connected instances. 3 Bent. Ev. 604. 5 Nat. Un. Bk. v. Marsh, 46 Vt. CHAP. IX.] PROOF OF HANDWRITING. [§ 710. excluded, as has been already noticed, by the fact that the writer of the instrument is himself in court, and could be called.^ § 709. A witness called to testify as to handwriting, and who establishes a primd facie case of acquaintance with the Burden on handwriting of the person whose signature is in dispute, party'to has the presumption of competency in his favor.^ If, ^esris7n- however, the opposing party contest his qualifications, competent. he may be cross-examined as to his reasons, so that these quali- fications may be tested by the court.^ It is not necessary that the witness should swear to an actual belief in the genuineness of a writing. It is enough if he states his opinion as to such genu- ineness.* Lord Kenyon went so far as to hold that it was admis- sible for a witness to testify merely that the contested writing was like the handwriting of the party to whom it is charged ; ^ and though this has been doubted by Lord Eldon,^ yet it is hard to say why the value of such testimony is not as much for the jury as for the court.^ § 710. There is little question that a witness may, on cross- examination, be tested by putting to him other writ- qm cross- ings, not admitted in evidence in the case, and asking exatn"}*- him whether such writings are in the same hand with ness may be tested that in litigation. The tendency, also, is to hold that by other the test writings, if declared by the witness to be genu- ^ ' ine, may be shown by the cross-examining party to be not genu- ine, and may be given to the jury for comparison.^ 443; Goldsmith v. Bane, 2 Halst. 87; 381; Shitle? v. Bremer, 23 Penn. St. McKonkey v. Gaylord, 1 Jones L. 413; Clark v. Freeman, 25 Penn. St. (N. C.) 94. See R. t;. Benson, 2 133; Fash u. Blake, 38 111. 363; and Camp. 508. see Utica Ins. Co. v. Badger, 3 Wend. 1 Smith V. Prescott, 17 Me. 277 Ainsworth v. Greenlee, 1 Hawks, 190 Pomeroy v. Golly, Ga. Dec. pt. i. 26 102. See supra, § 515. ^ Garrels v. Alexander, 4 Esp. 37; approved by Lord Wynford, see 2 Ph. McCaskle v. Amarine, 12 Ala. 17. Ev. 249, n. 2. As to cross-examina- Supra, § 706. tion, see supra, §§ 531 et seq. ^ Goodhue v. Bartlett, 5 McLean, " Eagleton v. Kingston, 8 Ves. 476. 186; Moody v. Rowell, 17 Pick. 490 Whittier v. Gould, 8 Watts, 485 Barwick o. Wood, 3 Jones L. 306 See, also, Cruise v. Clancy, 8 Irish Eq. 552; Taylor u. Sutherland, 24 Penn. St. 333 ; Taylor's Ev. § 1666. Henderson v. Bank, 11 Ala. 855. ' See Benth. Jud. Ev. iii. 599. » See Rogers v. Ritter, 12 Wall. ' See Griffitts v. Ivory, 11 A. & E. 317; Slaymaker v. Wilson, 1 Penn. R. 322; 3 P. & D. 179; Young v. Hon- 216. ner, 2 M. & Rob. 637. Infra, § 712. * Watson V. Brewster, 1 Penn. St. 647 § 712.] THE LAW OF EVIDENCE. [BOOK 11. But a witness, when called to testify as to his own writing, should have the whole paper before him in order to enable him to make up his judgment. Hence, on examination of a party as to whether a certain writing is his, he cannot be compelled to answer whether the signature is his, unless he is permitted to examine the paper to which it is appended.^ § 711. By the Roman law, the genuineness of a contested writing may be sustained by witnesses comparing such law com- writing with other writings acknowledged to be genuine, hands is" Some fluctuation of opinion, however, was exhibited as permitted. ^^ ^^^ writings to be taken as a basis for such compari- son.^ It was first held that, in order to put a greater check on forgery, writings, to be thus accepted, must be either publicly registered, or should be attested by three witnesses.^ Subse- quently it was declared that for the same purpose might be used private papers acknowledged by the writer, or deposited by him in public archives.* The substantial result, however, finally reached is, that to enable a writing to be adopted as a standard of comparison, it must be demonstrated to be genuine. It makes no matter what is the writing thus adopted. It may be, as Gensler remarks, a love-letter, or it may be a testament.^ If genuine, it may be received as a standard. § 712. By the English common law, it is said, such a com- Other- parison is inadmissible.^ The reasoning on which this English conclusion rests is that, no doubt, which influenced the common earlier Roman jurists. Handwriting, especially among those with whom writing is not a habit, often changes from period to period ; a man not accustomed to write may write now very differently from the way he did five years ago. Culti- vation, also, in handwriting, as well as in other arts, produces a variety of types, and the less cultivation, the greater is the sameness, and the less opportunity of distinguishing peculiari- ties. So, in a non-literary and non-commercial age, there are few whose business it is to study the distinctions of handwriting; 1 North Am. Ins. Co. v. Throop, 22 * Nov. 49, cap. 2. Mich. 146. See remarks of Cooley, J., 6 g^e Gensler in Archiv. ii. 330; in this case. Langenbeck, Beweis. ii. 658. " Buchner, De probatione de lite- « Garrels v. Alexander, 4 Esp. 37; rarum comparationem. Bromage v. Rice, 7 C. & P. 548; = L. 20, c. iv. 21. Hughes v. Rogers, 8 M. & W. 123. 648 CHAP. IX.] PKOOP OF HANDWRITING. [§ T12. in a commercial age this is a necessity, and calls for a distinct profession. In the United States we have a series of authorities which rest on the older English rule, and hence, following this reasoning, exclude evidence of genuineness based on comparison of hands.^ 1 Kinney v. Flynn, 2 R. I. 319; Jackson v. Phillips, 9 Cow. 94; Tit- ford V. Knott, 2 Jobns. Ca. 210; Van Wyck V. Mcintosh, 14 N. Y. 439; 48 N. Y. 456; Goodyear v. Vosburgh, 63 Barh. 154; People v. Hewitt, 2 Parker C. C. 20; Bank of Penns. v. Haldeman, 1 Penn. 161; Slaymaker v. Wilson, 1 Penn. 216; Penn. R. R. v. Hickman, 28 Penn. St. 318; jSfiller b. Johnson, 27 Md. 6; Rowt v. Kile, 1 Leigh, 216; Richardson v. Johnson, 3 Brev. 51; State v. Allen, 1 Hawks, 6; Pope V. Askew, 1 Iredell, 16; Jum- pertz V. People, 21 111. 375; Kernin v. Hill, 37 m. 209; Chance v. R. R. 32 Ind. 472; Burdick v. Hunt, 43 Ind. 381; overruling Clark v. Wyatt, 15 Ind. 271; Jones v. State, 60 Ind. 241; State V. Fritz, 23 La. An. 55. See, to same effect, U. S. v. Craig, 4 Wash. C. C. 729; Shank v. Butsch, 28 Ind. 19; Woodard v. Spiller, 1 Dana, 179 ; Clark V. Rhodes, 2 Heisk. 206; State V. Givens, 5 Ala. 747; Bishop v. State, 30 Ala. 34; Hanley v. Gandy, 28 Texas, 211; Pierce v. Northey, 14 Wis. 9; Hazleton v. R. R. 32 Wis. 34. The rule of the English common law courts in this respect was opposed to that of the ecclesiastical courts, which admitted comparison of hands. 1 Will, on Ex. 309; 1 Ought, tit. 225, §§ 1-4; Doe v. Suckermore, 5 A. & E. 708-710, per Coleridge, J.; Beaumont V. Perkins, 1 Phillim. 78 ; Supt. v. At- kinson, 1 Add. 215, 216; Mackin v. Grinslow, 2 Cas. temp. Lee, 335; 2 Add. 91, 11. a, S. C. The act of parliament of 28 & 29 Vict. c. 18, enacts, in section eight, " that comparison of a disputed writ- ing with any writing proved to the satisfaction of the judge to be gen- uine, shall be permitted to be made by the witness; and such writings, and the evidence of witnesses re- specting the same, may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute." Section one of the same act provides, that the above enactment — in common with certain other clauses relating to evidence — " shall apply to all courts of judica- ture, as well criminal as others, and to all persons having, by law or by con- sent of parties, authority to hear, re- ceive, and examine evidence, whether in England or in Ireland." This rule has been adopted by the committee for privileges in the House of Lords. Shrewsbury Peer. 7 H. of L. Cas. 1, 15. Under this statute it has been held, first, that any writings, the genuine- ness of which is proved to the satis- faction, not of the jury, but of the judge (see Egan v. Cowan, 30 Law Times, 223, in Ir. Ex.), may be used for the purposes of comparison, al though they may not be admissible in evidence for any other purpose in the cause; Birch v. Ridgway, 1 Fost. & Fin. 270; Creswell v. Jackson, 2 Fost. & Fin. 24; and next, that the compar ison may be made either by witnesses, or without the intervention of any witnesses at all, by the jury them- selves; Cobbett V. Kilminster, 4 Fost. & Fin. 490, per Martin, B. ; or, in the event of there being no jury, by the court. If, therefore, an action be brought by the indorsee of a bill of exchange against the acceptor, who, by his plea, has denied the indorse- 649 § 713.J §713. THE LAW OF EVIDENCE. [book II. By the courts excluding comparison in hands a single exception is made ; when a writing, proved to be that of the party whose signature is in litigation, is already in evidence, having been put in for other purposes, then it is admissible to resort to this writing in order to determine the genuineness of the litigated instrument.^ Exception as to test paper al- ready in court. ment by the drawer, it seems that the jury may, by simply comparing the indorsement with the drawing, which is conclusively admitted to be genu- ine, find a verdict for the plaintiff, even though no witness be called to disprove the plea. See, as to the former law, Allport v. Meek, 4 C. & P. 267. Taylor's Ev. § 16.67. 1 Solita V. Yarrow, 1 M. & Rob. 133; Waddington t>. Cousins, 7 C. & P. 595 ; Perry v. Newton, 1 Nev. & P. 1 ; 5 Ad. & E. 514 ; Myers v. Tos- can, 3 N. H. 47; State v. Carr, 5 N. H. 367 ; Van Wyck v. Mcintosh, 14 N. Y. 439; Randolph v. Loughlin, 48 N. Y. 458; Williams v. Drexel, 14 Md. 566; Duncan v. Beard, 2 Nott & McC. 401 ; Henderson v. Hackney, 16 Ga. 521; North Bank v. Buford, 1 Duvall, 335; Brobston v. Cahill, 64 111. 358; Goodyear v. Vosburgh, 63 Barb. 154; Miller v. Jones, 32 Ark. 337. As to Tennessee,, see Wright v. Hessey, 59 Tenn. 42. In Moore v. U. S. 91 U. S. (1 Otto) 270, the question is thus discussed by Bradley, J.: — " The general rule of the common law, disallowing a comparison of hand- writing as proof of signature, has ex- ceptions equally as well settled as the rule itself. One of these exceptions is, that if a paper admitted to be in the handwriting of the party, or to have been subscribed by him, is in evidence for some other purpose in the cause, the signature or paper in question may be compared with it by the jury. It is not distinctly stated, in this case, that the writing used as a 650 basis of comparison was admitted to be in the claimant's hand ; but it was conceded by counsel that it was, in fact, the power of attorney given by him to his attorney, in fact, by virtue of which he appeared and presented the claim to the court. This certainly amounted to a declaration, on his part, that it was in his hand, and to pretend the contrary would operate as a fraud on the court. We think it brings the case within the rule, and that the Court of Claims had the right to make the comparison it did." See Medway V. U. S. Ct. of CI. 421; U. S. v. Chamberlain, 12 Blatch. 390. As denying this exception, see Out- law V. Hurdle, 1 Jones (N. C.) L. 150; Otey V. Hoyt, 3 Jones, (N. C.) L. 407. See, also, remarks of Davis, J., in Rogers v. Ritter, 12 Wall. 322. In Maryland : " In the case of Smith 17. Walton, 8 Gill, 86, Judge Martin, delivering the opinion of this court, after adverting to the argu- ments in favor of the admission of evi- dence of comparison, and conceding it had been done in some of the Amer- ican courts, declares: 'It is in conflict with the doctrine of the common law, as enunciated in Westminster Hall.' In another paragraph he says: 'We consider it as the settled rule of the English law, which in this respect we approve and adopt, that with the ex- ception of ancient documents (an ex- ception standing upon the necessity of the case), signatures cannot be proved by a direct comparison of hands. By which it is meant the col- lation of two papers in juxtaposition, CHAP. IX.] PROOF OF HANDWEITING. [§ 714. § 714. In other states it is the settled practice to admit any papers, whether in themselves relevant to the issue or i„ some ju- not, if they can be shown to be the uncontested writ- "omparison ings of the party whose signature is disputed.^ In ^^"glif"^ Pennsylvania, however, it is said that at common law mitted. for the purpose of ascertaining by in- spection if tliey were written by the same person.' In support of these views, the remarks of Mr. Justice Coleridge in tlie leading case of Doe, deni. of Mudd v. Suckermore, 5 Adol. & Ellis, 730, are cited, namely: ' Our law has not, during a long course of years, permitted handwriting to be proved by the immediate comparison by a witness of the paper in dispute with some other specimen, proved to have been written by the supposed writer of the first It was fa- miliar to lawyers that many attempts have been made to introduce this mode of proof according to the prac- tice of the civil and ecclesiastical laws, but after some uncertainty of decision, the attempts have failed.'" Bowie, J., Tome V. R. R. 39 Md. 90-93. So in New York. " The suit was upon a single note purporting to have been made by the respondent, the signature to wliich he claimed to be a forgery. The plaintiff was per- mitted, against the respondent's ob- jection upon the trial, to put other notes in evidence purporting to have been made by him, the signatures to some of whicli were admitted to be genuine, and to others claimed to be forgeries. I am unable to see how these other notes were competent evi- dence, and what possible bearing they could have upon the issues upon trial. As they were not competent evidence for any other purpose, they could not be received in evidence to enable the jury to compare the signatures to them with the signature to the note in suit. That such evidence is incompetent is well settled. Van Wyck v. Mcintosh, 14 N. Y. 439; Dubois v. Baker, 30 N. Y. 335." Earl, C, Randolph v. Loughlin, 48 N. Y. 458. See, also, to same eflTect, Baker v. Squier, 1 Hun, 448 ; S. C.3 S. C. 465; Bank of Com. V. Mudgett, 44 N. Y. 514; S. C. 45 Barb. 663; Ellis v. People, 21 How. Pr. 356. In criminal cases comparison of hands is in any view inadmissible. People V. Spooner, 1 Den. 343. To the same effect is a learned opinion of Walker, J., in Brobston v. Cahill, 64 III. 358. In Foster's Will, 34 Mich. 21 (see supra, § 602), it was held not to be error to refuse to require a jury, when they do not ask for it, to take to their jury room a will that is in suit before them, for the purpose of comparing the body of the document with the signature, to see if it is not vitiated by forgery. " The question of allowing papers not otherwise in the case to be re- ceived and proved for purposes of comparison was disposed of in Vinton V. Peck, 14 Mich. 287, and we have seen no reason to change our opinion." Campbell, J., Ibid. ' Hammond's case, 2 Greenl. 33; Myers v. Toscan, 3 N. H. 47; State r. Hastings, 53 N. H. 452 ; Adams v. Field, 21 Vt. 256; State v. Ward, 39 Vt. 225; Homer «. Wallis, 11 Mass. 309; Moody K. Rowell, 17 Pick. 490; Richardson v. Newcomb, 21 Pick. 315; Com. u. Eastman, 1 Cush. 189; Keith t). Lothrop, 10 Cush. 453; Mc- Keone v. Barnes, 108 Mass. 344. See Martin v. Maguire, 7 Gray, 177; Com. V. Williams, 105 Mass. 62; Lyon v. 661 § 714.J THE LAW OF EVIDENCE. [BOOK II. the proof from comparison of hands must be viewed as supple- mentary, and cannot be relied on exclusively,^ and that the com- parison is to be made by the jury, not by experts.^ To the ad- mission of a test paper, it is essential that it should be proved to be genuine, to the satisfaction of the court.^ Lyman, 9 Conn. 55; McCorkle u. Bians, 5 Binney, 340; Bank of Lan- caster t>. Whitehill, 10 S. & R. 110; Baker v. Haines, 6 Whart. R. 284 ; Travis v. Brown, 43 Penn. St. 9; Haycock v. Greup, 57 Penn. St. 438; Bragg I/. Colwell, 19 Ohio St. 407; Van Sickle u. [People, 29 Micli. 61; Yates V. Yates, 76 N. C. 142 ; Rob- ertson V. Miller, 1 McMull. (S. C.) 120; Mayo v. State, 30 Ala. 32; Whitney v. Bunnell, 8 La. An. 429; State V. Fritz, 23 La. An. 55 ; State u. Scott, 45 Mo. 302 ; Smith v. Ten- ner, 1 Gall. 170. In Ohio, standards of comparison may be received when proved by wit- nesses who testify directly to their having been written by the party whose signature is contested. Pavey V. Pavey, 30 Ohio St. 600. 1 Haycock v. Greup, 57 Penn. St. 438. 2 Travis v. Brown, 43 Penn. St. 9; Clayton v. Siebert, 3 Brews. 176. See State v. Scott, 45 Mo. 302 ; and see contra, Huston v. Schindler, 46 Ind. 38. As to Pennsylvania statute admit- ting such testimony in criminal cases, see Brightly's Purd. i. 631. As to Iowa statute, to same effect, see Bakei* v. Mygatt, 14 Iowa, 131. In Pennsylvania, to prove the writ- ing of a person deceased at least forty years previously, witnesses are al- lowed to speak from a comparison with signatures and writings in family records, admitted by the family to be in the same handwriting; from letters in possession of the family, purporting to be signed by the party; and from 662 official documents acted upon as genu- ine. Sweigart v. Richards, 8 Penn. St. 436. So it has been held in the same state that a witness, although he can- not base his testimony exclusively on comparison of hands, can refresh his memory by inspecting genuine writ- ings; McNair v. Com. 26 Penn. St. 388; see, to same effect, Redford v. Peggy) 6 Rand. (Va.) 316; and that he may base his judgment on compar- ison of hands when he saw the signa- ture attached to the test paper, or when the party admitted such signa- ture to be his; Power v. Frick, 2 Grant (Penn.) Cas. 306. See, as giv- ing a still more liberal rule, Travis v. Brown, 43 Penn. St. 9. In South Carolina, other papers, proved or admitted to- have been writ- ten by the party whose handwriting is in contest, are receivable " in aid of doubtful proof ;" but the "testimony is not entitled to any very high re- spect or consideration." Bennett v. Matthewes, 5 S. C. 478; citing Bo- man V. Plunkett, 2 McC. 518; Bird v. Miller, 1 McM. 125. * " On the question whether the sig- nature of the will was genuine, the letters which the appellant had re- ceived, purporting to be from the tes- tator, in answer to her letters to him, were not admissible as standards of comparison. Such standards must be established by clear and undoubted proof. Commonwealth v. Eastman, 1 Cush. 189; Martin v. Maguire, 7 Gray, 177; Bacon v. Williams, 18 Gray, 525; 1 Greenl. Ev. § 581, and cases cited. These letters were not CHAP. IX.] PROOF OF HANDWRITING. [§ 716. § 715. We have already seen,^ that a party cannot make testi- mony for himself by writing specimens for the instruc- Test papers tion of witnesses afterwards to be called as to his hand- ^^rposeL- writing. By the same reasoning, a party cannot be admissible, permitted to get up in this way test papers to be used subse- quently for comparison of hands.^ § 716. The mere finding of a diary on a party, with an admis- sion by him that it belonged to him, is not a sufficient authen- tication of the writing to justify its use as a standard.^ Press copies cannot be introduced as a basis of comparison, even where the original would be admissible ; * nor can photographic copies.^ thus proved. The testimony of the persons who were called to express their opinions whether a man could, within a short time, so improve his handwriting, as shown by the standard signatures of the testator, as to make ■a, signature of as good a handwriting as that of the will, was also incompe- tent. It was not a subject for the testimony of experts." Chapman, C. J., McKeone o. Barnes, 108 Mass. 344. In a still later case we have the fol- * lowing : — ' ' Upon the question whether a given writing or written word is suf- ficiently proved to have been written by the defendant to allow it to be submitted to the jury as a standard of comparison, the judge at the trial must pass in the first instance. So far as his decision is of a question of fact merely, it must be final, if there is any proper evidence to support it. As in all questions of that nature, ex- ceptions to the ruling at the trial will be sustained only when they show clearly that there was some erroneous application of the principles of law to the facts of the case, or that the evi- dence was admitted without proper proof of the qualifications requisite for its competency. Foster v. Mae- kay, 7 Met. 531; Rich «. Jones, 9 Cush. 329; Gorton v. Hadsell, 9 Cush. 508; Quinsigamond Bank v. Hobbs, 11 Gray, 250; Commonwealth v. Mul- lins, 2 Allen, 295; Doud v. Hall, 8 Allen, 410; Lake v. Clark, 97 Mass. 346; Commonwealth v. Morrell, 99 Mass. 542; Gott v. Adams Express Co. 100 Mass. 320; Presbrey v. Old Colony Railroad, 103 Mass. 1; O'Con- nor V. Haliinan, Ibid. 547; Gossler V. Eagle Sugar Refinery, Ibid. 331; Commonwealth v. Williams, 105 Mass. 62 ; Lawton v. Chase, 108 Mass. 238 ; Nunes v. Perry, 113 Mass. 274." Wells, J., Commonwealth v. Coe, 115 Mass. 503. And see cases cited in prior notes. 1 Supra, § 707. " This point is well shown in the argument of Ames, J., in King v. Donahue, 110 Mass. 155. ' Van Sickle v. People, 29 Mich. 61. * Com. V. Eastman, 1 Cush. 189. See Com. a. Jeffries, 7 Allen, 561. See supra, § 93. s Supra, § 676. " The testimony of the photographer comes within the same principle as that of Paine. It was ofiered to es- tablish the forgery of the certificates in controversy, by comparing them with copies (obtained by photographic processes, either magnified or of the natural size) of certain signatures as- sumed or admitted to be genuine, and 653 § 717.] THE LAW OF EVIDENCE. [BOOK U. § 717. By Mr. Best, the reasons for the exclusion of this Unreason- form of testimony have been summed up^as follows: exd^sfon"^ " 1^*- "^^^^ ^^^ writings offered for the purpose of com- of compar- parison with the document in question might be spuri- handa. ous ; and, consequently, that before any comparison between them and it could be instituted, a collateral issue must be tried, to determine their genuineness. Nor is this all : if it were competent to prove the genuineness of the main document by comparison with others, it must be equally so to prove that of the latter by comparison with fresh ones, and so the inquiry might go on ad infinitum, to the great distraction of the atten- tion of the jury, and delay in the administration of justice.^ 2dly. That the specimens might not be fairly selected. ^ 3dly. That the persons composing the jury' might be unable to read, and, consequently, unable to institute such a comparison.* As to the last of these objections," Mr. Best replies, " it does not seem satisfactory logic to prohibit a jury which can read from availing themselves of that means for the investigation of truth, because other juries might, from want of education be disquali- fied from so doing ; if some men are blind, that is no reason why all others should have their eyes put out. Nor is the second ob- jection very formidable : it is not always easy to obtain unfair, specimens, and should such be produced, it would be competent to the opposite party to encounter them with true ones." The first objection Mr. Best regards as having more force; though pointing out the diiferences between Bartol, C. J., and Alvey, J., dissent- the supposed genuine and disputed inc. signatures. As a general rule, in pro- l Best's Ev. § 238. portion as the media of evidence are ' Per Coleridge, J., in Doe d.Mudd multiplied, the chances of error or v. Suckermore, 5 A. & E. 706, 707; 2 mistake are increased. Photographers Stark. Ev. 616, 3d ed.; R. v. Sleigh, do not always produce exact fac-sim- Surrey Sum. Ass. 1851, per Alderson, lies of the objects delineated, and B., MS. however indebted we maybe to that » Ibid.; and per Dallas, C. J., in beautiful science for much that is use- Burr v. Harper, Holt N. P. C. 420. ful as well as ornamental, it is at best * Per Lord Kenyon,'C. J., in Mac- a mimetic art, which furnishes only ferson v. Thoytes, 1 Peake, 20; per secondary impressions of the original, Dallas, C. J., in Burr v. Harper, Holt that vary according to the lights or N. P. C.420; per Yatos, J., in Brook- shadows which prevail whilst being bard v. Woodley, 1 Peake, 20, note a; taken." Bowie, J., Tome v. Par- per Lord Eldon, C, in Eagleton v. kersburg R. R. Co. 89 Md. 90, 91-93. Kingston, 8 Ves. 475. 654 CHAP. IX.] PROOF OF HANDWRITING. [§ 717. this force, he argues, is much diminished by the statutes author- izing either party to call, before trial, for inspection, for papers in his opponent's hands. And the objection is still further weak- ened by the limitation we have just stated; that no test paper, written for the purpose, can be introduced as a standard. The objection of secondariness, which is not noticed by Mr. Best, is still less tenable. We refuse, for instance, to compare a contested writing with a series of uncontested writings, because this is sec- ond hand evidence. But why any more second hand than is the evidence of a witness who saw the alleged writer sign his nam.e to another instrument, and who now comes in to compare his recol- lection of the other instrument with the litigated writing ? Sup- pose, for instance, a servant, with no especial aptitude or practice in examining handwriting, sees his master sign a check, and is then called to compare a litigated writing with his recollection of that which he saw his master write ? His basis of comparison, in this case, is a mere impression ; an impression made on a mind with almost as little susceptibility for receiving and retaining the differentia of handwriting as has a stone in the open air for re- ceiving a photographic impress of a landscape. His impression, even if tolerably accurate, is peculiarly open to be defaced by time or deformed by interest. He cannot be tested on cross- examination as to the grounds of this impression, because he has no language to express the minuter shades of identification and distinction in such matters, even if he has the capacity to take in these shades. On the other hand, the expert who uses an uncontested writing as a test takes, not a second hand recollec- tion of a thing, but the thing itself, and applies to it faculties which are so cultivated as to be able not only to detect the subtle idiosyncrasies which the non-literary man cannot observe, but to explain these idiosyncrasies, by putting the writings side by side, to the court and jury. Or, dropping the expert, and supposing the comparison to be made by court and jury, it is fair to say that, if we compare the average of witnesses called to speak from their recollections of another's writing, and the average of judges and jurors, we must conclude that the latter'are at least as capable as the former of forming an unbiased and intelli- gent judgment as to the similarity of hands. The question, then, comes down to this, Which is the most secondary of the 655 § 717.] THE LAW OF EVIDENCE. [book II. two bases of comparison, — the writing produced in court, or the witness's recollection of such writing ? It is unreasonable to call the recollection primary and the writing secondary, when really it is the recollection that is secondary and the writing primary.^ ^ "All evidence of handwriting, ex- cept where the witness sees the doc- ument written, is in its nature com- parison. It is the belief which a wit- ness entertains upon comparing the writing in question with an examplar in his mind derived from some pre- vious knowledge. That knowledge may have been acquired, either by seeing the party write, in which case it will be stronger or weaker accord- ing to the number of times and the periods and other circumstances under which the witness has seen the party write, but it will be sufficient knowl- edge to admit the evidence of the wit- ness (however little weight may be attached to it in such cases), even if he has seen him write but once, and then merely signing his surname ; or the knowledge may have been acquired by the witness having seen letters or other documents professing to be the handwriting of the party, and having afterwards personally communicated with the party upon the contents of those letters or documents, or having otherwise acted upon them by written answers producing further correspond- ence or acquiescence by the party in some matter to which they relate ; or by any other mode of communication between the party and the witnesses, which, in the ordinary course of trans- actions of life, induces a reasonable presumption that the letters or docu- ments were the handwriting of the party | evidence of the identity of the party being of course added aliunde, if the witness be not personally ac- quainted with him. These are the only modes of acquiring a knowledge of handwriting which have hitherto, 656 as far as I have been able to discover in our law, been considered sufficient to entitle a witness to speak as to his belief in a question of handwriting. " In both the witness acquires his knowledge by his own observation upon facts coming under his own eye, and as to which he does not rely on the information of others ; and the knowledge is usually, and especially in the latter mode, acquired incident- ally, and, if I may say so, uninten- tionally, without reference to any par- ticular object, person, or document." Patterson, J., Doe v. Suckermore, 5 A. & E. 730. Mr. Chabot's exposition of the hand- writing of Junius will illustrate the value of this evidence. See, also, the fac-similes of Junius's writing in the fourth volume of the Chatham Corre- spondence, and a very ingenious article in the London Times of May 22, 1871. Nowhere, however, has the value of this kind of evidence been better shown than in Chief Justice Cock- burn's masterly charge in the Tich- borne trial, R. v. Castro, Charge II. 770 et seq., to which the reader is particularly referred. In Robinson v. Mandell, a case of equal interest, where testimony was largely taken on the issue of testa- mentary forgery, the case was decided on a side issue. See 4 Am. L. J. 625, and Princeton Review for July, 1876, for notices of the evidence as to for- gery; and for final ruling, 3 Cliff. 16. Errors of spelling may be used to prove identity of authorship. R. v. Castro, Charge of Cockburn, C. J. ; U. S. V. Chamberlain, 12 Blatchf 890; Com. V. Coe, 115 Mass. 481. CHAP. IX.] TESTING HANDWRITING. [§ 718. § 718. By the Roman law, the duty of comparison of hands is properly assignable to experts. ^ In our own law, an Experts expert, apart from the vexed question of comparison fo^gj^'''^® of hands, is admissible to determine whether a con- writings, tested writing is feigned or natural ; ^ though in absence of evi- dence on behalf of the party charged that the signature is simulated, an expert will not be received to prove it was not simulated.^ So experts are permitted to testify as to the period to which a writing may be assigned ; * as to the nature of the ink or other material used ; ^ whether a certain writing shows comparative ease and facility ; ^ whether certain figures in a check have been changed ; '' what is the difference between the substance of an instrument and a forged addition ; ^ whether certain words were written before a paper was folded ; ^ what is the meaning of certain illegible marks or signs ; ^° whether the whole of an instrument was written by the same hand, with the same pen and ink, and at the same time ; ^^ whether a certain 1 L. 20, c. iv. 21. 2 Sweetzer v. Lowell, 33 Me. 448; Withee v. Row, 45 Me. 571 ; Moody v. Rowell, 17 Pick. 490; Com. v. Web- ster, 5 Cash. 295; Demerritt v. Ran- dall, 116 Mass. 831, quoted infra, § 721; Lyon v. Lyman, 9 Conn. 55 Lansing v. Russell, 3 Barb. Ch. 325 Goodyear v. Vosburgh, 63 Barb. 154 Vanwick v. Mcintosh, 14 N. Y. 439 Miles V. Loomis, 17 N. Y. Sup. Ct, 372 ; Dubois v. Baker, 30 N. Y. 355 People V. Hewitt, 2 Park. C. R. 20 Hubley v. Vanhorne, 7 S. & R. 185 Calkins v. State, 14 Ohio St. 222 Yates V. Yates, 76 N. C. 142 ; Jones V. Finch, 37 Miss. 461 ; Wilson w. Beauehamp, 50 Miss. 24. See Clay V. Robinson, 7 W. Va. 348. « Rowing u. Manly, 49 N. Y. 193; S. C. 57 Barb. 179, qualifying People V. Hewitt, 2 Parker C. R. 20. See, also, to same effect. Merchant's Will, 1 Tucker (N. Y.), 151. See People v. Spooner, 1 Denio, 343. That a clerk of court, accustomed vol.. I. 42 to signatures, may be such an expert, see Yates v. Yates, 76 N. C. 142. * Doe V. Suckerraore, 5 A. & E. 703; R. V. Williams, 8 C. & P. 434; Tracy Peerage, 10 CI. & Fin. 164; Davis v. Mason, 4 Pick. 156. See People v. Spooner, 1 Denio, 343. 5 Dubois V. Baker, 30 N. Y. 355. ° Demerritt v. Randall, 116 Mass. 331. ' Nelson v. Johnson, 18 Ind. 329; Pat V. People, 3 Gilra. 644. 8 Hawkins v. Grimes, 13 B. Mon. 258; though see Daniel v. Toney, 2 Mete. (Ky.) 523. ' Bacon v. Williams, 13 Gray, 525. " Stone V. Hubbard, 7 Cush. 595; Collender v. Dinsmore, 55 N. Y. 200. " Quinsigamond Bk. v. Hobbs, 11 Gray, 250; Fulton v. Hood, 34 Penn. St. 365; Fisher v. Hoffman, 2 Weekly Notes, 18. See Jewett v. Draper, 6 Allen, 434. " The fourth assignment of error is, that the court erred in admitting the testimony of so-called experts in re- 657 § 719.] THE LAW OF EVIDENCE. [BOOK II. bank note is counterfeit,^ and for this purpose business men, long familiar with the notes, can be called; ^ whether certain words were written over others ; ^ and as to the date and meaning of certain words upon an erasure.* It has, however, been held inadmissible to ask an expert as to a remote contingency con- cerning which no special professional experience is needed to speak ; ^ nor can an expert be examined as to how far a person may improve his handwriting in a given time.^ § 719. When comparison of hands is permitted, an expert can be called to make such comparison.^ It has, however, been said 371 ; State v. Shinborn, 46 N. H. 497; State V. Ravelin, 1 Chipm. 295; State V. Ward, 39 Vt, 225 ; Moody v. Row- ell, 17 Pick. 490; Com. v. Riley, Thacher's C. C. 67 ; Amherst Bank v. Root, 2 Met. 522 ; Com. v. Williams, 105 Mass. 62; Lyon v. Lyman, 9 Conn. 55; People v. Caryl, 12 Wend. 547; Phoenix Bk. v. Philip, 13 Wend. 81 ; Finch v. Gridley, 25 Wend. 469; Roe V. Roe, 40 N. Y. Sup. Ct. 1; People V. Hewitt, 2 Parker C. R. 20 ; Jackson v. Murray, Anthon, 105; West V. State, 22 N. J. L. 212; Com. v. Smith, 6 S. & R. 568 ; Hubley v. Vanhorne, 7 S. & R. 185; Lodge v. Phipher, 11 S. & R. 333; Powers v. Frick, 2 Grant (Penn.) Cas. 306; Sweigart v. Richards, 8 Penn. St. 436; Burkholder v. Plank, 69 Penn. St. 235; Ballantine v. White, 77 Penn. St. 20; Clay V. Alderson, 10 W. Va. 49. Con- tra, Titford V. Knott, 2 Johns. Cas. 211; Bank of Penn. v. Haldeman, 1 Penn. 161; Niller v. Johnson, 27 Md. 6; Huston v. Schindler, 46 Ind. 38; State V. Harris, 5 Ired. 287; Com. o. Tutt, 2 Bailey, 44 ; Bird v. Miller, 1 McM. 125; Bennett v. Matthewes, 5 S. C. 478; Johnson v. State, 35 Ala. 370; Moye v. Herndon, 30 Miss. 110; Hanley 17. Gandy, 28 Tex. 211. " It may be considered as well set- tled in this state (Pennsylvania), by Fulton V. Hood, 10 Casey, 365, and Travis v. Brown, 7 Wright, 9, that gard to receipts which were in evi- dence. It was alleged, and direct evi- dence was given by the plaintiff below to prove, that the receipts had been altered, and then experts were offered to show that these alterations were not made at the same time with the body of the receipt. It was ruled in Fulton V. Hood, 10 Casey, 365, that the testimony of experts is receivable, in corroboration of positive evidence, to prove that, in their opinion, the whole of an instrument was written by the same hand, with the same pen and ink, and at the same time. This case is indeed the converse of that, but the principle is undoubtedly the same, whether the evidence is of ex- perts to attack or support the instru- ment." Sharswood, J., Ballantine v. White, 77 Penn. St. 25. 1 Jones V. Finch, 37 Miss. 461. ^ State V. Cheek, 13 Ired. L. 114. ^ Dubois V. Baker, 30 N. Y. 355. * Ibid.; and S. C. 40 Barb. 556; Vinton v. Peck, 14 Mich. 287; though see Swan v. O'Fallon, 7 Mo. 231. ' Thayer r.Chealey, 55 Me. 393. " McKeone v. Barnes, 108 Mass. 344. ' Benth. Jud. Ev. iii. 599; U. S. V. Keen, 1 McLean, 429; U. S. v. Chamberlain, 12 Blatch. 890; Ham- mond's case, 2 Greenl. 83; Woodman V. Dana, 52 Me. 9; Furber v. Hilliard, 2 N. H. 480; Carr v. State, 5 N. H. 658 CHAP. IX.] TESTING HANDWRITING. [§ 722. that an expert cannot, as to an ancient writing, be admitted to give liis conclusion from a comparison of hands,^ though if no other proof is attainable such should be received for what it is worth .2 § 720. Photographers who have been accustomed to scrutinize handwriting in reference to forgeries, and have been in pj^^^^ the habit of using photographic copies for this purpose, raphers may be examined as experts in questions of forgery, ceivedas even though their opinion is founded partly on photo- ^^'^" graphic copies, which they have themselves made, and which have been put in evidence.^ To enable, however, such photo- graphic copies to be put in evidence, their accuracy and fairness must be proved.* § 721. An expert is open to cross-examination as to his qual- ifications,^ and he may be probed by test papers that Experts in may be presented to him.^ The degree of closeness of may' be the cross-examination as to qualifications is at the dis- <=''o?s-«'- ■^ ammed as cretion of the trial court.'^ to skill. § 722. Elsewhere ^ the importance of guarding expert testi- mony has been discussed ; and it is obvious that the Testimony application of the checks suggested is of peculiar im- "o ^f ^*'^''' portance in questions of identity of handwritings. If "^"^fj^- after direct evidence has been given ' Supra, § 710. on the subject of handwriting, the ' " The experts," said Gray, C. J., evidence of experts is admissible in "were rightly permitted to testify to corroboration." Sharswood, J., Burk- their opinion of the genuineness of holder ti. Plank, 69 Penn. St. 235; the signature of the testatrix, and to S. P., Ballentine v. White, 77 Penn. their reasons for such opinion. Moody St. 20. V. Rowell, 17 Pick. 490; Common- 1 Fitzwalter Peerage case, 10 CI. wealth u. Webster, 5 Cush. 295 ; Keith & F. 193. Supra, § 704. v. Lothrop, 10 Gush. 453. How many ' Supra, § 704. times the same question should be re- ' Marcy v. Barnes, 16 Gray, 161. peated on cross-examination, and how See, however, Taylor Will case, 10 far the witness should be compelled Abb. (N. Y.) Pr. N. S. 301; Tyler v. to answer, were matters within the Todd, 36 Conn. 218. discretion of the presiding judge, and * Ibid. In Tome v. R. R. 39 Md. are not subjects of exception." De- 36, it was ruled that such copies could merritt v. Randall, 116 Mass. 331. not be put in evidence. See supra. That an expert must have for this §676. For an able discussion of the purpose special aptitude, see Goldstein authority of experts as to writing, see v. Black, 50 Cal. 462. 4 Am. Law Rev. 625. s gupra, § 454. ' See supra, §§ 438-454. 659 § 722.] THE LAW OF EVIDENCE. [BOOK II. the expert can produce in court the writings, and explain the grounds of his conclusions, the difficulties are much reduced; but it must be remembered that there are few branches of law on which interests so momentous (e. g. devolution of large es- tates, convictions of forgery) depend upon tests so exquisitely delicate as those applied to handwriting. It is well known that in cases of peculiar difficulty, when the difference, if there be any, between two handwritings is only noticeable by perceptions the most sensitive, experts, no matter how conscientious, often take unconsciously such a bias from the party employing them as to give to their judgment the almost infinitely slight impulse that turns the scale; nor is it strange that, in an instrument so delicate, aberrations from its true course should be produced by attractions or repulsions otherwise unappreciable. If an expert could be absolutely secluded from such extraneous influences, his judgment might be depended on at least for impartiality. This, however, is impracticable. A jury is bound, therefore, to accept the opinion of an expert as to handwriting, even when uncontradicted, as an argument rather than a proof ; ^ and to make allowance for all the disturbing influences by which the judgment of the expert may be moved.^ 1 See Tracy Peerage, 10 CI. & Fin. weigh any amount of positive testi- 191; Gurney v. Langlands, 5 B. & A. mony that he did so. Subsequently, 330; R. u. Crouch, supra, § 707; Cowan at the Guildhall Police Court, on Mr. u. Beall, 1 Mao Arthur, 270; Borland Netherclift giving his opinion that the V. Walrath, 33 Iowa, 130. signatures to certain checks were gen- ' In a suit tried in 1876, before the uine, counsel proceeded to cross-ex- English Probate Court, Mr. Nether- amine him as to what had been said clift, an "expert" in handwriting, by Sir James Hannen in reference to swore definitely and peremptorily that Davis's will. Mr. Netherclift answered a will was forged, to the genuineness that he had read the remarks of Sir of which will the attesting witnesses James Hannen, and he wished to say deposed. The jury, without troubling something thereupon. The magis- the judge to sum up, gave a verdict trate said he must decline to hear any- for the validity of the will, and the thing about any case that was not be- judge declared his opinion that an un- fore the court; but Mr. Netherclift founded and reckless charge of forg- persevered, and said that he believed ery had been preferred. It was pain- the signature to that will to be " a ful, he added, to reflect on the enor- rank forgery," and he should believe mouB expense that had been incurred so to the day of his death. Mr. Sea- hecause the " experts " thought that man, having been an attesting witness their opinion, that a man did not make to the will, appropriated these words to a particular signature, ought to out- himself, and brought an action of slan- 660 CHAP. IX.] TESTING HANDWRITING. [§ T23. § 723. By the strict rule of the English common law, when there are subscribing witnesses to an instrument, such At com- witnesses should be called to prove its execution, or ^b"crib- their absence should be duly accounted for.-' The stat- '"S wit- •' ness must utes allowing parties to be witnesses do not of them- be called, selves abrogate this rule.^ When a statute requires an instru- ment to be subscribed by a certain number of competent wit- nesses, these witnesses must have been competent at the time of the attestation.^ der for them, alleging that their mean- ing was that he had been guilty of forging the signature to the will, or of aiding and abetting that ofifence. It was urged by Mr. Netherclift's counsel that under the circumstances no action could be maintained, and, therefore, that the judge ought to direct a ver- dict for the defendant, as was done in the case of Dawkins v. Lord Eokeby, 4 F. & F. 806. But Lord Coleridge preferred to let the case go to the jury, who found for the plaintiff with £50 damages, leave being reserved to the defendant to move the full court to set aside the verdict. The judge put to the jury whether the words complained of were spoken " in the course of giving evidence," or whether the defendant's evidence was really over, and he made the statement " as a mere volunteer. The jury found against the defendant on this question, which was treated as decisive of the case." Saturday Re- view, March 25, 1876. On the case coming up before the court in banc, it was held that the statement was privi- leged, and that the action would not lie, although it was found by the jury that the words were spoken maliciously, and not in good faith as a witness ; and though the judge held there was evi- dence to justify this finding. Seaman V. Netherclift, L. R. 1 C. P. D. 540 ; affirmed finally on appeal, Dec. 1876. J Doe u. Durntord, 2 M. & Sel. 62; Bowman v. Hodgson, L. R. 1 P. &D. 362; Citizens' Bank !>. Steamboat Co. 2 Story, 16; Pullen v. Hutchinson, 25 Me. 249 ; Foye v. Leighton, 24 N. H. 29 ; Harding v. Cragie, 8 Vt. 508 ; Whitaker v. Salisbury, 15 Pick. 534; Barry «. Ryan, 4 Gray, 523 ; Henry V. Bishop, 2 Wend. 575 ; King v. Smith, 21 Barb. 158 ; Walsh's Will, 1 Tucker (N. Y.), 132 ; Corlies v. Van- note, 16 N. J. L. 324 ; McMahan v. McGrady, 5 Serg. & R. 314 ; Boyer v. Norris, 1 Harr. (Del.) 22; Handy v. State, 7 Har. & J. 42; McCord v. Johnson, 4 Bibb, 531 ; State v. Chaney, 9 Rich. (S. C.) 438 ; Barber v. Ter- rgll, 54 Ga. 146 ; Bennet v. Robinson, 3 St. & Port. 227; Chaplain v. Bris- coe, 19 Miss. 372; Glasgow v. Ridge- ley, 11 Mo. 34 ; Brock v. Saxton, 5 Ark. 708 ; Shepherd v. Goss, 1 Overt. (Tenn.) 487. Under the English statute it is still necessary to call one or more of the subscribing witnesses to prove all in- struments executed under powers, where the parties creating such pow- ers have thought proper, for better security, to require the execution to be attested. Taylor's Ev. § 1638. ' Hodnett v. Smith, 2 Sweeny (N. Y.), 401; S. C. 10 Abb. Pr. N. S. 86 ; 41 How. Pr. 190. See Weigand v. Sichel, 4 Abb. (N. Y.) App. 592; Bowling V. Hax, 55 Mo. 446 ; Kalmes V. Gerrish, 7 Nev. 31. Infra, §§ 885-9. 8 Best's Ev. §§ 125, 305, 607 ; Goss 17. Tracy, 1 P. Wms. 289 ; Bernett v. 661 § 725.J THE LAW OF EVIDENCE. [book II. §724. Collateral matters do not require attesting witness. Matters collateral to the execution of a document, however, may be proved independently of the attesting witness.^ Thus it is not necessary to call the attesting witness when the object is to prove a receipt at the foot of a document which has attesting witnesses, the receipt not being so attested ; ^ nor to prove the identity of one deed with another ; ^ nor to prove any preliminary matter which is a condition precedent to calling the attesting witnesses.* § 725. The rule requiring the production of attesting witnesses Admission ^^ °"^ °^ *^^ ^^^ ^" English practice which the court by par^ employs for its own instruction, and it is applied irre- not SufS- ^ . . , . . r 1 • CI cient when spective of the intentions of the parties, bo resolute are attesting the courts ill insisting on this rule, that in cases where witnesses, guijgcrjbing witnesses are necessary, a party's admission has been held insufficient to dispense with the production of the attesting witness, even though such admission be made in open court ; * or by answer to bill of discovery, or other answer under oath ; ^ or even, so far has the rule been pushed, by the answers Taylor, 9 Ves. 381; Davis v. Din- woody, 4 T. R. 678; Sullivan v. Sul- livan, 106 Mass. 474; Hamilton v. Marsden, 6 Binn. 45. " By the General Statutes, c. 92, § 6, a will must be subscribed by three or more competent witnesses. They must be competent ^it the time of the attes- tation of the will. By the common law, it was a settled principle that husbands and wives could not in any case be admitted as witnesses for and against each other, independently of the question of interest. None of our statutes have changed the rule in this respect as to the attestation of wills, and the rule applies to such attesta- tion. Davis V. Dinwoody, 4 T. K. 678; Hatfield v. Thorp, 5 B. & Aid. 689 ; Sullivan u. Sullivan, 106 Mass. 474. " As the wife of the testator in this case was not a competent witness when the will was executed, his death did not make her competent." Chapman, C. J., Pease v. Allis, 110 Mass. 157. 662 ^ Fairfax v. Fairfax, 2 Cranch C. C. 25; Ayers v. Hewett, 19 Me. 281; Curtis V. Belknap, 21 Vt. 433 ; Shoen- berger v. Hackman, 37 Penn. St. 87. " Milligan v. Mayne, 2 Cranch C. C. 210. ' Planters' Bank v. Willis, 5 Ala. 770. * See supra, § 78. 5 Johnson v. Mason, 1 Esp. 89; Abbot V. Plumhe, 1 Dougl. 216 ; R. V. Harringworth, 4 M. & Sel. 353 ; Doe V. Penfold, 8 C. & P. 536 ; Tur- ner V. Green, 2 Cranch C. C. 202. See, however, Blake v. Sawin, 10 Allen, 340; Fox v. Reil, 3 Johns. R. 477; Minard v. Mead, 7 Wend. 68; Henry v. Bishop, 2 Wend. 675; King V. Smith, 21 Barb. 158; Zerby v. Wil- son, 3 Ohio, 42 ; Lands v. Crocker, 3 Brev. (S. C.) 40; Morgan v. Patrick, 7 Ala. 185. ' Call V. Dunning, 4 East, 58; Kin- ney V. Flynn, 2 R. I. 319. See Hol- lenbaek v. Fleming, 6 Hill (N. Y.), 803 ; Henry v. Bishop, 2 Wend. 505. CHAP. IX.] TESTING HANDWRITING. [§ 726. of the party himself when called as a witness in the cause. ^ Yet a party, so has it been held (somewhat inconsistently if the rnle be, as is alleged, one to be applied inexorably by the court), may estop himself by an 'admission of execution when such an admis- sion is made part of an agreement for mutual concessions with the other side.^ So the paying money into court on one of the breaches in an action of covenant, relieves the plaintiff from call- ing an attesting witness, even though non est factum is pleaded.^ The party's admission is available, however, when due attempts to obtain the subscribing witnesses have failed.* And where attesting witnesses are not necessary to the validity of the instru- ment, it may be primd facie proved by the admission of the party, provided such admissions are clear and specific as to the writing.^ The same rule is affirmed in England by the Common Law Procedure Act. And such admission may be proved infer- entially as well as directly.^ § 726. Where it is impossible to produce an attesting witness, then the law permits the instrument to be read upon Absoiate proof of the handwriting of the witness.'' This right of witness 1 Why man v. Garth, 8 Ex. E. 803; Story V. Lovett, 1 E. D. Smith, 153 ; Barry v. Ryan, 4 Gray, 523; Brigham 0. Palmer, 3 Allen, 450. See White u. HoUiday, 20Tex. 679. Conira, For- sythe V. Hardin, 62 111. 206. 2 Freeman v. Steggall, 14 Q. B. 203; Bringloe v. Goodson, 5 Bing. N. C. 738 ; 8 Scott, 71 ; Laing v. Kaine, 2 B. & P. 85. See infra, § 1091. ' Randall ti. Lynch, 2 Camp. 357. * Kingwood v. Bethlehem, 1 Green (N. J.), 221. " Infra, §§ 1089-1096 ; Nichols v. Allen, 112 Mass. 23; Hall v. Phelps, 2 Johns. R. 451; Shaver v. Ehle, 16 Johns. R. 201; Giberton v. Ginochio 1 Hilt. (N. Y.) 218; Savage v. D'Wolf, 1 Blatch. 343 ; Daniel v. Ray, 1 Hill (S. G.), 32. ° Watson V. Brewster, 1 Barr, 381; Harrington v. Gable, 81 Penn. St. 406. In the latter case, Woodward, J., said: " "W^ith the failure of the at- tempt to prove the execution of the instrument by the subscribing witness, the primary source of evidence on behalf of the plaintiff had been ex- hausted A resort to secondary evidence, to lay ground for the admis- sion of the instrument, was inevitable; and that which was given, as well as much of that which was offered and re- jected, was unobjectionable, for it car- ried on its face no indication that bet- ter evidence could have been obtained. .... There is no difference, as to the admissibility of this kind of evidence, between direct admissions and those which are incidental, or made in some other connection, or involved in the admission of some other fact." ' See R. I'. St. Giles, 1 E. & B. 642. So as to wills, when witness is de- ceased. 1 Redfield on Wills, § 20; Nickerson v. Buck, 12 Cush. 332 ; Hays V. Harden, 6 Barr, 409 ; Greenough V. Greenough, 11 Penn. St. (1 Jones) 489; Vernon u. Kirk, 30 Penn. St. (6 Casey) 218. 663 § 726.] THE LAW OF EVIDENCE. [BOOK 11, aground jjas been held to exist where the witness has been for non- . i i t_ • j. production. spirited away by the opposite party ; '■ where ne is out of the jurisdiction of the court ; ^ where he becomes interested so as to be incompetent ; ^ though it is otherwise when the inca- pacity is caused by the party calling the witness,* or when the attesting signature is illusory. ^ So secondary evidence may be received when the subscribing witness cannot be found after dili- gent search ; ^ and the degree of diligence which may be proved in order to let in secondary evidence varies with the circumstances 1 Clanmorris v. Mullen, Craw. & D. Abr. Cas. 8; Spooner v. Payne 4 C. B. 328. " Barnes v. Trompowsky, 7 T. R. 265; Prince v. Blackburn, 2 East, 250 Glubb V. Edwards, 2 M. & Rob. 300 Dunbar v. Harden, 13 N. H. 311 Gould y. Kelley, 16 N. H. 551; Beat- tie V. Hilliard, 55 N. H. 436; Valen- tine V. Piper, 22 Pick. 85 ; Van Doren V. Van Doren, 2 Pen. (N. J.) 745; Den V. Van Houten, 5 Halst. 270; McDermott v. McCormick, 4 Harr. (Del.) 543; Dorsey u. Smith, 7 Har. & J. 346; Richards v. Skiff, 8 Ohio St. 586; Wiley u. Bean, 6 111. 302; Ballinger v. Davis, 29 Iowa, 512 ; Selby V. Clark, 4 Hawks, 265 ; Ed- wards V. Sullivan, 8 Ired. L. 302 Price V. McGee, 1 Brev. (S. C.) 373 Bussey v. Whitaker, 2 Nott & M. 374 Foote V. Cobb, 18 Ala. 585; Little v. Chauvin, 1 Mo. 626 ; Clardy v. Rich- ardson, 24 Mo. 295 ; McGarrity v. Byington, 12 Cal. 426 ; Jackson v. R. R. 14 Cal. 18; Teal v. Sevier, 26 Texas, 516. " In Price v. The Earl of Torring- ton, 1 Sm. Lead. Cases, 139, Am. ed. 1847, are collected a large number of American decisions to the point, that, when entries are made in a shop- keeper's book of accounts by a clerk who is without the limits of the state at the time of the trial, in an action to recover for the goods so charged, the charges may be read in evidence 664 upon proof of his handwriting, the same as if he were dead; and in Dun- bar V. Marden, 13 N. H. 311, it was held, that, where a subscribing wit- ness resides without the limits of the state, he is beyond the reach of the process of the court in the sense in which those words are used, and evi- dence of his handwriting may be pro- duced in proof of the execution of the instrument. See, also, 1 Gr. Ev. § 572." Smith, J., Beattie v. Hilliard, 55 N. H. 436. » Goss V. Tracy, 1 P. Wms. 289 ; Haynes v. Rutter, 24 Pick. 242; Packard v. Dunsmore, 11 Cush. 283; Hamilton v. Marsden, 6 Binn. 45 ; Keefer v. Zimmerman, 22 Md. 274; Umphreys v. Hendricks, 28 Ga. 157 ; McKinley v. Irvine, 13 Ala. 681; Robertson v. Allen, 16 Ala. 106; Tin- nin V. Price, 31 Miss. 422. See supra, §178. * Paterson v. Schenck, 3 Green (N. J.), 434. * Fassett v. Brown, Peake's Cases, 24. 8 Falmouth v. Roberts, 9 M. & W. 469 ; Parker v. Hoskins, 2 Taunt. 223 ; Burt v. Walker, 4 B. & A. 697 ; Clarke v. Courtney, 5 Pet. 319; Spring V. Ins. Co. 8 Wheat. 269 ; Mills V. Twist, 8 Johns. 121 ; Henry V. Bishop, 2 Wendell, 575; Lansing v. Chamberlain, 8 Wend. 620 ; Clark v, Sanderson, 3 Binn. 192; Trammell u. Roberts, 1 MoMuU. 305 ; Brown v. Hicks, 1 Ark. 232. CHAP. IX.] DOCUMKNTS: ATTESTING WITNESSES. [§ T27. of the case.^ As to instruments executed in foreign lands, the attesting witnesses, it has been ruled, need not be produced, it being enough to prove the handwriting of the witness.^ Of course insanity,^ and death,* abundantly explain non-production. But if there be two witnesses, it will not be sufficient, so long as one of them is alive, sane, free from permanent sickness, within the jurisdiction of the court, and capable of being found by dili- gent inquiry, to prove the signature of the other who is dead.^ The practice when the subscribing witness has made a mark has been already noticed.^ § 727. The secondary evidence which is received. Secondary after the non-production of the witness is satisfactorily consuir accounted for, consists, ordinarily, of proof of his hand- "* "hanL writing.' Such proof may be inferential.^ Proof of writing. 1 Ibid. ; Cunliffe v. Sefton, 2 East, An. 242 ; Howard v. Snelling, 32 Ga. 183; Morgan u. Morgan, 9 Bing. 359; 195; Fitzhugh v. Croghan, 2 J. J. Wilman v. Worrall, 8 C. & P. 380; Marsh. 429. Austin V. Rumsey, 2 C. & Kir. 736 ; ^ Wright v. Doe d. Tatham, 1 A. & Spring V. Insur. Co. 8 Wheat. 268; E. 21, 22, per Tindal, C. J. Sherman v. Transp. Co. 31 Vt. 162 ; « See supra, § 696. ' Adam V. Kerr, 1 B. & P. 360; Webb V. St. Lawrence, 3 Bro. P. C. 640; Murdoek v. Hunter, 1 Brock. 135; Quimby v. Buzzell, 16 Me. 470; Dunbar v. Marden, 13 N. H. 311; Dudley V. Sumner, 5 Mass. 438; Ho- mer V. Wallis, 11 Mass. 309; Valen- tine V. Piper, 22 Pick. 95; Armstrong Van Dyne v. Thayre, 19 Wend. 162; Mills V. Twist, 8 Johns. E. 121; Truby V. Byers, 6 Penn. St. 347; Tams V. Hitner, 9 Penn. St. 441 ; Clark V. Boyd, 2 Ohio, 56 ; Gordon v. Miller, 1 Ind. 531 ; Powell v. Hen- dricks, 3 Cal. 427; Landers u. Bolton, 26 Cal. 393; Holman v. Bank, 12 Ala. 369 ; Nicks v. Rector, 4 Ark. 251; v. Den, 3 Green (N. J.), 186; Powers Delony «. Delony, 24 Ark. 7. v. McFerran, 2 Serg. & R. 44 ; Mc- 2 McMinn v. O'Connor, 27 Cal. Dermott u. McCormick, 4 Harr. (Del.) 238; McMinn v. Whelan, 27 Cal. 543; Dorsey v. Smith, 7 Har. & J. 300; See Tyng v. R. R. 12 Cush. 277. 345; Clark v. Boyd, 2 Ohio, 56; Bus- » Bernett v. Taylor, 9 Ves. 381 ; sey v. Whitaker, 2 Nott & McC. 364; Currie w. Child, 3 Camp. 283 ; Neely Howard v. Snelling, 32 Ga. 195; V. Neely, 17 Penn. St. 227. Thomas u. Wallace, 5 Ala. 268; Foote * Adam v. Kerr, 1 B. & P. 360; v. Cobb, 18 Ala. 585; McGowan v. Murdoek v. Hunter, 1 Brock. 135; Laughlan, 12 La. An. 242; Little v. Dudley v. Sumner, 6 Mass. 438; Van Chauvin, 1 Mo. 626; Clardy v. Rich- Doren b. Van Doren, 2 Pen. (N. J.) ardson, 24 Mo. 295 ; Fitzhugh v. Crog- 745 ; Mott V. Doughty, 1 Johns. Cas. 230; Armstrong v. Den, 8 Green (N. J.), 186; Mardis v. Shackleford, 4 Ala. 493; Waldo v. Eussel, 5 Mo. 387; McGowan u. Laughlan, 12 La. han, 2 J. J. Marsh. 429; Mapes v. Leal, 27 Tex. 345. Under statute of frauds, see infra, § 888. 8 Miller V. Dillon, 2 T. B. Mon. 73 ; Jones V. Cooprider, 1 Biackf. 47. 665 § 729.] THE LAW OF EVIDENCE. [BOOK II. the handwriting of the witness, in such case, is sufficient, with- out proving the handwriting of the party ; ^ but the latter may- be cumulatively proved,^ or alternatively.^ But, as a general rule, handwriting of the party executing cannot be proved until there is lond fide but unsuccessful effort to prove the hand- writing of the deceased witness.* The admission of the party executing can be received as secondary evidence in default of proof of handwriting.^ Where the absent attesting witness signed by a mark, then the signature of the party executing should be proved.^ § 728. If an attesting witness is sick, his deposition may be Suchevi- taken, or the case may be continued until his recov- reee°iv5)ie ^^T ' ^^^ ^^^ non-production on account of sickness on proof of ^jH jiot let in other proof of execution.'' Blindness siclcn6ss of witness. on the part of the witness has been ruled not to be an adequate excuse for non-production.^ § 729. In English chancery practice, when a will is to be proved, all the attesting witnesses, if they can be found, attesting must be Called.^ In other courts, in respect to most ordinarily documents requiring attestation, it is enough to admit Bu cien . ^i^g document, if one of several attesting witnesses be called, even though the others are attainable.^" But where a 1 Valentine v. Piper, 22 Pick. 90; 110. See Farnsworth u. Briggs, 6 N. Sluby !). Champlin, 4 Johns. R. 461; H. 561. McPherson v. Rathbone, 11 Wend. 96; ' Kingwood v. Bethlehem, 1 Green People V. McHenry, 19 Wend. 482; (N. J.), 221. Supra, § 723. Borst V. Empie, 5 N. Y. 33 ; though ' Gilliam v. Perkinson, 4 Randolph, see Brown v. Kimball, 25 Wend. 259. 325 ; Watts v. Kilburn, 7 Ga. 356. " Thomas v. Le Baron, 8 Met. 355; See supra, § 696. Gelott V. Goodspeed, 8 Cush. 411; ' Harrison v. Blades, 3 Camp. 457. Clark V. Houghton, 12 Gray, 38; Ser- « Cronk v. Frith, 9 C. & P. 197; 2 vis V. Nelson, 14 N. J. Eq. 94; Tur- M. & R. 262; Rees v. Williams, 7 ner v. Moore, 1 Brev. (S. C.) 236; Exch. 51; though see Pedler u. Paige, Clark V. Boyd, 2 Ohio, 56 ; Gibbs v. 1 M. & Rob. 258. Cook, 4 Bibb, 535. » Gresley's Ev. § 120; Bootle v. " Jones V. Lovell, 1 Cranch C. C. Blundell, 19 Ves. 494 ; McGregor v. 183; Jones v. Roberts, 65 Me. 273; Topham, 3 H. of L. Cas. 155;''Bow- McPherson w. Rathbone, 11 Wend, man «. Bowman, 2 M. & Rob. 501. See 96; Clark u. Sanderson, 3 Binn. 192; Charles v. Huber, 78 Penn. St. 448. Raines v. Philips, 1 Leigh, 483; Cox i" Andrew v. Motley, 12 C. B. (N. V. Davis, 17 Ala. 714; Oliphant v. S.) 526; Adam v. Kerr, 1 B. & P. Taggart, 1 Bay, 255. 360 ; Holdfast v. Dowsing, 2 Str. 1254 ; * Pelletreau v. Jackson, 11 Wend. Belbin v. Skeats, 1 Swab. & Tr. 148; 666 CHAP. IX.] DOCUMENTS : ATTESTING WITNESSES. [§ 732. statute prescribes several attesting witnesses as essential to the due execution of an instrument, then the absence of all of them should be accounted for, in order to let in secondary evidence of the execution.^ § 730. An attesting -witness, being called rather by the law itself than by the party who puts him on the stand, is witness open to be contradicted, or to have his testimony sup- ^Xa- plemented, by such party .^ So by such party he may ^'^^^^ \ be tested by leading questions, and by the other proc- mg bim. esses usual to cross-examination.^ It is said, however, that his general character for veracity cannot be attacked by the party calling him.* A denial by a witness of his signature, if such denial be unrebutted, vacates the attestation.* A failure of rec- ollection by the witness, however, does not have this effect ; but the blank may be filled up by secondary evidence.* § 731. A deceased subscribing witness, however, cannot be impeached by proving his own declarations disparaging But not by the evidence of his signature. In an English case of own dw^" much interest,'^ this point was elaborately discussed, larationa. and it was finally concluded that to admit such evidence would not merely infringe the rule excluding hearsay, but would ex- pose the most solemn formalities to doubt. § 732. A generation, however, cannot be passed without either the death or the disappearance of attesting witnesses ; and hence Jackson v. Shelden, 22 Me. 569; 4 Halst. (N. J.) 322; Duckwall v. Montgomery v. Dorion, 7 N. H. 475; Weaver, 2 Ohio, 13; Spencer v. Bed- Melcher u. Flanders, 40 N. H. 139; ford, 4 Strobh. 96. See New Haven Burke v. Miller, 7 Cush. 547; Mott v. Bk. v. Mitchell, 15 Conn. 206. Doughty, 1 Johns. Cas. 230; Powers v. ° Bowman v. Bowman, 2 M. & Rob. McFerran, 2 S. & R. 44 ; Mc Adams v. 501; Parkin v. Moon, 7 C. & P. 409; Stillwell, 13 Penn. St. 90; Burnett v. R. v. Chapman, 8 C. & P. 558. Thompson, 13 Ired. L. 379. ^ Whitaker v. Salisbury, 15 Pick. 1 Wright V. Tatham, 1 A. & E. 21; 534. Cunliflfe V. Sefton, 2 East, 183. See ^ Booker v. Bowles, 2 Blackf. 90. Whitelocke v. Musgrove, 1 C. & M. " Infra, §§ 739, 888 ; Park v. Mears, 511; Doe V. Paul, 3 C. & P. 613; 3 Esp. 171; Ley v. Ballard, 3 Esp. Adam v. Kerr, 1 B. & P. 360. 173, n.; Fitzgerald v. Elsee, 2 Camp. " Supra, §§500, 549, 550; Fitzgerald 635; Whitaker «. Salisbury, 15 Pick. «. Elsee, 2 Camp. 635 ; Ley w. Ballard, 534; Hall v. Phelps, 2 Johns. 451; 3 Esp. 173, n. ; Thomas v. Le Baron, Spencer v. Bedford, 4 Strobh. 96. 8 Met. 355; Hall v. Phelps, 2 Johns. ' Stobart v. Dryden, 1 M. & W. 451; Ketchum v. Johnson, 3 Green 615. Ch. (N. J.) 370; Patterson v. Tucker, 667 § 733.] THE LAW OF EVIDENCE. [book II. umerits thirty years old, attesting witness need not be called. as to an instrument whose alleged execution took place thirty As to doc- years before it is offered in evidence, the attesting wit- nesses need not be called.-^ So arbitrary is this rule, that it is applied even where the witness is proved to be living,^ and in court ; ^ though to insure the admis- sion of the document, under such circumstances, it must on its face and in its mode of production be free from suspicion.* It is essential, also, as a condition of such admission, that the document should be produced from, the proper custodian.^ A deed also, to be so received, must be executed in conformity with the law at the time in force,^ and must be by a person having title. ^ The " thirty years " are to be counted from the time of the trial, not from that of the institution of the suit.^ 733. It has been frequently held that there must be proof of accompanying possession to enable a deed, over thirty possessfon years old, to be read in evidence without proof of exe- need not i-o-n- ■ .,.^. be proved, cution." raying taxes is prima jacie proof of posses- Accom panying 1 Supra, §§ 194-97, 703; Burling v. Paterson, 9 C. & P. 570; Talbot v. HodsoD, 7 Taunt, 251 ; R. v. Farring- don, 2 T. R. 471 ; McKenire v. Fraser, 9 Ves. 5; Vattier v. Hinde, 7 Pet. 253; Stoddard v. Chambers, 2 How. U. S. 284; Little v. Downing, 37 N. H. 355; Pitts v. Temple, 2 Mass. 538; Stockbridge v. Stookbridge, 14 Mass. 256; King v. Little, 1 Gush. 436; Northrop v. Wright, 24 Wend. 226; Clark V. Owens, 18 N. Y. 434; Urket V. Coryell, 5 Watts & S. 60 ; MoRey- nolds !>. Longenberger, 57 Penn. St. 13; Bell v. McCawley, 29 Ga. S55; Doe V. Roe, 31 Ga. 593 ; Carter u. Chaudron, 21 Ala. 72; Burgin v. Chenault, 9 B. Mon. 285. 2 Ibid. ; Doe v. Burdett, 4 A. & E. 19 ; Gardner v. Granniss, 57 Ga. 539. ' Marsh v. Collnett, 2 Esp. 666. See Lawry v. Williams, 18 Me. 281. ^ Roe V. Rawlings, 7 East, 291; Doe V. Samples, 8 A. & E. 151; Jack- son V. Davis, 5 Cow. 1 23 ; Willson v. Belts, 4 Denio, 201 ; Lau v. Mumma, 43 Penn. St. 267; Meath v. Winches- 668 ter, 3 Bing. N. C. 200; Reaume v. Chambers, 22 Mo. 36 ; Fell v. Young, 63 111. 106. * See supra, §§ 194-97, for authori- ties to this point. ^ Boyle ii. Chambers, 32 Mo. 46; though see White v. Hutchings, 40 Ala. 253. ' Fell V. Young, 63 111. 106. Su- pra, § 194. 8 Gardner I). Granniss, 57 Ga. 539. 3 1 Ph. Ev. 276 ; Isack v. Clarke, 1 Roll. 132 ; Forbes v. Wale, 1 W. Bl. 532; Crane v. Marshall, 16 Me. 27; Homer v. Cilley, 14 N. H. 85; Clark V. Wood, 34 N. H. 447 ; Bank of Mid- dlebury v. Rutland, S3 Vt. 414; Stock- bridge V. West Stockbridge, 14 Mass. 257 ; Rust v. Boston Mill Corporation, 6 Pick. 158; Green v. Chelsea, 24 Pick. 71; Ridgeley v. Johnson, 11 Barb. 527; Jackson v. Blanshan, 3 Johns. R. 292; Jackson v. Davis, 5 Cow. 123; Zeigler v. Houtz, 1 Watts & S. 533; Hall v. Gittings, 2 Har. & J. 380; Dishazer v. Maitland, 12 Leigh, 524; Shanks u. Lancaster, 5 CHAP. IX.] DOCUMENTS : ATTESTING WITNESSES. [§ 736. sion.^ But this doctrine, as has been already sho-wn,^ cannot be sustained on principle ; and we must now conclude that, for the admissibility of such deeds, proof of contemporaneous possession is unnecessary, though without such proof the deeds may be entitled to little or no weight.^ § 734. A will, under which possession has been maintained for thirty years, is in like manner admissible,* and in such case, the thirty years have been held riot to begin to run until the testa- tor's death.^ But a will which has not been proved or recorded, and on which no claim has been made for fifty years, is not ad- missible without proof.^ § 735. It is still an open question in England whether it is necessary, when there is an attesting witness to Deeds by the seal of a corporation, to call such witness, or prove'cTby" whe,ther the proof of the seal of the corporation is not gg^f"^"'^ enough.'^ § 736. When, after notice to produce a deed, the adverse party produces it and claims an interest under it, then, When ad- as the two parties make the rightful execution of the - produMs^ ^ deed the common postulate of their cases, the subscrib- notioe"an" ing witnesses need not be called.^ But this result will "nje^s*" not be worked by mere production, without an interest ""'i*'' "'i on the part of the person producing, subsisting at the attesting Grat. 110; Winston v. Gwathmej', 8 292; Fetherly u. Wagoner, 11 Wend. B. Mon. 19; Middleton v. Mass, 2 Nott & M. 55; Duncan v. Beard, 2 Nott & M. 400. See, however, con- tra, McKenire v. Fraser, 9 Ves. 5; Barr v. Gratz, 4 Wheat. 213 ; Town- send ti. Downer, 32 Vt. 183; Lewis V. Laroway, 3 John. Gas. 283 ; Hew- lett V. Cock, 7 Wend. 371 ; Willson v. Betts, 4 Denio, 201 ; Brown v. Wood, 6 Rich. Eq. (S. C.) 155; Wagner v. Aiton, 1 Rice, 100 ; Nixon v. Porter, 34 Miss. 697. ' Williams v. Hillegas, 5 Penn. St. 492. " Supra, § 199. And see Gardner V. Granniss, 57 Ga. 539. ' Ibid. See, also, infra, § 1359. * Shaller v. Brand, 6 Binn. 437. ' Jackson v. Blanshan, 3 Johns. 599. See Doe v. Owen, 8 C. & P. 751 ; though see Doe v. Wolley, 8 B. & C. 22; 3 C. & P. 702, where it was held that the date of the will was the starting-point; and see Harris v. Eu- banks, 1 Speers, 183. ' Meegan v. Boyle, 19 How. 130. ' Doe V. Chambers, 4 A. & E. 410; S. C. 6 N. & M. 539; St. John's Ch. V. Steinmetz, 18 Penn. St. 273 ; Bar- ton V. Wilson, 9 Rich. (S. C.) 273. As to the practice in respect to seals, see supra, § 694. * Rearden v. Minter, 5 M. & Gr. 204; Orr v. Morice, 3 B. & B. 139; 6 Moore, 347 ; Bradshaw v. Bennett, 1 M. & R. 143; Doe v. Wainwright, 5 A. & E. 520 ; Knight v. Martin, Gow, 26; McGregor v. Wait, 10 Gray, 72; 669 § 739.] THE LAW OF EVIDENCE. [book II. •witnesses time of the trial.^ Nor can an irrelevant paper be by need not ttot. • i-' be called, such process introduced.'^ But where parties ciaim under a common ancestor, the exception applies.^ § 737. A party cannot take advantage of his own wrong in When ad- withholding a document ; and consequently, if a doc- ument having attesting witnesses is withheld after due notice, a party desiring to prove such instrument sec- ondarily is relieved from the necessity of calling at- testing witnesses.* A lost or destroyed document may be proved, as is elsewhere fully seen,^ by secondary evidence ; and to supply such evidence, the attesting witnesses are the proper persons primarily to call. Should their names, however, be lost, or they be out of the reach of process, the docu- ment may be proved aliunde.^ If their names are known, they must be called, and the fact of attestation proved by them.^ § 739. It is not generally necessary that an attesting witness should be able to recollect the circumstances attend- ing his signature, or the fact that he saw the maker of the instrument attach to it his name.^ It is enough, primd facie, if he swears that the signature is his own, and adds that it would not have been aflBxed but for the pur- verse party refuses to produce, attesting witnesses need not be called. 8 738. So as to lost docu- ment. Sufficient if witness can prove his own signature. Jackson v. Kingsbury, 17 Johns. R. 157 ; Jackson v. Halstead, 5 Cow. 216; Herring v. Rogers, 13 Ga. 615; Mc- Gee V. Guthry, 32 Ga. 307; Williams V. Keyser, 11 Fla. 234. See supra, §§ 152-160, 690. 1 Collins V. Bayntun, 1 CJ. B. 117 Doe V. Cleveland, 9 B. & C. 864 Carr v. Burdiss, 1 C, M. & R. 784 Curtis V. McSweeny, Ir. Cir. R. 343. " McGee V. Guthry, 32 Ga. 307. ' Burghart v. Turner, 12 Pick. 534. * Poole V. Warren, 8 A. & E. 588; Cooke V. Tanswell, 8 Taunt. 450; Davis V. Spooner, 3 Pick. 284. See supra, § 157. 5 Supra, § 142. ° See, as to lost instruments gen- erally, supra, §§ 129 el seq.; Griffith V. Huston, 7 J. J. Marsh. 385. 670 ' See cases cited supra, § 142; and as to lost will, see §§ 138-9. ^ Supra, § 518 ; Sandilands, in re, L. R. 6 C. P. 411; Maugham v. Hub- bard, 8 B. & C. 16; Russell c. Coffin, 8 Pick. 146; Ballard v. Perry, 28 Tex. 347. See Neely w. Neely, 17 Penn. St. 227. As to adjudications under stat- ute of frauds, see infra, §§ 885-9. The Romans considered it enough if attesting witnesses were able to prove that they were present at and saw the signing. See Nov. 73, 1, 2. It is not necessary, liowever, that the witness should be able to identify the handwriting as in itself that of the writer; it is sufficifmt if it be testified that the particular signature was made by the writer in the witness's presence. Subscribing witnesses must te.stify to CHAP. IX.] DOCUMENTS : ATTESTING WITNESSES. [§ 740. poses of attestation.^ If he can merely swear to his own signature, other evidence of the genuineness of the instrument may be then received.^ Even though he testifies positively that he did not see the parties to the instrument sign, it is enough if he proves that they acknowledged their signatures in his presence ; ° or if he proves the delivery of an instrument already signed and sealed, to which his signature as a witness is attached.* § 739 a. A primdfaeie case of identification of the person exe- cuting the document is necessary ; ^ but such identifica- j^j^ ,, tion need not be by the attesting witnesses, but may prima fade . . identilioa- be aliunde.^ The proof of identity, however, need be tion of only inferential ; and the fact that the names are the ''"^" same may, unless there be grounds of suspicion, ordinarily sup- ply the inference.'^ Delivery can be inferred from proof of signa- ture by the attesting witness, though the witness has no recollec- tion of anything but seeing the signature of the parties.^ § 740. Wherever a statute authorizes the acknowledging of an instrument, providing at the same time that such in- when stat- strument shall be admissible in evidence on proof of "ckno^d-^ its acknowledgment, then, if the conditions required edged in- ] , . strument by the statute as prerequisites of the acknowledging evidence, it appear from the record to have been observed, such in- essary to strument is admissible as primd facie proof. It is not \^„ ^^^ ' necessary in such case to call the attesting witness ; but °^^^' the genuineness of their own writing; 803. As to rule under statute of and such genuineness is prima facie frauds, see infra, §§ 885-9. proof of the genuineness of the signa- * Higgins v. Began, 4 Harr. (Del.) ture in chief. 330. See Harden v. Hays, 14 Penn. > Burling o. Paterson, 9 C. & P. 570; Hemphill v. Dixon, 1 Hempst 235; Alvordr. Collin, 20 Pick. 418 New Haven Bk. v. Mitchell, 15 Conn 206; Hall u. Luther, 13 Wend. 491 Bennett v. Pulmer, 49 Penn. St. 156 Pearson u. Wightman, 1 Hill S. C, St. 91 ; Allen v. Holden, 32 Ga. 418; Lazarus v. Lewis, 5 Ala. 457. 6 Brown v. Kimball, 25 Wend. 260; Russell i>. Tunno, 11 Kich. (S. C.) 303. For other cases see supra, § 701. ^ Goodhue I'. Berrien, 2 Sandf. Ch. 630; Hamsher v. Kline, 57 Penn. St. 336; Gwinn v. Eadford, 2 Litt. (Ky.) 397 ; Moss v. Anderson, 7 Mo. 337 ; 137. Crockett v. Campbell, 2 Humph. 411. ^ Crabtree v. Clark, 20 Me. 337; Infra, § 1273. Curtis V. Hall, 1 South. (N. J.) ' Supra, § 701, and cases cited in- 361. fra, § 1273. 8 Munns v. Dupont, 3 Wash. C. C. » Burling v. Paterson, 9 C. & P. 32; HoUenbaek v. Fleming, 6 Hill 570. Infra, § 1313. (N. Y.), 303; Hale v. Stone, 14 Ala. 671 § 740.] THE LAW OF EVIDENCE. [book II. the instrument may be put in evidence, after the acknowledg- ment required by the statutes, either by force of the statutes, or at common law, by proving the execution. ^ The record, how- ever, must be in the proper court.^ And mere registration does not entitle a deed to be read in evidence, without an express stat- utory provision to that effect.^ The acknowledgment must be in 1 Supra, § 118; Houghton v. Jones, 1 Wall. 702; Younge u. Guilbeau, 3 Wall. 636 ; Edmondson v. Lovell, 1 Cranch C. C. 103; Dubois v. Ivew- man, 4 Wash. C. C. 74 ; Fellows v. Pedrick, 4 Wash. C. C. 477 ; Web- ster V. Calden, 55 Me. 171; Bellows V. Copp, 20 N. H. 492; Eaton v. Campbell, 7 Pick. 12; Com. v. Em- ery, 2 Gray, 80 ; Samuels v. Borrow- scale, 104 Mass. 207 ; Morris v. Wordsworth, 17 Wend. 103; People V. Denison, 17 Wend. 312; Sheldon V. Stryker, 42 Barb. 284 ; Shortz v. Dnangst, 3 Watts & S. 45 ; Jordan V. Stewart, 23 Penn. St. 244 ; Duffey V. Congregation, 48 Penn. St. 46; Doe V. Prettyman, 1 Houst. 339 ; Ayres v. Grimes, 3 Har. & J. 95 ; Hutchison V. Rust, 2 Grat. 394 ; Fisher v. Butch- er, 19 Ohio, 406; Doe t. Johnson, 3 111. 522; Holbrook v. Niehol, 36 111. 161 ; Sharp v. Wickliffe, 8 Litt. 10; Bell V. McCawley, 29 Ga. 355 ; Doe V. Roe, 36 Ga. 463 ; Toulmin v. Aus- tin, 5 St. & P. 410 ; Eastland «. Jor- dan, 3 Bibb, 186 ; Clark v. Troy, 20 Cal. 219 ; Simpson v. Mundee, 3 Kans. 181 ; Smith v. Hughes, 23 Tex. 248; Page v. Arnim, 29 Tex. 53. See 3 Washb. on Real Prop. 522. The New York statute (2 Fay's Stat. 14) provides that " every writ- ten instrument, except promissory notes and bills of exchange, and ex- cept the last wills of deceased persons, may be proved or acknowledged in the manner now provided by law; and the certificate of the proper officer in- dorsed thereon shall entitle such in- strument to be received in evidence, 672 with the same efFect and in the same manner as if such instrument were a conveyance of real estate." Under this statute we have the fol- lowing : " The defendant also claimed that it was irregular to prove the transfer of the stock by Riggs by means of an acknowledgment made by the subscribing witness before a notary, such acknowledgment being made long after the power of attorney is assumed to have been executed by Riggs, and shortly before it was offered in evidence. There is nothing in this objection. The Laws of 1833, c. 271, § 9, provide that ' every written in- strument, except promissory notes, bills of exchange, and the last wills of deceased persons, may be proved or acknowledged in the manner now pro- vided by law for taking the proof or acknowledgment of conveyances of real estate. The certificate thus taken is to be used in evidence in the same manner and with the same effect as if the instrument were a conveyance of real estate.' There can be no doubt that the power of attorney is a. ' writ- ten instrument,' and falls within the statute, and the acknowledgment may be made at any time before the paper is offered in evidence." Dwight, C, Holbrook v. New Jersey Zinc Co. 57 N. Y. 624. 2 Secrest v. Jones, 21 Tex. 121. ° Williams v. Griffin, 4 Jones (N. C.) L. 31 ; Payne v. McKinney, 30 Ga. 83 ; Robertson v. Kennedy, 1 Stew. (Ala.) 245 ; Brock u. Headen, 13 Ala. 370; and see cases cited su- pra, § 115. CHAP. IX.] DOCUMENTS : PROOF OF WHEN EECORDED. [§ 741. due form, as prescribed by local law.^ Thus where the local law requires a certificate from the officer that he personally knew the subscribing witness, a deed cannot be admitted without such cer- tificate.2 The fact that the acknowledgment of a deed was after suit brought does not preclude the admission of the deed.^ It is scarcely necessary to add, that the statutes authorizing the ad- mission of such instruments as recorded do not exclude them if un- recorded.* A fortiori the original in no sense loses its evidential power by being recorded.^ That a party having an exemplifica- tion of a recorded deed cannot put such copy in evidence, unless the original deed is out of his power, we have already seen.^ § 741. In England it seems to be doubted whether such deeds are admissible, without proving attestation, against any one ex- cept the party on whose acknowledgment the deed is recorded.'^ In this country, in absence of an enabling statute, acknowledg- ment of an instrument before the proper officer does not super- sede the necessity of proving its execution in order to put it in evidence.^ But where there is an enabling statute, the certificate of the proper officer, before whom an acknowledgment and the accompanying attestation are taken, has been held primd facie evidence of the facts set forth in such acknowledgment and at- testation.® The extent to which the acknowledgment can be dis- puted will be hereafter discussed.^'' 1 Wood V. Weiant, 1 Comst. (N. 487; Morris v. Vanderen, 1 Dall. 64; Y.) 77; Campbell v. Hoyt, 23 Barb. Young v. Com. 6 Binn. 88. 555; Anderson v. Turner, 2 Litt. (Ky.) ^ u. S. v. Laub, 12 Pet. 1 ; Vose 237; Eastland v. Jordan, 3 Bibb, 186; v. Manly, 19 Me. 331 ; Day i'. Moore, Johnson I'. Fowler, 4 Bibb, 521 ; An- 13 Gray, 522; Miller v. Hale, 26 drews v. Marshall, 26 Tex. 212; Penn. St. 432; Sheehan w. Davis, 17 Gaine v. Ann, 26 Tex. 340. As to Ohio St. 571 ; Dobbs v. Justice, 17 disputing the acknowledgment by Ga. 624. parol proof, see infra, § 1052. = See supra, § 115. 2 Morgan w. Curtenius, 4 McL. 366 ; ' BuUer's Nisi Prius, 255. See Job V. Tebbetts, 9 111. 143 ; Bone v. Taylor's Ev. § 1651. Greenlee, 1 Coldw. 29. See Johnston * Mullis v. Gavins, 5 Blackf. 77 ; V. Ewing, 35 111. 518; Sheldon v. Ravisies w. Alston, 5 Ala. 297; Catlin Stryker, 42 Barb. 284. v. Ware, 9 Mass. 218; Eichelberger ' Lanning v. Dolph, 4 Wash. C. G. v. SiflFord, 27 Md. 320; Kidd v. Alex- 624. ander, 1 Eand. (Va.) 456. * Bucksport V. Spofford, 12 Me. » See cases cited infra, § 1052 ; Doe w Infra, § 1052. VOL. I. 43 g,73 § 742.] THE LAW OF EVIDENCE. [BOOK II. XII. INSPECTION OF DOCUMENTS BY ORDER OF COURT. § 742. Independently of the right to inspection based on the old doctrine of profert and oyer,^ a party is entitled, in granted to view of litigation, to a rule for inspection of such doc- pr^uation uments in the hands of the opposite party, as are es- of papers, gg^^iial to the maintenance of contested rights.^ In- spection will also be granted where a party is desirous of seeing and copying a document in his opponent's hands, for the purpose of bringing suit on the same.^ To grant the order it is not nec- essary that the document be in the hands of the party against whom the order ia asked. It is enough if the document is in the hands of his agent, or in some way subject to his authority.* V. Lloyd, 1 M. & Gr. 684 ; Jackson v. Schoonmaker, 4 Johns. K. 161 ; Peo- ple V. Hurlbutt, 44 Barb. 126 ; Thur- man v. Cameron, 24 Wend. 87 ; Ste- vens V. Martin, 18 Pfinn. St. 101 ; Keichline n). Keichline, 54 Penn. St 75; Williams v. Baker, 71 Penn. St. 482; Duff V. Wynkoop, 74 Penn. St. 300; Heeter v.. Glasgow, 79 Penn. St. 79; Middleton v. Dubuque, 19 Iowa, 467; Johnson v. Pendergrass, 4 Jones (N. C.) L. 47.9; Bledsoe v. Wiley, 7 Humph. 507. In Doe V. Lloyd, 1 M. & Gr. 671, 684, a deed, requiring enrolment un- der the mortmain act was produced at the trial, and bore the following in- dorsement : " Enrolled in the High Court of Chancery., the 17th of De- cember, 1836, being first duly stamped aceording to the tenor of the statutes made for that purpose. D. Drew." It was held that, without proving the signature of the official character of Mr. Drew, the memorandum was evi- dence that the deed was enrolled on the day stated, it having been certified to the court, by an officer of the enrol- ment office, that the memorandum was in the usual form. See, also, to same effect, Kinnersley v. Grpe, 1 Doug. 58, per BuUer, J., recognized in Doe o. 674 Lloyd, 1 M. & Gr. 685; Compton v. Chandless, 4 Esp. 19, per Ld. Kenyon. " See infra, § 753. 2 R. V. Colucci, 3 F. & F. 103; Arundel v. Holmes, 8 Dowl. 119 ; Rayner v. Ritson, 6 B. & S. 888; King V. King, 4 Taunt. 666; Browning v. Aylwin, 7 B. & C. 204; Woolmer v. Devereux, 2 M. & Gr. 758; Morrow «. Saunders, 1 B. & B. 318; Price o. Harrison, 8 C. B. N. S. 617. As to practice under federal statute, see lasigi v. Brown, 1 Curt. C. C. 401. As to New York Practice, see Hause- man v. -Sterling, 61 Barb. 347 ; and see, also, Jackson y. Jones, 3 Cow. 17 ; Utica Bank u. Hillard, 6 Cow. 62; Gould V. McCarthy, 11 N. Y. 575; Davis V. Dunham, 13 How. Pr. 425. Under the Code, this remedy is co- extensive with that by bill of discov- ery. Lefiferts v. Brampton, 24 How. Pr. 257. ' Kowe V. Howden, 4 Bing. 539, n. ; Blakey t'. Porter, 1 Taunt. 386 ; Arun- del 0. Holmes, 8 Dowl. 119; Miller v. Mather, 5 How. 160; Reid v. Cole- man, 2 C. & M. 456 ; Powers v. El- mendorif, 4 How. Pr. 60. * Morrow v. Sanders, 3 Moore, 671; Gigner v. Bayly, 5 Moore, 71; Stead- man V. Arden, 4 Dowl. & L. 16; 15 CHAP. IX.] DOCUMENTS : INSPECTION OF. [§ 744. The mere fact that letters are written to the plaintiff's solici- tor " in confidence," and under a pledge not to disclose their con- tents to any one but the plaintiff and his legal advisers, affords no defence to an application for an order to inspect them. But if they are not merely confidential communications, but are written in answer to inquiries by the plaintiff's solicitor with a view to and in contemplation of anticipated litigation, they are privileged.^ § 743. To sustain such a rule the following conditions must exist : First, the party applying must make an affidavit to the effect that he has no copy in his hands or attainable by himself ;2 though under peculiar circumstances the court may at its discre- tion dispense with such affidavit ; ^ secondly, the applicant must have a legal or equitable interest in the document ; * thirdly, it must appear that the paper is in the hands of the holder as in some sense the trustee of the applicant ; or the application will be refused.^ § 744. Where these conditions exist, the court (or a judge at chambers) may compel the production, not merely of documents M. & W. 587; Ley v. Barlow, 1 Ex. R. 800. Infra, § 756. 1 McCorquodale ;;. Bell. L. R. 1 C. F. D. 471; Cossey v. London, Bright- on & South Coast Railway Co. L. R. 5 C. P. 146 ; and Skinner v. Great Northern Railway Co. Law Rep. 9 Ex. 298, followed ; Tenner v. London 6 Southeastern Railway Co. Law Rep. 7 Q. B. 767, observed upon and ex- plained. Supra, §§ 579, 585-7. " When the object is to obtain ac- cess to a paper relied on by the oppo- site side, the usual practice is for the party to make affidavit to some de- fence attacking the genuineness of the instrument; Woolmer v. Dever- eux, 2 M. & Gr. 758 ; Birming. R. R. V. White, 1 Qi B. 286 ; though in some cases the application will be granted, even without an affidavit, wherever there was no reason to suspect that the application was not to enable the party to set up a frivolous or merely technical defence. Ibid. ; S. C. under name of Woolner ». Devereux, 9 Dowl. 672 ; Beal v. Bird, 2 D. & R. 419. This right has been held to exist in reference to negotiable paper, to pol- icies of insurance ; Goldsmidt v. Mar- ryat, 1 Camp. 562; Rayner v. Ritson, 6 B. & S. 888; and to informal writ- ten agreements. Price v. Harrison, 8 C. B. N. S. 617. ' Ibid. ; Portmore v. Goring, 4 Bing. 152; 12 Moore, 363; Morrow v. Saun- ders, 1 B. & B. 318; Bluck v. Gom- pertz, 7 Ex. R. 67. * Lawrence c;. Hooker, 5 Bing. 6 ; Cocks V. Nash, 9 Bing. 723; Smith u. Winter, 3 M. & W. 309; Goodliff V. Fuller, 14 M. & W. 4 ; Powell v. Bradbury, 4 C. B. 541; Pritchett v. Smart, 7 C. B. 625; Partridge, ex parte, 1 Har. & W. 350; ' Pickering v.Noyes, 1 B. & C. 262; Blogg V. Kent, 6 Bing. 615. See Park- hurst V. Gosden, 2 C. B. 894. 675 § 745.] THE LAW OF EVIDENCE. [BOOK II. on which suit is brought, but of evidentiary writings (e. g. letters written by the defendant which the plaintiff could use as indic- ative of a contract), which had been lodged by both parties in the hands of a third person as trustee, and which the applicant might find important to his case.^ It should be added that in England, since Lord Brougham's Evidence Act of 1851, a party is entitled on application to inspect all documents in the custody of the opposite party, relevant to any pending litigation, and to take examined copies of the same, in all cases on which a bill of discovery would lie for the production of such papers. § 745. In England, the Queen's Bench will enforce by man- damus the production for inspection of any document public doc- of a public nature in which a party may be interested.^ An applicant, however, to entitle him to the rule, must show that he has an interest in the documents sought to be in- spected, and that the application is for a legitimate purpose.^ If the application be merely to gratify curiosity, or to discover a flaw for contingent litigation, the rule, in England, will not be granted.* In the United States, however, so far as concerns our judicial records, and our registries of wills and deeds, no such distinction exists ; as by statute, or usage settled in default of statute, the oiEcers having custody of such documents are re- quired to exhibit them, and to give copies of them on the pay- ment of the proper fee. In cases where no such right is estab- lished, a party may, in a proper case, obtain inspection, at common law, by a writ of mandamus issued out of a supreme court, in all cases where an inspection of a public document is necessary to enable the applicant to obtain justice. But a man- damus will not be granted unless the documents desired lie at the basis of the complainant's suit.^ Nor will a court compel a disclosure of documents which state policy requires to be kept secret.® 1 Price V. Harrison, 8 C. B. N. S. v. Seaman, 33 Barb. 140; Hoyt v. Ex. 617; Stone v. Strange, 3 H. & C. Bank, 1 Duer, 652 ; S. C. 8 How. 89. 541 ; Pape v. Lister, L. R. 6 Q. B. a R. «. StafCordshire, 6 A. & E. 99, 242; Reid v. Coleman, 2 C. & M. 100. 456 ; Owen v. Mckson, 3 E. & E. » Ex parte Briggs, 1 E. & E. 881. 602 ; Steadman v. Arden, 4 D. & L. « R. v. Staffordshire, ut supra. 16 ; 15 M. & W. 587 ; Exchange Bank « Atherfold v. Beard, 2 T. R. 610. V. Monteath, 4 How. Pr. 280 ; Pindar « Supra, §§ 604-5. 676 CHAP. IX.] DOCUMENTS : INSPECTION OF. [§ 746. § 746. The books and papers of a corporation, thougli not open to strangers,! may upon order of court be pro- goasto duced for the inspection of corporators,^ provided it books of ^ _ '^ ' r ^ corpora- be shown that such inspection is necessary to a suit tions. then instituted, or at least to some specific dispute or question depending, in which the applicant is interested.^ Although a wider jurisdiction is intimated by some of the earlier cases,* it is now settled in England that the remedy is confined to cases where the inspection is necessary to the adjudication of a par- ticular issue.* Thus the application was refused in a case where members of a corporation asked to inspect all the documents of the corporation, alleging that its affairs were improperly con- ducted, and complaining of misgovernment in some particulars not affecting themselves, nor then in dispute ; ^ nor, when a stockholder is sued by a company for calls, will he be granted a rule to inspect the minute-books of the company and of the meetings of the directors, " particularly with respect to the calls," when his object is to fish out a defence." '' A person not being a member of the college of physicians, not having a license, cannot avail himself of this right in order to obtain the inspection of the books of the college.* 1 Bolton V. Liverpool, 3 Sim. 467; " R. v. Merchant Tailors' Co. 2 B. iMyl. &K. 88. & Ad. 116. " R. u. Shelley, 3 T. R. 145; R. v. "> Birming., Brist. & CThames Juno. Lucas, 10 East, 235 ; R. v. Travan- Ry. Co. v. White, 1 Q. B. 282. See nion, 2 Chitty, 366, n. ; Am. R. R. Imperial Gas Co. v. Clarke, 7 Bing. Co. V. Haven, 101 Mass. 398 ; People 95 ; and see Powers v. Elmendorff, 4 V. Throop, 12 Wend. 188 ; Bank of How. 60; S. C. 2 Code R. 44; John- Uticaj;. Hillard, 6 Cow. 62; Maddox son v. Consol. Silver Co. 2 Abb. (N. V. Graham, 2 Mete. (Ky.) 56; Cock- S.) 413; Hoyt v. Exch. Co. 1 Duer, burn u. Union Bank, 13 La. An. 289 ; 652; S. C. 8 How. 89. Angell & Ames on Corp. (10th ed.) * A prebendary, so it has been ruled 707 ; 4 Wait's Practice, 205. in England, is entitled at all times to ' R. V. Merchant Tailors' Co. 2 B. inspect the documents o£ the chapter. & Ad. 113 ; In re Burton and the Young v. Lynch, 1 W. Bl. 27. Saddlers' Co. 31 L. J. Q. B. 62. A bishop, also, holds his register of * R. V. Hostmen of Newcastle, 2 presentations and institution open to a Str. 1223; R. v. Babb, 3 T. R. 581, mandamus, at the petition of a person per Ashhurst, J. claiming title to a living in the dio- 6 R. V. Merchant Tailors' Co. 2 B. cese. R. v. Bishop of Ely, 8 B. & C. & Ad. 115. 112; S. C. under name of Bp. of Ely, 2 M. & R. 127. 677 § 749.] THE LAW OF EVIDENCE. [BOOK II. § 747. Whenever a document, in the hands of a public ad- ministrative officer, is requisite to enable a party to ob- So as to , . . , . ... 1 public ad- tain his rights in a court of justice, a mandamus, or, tive offi- in ordinary practice, a rule of court, will be granted to "*'*■ compel an exhibition of such document for inspection. When the act is merely ministerial, involving no executive dis- cretion, then it may be compelled by mandamus. i Custom-house officers may be compelled in this way to exhibit their books to merchants interested in the entries,^ and so may other officers or custodians of papers where the inspection is necessary to estab- lish some disputed claim.^ The applicant for the order, however, in order to obtain relief, must have an interest in the documents, or must seek to inspect them for some public object connected with the purposes for which the books are kept.* § 748. It has consequently been held in England that fund- So 83 to holders are entitled to inspect and take copies of the depositand deposit and transfer books of the Bank of Ensrland,^ or transfer '■ _ _ . books. of the East India Company, which relate to stock in which they claim to be interested.^ The rule as to private cor- porations has been just noticed.^ § 749. When private writings are produced for inspection, Inspection ^iJider an order of court, the court will not, in any case, not'sur- compel the impounding of papers, or their deposit with render. an officer of the court or any third party. The owner of the document is allowed to keep it in possession. The order simply permits its inspection, while in the hands of the owner, or his attorney, by the opposing party, or by witnesses.^ 1 Goodell, ex parte, 14 Johns. 325; « Geery v. Hopkins, 2 Ld. Raym. People V. Bell, 38 N. Y. 386; Cotton 851; 7 Mod. 129, S. C. ; Taylor's V. Ellis, 7 Jones L. (N. C.) 545; Evidence, § 1350. Pacific R. R. V. Governor, 23 Mo. ' Supra, § 746. See Hoyt v. Exch. 353. Co. 1 Duer, 652; S. C. 8 How. Pr. 2 Crew V. Saunders, 2 Str. 1005. 89; Johnson «. Consol. Silver Co. 2 » See note by Mr. Nolan to R. v. Abb. (N. S.) 413. Hostmen of Newcastle, 2 Str. 1223. s Thomas v. Dunn, 6 M. & Gr. See.also, R. u. King, 2 T. R. 235, per 274; Rogers v. Turner, 21 L. J. Ashhurst, J., as to the assessments of Exch. 9. Infra, § 752. the land tax. " ^^ common law, and indepen- * Crew V. Saunders, 2 Str. 1005. dently of recent statutes, courts of See Athertold v. Beard, 2 T. R. 610. law had the power to order inspec- « Poster V. Bk. of England, 8 Q. B. tion of papers, which, by the plead- ings, or by being used in evidence, 689 678 OHAP. IX.] DOCUMENTS: INSPECTION OF. [§ 751. § 750. As a matter of practice, an order to produce for inspec- tion is regarded as a last resort, and will not usually be previous granted,' unless it appear by affidavit that a demand to miKt^be inspect Las been made to the custodian, and inspection shown, has been denied.^ The objection, however, that the affidavit exhibits no such demand, must be taken before the merits are discussed.^ The application may be made on a verified petition,* as well as by motion backed by affidavits.^ The affidavit may be by any person cognizant of the facts.^ § 751. What is elsewhere said as to the protection of witnesses from questions which call for criminatory answers, applies to A. & E. 477; 5 Nev. & M. 344, S. C. ; R. V. Bristol & Exeter Ry. Co. 4 Q. B. 162. » 4 Q. B. 171, per Ld. Denman, recognizing R. v. East Cos. Ry. Co. 10 A. & E. 531, 545, u. b. As to the nature of the refusal, see came within the control of the court. When any deed is showed in court, the deed, by judgment of law, doth remain in court all the term at which it is showed, for the whole term is as one day, and the party may demand oyer during the time it is so in court. Wymark's case, 5 Rep. 148; Simp- son V. Garside, 2 Lutwyche, 1641. A new trial having been granted, the court allowed the plaintiff inspection of a deed read in evidence by the defendant at the first trial, but denied it as to another deed, the execution of which was admitted at the former trial, but which was not offered in evidence. Hewitt v. Pigott, 7 Bing. 400. "But the court, in exercising this control over papers and documents offered in evidence, will merely grant inspection and examination by the party and his witnesses, either in open court or before an officer of the court, or in the presence of the party pro- ducing them, or his attorney, and will not take them from the latter and de- liver them into the possession of the other side. 2 Taylor on Evidence, § 1593; Thomas v. Dunn, 6 M. & Gr. 274." Depue, J., Hilyard v. Harri- son, 37 N. J. 173. 1 2 Wait's Practice, 553; Taylor's Evidence, § 1353. " R. V. Wilts. & Berks. Can. Co. 3 R. V. Brecknock & Aberg. Can. Co. 3 A. & E. 222, 223, per Ld. Denman and Littledale, J. Where a shareholder applied to the committee for leave to inspect the books of the company, and was told by the chairman that the committee would take time to consider the re- quest, whereupon, ten days after- wards, he again applied to the clerk, who refused inspection, though it did not appear that the refusal had been authorized by the committee; the Court of the Queen's Bench held that no sufficient refusal by the committee had been proved, to warrant the mak- ing absolute a rule for a mandamus. R. V. Wilts. & Berks. Can. Co. 3 A. & E. 477; 5 Nev. & M. 344, S. C. See Birm. R. R. v. White, 1 Q. B. 282; R. V. Trustees, 5 B. & Ad. 778. ' Dole V. Fellows, 5 How. Pr. 451. ' Exch. Bank v. Monteath, 4 How. Pr. 280; Johnson v. Consol. Silver Co. 2 Abb. N. S. 413; Pindar v. Sea- man, 33 Barb. 140. ' Exchange Bank v. Monteath, 4 How. Pr. 280. 679 § 753.] THE LAW OF EVIDENCE. [BOOK II. the production of criminatory documents. Neither equity nor Pj. , .. common law practice will compel a person to allow ofcrimina- ^^q inspection of either public or private documents tory or pri- ■*■ ■*■ , vileged in his custody, where the document, if produced, would will not be criminate the party producing.^ The risk, however, to compe e . ^jjjjjjj ^]jg custodian is exposed, must be that of a real, and not that of a nominally penal, prosecution.^ Neither a quo warranto,^ nor a mandamus,* is a criminal proceeding in the above sense. At the same time, inspection will be ordered when the applicant has reason to believe that the document in question was forged ; and the court, on a proper case, will impound the document for the purposes of a criminal prosecution.^ That a lawyer will not be compelled to surrender privileged documents has been already noticed.^ The same rule extends to a physi- cian's communications made under the orders of counsel.' § 752. It may be necessary, in order to determine as to the Documents meaning or genuineness of a writing, that it should be amLed by' examined by others than the applicant or his attorney. ers^aSd*" Hcnce, on due cause shown, the court will authorize an experts. inspection by other persons, as for instance, the plain- tiff's land agent, even though he be himself a witness in the suit.8 In cases where genuineness is contested, the court may order the contested documents to be exhibited to experts in writing.^ § 753. We have already noticed the principles on which rules 1 R. V. Purnell, 1 W. Bl. 37; 1 274; Woolmer v. Devereux, 2 M. & Wils. 2S9, S. C; R. V. Heydon, 1 Gr. 758; S. C. 3 Scott N. R. 224 ; W. Bl 351; R. V. Buckingham Js. Richey t'. Ellis, Ale. & Nap. 1 1 1 ; Rog- 8 B. & C. 375 ; R. v. Cornelius, 2 ers v. Turner, 21 L. J. Ex. 9 ; Boyd Str. 1210; 1 Wils. 142, S. C; Mon- v. Petrie, L. R. 3 Ch. Ap. 818, over- tague 0. Dudman, 2 Ves. Sen. 897; ruling S. C. L. R. 5 Eq. 290. Glynn v. Houston, 1 Keen, 329; Wigr. « Supra, §§ 585, 742. Disc. § 130; Taylor's Ev. § 1351; ' Friend v. R. R. L. R. 2 Ex. D. Byass v. Sullivan, 21 How. (N. Y.) 437; 36 L. T. N. S. 729, cited supra, Pr. 60. See Bradshaw v. Murphy, § 593. 7C. &P. 612. Supra, §§ 533-5. 8 Att. Gen. «. Whitwood Local = R. V. Cadogan, 5 B. & A. 902 ; Board, 40 L. J. Ch. 590. 1 D. & R. 550. 8 Swansea Vale R. R. ti. Budd, L. » R. V. Shelley, 3 T. R. 141 ; R. R. 2 Eq. 274 ; Boyd v. Petrie, L. R. V. Purnell, 1 W. Bl. 45. 8 Ch. Ap. 818, qualifying S. C. L. R. ^ R. V. Ambergate, 17 Q. B. 957. 5 Eq. 290. ^ Thomas v. Dunn, 6 M. & Gr. 680 CHAP. IX.] DOCUMENTS : INSPECTION OF. [§ 754. to produce documents for inspection are granted in the present practice. It may still not be out of place to observe Deed when that, under the old system of pleading, a party making f^^lf' either title or defence under a deed was bound, unless inspected. the deed was lost or in some other way out of his power, to make profert of it ; in other words, tender it for inspection. The op- posing party could then crave oyer of the deed ; and in answer to this prayer, the deed was either formally or constructively brought into court,^ and was set out on the records at full. The process, however, was not only narrow in its application, but clumsy in its operation. In England it was abolished in the Common Law Procedure Act of 1852 ; and in this country, in some states, was never adopted ; in others, has been superseded. But even where the process is abolished, the right it secures re- mains. Wherever a party refers in his pleading to a sealed in- strument as the basis of his claim, the opposing party may ob- tain, b}'' order of court, the inspection of the instrument.^ This right has always been regarded as essential to justice, and the courts have been ready to exercise it irrespective of the question of a seal. The practice is, for a party desiring to inspect an instrument relied on by the other side, to apply either to the court, or to a judge at chambers, for an order for the production of the writing.^ § 754. Provisions analogous to those contained in the statutes iust noticed have been enacted in most of the states of j .. ■> _ _ _ _ Inspection the American Union ; and where such provisions are not ™ay be , . , 1 !■ 1 secured by in force, it has not been unusual for common law courts, bill of vested with chancery jurisdiction, to adopt the practice '^""''^^'y- of requiring parties to answer on interrogatories, prior to the trial, such questions as to papers as would be proper in a bill of discovery. The question then arises, what relief would a bill of discovery in such cases give ; for the relief which would be given in chancery is that which, under ordinary circumstances, would > Stephen's Pleading, pi. 482-6; u. Ellames, 2 Myl. & K. 782; Macin- Hutchins v. Scott, 2 M. & W. 816; tosh v. R. R. 14 M. & W. 548; 1 Hall Archp. of Cant. v. Tubb, 3 Bing. N. & T. 41. C. 789 ; Hillyard v. Harrison, 37 N. » Woolmer v. Devereux, 2 M.& Gr. J. 173. See Taylor's Ev. § 1586. 758; Thomas v. Dun, 6 M. & Gr. " Penarth R. R. t>. Cardiff Water- 274. works, 7 C. B. N. S. 816; Hardman 681 § 755.] THE LAW OF EVIDENCE. [BOOK II. be given, under the new practice, by courts of common law. We may begin by saying, (1.) that a court will not compel a party to disclose immaterial papers, nor papers which relate exclusively to the case of the holder of the papers, and which in no sense go to make up the case of the complainant, either as showing right in himself or disproving right in his opponent.^ Nor (2.) will a disclosure in violation of the rules of professional privilege be in any case compelled.^ Nor (3.) will a disclosure be compelled, unless it appear from the answer that the papers are in the de- fendant's possession or power.^ Nor (4.) will officers of the gov- ernment be in this way compelled to disclose confidential docu- ments, whose publication would be prejudicial to the public interests.* Nor (5.) will a party be in this way compelled to exhibit papers which will subject him to criminal prosecutions or forfeitures,^ though he cannot by this excuse avoid producing papers which might simply expose him to a suit for fraud.^ § 765. With the qualifications just stated, a party to a suit at common law, whether he be plaintiff or defendant, can compel, in equity, the disclosure of any papers tending either to sustain his own case,'' or to damage the case of his opponent.^ It should be kept in mind that in all cases the onus is on the applicant to * Smith V. Beaufort, 1 Hare, 520; v. Dudman, 2 Ves. Sen. 397; Macau- S. C. 1 Phill. 220; Bolton v. Liver- lay u. Shackell, 1 Bligli N. S. 126. pool, 1 Myl. & K. 88; S. C. 3 Sim. « Bispbam'sEq.§ 502; Lee o. Read, 467; Ingilbyw. Shafto, 33 Beav. 31; 5 Beav. 381; Reynell v. Sprye, 10 Wright V. Vernon, 1 Drew. 344; Peile Beav. 51 ; Skinner v. Judson, 8 Con. V. Stoddart, 1 Hall & T. 207; Ham- 528; Howell v. Ashmore, 1 Stockt. brook V. Smith, 17 Sim. 209; Kettle- (N. J.) 82. well V. Barstow, L. E. 7 Ch. App. 686; ' Earp v. Lloyd, 3 Kay & J. 549; Brown V. Wales, L. R. 15 Eq. 143. Jenkins v. Bushby, L. R. 2 Eq. 547 ; 2 Supra, §§585, 742; Wigram,Disc. Atty. Gen. v. Lambe, 3 Y. & C. Ex. §§ 26, 284 ; Minet v. Morgan, L. R. 8 162; Atty. Gen. v. Thompson, 8 Hare, Ch. Ap. 361 ; Wilson v. R. R. L. R. 14 106. Eq. 477; McCorquodale «. Bell, L. R. » Stainton v. Chadwick, 3 M. & 1 C. P. D. 471. Gord. 575; 13 Beav. 320; Atty. Gen. » Wigram, Disc. § 294; Burbridge v. London, 2 Hall & T. 1 ; 2 M. & u. Robinson, 2 M. & Gord. 244; Rev- Gord. 247; Thompson v. R. R. 9 nell V. Sprye, 1 De Gex, M. & G. Abb. (N. Y.) Pr. N. S. 212, 230. 656. See Erie R. R. v. Heath, 8 Blatch. * Rajah of Coorgw. E. L Co. 30 L. 418; Cent. Bank v. White, 37 N. Y. J. Ch. 226; Marbury v. Madison, 1 Sup. Ct. 297; Whitworth u. R. R. 37 Cranch, 144. Supra, §§ 604, 751. N. Y. Sup. Ct. 437; Dambmanw. But- « Wigr. Disc. §§ 127-147 ; Montague terfield, 4 Thomp. & C. 542. 682 CHAP. IX.] PRODUCTION OF PAPERS. [§ 756. prove his right to the relief sought,^ and that he is ordinarily bound by the defendant's answer or affidavits as to the relevancy of the papers, and their custody.^ It has, however, been held that where the defendant incorporates the contested documents (which he admits to be in his possession) in his answer, so as to make them form a substantial part of it, the plaintiff, in such case, will be held to be entitled to inspect the documents ; be- cause the defendant, by exhibiting them, has waived the right to withhold them. Nor does he retain his right by claiming, in a subsequent part of his answer, the privilege of withholding them, either as forming no part of his opponent's case, or as confidential communications.^ § 756. A respondent cannot excuse himself from producing papers in the hands of his agent or of any person under his control. Such papers, if required, must be pro- under re- duced.* On the other hand, it is not the usual practice control he 1 Wigr. Disc. § 293. ^ See Wigr. Disc. § 293 ; Morrice v. Swaby, 2 Beav. 500 ; Gardner v. Dan- gerfield, 5 Beav. 389. See Lamb v. Orton, 22 L. J. Ch. 713; Luscombe v. Steer, 37 L. J. Ch. 119. ' Hardman v. EUames, 2 Myl. & K. 732 ; Macintosh v. K. R. 1 M. & Gord. 73; 1 Hall &T. 41. The English practice on such a bill is thus stated (Wigram's Disc. § 285): "The plaintiff alleges in bis bill (in efifect) that the defendant has in his possession, or power, deeds, papers, and writings relating to matters men- tioned in the bill; and that, by the contents of such deeds, papers, and writings, if the same were produced, the truth of the plaintiff's case would appear. The defendant is then re- quired by the bill to admit or deny the truth of these allegations; if he admits having possession, or power, over any such deeds, documents, and writings, he is required by the bill, and is primd facie bound, to describe them, either in the body of the an- swer or in the schedule of it. The plaintiff then moves the court that the defendant may be ordered to produce or leave in the Record and Writ Of- fice' (Gen. Ord. 57, 16th Oct. 1852) ' the deeds, papers, and writings so described, with liberty for the plain- tiff to inspect them and take copies thereof.' Though this mode of pro- ceeding has of late years been substi- tuted for the more cumbersome course of requiring the defendant to set out the contents of the documents in his answer, the orders for production still rest upon the principle that the doc- uments are part of the defendant's compulsory examination; and conse- quently, at the trial at law, the plain- tiff cannot read the writings produced without putting in the entire answer of the defendant, and thus affording him the benefit of any explanation he may have given respecting them. Smith V. Beaufort, 1 Hare, 524; Brown V. Thornton, 1 Myl. & Or. 243; Miller V. Gow, 1 Y. & C. Ch. 56." Wigr. Disc. § 285. * Wigr. Disc. § 294; Ex parte Shaw, Jacob, 272; Morrice v. Swaby, 2 Beav. 683 § 756.] THE LAW OF EVIDENCE. [BOOK II. will not be to order the production of papers, where it appears by to produce, the defendant's answer that he has a joint possession of them with somebody else who is not before the court,^ and who has an interest in them distinct from his own.^ It is incumbent, in such cases, for the plaintiff to make all the persons interested parties to the suit,^ though the plaintiff has the alternative of requiring from the defendant a full statement of the contents of such documents.* It has been also held that no valid objection can be taken to an order for the production of memoranda which are admitted by defendant to relate to the matters in dispute, and to be in his possession, on the ground either that he has a lien upon them,^ or that they are intermingled with other entries in the same book, to a discovery of which the plaintiff is not entitled, and which cannot be separated or sealed up.® 500; Rodick w. Gandell, 10 Beav. 270; 30 Beay. 282, S. C; Lopez v. Dea- Palmer v. Wright, Ibid. 234; Monsel con, 6 Beav. 254; Hadley u. MacDou- V. Lindsay, 18 Ir. Eq. R. 144. Doo- gall, L. R. 7 Ch. Ap. 312 ; Penney uments pledged by the defendant are v. Goode, 1 Drew. 474 ; Wigr. Disc, not under his control. Liddell w. Nor- § 294; Taylor's Ev. § 1538. ton, 1 Kay, App. xi. See Taylor on » Glyn v. Caulfeild, 8 M. & Gord. Ev. § 1591. Supra, § 742. " 463; Few v. Guppy, 13 Beav. 457. 1 Murray v. Walter, Cr. & Ph. 114, « Lopez v. Deacon, 6 Beav. 258, 124, 125, per Ld. Cottenham; Taylor per Ld. Langdale; Wigr. Disc. §§ 294, ». Rundell, Cr. & Ph. Ill, per Ibid.; 327. Reid V. Langlois, 1 M. & Gord. 627, * Lopez v. Deacon, 6 Beav. 258. 635-638, per Ibid.; 2 Hall & T. 59, « Lockett v. Gary, 3 New R. 405, 69-72, S. C. ; Morrell v. Wootten, 13 per Romilly, M. R. Beav. 105; Edmonds u. Ld. Foley, 31 6 Taylor's Ev. § 1607; Garew v. L. J. Ch. 384, per Romilly, M. R.; White, 5 Beav. 172. 684 CHAPTER X. JUDGMENTS AND JUDICIAL RECOKDS. I. Binding Effect of Judgments. Judgment on same subject matter binds, § 758. But only conclusively as to par- ties and priTies, § 760. Judgments against corporation not necessarily admissible against stock- holders, § 761. By Roman law judgment is no proof when res inter alios acta, §762. Parties comprise all who, when summoned, are competent to come in and take part in case, §763. Test is opportunity and duty to come in, § 764. Judgment need not be specially plead- ed, § 765. Judgment against representative binds principal, § 766. Infant barred by proceedings in his name, § 767. Married woman not usually bound by judgment, § 768. Judgment against predecessor binds successor, § 769. Not so as to principal and surety, §770. Nor does judgment against executor bind heir, § 771. Judgment against one joint contractor binds the other, § 772. But not so as to tort-feasors, §773. Chancery will not collaterally review judgments of courts of law, § 774. Nor courts of law, decrees of chan- cery, § 775. Criminal and civil prosecutions cannot thus control each other, § 776. Military courts may make final rul- ings, § 778. Variation of form of suit does not affect principle, § 779. Nor does nominal variation of par- ties, § 780. Judgment, to be a bar, must have been on the merits, § 781. Purely technical judgment no bar; effect of demurrers, § 782. Judgment by consent a bar, § 783. Point once judicially settled cannot be impeached collaterally, § 784. Parol evidence admissible to identify or to distinguish, § 785. Judgment not an estoppel when evi- dence is necessarily different, § 786. When evidence in second case is enough to have secured judgment in first, then first judgment is a bar, § 787. Party not precluded from suing on claim which he does not present, §788. Defendant omitting to prove payment or other claim as a set off, cannot afterward sue for such payment, §789. But not as to defence which de- fendant is at liberty to reserve, §790. Set off passed in one suit may be offered in another, § 791. Judgment on successive or recurring claims not exhaustive, § 792. Judgment not conclusive as to collat- eral points, § 793. Judgments as to public rights admis- sible against strangers, § 794. II. When Judgment may be im- peached. Judgment may be collaterally im- peached for want of jurisdiction, §795. Illustrated by judgments of sister states, § 796. So for fraud, § 797. But not for minor irregularities, §799. 685 § 758.] THE LAW OF EVIDENCE. [book II. III. Awards. Awards have the force of judgments, §800. IV. Judgments of Foreign and Sistek States. Foreign judgments in personam are conclusive, § 801. But impeachable for want of ju- . risdiction or fraud, § 803. Jurisdiction is presumed if pro- ceedings are regular, § 804. Such judgments do not merge debt, § 805. Cannot be disputed collaterally, §806. Confederate judgments, effect of, §807. Judgment of sister states under the federal Constitution are conclusive, §808. But may be avoided on proof of fraud or non- jurisdiction, § 809. V. Administration, Probate, and In- quisition. Letters of administration not conclu- sive proof of death or other recitals, §810. Probate of will not conclusive as to strangers, but otherwise as to par- ties, § 811. Inquisition of lunacy only pnmA fade proof, § 812. VI. Judgment as Protection to Judge. Judgment a conclusive protection to a judge, § 813. VII. Judgments in rem. Admiralty judgments good against all the world, § 814. And so as to judgments in rem, § 815. Scope of judgments in rem, § 816. Decrees as to personal status not nec- essarily ubiquitous, § 817. Judgments in rem do not bind in personam, § 818. VIII. Judgments vievted Evidentially. Averments of record of former suit admissible between same parties, §819. El cords admissible evidentially against strangers, § 820. Record admissible to prove link in title, § 821. Other cases of admissibility, §822. Judgment admissible against stran- gers to prove its legal effect, §823. To prove judgment as such, record must be complete, § 824. Minutes of court admissible to prove action of court, § 825. Docket entries not admissible when full record can be had, § 826. Rule relaxed as to ancient records, § 827. For evidential purposes portions of record may be admitted, § 828. So may depositions and an- swers in chancery, § 828 a. So may bankrupt assignments, §829. But such portions must be complete, §830. Verdict inadmissible without record, §831. Admissibility of part of record does not involve that of all, § 832. Parts of ancient records may be re- ceived, § 833. Officer's returns admissible, § 833 a. Return of nuUa bona admissible to prove insolvency, § 834. Bills of exception and review pro- ceedings admissible, § 836. IX. Records as Admissions. Record may be received when in- volving admission of party against whom it is offered, § 836. A party may be bound by his ad- missions of record, § 837. Pleadings may be received as ad- missions, § 838. But not as evidence as to third parties, § 839. A demurrer may be an admission, §840. Certificate of clerk admissible to prove facts within his range, §841. I. BINDING EFFECT OF JUDGMENTS. § 758. A JUDGMENT 1 (by which is meant the final order or decree of a court of competent jurisdiction on a matter dulj^ sub- ^ Viewed as records, judgments fall dence, but for convenience are here under the head of documentary evi- discussed in a separate chapter. CHAP. X.] JUDGMENTS AND JUDICIAL EECOEDS. [§ 758. mitted for its adjudication) may be offered in evi- judgment dence, in a subsequent suit, for the following pur- "ubj^^^ poses : — i''°''s. 1. As an admission, as which it may he offered hy a stranger against the party making such admission?- It is true, that, strictly, we are not entitled to speak of the judgment of a court as the admission of a party. But when a party asks the judg- ment of a court, and to obtain such judgment makes a particular statement, and the judgment is based on such statement, then the court may be viewed as the agent of the party making the statement, and the judgment of the court may be imputed to the party as an admission. In this sense a penal judgment against a party on the plea of guilty, may be put in evidence against such party, in a civil suit by the party injured ; ^ and a judgment against a party, based on a claim on his part to pos- sess certain goods, can be put in evidence against him, at the suit of a stranger, to show that he admitted possession of such goods .^ 2. As evidence of its own existence, and of its effects, to prove which it is admissible for and against strangers, as well as for and against parties and privies. This relation of judgments will be also hereafter considered more fully.* We may at this point cursorily illustrate it by suits of ejectment, in which judgments forming part of a chain of title are admissible against strangers ; ^ Bonnier (following in this respect or constructively, an opportunity of Savigny) regards the authority of judg- being heard, and disputing the case ments as based on contract : " Cette of the other side. There is certainly importante prdsomption (autoritd de this difference, that estoppels are la chose jugee) se rattachant au fond usually founded on the voluntary act du droit, autant qu'^ la preuve, les of a party; whereas it is a presumptio rfegles, sur I'eftet des jugements, c'est juris that 'judicium redditur in in- k dire sur les personnes et sur les ob- vitum.' Co. Litt. 248 6. Moreover, jets auxquels elle s'applique, reposent when judgment has been obtained for sur les mgmes bases que les rfegles sur a debt, no other action can be main- I'effet des conventions. On I'a souvent tained upon it while the judgment is dit avec raison judiciis contrahimus." in force, ' quia transit in rem judica- Bonnier, Traits des Preuves, § 680. tarn.' Pollex. 641." Mr. Best thus speaks in part to this ^ See infra, §§ 1113-20. point, § 594 : " Conclusive judgments " Infra, §§ 776, 838. are a species of estoppels; seeing that " Infra, §§ 837-8. they are given in a matter in which * See infra, §§ 822-4. the person against whom they are of- ' Infra, § 821. fered as evidence has had, either really 687 § 758.] THE LAW OF EVIDENCE. [BOOK 11. by probate proceedings, ■which are in the same manner admissi- ble to prove the title of the executor and administrator, though not the death of the alleged decedent ; ^ and by suits by M. against his servant S., in which it is admissible for M. to put in evidence against S. a judgment against M., in favor of T., the cause of action by T. against M. being injuries sustained by T. from S.'s negligence ; the judgment, however, being admissible in the suit by M. against S., not to prove S.'s negligence, but simply to prove that T. obtained and collected a judgment against M.^ To aid in inferring the insolvency of L., also, judgments with returns of nulla bona against L. may be put in evidence, even in suits against strangers.^ 3. As to public rights, in respect to which a judgment is con- clusive against all the worlds 4. As to private rights, in respect to which a judgment is con- clusive, between parties and privies, of its essential conditions. This is the distinctive attribute of judgments, and with this, therefore, it is proper that our present discussion should begin. To state the principle more fully, every judgment by a court having jurisdiction is conclusive, between parties and privies, as to such facts in issue, upon which the judgment is on its face conditioned, as were actually decided by the court, unless it should appear that evidence was admitted (or the converse) in the suit where the judgment was entered, which evidence would have been excluded in the suit in which the judgment was offered, or unless from some other reason the proofs in the two suits are necessarily different.^ It is essential, however, to the admissi- bility of the judgment in such case, that it should have been between the parties (or their privies) to the suit in which it is offered ; ^ that it should have been on the merits,^ and that it should have been on a claim actually before the court, or which the party presented in the pleadings.^ Assuming these condi- tions to exist, a judgment in one suit is conclusive in another suit of all the matters which the judgment decides.^ 1 Infra, §§ 810-12. ' Infra, § 783. " See infra, § 823. » Infra, § 788. ' Infra, § 834. » As general rulings to the final posi- * Intra, § 794. tion in the text, see Duchess of Kings- 6 Infra, §§ 786-7. ton's case, 2 How. St. Tr. 588 ; Fer- « Infra, § 760. rers v. Arden, 6 Kep. 7 a; Sopwith v. 688 CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 758. 5. An important distinction, however, is to be noticed between judgments involving the same parties on the same claim as that presented in the second suit, and a judgment involving the same parties upon a different claim. In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to the subsequent action, concluding parties and privies not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose under the issue. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. ^ Of the latter class we may give the following illustrations : A company sues S. for unpaid premium Sop with, 2 Sw. & Tr. 160; Mattingly V. N^-e, 8 Wall. 370; Welsh v. Lindo, 1 Cranch C. C. 508; Janes v. Buz- zard, Hemps t. 240; Cromwell v. Sac, 94 U. S. 351 ; Gunn v. Plant, 94 U. S. 664; Starke v. Starr, 94 U. S. 477; Sevey v. Chick, 13 Me. 141; Dame v. Wingate, 12 N. H. 291; Burton v. Wilkinson, 18 Vt. 186; Perkins v. Walker, 19 Vt. 144; Spencer v. Dearth, 43 Vt. 98; Withington v. Warren, 12 Met. 114; Com. u. Evans, 101 Mass. 25; Lewis v. Lewis, 106 Mass. 309; Stoekwell v. Silloway, 113 Mass. 382; Jamaica v. Chandler, 121 Mass. 1 ; Lane v. Cook, 3 Day, 255 ; An- derson V. Gregory, 43 Conn. 61; Sup- ples V. Cannon, 44 Conn. 424 ; Dewey v. Osburn, 4 Cow. 329; Graves v. Joice, 5 Cow. 261; Lion v. Burtis, 5 Cow. 408; Jackson v. Hoffman, 9 Cow. 271; Gates V. Preston, 41 N. Y. 113; Boe- rum V. Schenck, 41 N. Y. 182; Tay- lor V. Sindall, 34 Md. 38 ; Preston V. Harvey, 2 H. & M. 55 ; Beall v. Pearee, 12 Md. 565; Clagett i-. Bas- terday, 42 Md. 617; Lancaster v. Wil- son, 27 Grat. 624; Covington Co. v. Sargent, 27 Ohio St. 233; Petersine v. VOL. I. 44 Thomas, 28 Ohio St. 596 ; Kelly v. Doulin, 70 III. 378; Haller v. Pine, 8 Blackf. 175; Crosby v. Jeroloman, 37 Ind. 264; Maple v. Beach, 43 Ind. 51; Finney v. Boyd, 26 Wis. 366; Massey V. Lemon, 5 Ired. L. 557; Bushee v. Surles, 77 N. C. 62; Gay v. Stancell, 78 N. C. 369 ; Dukes v. Broughton, 2 Speers, 620 ; Davis v. Murphy, 2 Rich. (S. C.) 560 ; Newton v. White, 53 Ga. 395 ; Brothers v. Higgins, 5 J. J. Marsh. 658 ; Harpending v. Wylie, 13 Bush, 158; Garrett v. Lyle, 27 Ala. 586 ; Cannon v. Brame, 45 Ala. 262 ; Murrill V. Smith, 51 Ala. 301 ; Offutt V. John, 8 Mo. 120; Shelbinau. Parker, 58 Mo. 327; Slocomb v. De Lizardi, 21 La. An. 355; Megerle v. Ashe, 33 Cal. 74 ; Geary v. Simmons, 39 Cal. 224; Harvey v. Ward, 49 Cal. 124; Blake v. McKusick, 10 Minn. 251 ; Ferguson v. Etter, 21 Ark. 160; At- chison R. R. V. Commis. 12 Kans. 127; Girardin v. Dean, 49 Tex. 243. As to how far party is precluded from setting up claims he does not present, see infra, § 788. ' Cromwell v. Sac, 94 U. S. 351. See infra, § 784. 689 § 758.] THE LAW OF EVIDENCE. [BOOK II. and calls. Upon an issue directed for the purpose, S. has a judgment in his favor on the ground that he is not a stockholder. The company being wound up in chancery, S. applies for the repayment of the sum he had paid for premium and calls. In such case, the parties litigating cannot contest the decision that he never was a stockholder, and that he is therefore entitled to recover back the money paid by him by mistake.^ Again, it be- comes an essential condition to recovery in a suit that H. and W. should have been married. Upon trial of this question, the issue is found for the party setting up the marriage. The mar- riage cannot afterwards be disputed between the same parties, or their privies.^ A verdict and judgment in one court on one of two notes, given for the sale of a vessel, when the issue is the fraudulency of the sale, is a bar to a suit on the other note brought in another court.^ A woman, also, who in proceedings in divorce agrees to take a certain sum for alimony, which is approved by the court, and decreed accordingly, is estopped, if the alimony be paid, and there be no fraud, from claiming dower as against her former husband's vendees.* Where a husband, also, brings a libel for divorce, alleging the adultery of his wife, and the libel is dismissed, the act of adultery not being proved, it is held that as to the particular act of adultery attempted to be proved, the judgment of dismissal is conclusive in another suit for divorce.^ A party to a decree of foreclosure, to proceed to another line of illustration, no matter how slight his interest, is afterwards estopped from questioning the title of the purchasers under the decree of sale.^ In distributing, also, the proceeds of real estate, sold under a judgment, the validity of the judgment cannot be mooted.^ For the same reason, parties claiming under a defendant in execution, who was in actual possession of the land at the time of the execution of the judgment, are estopped 1 Allison's case, L. R. 9 Ch. Ap. 24; See Miltimore v. Miltimore, 40 Penn. Stephen's Ev. § 41. St. 151. 2 R. V. Hartington, 4 E. & B. 780. « Lewis v. Lewis, 106 Mass. 309. See Flitters v. Allfrey, L. R. 10 C. P. « Jackson v. Hoffman, 9 Cow. 271. 29. See BuUerfield's Appeal, 77 Penn. St. ' Gardner ,v. Buckbee, 3 Cow. 120. 197. * Hopper -0. Hopper, 19 111. 219. ' Malone's Appeal, 79 Penn. St. 481. 690 CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 761. from denying the title of the purchaser in the execution.^ To criminal, as well as to civil judgmeats, does the rule apply.^ § 759. As a general rule, " where the parties and the cause of action are the same, the primd facie presumption is that ^^^^^ ;„ the questions presented for decision were the same, un- such casea. less it appears that the merits of the controversy were not in^ volved in the issue ; the rule in such a case being, that where every objection urged in the second trial was open to the party, within the legitimate scope of the pleadings, in the first suit, and might have been presented at that trial, the matter must be con- sidered as having passed in rem judicatam, and the former judg- ment in such a case is conclusive between the parties." ^ § 760. On the other hand, a judgment inter partes cannot estop persons not directly parties or privies. As to i-i. u i u 4. But is con- strangers, it may be used, as we have seen, to prove elusive relevant facts which can be only shown by record ; but parli^and to conclude strangers, unless it be as to public rights, P""^'- or in rem, a judgment is ordinarily inadmissible.* § 761. Of the principle now before us we may cite as an illus- 1 Arnot V. Beadle, Hill & Den. Sup. 181. 2 Infra, § 783. » Clifford, J., Gould v. R. R. 91 U. S. (1 Otto) 533; citing Outram v. Morewood, 3 East, 358 ; Greathead v. Bromley, 7 T. R. 455. See Cromwell V. Sac, 94 U. S. 351. * Petrie v. Nuttall, 11 Exch. 569; Priestley v. Fernie, 3 H. & C. 977; Aspden v. Nixon, 4 How. 467 ; Deery V. Cray, 5 Wall. 795 ; Kearney v. Denn, 15 Wall. 51 ; Corcoran v. Canal Co. 94 U. S. 741 ; Lamb J'. Lamb, 13 Bank. Reg. 17 ; Lawrence v. Haynes, 5 N. H. 33; King v. Chase, 15 N. H. 9 ; Buttrick v. Holden, 8 Cusli. 233 ; Tracy v. Merrill, 103 Mass. 280 ; Rice V. Coolidge, 121 Mass. 393; Bradford V. Bradford, 5 Conn. 127; Branch i". Doane, 17 Conn. 402; Matthews v. Duryee, 45 Barb. 69 ; Bissell v. Kel- logg, 65 N. Y. 432; Chew v. Brumagim, 21 N. J. Eq. 520; Rose v. Klinger, 8 Watts & S. 178; Winter v. Newell, 49 Penn. St. 507; Kramph v. Hatz, 52 Penn. St. 525 ; West Hickory Co. i'. Reed, 80 Penn. St. 38; Dement v. Stonestreet, 1 Md. 116; Chesapeake Co. u. Gittings, 36 Md. 276; Frazier i>. Frazier, 2 Leigh, 642; Duncan v. Helms, 8 Grat. 68; Thomas v. Bowman, 30 111. 84; Rogers v. Higgins, 57 111. 244; Rammelsberg v. Mitchell, 29 Ohio St. 22 ; Chicago R. R. v. Packet Co. 70 111. 217; Harvey v. Osborn, 55 Ind. 535; Cox V. Strode, 4 Bibb, 4 ; Grif- fin V, Richardson, 11 Ired. L. 439; Howell V. Gordon, 40 Ga. 302; Me- Lemore v. Nuckolls, 1 Ala. Sel. Ca. 591 ; Degelos v. Woolfolk, 21 La. An. 706; Fallon v. Murray, 16 Mo. 168; Cravens v. Jameson, 59 Mo. 69 ; Mid- dleton 1). R. R. 62 Mo. 579 ; Wood v. Ensel, 63 Mo. 193; Plielan v. Gard- ner, 43 Cal. 306 ; Karr v. Parks, 44 Cal. 46 ; Chant v. Reynolds, 49 Cal. 213. Infra, § 820. 691 § 761.J THE LAW OF EVIDENCE. [book II. tration recent New York rulings, to the effect that the trustees Judgment °^ ^ manufacturing corporation, organized under the against a corpora- tion not act to authorize the formation of corporations for manu- facturing and other purposes, are neither parties nor admSle privies to a judgment against the company ; and that stOTkhoid- consequently, when for any reason they become liable ^^^- to pay the debts of the company, and an action is brought against them to enforce that liability, proof of the re- covery of judgment against the company is neither conclusive nor primd facie evidence of the debt as against the trustees.^ And it has subsequently been broadly held in the same state, that a judgment against a company is not even primd facie evidence in a subsequent action against a stockholder for the recovery of the same debt.^ 1 Miller v. White, 50 N. Y. 137. See opinion of Peckham, J., criticis- ing Marcy v. Clark, 17 Mass. 330, as given under a special statute. 2 McMahon v. Macy, 51 N. Y. 162. The following opinion gives a lucid recapitulation of the New York au- thorities on this vexed topic : — "Whether a judgment against a company is, in a separate action against a stockholder for the recovery of the same debt, evidence of the debt sued upon, presents a question which has been much litigated in this state, and yet never decided in any of its courts of last resort. As early as 1822, Spencer, Ch. J., as a member of the court for the correction of er- rors, without alluding to the fact that the liability of stockholders, when sued separately, was remote, and de- pendent upon the contingency of the ability of the creditor to collect his debt by execution against the com- pany, or the relation of the stock- holder, when thus sued, held, that as the debt against the company was also a debt against the stockholder individ- ually, and because the company itself was concluded by the judgment, the stockholder, when sued alone, was 692 equally concluded. Slee v. Bloom, 20 Johnson, 669, 684. This opinion was afterward referred to with apparent approbation in Moss v. Oakley, 2 Hill, 265, 267. The decision of the question not being regarded as necessary to the decision of the cases to which I have referred, but simply as the individual expression of a single judge in each case, was again presented in Moss v. McCuUough, 5 Hill, 131 ; in which, after a full review of all the cases, and a discussion of the principle involved by Justices Cowen and Bronson, the court held. Nelson, J., concurring, that a judgment against the company was not, as against a stockholder when sued separately for the same debt, even prima facie evidence of the debt sued upon. The case went back and was retried, and upon the same facts appearing, the plaintiff was nonsuited. Then, after the change wrought in our judicial system by the Constitution of 1846, the same case was brought be- fore the general term of the Fourth Judicial District, where a motion for a new trial prevailed ; the court hold- ing, among other things, that the judg- ment against the company was, in a separate action against the stockhold- CHAP. X.] JUDGMENTS: WHEN BINDING. [§ 762. § 762. The Roman law is emphatic to the same effect. No judgment is a proof which is res inter alios acta. " In- By Roman ter alios res gestas aliis non posse praejudicium facere, J^^JIg no saepe constitutum est. Unde licet quosdem de hered- proof when ■*■ ■»■ */ res mter ibus ejus, quem debitorem tuum fuisse significas, sol- alios acta. yisse commemores, tamen ceteri non alias ad solutionem urgen- tur, nisi debitum probatum fuerit." ^ A party in favor of whom a kindred issue has been determined cannot, if the issue be res inter alios acta, even introduce as evidence the judg- ment in such case, though he is not precluded from introduc- ing, if relevant, the evidence on which such judgment was. rested.^ The Roman law recognizes an exception, however, ers, prima facie evidence of the debt sued upon. 7 Barbour, 279, 296. "Whether a new trial was had, or what was the ultimate disposition of the case, does not appear from the reports. The question continuing to be unsettled, came up in the Court of Appeals in March, 1860. Belmont v. Coleman, 21 N. Y. 96. So far as ap- pears fi'om the report of that case, seven only of the eight judges, of which it was then composed, were present. Other questions were in- volved. Bacon, J., who delivered the opinion of the court, held that the judgment against the company was, in a suit against a stockholder for the same debt, prima facie evidence of the debt. In this view two of his as- sociates concurred, and four ' refused to commit themselves to the doctrine that a judgment against the corporation was even prima facie evidence against a stockholder ' (Ibid. 102), and the case was disposed of upon other grounds. In July, 1861, the question was again presented to the Supreme Court, of which Justice Bacon was at the time the presiding justice; and it was then, by the unanimous judgment of the court, held that a judgment against the company was not e\en prima facie evidence in a suit against a stockholder for the recovery of the same debt Strong V. Wheaton, 38 Barb. 616, 621. If, therefore, the defendant is not sustained by the weight of authority, he is certainly not so prejudiced by adjudged cases as to prevent the ques- tion presented from being considered as if it was now presented for the first time If the judgment is even prima, facie evidence, not having been made so by statute, I am unable to understand why it is not, like a judg- ment in any other case, conclusive. But assume it to be prima facie evi- dence of what it contains; leave the defendant to show that the plaintiff was not, in law, entitled to such re- covery; and the judgment itself, as stated in the report of the referee, being for an inseparable part of its amount for labor and services, not per- formed by the plaintiff himself, fur- nished, as the Court of Appeals have held (Atchison v. Troy & Boston R. R. Co. 5 Abbott Sp. T. Rep. 829), a valid objection to the recovery, had the de- fendant had his day in court to make it, and hence the judgment should be reversed." Gray, C, McMahon v. Macy, 51 N. Y. 162, 165. 1 L. 1, C. Inter alios acta vel jud. aliis. 2 Weber, Heffter's ed. 32. 693 § 763.] THE LAW OF EVIDENCE. [book II. Parties comprise all who wlien sum- moned are , <(,ompetent to come in and talce part in case. in cases where status is litigated. A person in whose favor a bond fide litigation as to status is intelligently adjudicated may avail himself of this judgment in a suit against others in which the same question is involved.^ By the same law, a judgment binds all those claiming under the original parties, as well as the parties themselves.^ § 763. It has been questioned in this country whether a party is more than primd facie affected by a judgment taken against him in a suit in which he is summoned but not brought into court.^ Where, however, a party is bound upon due summons to come in, and has full oppor- tunity to do so, then the judgment is a bar, even when the persons having this opportunity are not parties ap- pearing on the record ; * though as to the latter the bar is limited to the legality of the claim in general.^ Nor can it be objected that the former action involved other parties, when the person making the objection was one of such parties, though in connection with other persons.^ The same burden is imposed on all persons intervening in a suit.'' But while a ver- dict and conviction for non-repair of a highway estops the con- victed party or parish from disputing subsequently liability to repair the highway,® a conviction for obstructing a highway does not estop the convicted person from maintaining trespass against a prosecutor in respect of the same highway; for the proceedings are not between the same parties in respect of the same right.^ It is true that a more extended liability was at one time main- tained in the English courts. Thus in a case subsequently much 1 L. 25, D. de statu hominum ; L. Harvie v. Turner, 46 Mo. 444 ; Love 1, § fin.; L. 2 ; L. 3, per D. de agnos. efc alend. See infra, § 817. '^ Weber, Heffter'a ed. 34. « See infra, § 781. * Bigelow on Estoppel, 2d ed. 47 Smith V. Crompton, 8 B. & Ad. 407 Littleton v. Richardson, 34 N. H. 179 Boston V. Worthington, 10 Gray, 49G Chamberlain v. Preble, 11 Allen, 370 Swartwout «. Payne, 19 Johns. 294 Stoddard v. Thompson, 31 Iowa, 80 Shelton !'. Brown, 22 La. An. 162 Guidry v. Jeanneaud, 26 La. An. 684 694 V. Gibson, 2 Fla. 598; though see Chi- cago, &c. R. R. 0. Packet Co. 70 111. 217. 5 See infra, § 781, and Cromwell v. Sac, there cited. ° Larum v. Wilmer, 85 Iowa, 244. ' Markliam v. O'Connor, 23 La. An. 688. ' R. t'. Haughton, 1 E. & B. 501. » Petrie v. Nuttall, 11 Ex. 569; Powell's Evidence, 4th ed. 233. See Mclntyre v. Storey, 80 111. 127. CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 764. discussed, the plaintiff, in an action against a servant of C, for penalties for fishing in the plaintiff's fishery, rested exclusively on a verdict and judgment obtained by him against another ser- vant of C, in an action for a trespass committed on the same fishery. The servants, in both actions, justified by setting up their master's right to the fishery. The right to the fishery, therefore, was in both cases at issue. The judge trying the case admitted the record, and ruled it to be conclusive. A new trial, however, was granted, on the ground that the judgment, though primd facie proof, was not conclusive ;^ and the case has since been cited as authority for the position that when the parties are really the same a judgment may be put in evidence.^ But we cannot hold, in a case whei'e A. and B., servants of C, are suc- cessively sued for trespasses committed by them, in exercise of an alleged right of their common master, that they are really so identical that the one must necessarily have the same defence as the other, and that the appearance of the one is to be therefore regarded as constructively that of the other. Hence it is we can well understand how Lord EUenborough should have repudiated the idea that a judgment in a suit against one servant should be received to affect the trial of a suit against another.^ § 764. The test is, the right and opportunity as well as duty to come in and take a part in the case in which the ,j,^^j, .^ judgment is entered. Where there is no such oppor- opportu- ■> ° . . . nitv and tunity (e. ff. where there is only constructive service as duty to by publication,* or where the defendant was extra-terri- torially summoned,^ or where a person sui Juris is made a party to a suit without his authority or knowledge), then a judgment so obtained may be set aside,® and if collusively obtained, may be collaterally impeached.'' ^ Kinnersley v. Orpe, 2 Dougl. 514. * Neff w. Pennoyei", 3 Sawyer, 274; 2 Simpson v. Pickering, 1 C, M. & Pennoyer v. Neff, 95 U. S. 714. See E. 529. infra, §818. 8 Outram v. Morewood, 3 East, 366. ' Infra, §§ 803, 815. To the same effect, see King v. Chase, ' See Turner v. Jenkins, 79 111. 15 N. H. 9; and see Branch v. Doane, 228; Harris v. Lester, 80 III. 307. 17 Conn. 402; Case w. Reeve, 14 John. ' See infra, §§ 795-7; Bayley v. 81 1 Alexander v. Taylor, 4 Denio, Buckland, 1 Exch. li. 1 ; Thacher w. 302. For comments on Outram v. D'Aguilar, 1 1 Exch. R. 436 ; Reynolds Morewood, see Cromwell v. Sac, 94 v. Howell, L. R. 8 Q. B. 398; Hubbart U. S. 351. V. Phillips, 13 M. & W. 703; Beekley 695 § 766.] THK LAW OF EVIDENCE. [book II. § 765. The estoppel of a judgment, so it has been held in Judgment England, is not technically a bar unless pleaded ; ^ and spedaTy''^ this limitation has been sometimes approved in the pleaded. United States.2 At the same time, as is stated by Sir J. Stephen,^ « if a judgment is not pleaded by way of estoppel, it is as between parties and privies a relevant fact, whenever any matter which was or might have been decided in the action in which it is given is in issue, or relevant to the issue, in any subsequent action. Such a judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel."* § 766. Where a party is sued merely as the representative of another, and that other has notice to come in, the proceedings V. Newcomb, 24 N. H. 359 ; Jackson u. Stewart, 6 Johns. 34 ; Hayes v. Shattuck, 21 Cal. 51; Bank Com. v. Bank, 6 Paige, 597. 1 Vooght V. Winch, 2 Barn. & A. 602; Best's Ev. § 594. " Smith's Leading Cases, Am. ed., note to Duchess of Kingston's ease ; Brazill V. Isham, 2 Ker. 9 ; Denny v. Smith, 18 N. Y. 567 ; Krekeler v. Bit- ter, 62 N. Y. 374. ' Evidence, 51. « Citing Vooght v. Winch, 2 B. & A. 662; Feversham v. Emerson, 11 Ex. 391; Whittaker v. Jackson, 2 H. & C. 926. See, also. Clink v. Thurs- ton, 47 Cal. 21. To the same effect is a ruling of the New York Court of Appeals in 1876 : " The record of the Superior Court was not offered or received in evidence in bar of the action, but merely as evi- dence of the fact in issue. Had it been offered as constituting a bar, or as an estoppel to the action, it would have been inadmissible, not having been pleaded as a defence. Brazill v. Isham, 2 Ker. 9, per Denio, J. ; Denny V. Smith, 18 N. Y. 567. But as evi- dence of a fact in issue it was com- petent, although not pleaded like any 696 other evidence, whether documentary or oral. A party is never required to disclose his evidence by his pleadings. The evidence was competent to dis- prove a material allegation of the complaint traversed by the answer. As evidence it was conclusive as an adjudication of the same fact in an ac- tion between the same parties. Wright V. Butler, 6 Wend. 284 ; Lawrence v. Hunt, 10 Ibid. 81 ; Embury u. Conner, 3 Comst. 511 ; Gardner v. Buckbee, 8 Cow. 120. The court properly held that ' the matter adjudicated between the parties in another action might be given in evidence.' " Allen, J., Kre- keler V. Bitter, 62 N. Y. 374 ; S. P., Marston v. Swett, 66 N. Y. 206. In a prior case, it is said : " It has been held in some cases that a judgment is only pnmd facie when it is not pleaded where it might have been ; that the party has thus waived it as an estoppel. The better opinion is the other way, in reason and authority. 1 Greenl. Ev. 522-538, inclusive, and cases cited. In the case at bar, the judgment is pleaded. Bank v. Nias, 4 Eng. Law & Eq. 252." Peckham, J., Miller v. White, 50 N. Y. 143. CHAP. X.j JUDGMENTS : WHEN BINDING. [§ 767. being in good faith, then the principal is bound by the judgment against the representative. Thus a judgment (whether a judg- by default or by verdict) against the casual ejector, ^^pst in the old proceedings in eiectment, was admissible representa- ^ . . . 'i^^ binds in any subsequent suit, involving virtually the same principal, parties and interests.^ So a cestui que trust may be bound, primd facie, by a judgment against his trustee.^ On the same reasoning the principal in whose right a defendant in replevin has made cognizance has been held bound by the judgment in such suit.® But a landlord is not concluded by judgment in ejectment against his tenants, he not having notice of the suit, though the judgment is primd facie proof;* and a judgment against a representative, as a representative, does not ordinarily preclude him from disputing the matters decided, when sued or suing in his own right.^ § 767. An infant, suing by his guardian or prochein ami/, is subjected to the same incidents as if he were suing in inf^^t his own right : and if he brings a second suit on the barred by ° . o . ^ proceed- same subject matter, he is barred by. a judgment en- ingsinhis tered in the first. In such case it is not necessary to show that the first suit was instituted with his knowledge, even though he himself had reached almost to the period of majority.^ A judgment against an infant, without a guardian, being primd facie valid, though voidable, has been held to be not open to collateral impeachment.'^ 1 Taylor's Evidence, § 1500, citing 6 Fenwick v. Thornton, Moody & Doe V. Huddart, 2 C, M. & R. 316 ; M. 51 ; Legge v. Edmonds, 25 L. J. Wright V. Tatham, 1 A. & E. 19 ; Ch. 125; Wheeler v. Kucknaan, 1 Matthew v. Osborne, 13 C. B. 916 ; Kobt. (N. Y.) 408 ; Lander v. Arno, Doe V. Challis, 17 Q. B. 166. See 65 Me. 26 ; but see Peddicord «. Hill, Steele v. Lineberger, 59 Penn. St. 4 T. B. Mon. 370. See infra, § 1207. 308; Southern Bank v. Humphreys, e Morgan <^. Thorne, 7 M. & W. 47 111. 227. 400. See infra, § 1208. * Rogers ». Haines, 3 Greenl. 362; 7 Marshall v. Fisher, 1 Jones (N. Van Vechten v. Terry, 2 Johns. Ch. C.) L. Ill ; Hadley v. Pickett, 25 Ind. 197; Willink v. Canal Co.-3 Green's 450; Blake v. Douglass, 27 Ind. 416 ; Ch. 377 ; Johnson v. Robertson, 31 Porter v. Robinson, 3 A. K. Marsh. Md. 476. See infra, § 1207. 253 ; Beeler v. Bullitt, 3 A. K. Marsh. 8 Hancock v. Welsh, 1 Stark. R. 280 ; though see Whitney v. Porter, 347. 23 111. 445; and see comments in * Bridgeport Ins. Co. v. Wilson, 34 Bigelow on Estoppel, 2d ed. 49. N. Y. 275; Taylor v. Barnes, 69 N. Y. 430. 697 § 770.] THE LAW OF EVIDENCE. [book II. Judgment as to pred- ecessor binds suc- cessor. § 768. A judgment against a married woman, having no stat- Judgment utory power to sue or be sued, cannot, it is said, preju- Xrried dice her, when such judgment is on a contract.^ It is Ts'u^r otherwise as to judgments on torts.^ It is clear that nullity. the record of a judgment against a husband is not ad- missible against the wife, under a bill filed in the name of hus- band and wife, concerning her separate estate.^ § 769. We will elsewhere notice * the cases in which parties are affected by the admissions of those whose estates they take. Whoever takes an estate, takes it cum onere ; and whatever binds the predecessor in title binds the successor.^ Thus an executor or administra- tor is bound by a judgment against his decedent as to person- alty.^ A judgment against a grantor or mortgagor binds his grantee or mortgagee ; '' and an heir is bound or privileged by a judgment against or for his ancestor.^ But a proceeding for or against a tenant for life cannot thus affect the remainder- man ; ^ nor can proceedings against a distributee affect an exec- utor ; ^^ nor can those for or against a lessee affect the landlord. ^^ And an assignee in bankruptcy is not bound by a collusive judg- ment against his assignor. ^^ § 770. In the relation of guarantor and principal, of co-surety, of principal and deputy, though a judgment against the JN Ot SO H.S J /» • • 1 to principal one \s pnmd facie evidence against the other, when re- sure y. ^g^j.-j^g ^^ ^]^g subject of the contract of indemnity, ^ 1 Morse v. Toppan, 3 Gray, 411; Griffith V. Clarke, 18 Md. 457; though see Hartman v. Ogborn, 54 Peun. St. 120, and Bigelow on Estoppel, 2d ed. 48. See infra, §§ 1214-5. 2 Ibid.; Baxter v. Dear, 24 Tex. 17. » Michan v. Wyatt, 21 Ala. 813. * Infra, § 1156. 6 Tilton V. Cofield, 93 U. S. 163; Adams v. Barnes, 1 7 Mass. 365 ; Shu- felt u. Shufelt, 9 Paige, 137; Varick V. Edwards, 11 Paige, 289; Nat. Bank V. Sprague, 21 N. J. Eq. 530; Griffith V. Griffith, 5 Harr. (Del.) 5. See Hopkins v. Connel, 2 Tenn. Ch. 323. ' R. V. Hebden, Andr. 389; Steele 698 u. Lineberger, 59 Penn. St. 308; Mani- gault V. Deas, 1 Bailey Eq. 283. ' Doe V. Derby, 1 A. & E. 790 R. V. Blakemore, 2 Den. C. C. 410 Winslow V. Grindal, 2 Greenl. 64 Adams v. Barnes, 17 Mass. 365. ' Lock V. Norborne, 3 Mod. 141 ; Wbittaker v. Jackson, 2 H. & C. 926; Gavin V. Graydon, 41 Ind. 559. Taylor's Evidence, § 1505. 1" Jolinson V. Longmire, 39 Ala. 143. ^' Wenman v. Mackenzie, 5 E. & B. 447 ; Rees ti. Walters, 3 M. & W. 527. " Humes v. Scruggs, 94 U. S. 22. " Rapelye v. Prince, 4 Hill (N. CHAP. X.] JUDGMENTS: WHEN BINDING. [§ 771. there is no such privity as to prevent, even at common law, the setting up fraud or collusion as against such judgment.^ In the absence, however, of proof of fraud or collusion, a judgment against the principal is conclusive evidence of the debt, both against him and the surety, in all cases in which the principal is to be regarded as the agent of the surety as to the particular transaction, and in which the contract of indemnity may be con- strued to extend to the conduct of the suit in which the judg- ment was entered.^ Where the indemnity does not so far ex- tend, then a judgment against the principal, whenever the prin- cipal is not a party to such judgment, is, as to the merits, res inter alios acta, so far as concerns the principal.^ A judgment against the principal, we may add, is always admissible in a suit against the surety, as showing compulsory payment by principal.* § 771. A judgment against an executor, if it he primd facie, is not conclusive evidence in a suit against the heir, to subject to Y.), 119; Roberts v. Wire Co. 46 Md. 374. Oa the question how far admissions of principal bind surety, see infra, § 1212. 1 Pritchard v. Hitchcock, 6 Man. & Gr. l.'il; Hill v. Morse, 61 Me. 541; Heard v. Lodge, 20 Pick. 53; Bigelow on Estoppel (2d ed.), 66-68, 81. See Beall v. Beck, 3 Har. & M. 242; Giltinan v. Strong, 64 Penn. St. 242; Thomas d. Hubbell, 15 N. Y. 404; Decker v. Judson, 16 N. Y. 439. See Troy v. Troy R. R. 3 Lan- sing, 270. Whether the principal is bound, unless he has notice of the suit, depends upon the nature of the bond of indemnity. In some states such no- tice is necessary. Freeman on Judg- ments, § 180, citing Cox v. Thomas, 9 Grat. 323; State v. Colerick, 3 Hamm. 487; Lucas v. Governor, 6 Ala. 826. 2 Drummond v. Prestman, 12 Wheat. 516 ; Stovall v. Banks, 10 Wall. 583 ; Towie v. Towle, 46 N. H. 432 ; Parkhurst v. Sumner, 23 Vt. 538; Tracy v. Goodwin, 5 Allen, 409; Way V. Lewis, 115 Mass. 26; Cutter V. Evans, Ibid. 27 ; Church v. Baker, 18 N. Y. 463; Fay !'. Ames, 44 Barb. 327; Evans v. Com. 8 Watts, 398; Holley V. Acre, 23 Ala. 603. So has it been held in suits upon administration bonds. Boyd v. Cald- well, 4 Rich. 117; State u. Coste, 36 Mo. 437. Where the bond does not " stipu- late for the result of a litigation to which the underwriter is not a party," then the judgment is res inter alios acta. Thomas v. Hubbell, 15 N. Y. 405 ; 35 N. Y. 120. See, as to similar rule in respect to admissions, infra, § 1212. » King V. Norman, 4 C. B. 884 Douglass V. Rowland, 24 Wend. 85 Jackson v. Griswold, 4 Hill, 522 Beall V. Beck, 3 Har. & McH. 242 McKeller o. Rowell, 4 Hawks, 34 Bradley v. Spencer, 15 Ga. 578 Lartique v. Baldwin, 5 Martin, 193 though see Res. u. Davis, 3 Yeates, 128; Jacobs v. Hill, 2 Leigh, 393, assigning prima facie force to such judgments. '' Infra, § 823. 699 § T72.] THE LAW OF EVIDENCE. [book II. the judgment lands in the heir's hands.^ So in an administration ^ suit, a judgment recovered against executors, who were judgment also trustees of the real estate, has been held to be only executor primd fade evidence of a debt against the persons in- '° ^"' terested in the real estate.^ It is otherwise as to real estate, when the question of title is directly in issue in the first suit.^ As to personalty, such judgments cannot be attacked by legatees unless on the ground of fraud or mistake.* § 772. If A. and B. make a joint (as distinguished from a Judgment joint and several) contract with C, and B. is sued to againstone judgment, the judgment, though without satisfaction, tractor a is a bar to a suit against A. by C ; ^ the reason being bar to suit ^, ^ ,, ..,..,...,,,, ^ against the that the cause of action being indivisible, the lower se- curity is merged in the higher. It is otherwise, however, when the contract may be construed as joint and several.^ Nor is a judgment in favor of a joint con- 1 Moss V. MoCullough, 5 Hill, 131 Wood V. Byington, 2 Barb. Cli. 392 Sharpe v. Freeman, 45 N. Y. 802 see S. C. 2 Lansing, 171; Sergeant V. Ewing, 36 Penn. St. 156. See Thayer v. Hollis, 3 Met. (Mass.) 369 ; Bracken v. Neill, 15 Tex. 109. " Harvey v. Wild, L. R. 14 Eq. 438; 41 L. J. Ch. 698. Infra, §§ 1210-1. ' Meeks v. Vassault, 3 Sawyer, 206. * Castellaw v. Guilmartin, 54 Ga. 299. « King V. Hoare, 13 M. & W. 494 Higgins, ex parte, 3 De Gex & J. 33 Ward V. Johnson, 13 Mass. 148 Gibbs W.Bryant, 1 Pick. 118; Rob- ertson V. Smith, 18 Johns. 459; Brown V. Johnson, 13 Grat. 644; Clinton Bank v. Hart, 5 Ohio St. 33 ; Pfau V. Lorain, 1 Cincin. 73; though see Davies v. Lowndes, 1 Bing. N. C. 607; Brinsmead v. Harrison, L. R. 6 C. P. 584. = U. S. V. Price, 9 How. (U. S.) 83, as explaining Sheehy v. Mande- ville, 6 Cranch, 253. A judgment upon a joint and several note in favor of one surety will not 700 be a bar to another suit against an- other surety upon such note, unless it is shown that the first judgment was rendered upon a defence which would be an extinguishment of the cause of action; or unless the grounds of de- fence set up in both cases are shown to be identical. Hill v. Morse, 61 Me. 541 ; Parkhurst v. Sumner, 23 Vt. 538; Tebbets v. Tilton, 31 N. H. 286 ; Bennett v. Holmes, 1 Dev. & B. Law, 486. Mr. Taylor, however, says, that where a plaintiff has joint and sev- eral remedies against several persons, and has obtained judgment against one, he will certainly be estopped from proceeding against the others, if the damages have been received; and he will probably be estopped, even though the judgment has not been aatis- fied ; for if the law were otherwise, a plaintiff might recover damages twice over for the same cause of ac- tion, which would be repugnant to natural justice. Citing Buckland v. Johnson, 15 Com. B. 145 ; Phillips v. Ward, 2 H. & C. 717; Bird v. Ran- CHAP. X.] JUDGMENTS: WHEN BINDING. [§ T73. tractor a bar to a suit against the other contractor, unless upon a plea operating as a bar to both suits.^ Satisfaction from one joint, or joint and several debtor, is of course a bar to a suit against his fellow debtors. § 773. Torts, when committed by several persons jointly are from their nature several as well as joint ; and hence juagment a judgment against one tort-feasor, on a joint tort, can- against one , ■" joint tort- not be regarded as a bar to a suit against another tort- feasor no feasor.^ So judgment against one trespasser will not against preclude a joint trespasser from setting up a defence *"'" ^'^' which was negatived by the first judgment.^ The English courts, held that a judge at chambers might stay the proceedings in the other ac- tion without costs. Taylor's Evidence, § 1503. 1 Phillips V. Ward, 2 H. & C. 717. " Lovejoy v. Murray, 3 Wall. 1 ; Stone V. Dickinson, 5 Allen, 29; El- dall, 3 Burr. 1345, 1353; 1 W. Bl. 373, 387, S. C; recognized in Cooper V. Shepherd, 3 Com. B. 272; King V. Hoare, 13 M. & W. 496, 505, per Parke, B.; Lechmere v. Fletcher, 1 C. & M. 623, 634, 635, per Bayley, B. He further argues that, if an action on a joint contract or trespass be brought against two defendants, it seems that one of them may plead in abatement the pendency of another action against him for the same cause. E. of Bedford v. Bp. of Exeter, Hob. 137; Rawlinson v. Oriel, 1 Shower, 75 ; Carth. 96 ; Henry o. Goldney, 15 M. & W. 494, per Alderson, B. But that if A. be sued on a contract, the pendency of an action against B., for the same cause, cannot be pleaded in abatement, for in such a case A. is not twice vexed; and his proper course, therefore, is either to plead the non- joinder of B., if B. is within the juris- diction, or to appeal to the equitable authority of the court for a stay of proceedings. Henry v. Goldney, 15 M. & W. 594, overruling a dictum of Ld. EUenborough, in Boyce v. Doug- las, 1 Camp. 60. See Newton v. Blunt, 3 Com. B. 675, where two actions hav- ing been brought against two joint contractors, in respect of the same demand, and the debt and costs in one action having been paid, it was liott V. Hayden, 104 Mass. 180; Liv- ingston V. Bishop, 1 Johns. 290; At- lantic Dock Co. V. Mayor, 53 N. Y. 64; United Society v. Underwood, 11 Bush, 265. In Gunther ti. Lee, 45 Md. 60, where three persons were sued as joint tort- feasors, the plaintiff, during the suit, executed to one of them a release, under seal, reciting that this was not intended to prejudice the plaintifl''8 claim against the other defendants. The release was executed in consid- eration of five hundred dollars, and in terms released and discharged Lee from all claims, of every description, for damages accruing or accrued by reason of the wrongs complained of, the plaintiff thereby acknowledging himself " to be fully paid and satis- fied for all and singular the trespasses complained of" by him in the suit then pending against the defendants jointly. The court held that this re- lease extinguished the claim against the other tort-feasors. ' Williams v. Sutton, 43 Cal. 65. 701 § 775.J THE LAW OF EVIDENCE. [BOOK II. however, still maintain the rule that when a suit is brought against one of two joint tort-feasors, a judgment against the de- fendant is a bar to a suit against the other tort-feasor, for the same cause, although the first judgment remains unsatisfied.^ " If that doctrine," says Willes, J., speaking of the rule that a judgment in such case extinguishes the claim as to the other tort-feasor, " is to be disturbed, and we are to adopt the decisions of the American courts, we can only be called upon to do so when we are taught by a court of error that Lord Wensleydale was wrong. We entertain the highest respect for the American jur- ists, and are always ready to receive instruction from their deci- sions upon questions of general law. But the question, whether a plaintiff is to be allowed to maintain a second action against one whom he ought to have sued jointly with another in a former action, is purely one of procedure, and on such a question we are bound by the authorities in our own courts." ^ § 774. What has just been said applies equally to the action of equitable tribunals, under systems where chancery ■will not re- remedies are applied by independent courts. When laterally once a party has submitted a claim to a court of law, of courts ' ^^^ judgment has been entered against him as to such °*'*^' claim, the question of his liability will not be after- wards collaterally opened in chancery. ^ Of course it is other- wise where the judgment is entered in the court of law from its inability to apply equitable remedies, or from other technical incapacity.* § 775. So, where a Court of Chancery has jurisdiction, its de- Nor court cree is conclusive evidence, in a court of law, as between decr*^s'of parties and privies, of all such facts as were directly in chancery, iggug^ ^nd were necessary to the adjudication of the case.^ It is otherwise as to the dismissal of a bill, partaking of 1 Broome o. Wooton, Yelv. 67 ; * Arnold v. Grimes, 2 Iowa, 1 ; Brinsmead v. Harrison, L. R. 6 C. P. Hobbs v. Duff, 23 Cal. 596. 684 ; aff. King v. Hoare, 13 M. & W. ' Nations v. Johnson, 24 How. (U. 494. See Ellis t). Bitzer, 3 Ohio, 89. S.) 195 ; Judson u. Lake, 3 Day, 318; " Brinsmead v. Harrison, L. R. 6 C. Coit t;. Tracy, 8 Conn. 268; Gould v. P- 58^- Stanton, 16 Conn. 12; Foster v. The » Hendrickson v. Norcross, 4 C. E. Richard Busteed, 100 Mass. 409 Green, N. J. 417; Baldwin r.McCrea, Winans t>. Dunham, 5 Wend. 47 38 Geo. 660. House v. Wiles, 12 Gill & J. 338 702 CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 776. the nature of a nonsuit,^ though if the bill be dismissed on the merits it is a bar.^ Jurisdiction, however, here, as in other cases, must appear on the record, to justify the admission of the decree,^ and the issue must be the same.* § 776. The parties in a criminal prosecution being necessarily- different from those in a civil suit, and the obiects of „ . . , ' ■' Criminal the two forms of action and the redress they afford and civil being essentially distmct, it stands to reason that tionscan- a judgment in a criminal suit cannot be used in a contior civil suit, to establish the facts on which such judg- **"'' °^^"- ment rests.^ Thus, a judgment of conviction on an indictment for forging a bill of exchange, though conclusive as to the prisoner being a convicted felon, is not only not conclusive, but is not even admissible evidence of the forging, in an action on the bill.^ In a suit by a widow against a party for killing her husband, the record of the acquittal of such party on an indictment for murder of the husband is irrelevant ; '^ nor can a judgment in a civil suit be used to control a criminal ptosecution.^ Though in an action for malicious prosecution the record of acquittal is admissible to show the determination of the prosecution and the plaintiff's ac- quittal,^ it is irrelevant to prove innocence.^** It may be further Dorsey v. Gassaway, 2 Har. & J. 402; Nuttall, 11 Exc. 569; Mead v. Boston, Pleasants v. Clements, 2 Leigh, 474; 3 Cush. 404; Betts u. New Hartford, Morgan v. Patton, 4 T. B. Mon. 453; 25 Conn. 185 ; Hutchinson v. Bank, Troutman v. Vernon, 1 Bush, 482; 41 Penn. St. 42; Corbley v. Wilson, McLemore v. Nuckolls, 37 Ala. 662; 71 111. 209; Beausoliel v. Brown, 15 Goddard v. Long, 15 Miss. 783; La. An. 543. See remarks of De Grey, though see Rice v. Lowan, 2 Bibb, C. J., in the Duchess of Kingston's 149; Mitchell v. Mitchell, 40 Ga. 11; case, 2 Smith's L. C. 680. And see, Dayton v. Mintzer, 22 Minn. 393. as differing from text, Moses v. Brad- ^ Wright V. Dekline, Pet. C. C. 199. ley, 3 Whart. 272. 2 Infra, § 782; Pelton v. Mott, 11 « Per Blackburn, J., Castrique u. Vt. 148. Borrowscale v. Tuttle, 5 Al- Imrie, L. R. 4 H. L. 434. len, 377. See Case v. R. R. 2 Woods, ' Cottingham v. Weeks, 54 Ga. 275. 238. 8 R. „. Duchess of Kingston, 20 • Dorsey v. Gassaway, 2 Har. & J. How. St. Tr. 471 ; R. v. Fontaine 402 ; Adams v. Tiernan, 5 Dana, 394. Moreau, 11 Q. B. 1028. * Russell V. Place, 94 U. S. 606. a Arundell v. Tregono, Yelv. 116 ; Infra, § 784. Legatt v. Tollervey, 14 East, 301 ; 6 Jones V. White, 1 Str. 68; Hel- Caddy v. Barlow, 1 Man. & Ry. 277 sham V. Blackwood, 11 C. B. Ill; Basebe v. Matthews, L. R. 2 C. P Justice V. Gosling, 12 C. B. 39; Smith 684, V. Rummens, 1 Camp. 9 ; Petrie v. w Purcell v. Macnamara, 9 East, 703 § 777.] THE LAW OF EVIDENCE. [BOOK II. noticed that, on a petition by a wife for divorce, the record of her husband's conviction of an assault on her is evidence to prove the fact of the_ conviction, but not the fact of the assault.^ In an action or indictment for escape, though it is necessary, if the per- son escaped was a convict, to put in evidence his conviction, though this does not prove guilt.^ In fine, wherever the pro- ceeding is res inter alios acta, it is inadmissible. Thus on the trial of a suit on a life policy, the issue being as to whether the deceased died when engaged in a known violation of the law, the record of the acquittal of a person indicted for killing the de- ceased is inadmissible.^ The effect of a plea of guilty in a criminal suit, when used as an admission in a civil suit, is hereafter noticed.* § 777. The reasons why a judgment in a civil case should bind Reasons '^ subsequent proceedings between the same parties on for this. ^jjQ game cause of action do not apply, so it is generally argued, when a criminal judgment is sought to be afterwards used in civil litigation. In the first place, while the parties to a civil suit, by appearing, accept the arbitrament of the court, and thereby enter into obligation to be bound thereby ; in a criminal prosecution the defendant is regarded as attending by compul- sion, and as entering into no such obligation. In the second place, the parties to a civil suit cannot be identical with those to a criminal suit, for in a criminal suit it is the sovereign who, nominally at least, prosecutes. Hence, in the Roman law, as well as in our own, a prior criminal judgment is not conclusive as to a subsequent civil suit for the same subject matter,* though such prior criminal judgment, in cases where the prosecution was 861; 1 Camp. 199; Skidmore v. M. 388; R. ?;. Browne, 3 C. & P. 672; Bricker, 77 111. 164. R. v. lies, B. N. P. 243; R. v. Stoveld, We will hereafter see that judg- 6 C. & P. 489 ; Brown i>. State, 47 ments may be put in evidence to prove, Ala. 47. See Mead v. Boston, 3 Cush. as between the parties, facts inciden- 404. tal to a party's case. See Com. v. Mc- s R. y. Shaw, R. & R. 526 ; R. u. Pike, 3 Cush. 81 ; Com. v. Evans, Waters, 12 Cox C. C. 390; Davies v. 101 Mass. 25. Infra, § 819. Lowndes, 1 Bing. N. C. 607; Com. v. 1 Quinn v. Quinn, 16 Vt. 426. See, Miller, 2 Ashmead, 61; Kyle v. State, to same effect, Bradley v. Bradley, 2 10 Ala. 226. Fairf. 367 ; Woodruff v. Woodruff, 2 » Cluff' v. Ins. Co. 99 Mass. 317. Pairf. 475. For analogous rulings * Infra, §§ 783-886. in perjury see R. v. Christian, C. &' e L. 3. Cod. de ord. jud. iii. 8. 704 CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 778. private (and these were very numerous), was admissible to prove, primd facie, the facts it averred.^ The canon law took a still stronger position, fey that law, all criminal prosecutions were regarded as conducted by the sov- ereign authority ; and the prohationes, to justify conviction, were to be urgentiores, luce meridiana el,ariores, a rule frequently an- nounced, probably as a merciful check on the frivolousness, the corruption, and the cruelty by which state prosecutions were in the dark ages so constantly stained. Nor was this all. In civil suits prevailed the artificial scholastic valuation of testimony, by which certain presumptions had attached to them absolute proba- tive force ; in criminal prosecutions these coercive prescriptions were withdrawn, and the judge was to determine the question of guilt by the natural processes of logic applied to the evidence in the case. Hence it was that the canon law resolutely refused to permit a prior civil judgment against the defendant to be pro- duced against him on a criminal trial for the same offence.^ With equal resolution, though for another reason, it was held, that a prior criminal judgment could not be used in a civil suit. Only in cases where the parties agree to accept the arbitrament of a court can they be estopped by its judgment. But the de- fendant in a criminal suit never agrees, nor can he be permitted to agree, to accept the arbitrament of the court by which he is tried. Hence a criminal judgment cannot be used against a party in a subsequent civil suit.^ § 778. It is not necessary that a judgment, to be a bar, should be that of a court of common law or equity. The judg- Rulings of ment of a military court, or a court-martial, if competent ^uj.'g'y and constitutional, may likewise establish res' judicata.^ final. But a federal court-martial judgment cannot bar a state prosecu- tion for the state aspect of the offence; nor a state judgment the proceedings of a federal court-martial.^ 1 Langenbeck, 176; Endemann, 115. 65; Woolley v. U. S. 20 Law Rep. '^ Durant, II. 2. De prob. § 3, nr. 631 ; U. S. v. Reiter, 4 Am. Law Reg. 20 ; De confess. § 3, nr. 20 ; Bartol, in N. S. 634; HefEerman v. Porter, 6 L. 2, § 1, vi. bon. et rapt, xlvii. 8; Cold. 391. Masc. c. 34, 149, nr. IV; 351, nr. 4; ^ Levy v. State, 6 Ind. 281; State Endemann, 116. i). Bergman, 6 Oregon, 341; State v. s Ibid. Rankin, 4 Cold. (Tenn.) 145. See 3 * Dynes v. Hoover, 20 How. U. S. Op. Atty. Gen. 750 ; 6 lb. 413. VOL. I. 45 705 § 780.] THE LAW OF EVIDENCE. [BOOK II. § 779. By our own law, as well as by the Roman, a party can- not, bv varyine: the mode of presenting his case, evade Variation ' "' . „ , • • i ,i ^ j -j j of form the operation of the principle that a cause once decidea not a'fect°° cannot be relitigated between the parties.^ Thus a principle, judgment for the defendant in an action of deceit, for a false statement as to the soundness of a horse, is a bar to an ac- tion of contract on a false warranty, and so of the converse.^ So a judgment on a plea of set-off is a bar to a suit on the claim so interposed.^ So a party against whom judgment has been en- tered, when suing on a particular claim, cannot afterwards resus- citate such claim by suing it as a set-off to a subsequent action by the original defendant.* On the other hand, it has been ruled that an action for money had and received can be maintained against a defendant in whose favor an action of trover, by the same plaintiff, on the same cause of action, had been previously determined ; the reason being that the evidence to sustain trover must possess characteristics not necessary to that required to sus- tain the suit for money had and received.^ Nor, for analogous reasons, is a judgment of divorce conclusive, on the question of abandonment, on a subsequent suit for alimony.® Nor does § '^^^- ^^^ is the force of the rule broken by the fact Variation ^^^^ there is a nominal, if there be no substantial, dif- of parties, f erence between the parties.'^ 1 Hancock ». Welsh, 1 Stark. K. Brown v. The Mayor, 66 N. Y. 385 ; 347; Outram v. Morewood, 3 East, Barker v. Cleveland, 19 Mich. 230; 346; Hitchin v. Campbell, 2 W. Bl. Kreuchi v. Dehler, 50 111. 176 ; Cole v. 827 ; 3 Wils. 304 ; Whittaker v. Jack- Favorite, 69 111. 457 ; Owens v. Raw- son, 2 H. & C. 926 ; Routledge v. His- leigh, 6 Bush, 656 ; Harbin v. Roberts, lop, 2 E. & E. 549 ; Wilkinson v. 33 Ga. 45 ; Perry v. Lewis, 49 Miss. Kirby, 15 C. B. 430; Huffer v. Allen, 443; Walker v. Fuller, 29 Ark. 448; L. R. 2 Ex. 15; Pearse v. Coaker, L. Taylor v. Castle, 42 Cal. 867. R. 4 Ex. 92; Lawrence «. Vernon, 8 » Ware v. Percival, 61 Me. 891; Sumn. 20; Case v. R. R. 2 Woods, Norton v. Doherty, 3 Gray, 372. 236 ; Ware v. Percival, 61 Me. 391 ; » Eastmure v. Laws, 5 Bing. N. C. Bunker v. Tufts, 57 Me. 417 ; Gray v. 444. See infra, §§ 787-8. Pingry, 17 Vt. 419; Spencer u. Dearth, * Jones v. Richardson, 5 Met. 43 Vt. 98; Lindsey v. Danville, 46 (Mass.) 247. Vt. 144 ; Livermore v. Herschel, 8 « Hitchin v. Campbell, 3 Wils. 240, Pick. 33; Merriam v. Woodcock, 104 304; Buckland v. Johnson, 15 C. B. Mass. 326 ; Blackinton v. Blackinton, 146. 113 Mass. 231 ; Betts v. Starr, 5 Conn. » Wahle v. Wahle, 71 111. 510. 550 ; Gardner v. Buckbee, 3 Cow. 120; ' Mondel v. Steel, 8 M. & W. 858; Collins V. Bennett, 46 N. Y. 490 ; Thompson v. Roberts, 24 How. U. S. 706 CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 781. § 781. To make a judgment a bar it is necessary (except in criminal cases where the verdict of acquittal without judgment judgment is final) that judgment should be finally en- S e'lf-''* tered on the merits.^ Hence a nonsuit does not bar '^""edon the merits further action ; ^ nor does an interlocutory judgment by to be a bar. default,^ though it is otherwise as to a final judgment by default,* which concludes so far as concerns the general fact of the legality of the claim.^ A reversed judgment is of course a nullity for the 233 ; Livermore v. Herschel, 3 Pick. 33; Belden v. Seymour, 8 Conn. 304; Lawrence v. Hunt, 10 Wend. 80 ; Ra- pelye v. Prince, 4 Hill (N. Y.), 119; Calhoun v. Dunning, 4 Dall. 120 ; Fol- lansbee v. Walker, 74 Penn. St. 306 ; Barker v. Cleveland, 19 Mich. 230; Davenport v. Barnett, 51 Ind. 329 ; Stoddard v. Thompson, 31 Iowa, 80 ; Lowry v. McMurtry, Sneed (Ky-), 251 ; Cartwright v. Carpenter, 8 Miss. 328. See Conger u. Chilcote, 42 Iowa, 18 ; Bettys v. R. R. 43 Iowa, 602. 1 Durant v. Essex Co. 7 Wall. 107 ; Hull i;. Blake, 13 Mass. 155 ; Morton V. Sweetzer, 12 Allen, 134 ; Sweigart V. Berk, 8 Serg. & R. 305; Kaufl'elt v. Leber, 9 W. & S. 63; Haws v. Tier- nan, 53 Penn. St. 192; Gurena v. See- ley, 66 111. 500 ; McFarlaneu. Cushman 21 Wis. 401 ; Wells u. Moore, 49 Mo. 229; Houston v. Musgrove, 35 Tex. 594. 2 R. V. St. Anne, Westminster, 2 Sess. Cas. 529 ; Homer v. Brown, 16 How. U. S. 354 ; Derby v. Jacques, 1 Cliff. 425 ; Greely v. Smith, 1 Woodb. & M. 181 ; Knox u. Waldoborough, 5 Greenl. 185 ; Morgan v. Bliss, 2 Mass. Ill; Com. V. Tuck, 20 Pick. 356; Jones V. Howard, 3 Allen, 223 ; Marsh t-. Hammond, 11 Allen, 483 ; People V. Vilas, 36 N. Y. 460; Wheeler V. Ruckman, 51 N. Y. 391 ; Wortham V. Com. 5 Rand. 669 ; Holland v. Hatch, 15 Ohio. St. 468. Nor does the fact that the judgment was entered by the court, on an agreed state of facts, make a bar. Homer v. Brown, 16 How. U. S. 354; Morgan v. Bliss, 2 Mass. 113. Nor does a compulsory nonsuit. Howes v. Austin, 35 111. 395; Wood v. Ramond, 42 Cal. 644. ' Whitaker v. Branson, 2 Paine, 209. * Miner v. Walter, 17 Mass. 237 ; Newton v. Hook, 48 N. Y. 676 ; Mail- house u. Inloes, 18 Md. 328; Gatlin u. Walton, 66 N. C. 374 ; Brummagim V. Ambrose, 48 Cal. 366. Supra, § 763. ^ " A judgment by default only ad- mits for the purpose of the action the legality of the demand or claim in suit ; it does not make the allegations of the declaration or complaint evi- dence in an action upon a different claim. The declaration may contain different statements of the cause of action in different counts. It could hardly be pretended that a judgment by default in such a case would make the several statements evidence in any other proceeding. Boyleau v. Rutlin, 2 Exch. 665,, 681, and Hughes v. Alexander,, 5 Duer, 493." Field, J., Cromwell v. Sac,. 94 U. S. 351. See Hewlett V. Tarte, 10 C. B. N. S. 813. A judgment by default in summary proceedings by a landlord for non-pay- ment ot rent,, while conclusive as to the right to recover rent, is not con- clusive as to the amount due. Jarvis V. Driggs, 69 N. Y. 143. See Brown u. The Mayor, 66 N. Y.. 385. 107 § 782.] THE LAW OF EVIDENCE. [book II. purposes here specified,^ and so of a vacated or revoked order of court ; 2 though it is otherwise with a j udgment as to which pro- ceedings in error are still pending.^ A verdict without judgment is inadmissible for this purpose,* and so is an unconfirmed mas- ter's report.^ So when on a suit upon an award, judgment was entered for want of an affidavit of defence, and then on affidavit that defendant did not owe plaintiff any sum whatever, the judg- ment was opened, without restrictions or conditions, and the case was tried on pleas which struck at the root of the award ; it was ruled that the record of the judgment was inadmissible.^ § 782. If the judgment is entered against a party because of Purely * defect in his pleadings, this does not preclude him judgment f^om bringing another suit ; nor can a judgment en- no bar. tered on account of variance so operate. The judg- ment, to operate as res adjudicata, must be on the merits.^ Thus 1 R. V. Drury, 3 C. & Kir. 193; Wood V. Jackson, 8 Wend. 9. 2 Taylor's Ev. § 1530. » Wright V. Smith, 10 Ad. & E. 255; Scott V. Pilkington, 2 B. & S. 11 ; Chase v. Jefferson, 1 Houst. (Del.) 257. * See first note to this section. 5 Nashw. Hunt, 116 Mass. 237. See, generally, Hoover r. Mitchell, 25 Grat. 887 ; Verhein v. Strickbein, 57 Mo. 326 ; Merritt v. Campbell, 47 Cal. 542. » Collins V. Freas, 77 Penn. St. 493. " The first assignment is to the ad- mission in evidence of the record of the judgment previously taken in the case. The judgment had been opened generally. No conditions or restric- tions had been imposed on the de- fendant therein. The pleas subse- quently entered struck at the root of the award on which the action was founded, and denied the existence of any indebtedness ; the trial then was to be had as if no judgment had been entered. The same burden of proof was imposed on the plaintiff. It gave to the defendant the same defences that were open to him at the commence- ment of the suit. Leeds ». Bender, 6 708 W. & S. 315; Dennison v. Leech, 9 Barr, 164; Carson et al. v. Coulter et al. 2 Grant, 121 ; West v. Irvin, 24 P. F. Smith, 258. The record was there- fore inadmissible. The language of the court in their charge to the jury in re- lation to it was further calculated to prejudice the case." Mercur, J., Col- lins V. Freas, 77 Penn. St. 497. ' Lampen v. Kedgewin, 1 Mod. 207; Hitchin V. Campbell, 2 W. Bl. 779- 827; E. u. Sheen, 2 C. & P. 634 ; R. V. Clark, 1 Br. & B. 473; R. <,. Van- dercomb, 2 Leach, 708 ; Gould v. R. R. 91 U. S. 526 ; People v. Barrett, 1 Johns. R. 66; McDonald v. Rainor, 8 Johns. R. 442; Vaughan w. O'Brien, 89 How. (N. Y.) Pr. 515; Stowell v. Chamberlain, 60 N. Y. 272; Heikes V. Com. 26 Penn. St. 513 ; Com. v. Somerville, 1 Va. Ca. 164; Hoover v. Mitchell, 25 Grat. 387 ; Kendal ti. Tal- bot, 1 A. K. Marsh. 321 ; Thomas v. Hite, 6 B. Mon. 590; Whitley v. State, 38 Ga. 50 ; Waller v. State, 40 Ala. 825; Wells v. Moore, 49 Mo. 229; Verhein v. Strickbein, 57 Mo. 826; Shelbina v. Parker, 58 Mo. 327. As to criminal cases, see Whart. Cr. Law, tit. " Pleading." CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 782. a judgment is no bar which is impotent by reason of a mistake in the name of a party,i or because the suit was brought too soon.^ So a judgment on a preliminary issue (e. g. a plea in abatement) is no impediment to bringing a new suit on the merits,^ though it concludes the parties as to the special matter determined in the preliminary issue.* So a judgment on de- murrer, based on formal defects, is no bar to a suit on , , an amended complaint, correctly setting forth a good on de- cause of action.^ It is otherwise, however, with a de- murrer to the merits, disposing of the whole cause of action.® " If judgment is rendered for defendant on demurrer to the dec- laration, or to a material pleading in chief, the plaintiff can never after maintain against the same defendant, or his privies, any similar or concurrent action for the same grounds as were disclosed in the first declarations." ^ Where, however, the plain- tiff " fails on a demurrer to his first action from the omission of an essential allegation in his declaration which is fully supplied in the second suit, the judgment in the first suit is no bar to the second, although the respective actions were instituted to enforce the same right." ^ But the dismissal of a bill in equity is a bar, when the dismissal is on the merits.^ And so is the Digni;,gai dismissal of a complaint at law after all the evidence is "* bill. 1 Wixom u. Stephens, 17 Mich. 518. 15 Iowa, 30 ; Crumpton v. State, 43 ^ Clark V. Young, 1 Cranch, 181 ; Ala. 31; Rawls v. State, 8 S. & M. Perkins v. Parker, 10 Allen, 22; 599 ; Harding u. State, 22 Ark. 210. Woodbridge v. Banning, 14 Ohio St. « Wilson v. Ray, 24 Ind. 166 ; Kea- 328; University v. Maultsby, 2 Jones ter v. Hock, 16 Iowa, 23; Perkins v. (N. C.) Eq. 241. Moore, 16 Ala. 17; Terry v. Ham- ' Whart. Crim. Law, tit. "Abate- monds, 47 Cal. 32. ment;" Clark v. Young, 1 Cranch, ' Clififord, J., Gould w. K. R. 91 U. 181 ; Griffin v. Seymour, 15 Iowa, 30 ; S. (1 Otto) 533. See infra, §§ 838 et Birch V. Funk, 2 Mete. (Ky.) 544. See seq. infra, §§ UH el seq. s Clifford, J., Gould v. R. R. 91 * Whart. Crim. Law, tit. "Abate- U. S. (1 Otto) 534; citing Aurora ment; " Gray v. Hodge, 50 Ga. 262. City v. West, 7 Wall. 90 ; Gilman v. As to admissions, see infra, §§ 838 Rives, 10 Pet. 298; Richardson v. el seq. Boston, 24 How. 188. * R. V. Birmingham, 3 Q. B. 223; For demurrers as admissions, see Gilman v. Rives, 10 Pet. 298 ; Aurora infra, § 840. City V. West, 7 Wall. 90 ; Com. v. » Borrowscale v. Tuttle, 5 Allen, Goddard, 13 Mass. 456; Chapin v. 377. See Lewis k. Lewis, 106 Mass. Curtis, 23 Conn. 388; Fosters. Com. 309. Supra, § 775. 8 Watts & S. 77; Griffin v. Seymour, 709 § 784.] THE LAW OF EVIDENCE. [BOOK n. closed and both parties have rested.^ It is otherwise as to dis- missal on the plaintiff's motion, before publication of the testi- mony.2 § 783. In England we have a ruling of the House of Lords to the effect that a judgment entered by compromise can- by consent not constitute res judicata.^ In this country, however, the tendency is to hold that the fact that consent enters into the composition of a judgment does not render it, if there be no fraud, the less effective as a bar.* The same conclusion has been reached as to judgments by confession,^ though in England a judgment by default, as we have seen, does not preclude a party from afterwards proving a set-off he might have pleaded to the first suit.® A judgment founded on a plea of guilty, or of nolo contendere, it has been held, is in like manner conclusive in a subsequent criminal prosecution.' In civil suits, however, nolo contendere is not such an admission of guilt as to be evidence against the party pleading it.^ But a plea of guilty may, in a civil suit involving the same subject matter, be used as an admission.^ Thus the plaintiff, in an action for assault, may show by the record a conviction of the defendant for the same assault, he having pleaded guilty .^^ § 784. We have already observed the fundamental distinction Point once between a judgment for the same cause of action, when settled ju- «; T . i i . i diciaiiynot Ottered as an estoppel, and a judgment for a different 1 Wheeler v. Kuckman, 51 N. Y. Barb. 116; Dean w.Thatcher, 3 Vroom, 881- 476. Infra, § 1113. See other cases 2 Walden v. Bodley, 14 Pet. 160; in Bigelow on Estoppel (2d ed.), 18. Badger J,. Badger, 1 Cliff. 241. See » Supra, § 781 ; Hewlett u. Tarte, 10 Ogsbury „. Lafarge, 2 N. Y. 114. C. B. N. S. 813 ; Wilcox v. Balger, 6 « Jenkins v. Robertson, L. R. 1 H. Ohio, 406 ; Taylor v. Yarborough, 13 L. Sc. Ap. 117. Grat. 183. And so as to a libel for ^ Chamberlain u. Preble, 11 Allen, divorce. Thurston ». Thurston, 99 370. See Bigelow on Estoppel (2d Mass. 39. ed.), citing further Brown v. Sprague, ' State v. Lang, 63 Me. 220. 5 Denio, 545 ; Fletcher v. Holmes, 25 ' Com. v. Horton, 9 Pick. 206 ; Ind. 458 ; Bank v. Hopkins, 2 Dana, Com. «. Tilton, 8 Met. 232. 395 ; Dunn v. Pipes, 20 La. An. 276. » See infra, § 883 ; R. v. Fontaine See, as adopting the English rule, Moreau, 11 Q. B. 1083; Bradley v. Wadhams v. Gay, 73 III. 415. Bradley, 2 Fairf. 867 ; Woodruff v. » Leonard v. Simpson, 2 Bing. N. C. Woodruff, 2 Fairf. 475 ; Clark v. Ir- 176; 2 Scott, 355 ; Neusbaum v. Keim, win, 9 Ham. 131. 24 N. Y. 325 ; Sheldon w. Stryker, 84 " Green v. Bedell, 48 N. H. 546. 710 CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 784. cause of action, in which it is alleged that the point liti- *» be im- ° J^ _ peached gated in the second suit was incidentally determined ; coliater- and we have noticed some of the illustrations of the last class. 1 In reference to this class it has been well stated,^ that a point once so adjudicated, " however erroneous the adjudi- cation, may be relied on as an estoppel in any subsequent col- lateral suit, in the same or any other court at law, or in chancery, or in admiralty, when either party, or the privies of either party, allege anything inconsistent with it ; and this, too, whether the subsequent suit is upon the same or a different cause of action." ^ It makes no matter whether such point is presented singly or concurrently with others. A party who is defeated by judgment entered against him on a particular claim cannot revive such claim by tacking it to others as the basis of a fresh suit.* So a judgment in an action to recover interest due upon a note may be conclusive, on the issue of usury, in a suit brought on the principal of the note.* On the other hand, a party suing on an interest coupon, and defeated because he did not prove that he was a purchaser for value before maturity of the bond to which the coupon was attached, is not thereby barred when suing upon 1 Supra, § 758; Cromwell v. Sac, Martin v. McLean, 49 Mo. 361; Win- 94 U. S. 351. ston v. Affalter, 49 Mo. 263; Gar- 2 Bigelow on Estoppel, 2d ed. 451. wood v. Garwood, 29 Cal. 514; Nor- ' To this are cited, Aurora City w. ton w. Harding, 3 Oreg. 361. To same West, 7 Wall. 82 ; Tioga R. Co. v. effect, see Cromwell v. Sac, 94 U. S. BlossburgR. R. 20 Wall. 137; Lynch 351; Blackinton w. Blackinton, 113 V. Swanton, 53 Me. 100 ; Bunker v. Mass. 231 ; Marston v. Swett, 66 N. Tufts, 57 Me. 417; Smith v. Smith, Y. 206; Brown v. Mayor, 66 N. Y. 50 N. H. 212 ; Smith v. Way, 9 Allen, 385 ; State v. Ramsburg, 43 Md. 325 ; 472; Lewis v. Lewis, 106 Mass. 309; Howell v. Goodrich, 69 111. 556 ; Mc- Deraarest v. Darg, 32 N. Y. 281 ; Hen- Daniel v. Fox, 77 111. 343 ; Bettys v. drickson v. Norcross, 4 C. E. Green, R. R. 43 Iowa, 602 ; Baugh v. Baugh, 417; Sergeant v. Ewing, 36 Penn. St. 39 Mich. 59. That a record imports 156; Babcock v. Camp, 12 Ohio St. verity, see infra, § 982. Of course 11; French u. Howard. 14 Ind. 455; the judgment must he relevant. Mid- Eimer v. Richards, 25 111. 289 ; Doyle dleton v. R. R. 62 Mo. 579. V. Reilly, 18 Iowa, 108 ; Heath v. * Finney v. Finney, L. R. 1 P. & Frackleton, 20 Wis. 320; Amory v. D. 483. Amory, 26 Wis. 152 ; Jordan v. Fair- « Newton v. Hook, 48 N. Y. 676. cloth, 34 Ga. 47; Baldwin v. McCrea, See Louis. Bank v. Nav. Co. 3 La. 38 Ga. 650; Bobe v. Stickney, 36 Ala. An. 312. 482; Stewart v. Dent, 24 Mo. Ill; 711 § 785.] THE LAW OF EVIDENCE. [book II. a subsequent coupon, he making proof that he was such a pur- chaser.i We have just noticed cases in which the rule is, that judgments relative to the same object cannot be re- ceived. It is now to be observed, that even when the parties are the same and the judgment primd fade ad- missible, it is always open to a party against whom such judgment is offered to show, by parol or otherwise, that notwith- standing this apparent identity there is a difference in the points submitted in the two cases, and that the judgment in the former case does not coyer a subject propounded in the latter. The issue thus raised as to identity is one of fact, which the jury must de- terraine.2 So the substantial as well as formal identity may be §785. Parol evi- dence ad- missible to identify or to distin' guisli. 1 Cromwell v. Sac, 94 U. S. 351. See Lander v. Arno, 65 Me. 26 ; Mc- Intyre w. Story, 80 111. 127. See in- fra, § 792. Kussell V. Place, 94 U. S. 606, was an action at law for damages for the infringement of a patent for an alleged new and useful improvement in the preparation of leather, which patent contained two claims: one for the use of fat liquor generally in the treat- ment of leather; and the other for a process of treating bark-tanned lamb or sheepskin, by means of a compound composed and applied in a particular manner; the declaration alleged, as the infringement complained of, that the defendants had made and used the invention, and caused others to make and use it, without averring whether such infringement consisted in the simple use of fat liquor in the treatment of leather or in the use of the process specified. It was held by the Supreme Court of the U. S. that the judgment recovered in the action does not estop the defendant, in a suit in equity by the same plaintiff for an injunction and an accounting for gains and profits, from contesting the valid- ity of the patent. It not appearing by the record, and not being shown by 712 extrinsic evidence, upon which claim the recovery was had ; as the valid- ity of the patent was not necessarily involved, except with respect to the claim which was the basis of the re- covery, as a patent may be valid as to a particular claim, and invalid as to others. 2 Infra, § 986 ; supra, § 64 ; Ei- cardo v. Garcias, 12 CI. & F. 368 ; R. V. Bird, 2 Den. C. C. 94 ; 5 Cox C. C. 20 ; Hunter v. Stewart, 4 De Gex, F. & J. 168; Langmead D. Maple, 18 C. B. N. S. 255 ; Moss v. Anglo-Egypt. Nav. Co. L. R. 1 Ch. Ap. 108; Wemyss v. Hopkins, 23 W. R. 691 ; Beere v. Fleming, 13 Ir. C. L. 606 ; Dolphin V. Aylward, 16 Ir. Eq. R. N. S. 583 ; Aspden v. Nixon, 4 How, 467; Miles v. Caldwell, 2 "Wall. 35; Goodrich v. City, 5 Wall. 566; Packet Co. V. Sickles, 55 Wall. 580; Russell V. Place, 94 U. S. 606; Perkins v. Walker, 19 Vt. 144; Aiken v. Peck, 22 Vt. 255; Post w. Smilie, 48 Vt. 185 ; Piper v. Richardson, 9 Met. (Mass.) 155; Harding v. Hale, 2 Gray, 399; Com. i^. Dillane, 11 Gray, 67; Bodwarth v. Phelon, 13 Gray, 413 ; Burlen v. Shannon, 99 Mass. 200 ; Leonard v. Whitney, 109 Mass. 265 ; Com. V. Sutherland, 109 Mass. 342 ; CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 786. shown by parol.-'^ But a point not at issue by the record cannot be shown by parol to have been decided by the case.^ § 786. A judgment is an estoppel, it should be remembered, on the principle ne bis idem. When a party has a chance judgment of trying his case on the merits, he is concluded by a ""' ^? ^^ . -, . , . " toppel judgment against him ; he cannot hold back, and, if when evi- things go against him, begin afresh. But how if he has essariiy no chance of trying his case on the merits ? How is it ^'^^'^®°'- if the first trial is before a court that is prevented, by its rules, from receiving a material part of the evidence the party has to offer ? Is a second court, restricted by no such rules, bound by Hood V. Hood, 110 Mass. 483; Boyn- ton V. Morrill, 111 Mass. 4; Hanham V. Sherman, 114 Mass. 19 ; Smith v. Sherwood, 4 Conn. 276; Supples v. Cannon, 44 Conn. 424 ; Stowell v. Chamberlain, 3 Thomp. & C. 374; Richmond v. Hays, 3 N. J. L. 492 ; Davisson v. Gardner, 10 N. J. L. 289; McDermott v. Hoffman, 70 Penn. St. 31 ; FoUansbee v. Walker, 74 Penn. St. 306; Barger v. Hobbs, 67 111. 692; Bottorf V. Wise, 53 Ind. 32 ; Gist v. McJenkin, 1 Speers, 157 ; Bradley v. Johnson, 49 Ga. 412 ; Newton v. White, 47 Ga. 400 ; Kake v. Pope, 7 Ala. 161; Chamberlain i-. Gaillard, 26 Ala. 504 ; Robinson v. Lane, 22 Miss. 161 ; Clemens v. Murphy, 40 Mo. 121; Sweet v. Maupin, 65 Mo. 65. For other cases see § 986, and Freeman on Judgments, §§ 297, 298. " It is a very familar principle that a judgment concludes the parties only as to the grounds covered by it, and the facts necessary to uphold it. Cow. & Hill's Notes, vol. 3, p. 826. And, although a decree in express terms professes to affirm a particular fact, yet, if such fact was immaterial, and the controversy did not turn upon it, the decree will not conclude the par- ties in reference to that fact. Coit v. Tracy, 8 Conn. 268 ; Manny w. Har- ris, 2 Johns. 24." Bacon, J., The People V. Johnson, 38 N. Y. 65. 1 Hughes V. Jones, 2 Md. Ch. 178. See fully infra, § 986. " The fifth error assigned is to the admission of the testimony of James L. Gwinn, a witness called for the plaintiff below for the purpose of proving that the location claimed by the plaintiff on a former trial in the United States Court in 1857, the rec- ord of which was in evidence, was the same as alleged in the present trial. That former suit was clearly admissi- ble as persuasive evidence in this. Koons V. Hartman, 7 Watts, 20 ; Lev- ers V. Van Buskirk, 4 Barr, 309. At all events it was in evidence, and we are not now dealing with the question of its admissibility. When the record of a former suit is in evidence, it is settled that a party may give parol evidence of what transpired on a former trial, in order to show that it was the same subject matter, and the same title which was then passed upon. Brindle v. Mcllvaine, 10 S. & R. 282 ; Haak v. Breidenbach, 3 Ibid. 204 ; Carmony v. Hoober, 5 Barr, 305. This of course is not to contradict the record but to explain it." Sharswood, J., McDermott v. Hoffman, 70 Penn. St. 52. ^ Manny v. Harris, 2 Johns. R. 24 ; Jackson v. Wood, 8 Wend. 27. 713 § 787.] THE LAW OF EVIDENCE. [BOOK II. the judgment of the first ? ^ In England the converse of this prin- ciple is illustrated by those cases in which, under the old law, the wife could not, in answer to her husband's suit for divorce, set up her own divorce from him, when the evidence in the latter case was obtained on the wife's evidence, which -was inadmissi- ble in the first.^ But this exception should not be admitted in favor of a plaintiff who, having elected to bring a suit in a ju- risdiction where the evidence is restricted, and is worsted and judgment entered against him, attempts to open the question in another jurisdiction, under more liberal rules of evidence.' On the other hand, where a suit for trespass quare clausum fregit is brought, and the defendant pleads liberum tenementum, and has a verdict, and a suit is brought for another trespass on the same property, if it appear that in the first case the evidence went to a portion of the land to which the defendant could justify, and in the second case to a portion of the land to which he could not justify, the former judgment is no bar.* It has also been held that a judgment in an action for obstructing a brook is not con- clusive in a subsequent action between the same parties as to the plaintiff's right to maintain the dam, though he set up in the former action a license from the plaintiff's grantor.^ Again, a judgment on an action of trespass quare clausum fregit is no bar to a writ of right ; ^ a judgment for the defendant on a contract, in which a promise and a breach was averred, is no bar to an ac- tion on a tort, based on the defendant's fraudulent representa- tion ;'^ nor a judgment for the plaintiff's interest on a debt, singly sued for by him, necessarily a bar to a second suit for the principal.^ § 787. In criminal issues, where the plea of autrefois acquit Whenevi- is interposed, it is laid down that when the evidence second case hecessary to support the second indictment would have 1 See Gould v. R. R. 91 U. S. 526; 386. See Dunckle v. Wiles, 5 Denio, Myers v. D'Meza, 2 Woods, 160; 296; Connery u. Brooke, 73 Penn St. Cade V. MoFarland, 48 Vt. 47. 80. " Stoate V. Stoate, 2 Sw. & Tr. 223; « Newell v. Carpenter, 118 Mass. though see Sopwith v. Sopwith, 2 Sw. 411. &Tr. 160. e Arnold v. Arnold, 17 Pick. 4 ; 8 Maloney v. Horan, 12 Abb. (N. though see Calhoun v. Dunning, 4 y.) Pr. N. S. 289. See, generally, Dall. 120. Terry v. Hammonds, 47 Cal. 32; Wil- ' Norton v. Huxley, 13 Gray, 285. liams V. Walker, 62 111. 517. « Morgan v. Rowlands, L. R. 7 Q. * Smith V. Royston, 8 M. & W. B. 493, Blackburn, J. 714 CHAP. X.] JUDGMENTS : WHEN BINDING. . [§ 788. been sufficient to procure a legal conviction on the first, necessarily . •*■ ^ . enough to then the plea is generally good, but not otherwise.^ secure a The same test may be applied with equal accuracy to in first, civil practice.^ Thus a verdict for the defendant in judgment trover, on a plea of not guilty, will be no defence to " * '^*''' him on an action for money had and received for the price of the goods, when in the latter case the evidence is that the goods were sold by the plaintiff's order, on which evidence a verdict in the former case for the plaintiff could not have been had.^ So a judgment in an action for false imprisonment is no bar to an action for malicious prosecution.* § 788. It may be that a party, having an opportunity of intro- ducing a particular claim when suing on a general ac- party not count, omits to do so. In such case, it has been held fr'i^m "suing that he is not precluded from bringing up such claim in ^"^'J*™ ^^ a second suit, even though in the first suit he agreed to present, submit " all matters in difference " to an award ;^ and so, a for- tiori, where the plaintiff, without any such agreement, in the for- mer suit presented only part of his claims against the defendant, though these claims might have been joined in such former suit.® On the other hand, it has been argued by high authority that " where a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the court 1 Whart. Cr. Law, 7tli ed. § 551, S. 454; Bagot v. Williams, 3 B. & and authorities there cited. C. 240; Cromwell v. Sac, 94 U. S. 2 Taylor's Ev. §1512; Hitchin v. 351; Post v. Smilie, 48 Vt. 185; Campbell, 2 W. Bl. 831; Hunter v. Wood v. Curl, 4 Met. (Mass.) 203; Stewart, 4 De Gex, F. & J. 178; Dol- White v. Moseley, 8 Pick. 356; Louw phin V. Aylward, 15 Ir. Eq. R. N. S. v. Davis, 13 Johns. R. 227; Elliott v. 583; Dubois v. R. R. 5 Fish. Pat. Cas. Smith, 23 Penn. St. 131 ; McQuesney 208; Kiker v. Hooper, 35 Vt. 457; v. Hiester, 33 Penn. St. 435; Kauff Marsh w. Pier, 4 Rawle, 273; Connery u. Messner, 4 Brewst. 98; Thorpe «. V. Brooke, 73 Penn. St. 80; Lindsley Cooper, 5 Bing. 129; Amsden«. R. R. V. Thompson, 1 Tenn. Ch. 272. 32 Iowa, 288; Barger v. Hobbs, 67 Hitchin v. Campbell, 2 W. Bl. 111. 592; New Orleans R. R. v. Cas- 831; Buckland v. Johnson, 15 C. B. tello, 50 Ala. 12. See Freeman on 161. Judgments, §§ 279-286, and cases * Guest V. Warren, 9 Exch. 379. there cited; Washington, &c. Co. v. ^ Ravee v. Farmer, 4 T. R. 146. Sickles, 24 How. 333, as stated and See Seddon v. Tutop, 6 T. K. 607; adopted by Field, J., in Cromwell u. Webster v. Lee, 5 Mass. 334. Sac, 94 U. S. 351. " Florence i>. Jenings, 2 C. B. N. 715 § 788.J THE LAW OF EVIDENCE. [BOOK II. requires the parties to that litigation to bring forward their whole case, and will hot, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, only because they have from negligence, inadvertence, or even accident, omit- ted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pro- nounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising rea- sonable diligence, might have brought forward," ^ supposing such point to be really in issue. Thus where a party implicitly sub- mits, or is bound to submit, all of an aggregate claim of kindred items to a jury, and then takes judgment for a part (as when he sues for the rent due for two years and takes judgment for rent for one year, after submitting the whole to the jury), then he is 1 Henderson v. Henderson, 3 Hare, 115, per Wigram, V. C. See, also, Srimut Eajah v. Katama Natchiar, 11 Moo. Ind. App. C. 50; Farquharson V. Seton, 5 Russ. 45; Partridge v. Usborne, Ibid. 195; Chamley v. Lord Dunsany, 2 Sch. & Lef. 718, per Ld. Eldon; M. of Breadalbane v. M. of Chandos, 2 Myl. & Cr. 732, 733, per Lord Cottenham, cited Taylor, § 1513. To the effect that as to all matters as to which issue is joined the judgment estops, see Petersine «. Thomas, 28 Ohio St. 596; Street t). Beckman, 43 Iowa, 496 ; Button v. Shaw, 35 Mich. 431; Douglas v. David, 45 Ind. 489; Shepardson v. Gary, 29 Wis. 34. In Cromwell v. Sac, 94 U. S. 351, it is said that a judgment in such cases operates as an estoppel only as to those matters in issue or points contro- verted upon the determination of which the finding or verdict was rendered. And see Howard v. Kimball, 65 Me. 308. And in Cromwell v. Sac, ul su- pra, Judge Field, after stating the facts in Henderson v. Henderson, says, in reference to the language quoted in 716 the text : " There is nothing in this language, applied to the facts of the case, which gives support to the doc- trine, that whenever, in one action, a party might have brought forward a particular ground of recovery or de- fence, and neglected to do so, he is in a subsequent suit between the same par- ties, upon a different cause of action, precluded from availing himself of such ground." In Aurora City v. West, 7 Wall. 108, it is said by Miller, J.: " Hence, with all the salutary influence which it " (the doctrine of res judi- cata) " exerts in giving permanence to established rights, in putting an end to angry contests, and preserving tranquillity in society, it can only be justified on the ground that the pre- cise^ point either of law or of fact, which is presented in the suit where the estoppel is pleaded, had been pre- viously decided between the same par- ties or their privies, by a court of com- petent jurisdiction." See a valuable note to Cromwell «. Sac, in Cent. L. J. for 1877, p. 420. CHAP. X.] JUDGMENTS : WHEN BINDING. [§ T88. precluded from suing a second time on the dropped items.^ He is also estopped where he submits his demands to the jury with inadequate proof ; ^ nor does it better his case that he lost the first suit in consequence of an erroneous exclusion of evidence by the court,^ nor that he has subsequently discovered evidence which would change the result.* It is plain, also, that when the plaintiff sues upon and submits for adjudication an entire de- mand, based upon an indivisible cause of action, by taking judg- ment for a part, he loses the right to sue for the remainder.^ He may, however, avoid this peril by voluntarily withdrawing from the court, before judgment, a portion of the claim,^ and, we may say, adopting the language of Field, J., in a case ruled by the Supreme Court of the United States in 1876,^ " there are no cases going to the extent that, because in the prior action a different question from that actually determined might have arisen and been litigated, therefore such possible question is to be considered as excluded from consideration in a second action between the same parties on a different demand, although loose remarks looking in that direction may be found in some opinions. 1 Baker w. Stinchfield, 67 Me. 363; Warren c. Comings, 6 Cush. 103 ; Smith V. Jones, 15 Johns. R. 229; Willard v. Sperry, 16 Johns. R. 121; Miller v. Covert, 1 Wend. 487; Re- formed Church V. Brown, 54 Barb. 191; Burford v. Kersey, 48.Miss. 643; Wickersham v. Whedon, 33 Mo. 561 ; Nave V. Wilson, 33 Ind. 294 ; Schmidt V. Zahensdorf, 30 Iowa, 498 ; Bigelow on Estoppel, 98. 2 Miller v. Manice, 6 Hill (N. Y.), 114. » Smith V. Whiting, 11 Mass. 445. * Marriott v. Hampton, 7 T. R. 269; overruling Moses v. Macferlan, 2 Burr. 1005; Flint v. Bodge, 10 Allen, 128. Again, when a plaintiff having a demand for a liquidated sum (consist- ing o£ several items) takes a verdict for a part of this sum, he cannot af- terwards bring a second action for the residue. Bagot v. Williams, 3 B. & C. 235, 241. See Smith v. Johnson, 15 East, 213; Dunn v. Murray, 9 B. & C. 780, 788. See Ravee v. Farmer, 4 T. R. 146. It is on the same prin- ciple settled, that where a plaintiff who declares on several causes of ac- tion fails to establish some of them at the trial for want of evidence, he cannot bring a second action to re- cover damages for these last, unless he elects to be nonsuited generally, or can induce the court to set aside the verdict he has obtained. Stafford V. Clark, 2 Bing. 382, per Best, C. J. ^ Goodrich v. Yale, 8 Allen, 454 ; Marble u. Keyes, 9 Gray, 221 ; Ban- croft V. Winspear, 44 Barb. 209 ; Re- formed Church V. Brown, 54 Barb. 191; Stein v. Prairie Rose, 17 Ohio St. 471; Fish v. FoUey, 6 Hill, 54; Weber v. R. R. 36 N. J. L. 213; Car- vill V. Garrigues, 5 Barr, 152. See Bagot V. Williams, 3 B. & C. 235. 6 O'Beirne v. Lloyd, 43 N. Y. 248. ' Cromwell v. Sac, 94 U. S. 351. 717 § 789.] THK LAW OF EVIDENCE. [book II. On principle, a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause, because it might have been determined in the first action." ^ , § 789. Where a partjr, sued on a debt on which he has made Defendant ^ partial payment, omits, when he is able to do so, to omitting to prove such payment, he cannot afterwards maintain prove pay- '^ '■ '' ..,,.., meat or a suit against his origmal creditor for the payment.'^ Whenever, to put this conclusion in general terms, it is the duty of a party, when sued, to defend and pro- tect his rights, then, if he omit this duty, he cannot afterwards, as plaintiff, sue for such rights.^ If, from any circumstances, it is his duty to present his defence, and leave it to be determined by court and jury, then if he neglect this duty his claim is lost to him. This principle has been said to be applicable to set-offs of all classes,* though as to a purely equitable defence its applicability has been denied in cases where the equitable defence was one which the defendant, under the lex fori, was at liberty to re- otlier claim as set-off, cannot afterwards sue for the money so paid. ^ See supra, § 784, as to point de- cided in Cromwell v. Sao. '' Freeman on Judgments, § 286 ; 2 Smith's Leading Cases, 267; Cadavel V. Collins, 4 Ad. & E. 867; Marriott V. Hampton, 7 T. K. 269; Huffer v. Allen, L, E. 2 Exch. 15; Baker v. Stinchfield, 57 Me. 363; Loring v. Mansfield, 17 Mass. 394 (qualifying Rowe V. Smith, 16 Mass. 306); Tilton I!. Gordon, 1 N. H. 33; Loomis v. Pulver, 9 Johns. 244; Battey v. But- ton, 13 Johns. 187; Binck u. Wood, 43 Barb. 316; S. C. 37 How. Pr. 663, overruling Smith v. Weeks, 26 Barb. 463 ; Walker v. Ames, 2 Cow. 428; Corbet V. Evans, 25 Penn. St. 310 ; Davis V. Murphy, 2 Rich. (S. C.) 660; Broughton v. Mcintosh, 1 Ala. 103 ; Mitchell v. Sanford, 11 Ala. 696; Bates v. Spooner, 45 Jnd. 489; Greenabaum t). Elliott, 60 Mo. 25; Kirklan v. Brown, 4 Humph. 174. In Burwell u. Knight, 51 Barb. 267, 718 it was held that this rule does not ap- ply when on the first case judgment was taken by default; and to the same effect is Rowe v. Smith, 16 Mass. 306; but see contra, Davis v. Murphy, 2 Rich. (S. C.) 560. See, also. Snow I). Prescott, 1 2 N. H. 535, overruling Tilton V. Gordon, 1 N. H. 33 ; Battey V. Button, 13 Johns. 187; Walker v. Ames, 2 Cow. 428; Mitchell u. San- ford, 11 Ala. 695; and, per contra, Emmerson v. Herriford, 8 Bush, 229. ' Footman v. Stetson, 32 Me. 17; Doak V. Wiswell, 83 Me. 355; Walker V. Ames, 2 Cow. 428; Dudley v. Stiles, 32 Wis. 371. See Huffer v. Allen, L. R. 2 Exch. 15. See this point discussed in Wash- ington, &c. Co. V. Sickles, 24 How. U. S. 333. * Baker v. Stinchfield, 57 Me. 863; though see Davenport ». Hubbard, 46 Vt. 200 ; Greenabaum v. Elliott, 60 Mo. 25. CHAP. X.J JUDGMENTS : WHEN BINDING. [§ 790. serve, or of which the court, on the first trial, could not take jurisdiction. 1 § 790. Wherever, in fact, a party under the local practice, is authorized to bring forward a cross-claim as an inde- But not as pendent suit, then he is not barred by not bringing it which^de- forward as a set-off, though he may have been at lib- at"?berty erty so to do, to a prior suit against himself, ^ A ven- to reserve. dee, for instance, is sued for the price of a stove, and a verdict is had against him, he making no defence. He then sues the vendor for danjage accruing from the latter's negligent con- struction of the stove, and the vendor sets up the former judg- ment as conclusive. In such case, it is held by the English Queen's Bench, that as the vendee was at liberty to advance the claim for damages as a set-off or not as he chose, he is not barred by a judgment in a suit when that claim was not in issue.* We may sustain this in all cases in which a party has a cross- claim, distinct in grade and type from that on vrhich he is sued, which may call for a different jury and a different mode of trial, and which no rule of local practice requires him then to present.* 1 Gordon v. Kennedy, 36 Iowa, 167; McCreary v. Casey, 45 Cal. 128. " Davenport v. Hubbard, 46 Vt. 200. 8 Davis V. Hedges, L. R. 6 Q. B. 687. * Hadley v. Greene, 2 Tyr. 390; Bridge v. Gray, 14 Pick. 55. If, indeed, when a party is sued, he has a cross-demand of the same grade, which, if proved, would pro tanlo ex- tinguish the plaintiff's claim, and if, instead of setting up his cross-de- mand, he admits the validity of the original claim, this precludes him from afterwards bringing a reverse suit on his cross-demand. This position, based as it is on the policy of the law favoring consolidation of litigation, is pushed to a questionable limit in a New York case, where, after a surgeon had recovered (on a confessed judgment, the defendant admitting the cause of action) for his services rendered to a patient, the patient turned round and sued the surgeon for negligence in the performance of his services. The Court of Appeals held that the latter action could not be maintained, since the patient, by confessing the judg- ment, admitted the plaintiff's right to recover. Gates o. Preston, 41 N. Y. 113; relying on White v. Merritt, 7 N. Y. 352; and Davis v. Tallcot, 12N. Y. 184. See contra, Sykes v. Bonner, 1 Cin. Sup. Ct. 464. It has also been held in the same state that where a manufacturer obtained judg- ment for the price of machinery sold by him, the vendee could not after- wards recover from the manufacturer for breach of warranty. Davis v. Tallcot. 12 N. Y. 184. In these cases, however, the original defend- ant, by his answer, or by his course on trial, admitted the validity of the plaintiff's claim; and what he thus admitted he could not be permitted 719 § 792.] THE LAW OF EVIDENCE. [book II. § 791. A party who omits to set up a defence to one suit is Set-off not precluded from setting up this defence to another J*f !,^!f° suit of the same class. Thus it may be that a tenant may be of- g^g^ for rent has a set-off, or other avoidance, which is lered in an- . i • n j. other. a good defence ; but if he omit to present this defence, and it is not passed upon by the court and jury, he is not thereby prechided from setting it up in defence to a subsequently accru- ing instalment of the same rent.^ § 792. Pursuing the line thus noticed, it follows that when there is a series of successive claims, a iudgment in a Judgment . pi,. , ? ■ i^ in succes- suit for one of such claims cannot conclude suits for curring claims accruing subsequently to the suit.^ Suppose, afterwards to controvert. It is other- wise when there is no such admission Mondel v. Steel, 8 M. & W. 858 Davis V. Hedges, L. R. 6 Q. B. 687 Bascom v. Manning, 52 N. H. 132 Burnett v. Smith, 4 Gray, 50; Ihmsen V. Ormsby, 32 Penn. St. 198 ; and we may therefore hold that a party, when sued, is not bound to set up a cross-demand for unliquidated dam- ages that he may have against the plaintiff, but that he may reserve (if by plea or otherwise he does not admit the validity of the plaintiff's claim) his cross-demand for an independent suit in which he is to be plaintiff him- self. Otherwise a defendant would be put in a position very inferior to a plaintiff. A plaintiff may, at any time, by taking a nonsuit, volunta- rily reserve his claim for another trial. If a defendant is not permitted to with- draw his set-off from a jury, and to bring it forward as the basis of an- other suit, then the contest between himself and the plaintiff is very une- qual; and he would be refused a priv- ilege of which plaintiffs can make important use. We would be com- pelled, therefore, if we reject the view here presented, to hold, that wrhether a party is entitled to withdraw a claim put before a jury depends upon 720 whether he ia plaintiff or defendant; if a plaintiff, he has this right ; but he has it not, so would we be forced to say, if he is defendant. But it cannot be intended by the law that a, party's rights should be thus arbitrarily disposed of ; and therefore we must hold that a party who has a cross-de- mand is not precluded by a judgment against him in which such demand is not involved, but, if he has not con- fessed the original plaintiff's claim, may make his cross-demand the basis of a suit against the original plaintiff. See, also, Barker v. Cleveland, 19 Mich. 230; and remarks in Bigelow on Estoppel, 104 et seq. It is scarcely necessary to add, that a party who submits his cross-demand to the jury is bound by the action of the court thereon. Sargent v. Fitzpatrick, 4 Gray, 511; O'Connor v. Varney, 10 Gray, 231. 1 Hewlett V. Tarte, 10 C. B. N. S. 813. See this case approved in Crom- well u. Sac, 94 U. S. 351; and to same effect see Hall v. Levy, L. R. 10 C. P. 154. ^ Leland v. Marsh, 16 Mass. 389 ; Marcellus v. Countryman, 65 Barb. 201. See Reformed Church v. Brown, 54 Barb. 191. CHAP. X.] JUDGMENTS : WHEN BINDING. [§ 793. for instance, a person has a nuisance on his premises, daims not for which he is sued by a party injured ; it would not ive. be pretended that if he is acquitted in a suit for deleterious consequences produced to-day, he will be therefore exonerated from salt for injurious consequences produced to-morrow.^ Nor could it be maintained that a judgment in favor of the plaintiff for yesterday's nuisance would be conclusive in a suit for to-day's nuisance.^ Nor, if a way is obstructed, could a judgment on a suit for yesterday's obstruction bar a suit from being brought for to-day's obstruction.^ Nor, if a series of drams are sold at a bar, can an action for a sale yesterday prevent an action from being brought for a sale to-day.* We may therefore hold that although when the question at issue goes to the general liability of the defendant to the plaintiif, a judgment may be admitted as primd facie determining such liability, yet a judg- ment on a suit for a breach of yesterday cannot be conclusive as to a suit for a breach of to-day. The same distinction may be asserted as to recurring claims : e. g. taxes, and debts due by instalments.^ But where the question whether a certain thing is a nuisance or a trespass is solemnly determined between the parties by a judgment for the plaintiff, then the defendant is estopped from denying, on a suit for a continuing ofEence, the fact that the thing complained of is a nuisance or a trespass.® § 793. A judgment is conclusive, so far as concerns parties and privies, as to all the averments essential to its j^^ . maintenance, but not so as to collateral matters, which, °,ot con- clusive as though introduced into the case, or deducible from the to coilat- judgment, yet were not necessary parts of the issues of the case.^ Thus where a bill in equity, seeking to set aside a ^ See People v. Townsend, 3 Hill As to successive coupon notes, see su- (N. Y.), 479 ; R. v. Fairie, 8 E. & B. pra, § 784. 486; 8 Cox C. C. 66. 6 Fowle v. R. R. 107 Mass. 352; 2 Richardson v. Boston, 19 How. Plate v. R. R. 37 N. Y. 472. See su- U. S. 263. pra, § 784. " Evelyn v. Haynea, cited Taylor on ' Smith v. Eoyston, 8 M. & W. 381 Ev. § 1609; Connery v. Brooke, 73 Carter v. James, 13 M. & W. 137 Penn. St. 80. Leonard v. Whitney, 109 Mass. 265 * See Whart. Cr. L. tit. 'M«(re/o!S Crandall v. Gallup, 12 Conn. 365 acjMi^;" State u. Coombs, 32 Me. 529. Dunckle v. Wiles, 5 Denio, 296 « Bigelow on Estoppel, 2d ed. 34 ; Woodgate v. Fleet, 44 N. Y. 1 Duncan v. Bancroft, 110 Mass. 267. Hibshman u.^ DuUeban, 4 Watts, 183 VOL. I. 46 721 § 795.] THE LAW OF EVIDENCE. [BOOK II. Judgment as to public rights ad- missible against strangers deed, alleged that the claimant believed that T. executed the deed in question, but did not directly aver such execution, it was ruled that the fact of the execution not being in issue, a decree in favor of the defendant could not be used to estop a party to the suit from claiming against the deed.i § 794. It has been seen that a dispositive judgment (i. e. one which has a contractual force, operating as by estop- pel) only binds as between parties and privies. A qualification of i this rule is to be found in cases where the judgment is based on a public right or duty ; e. g. the rights of ferry, or of tolls, or other franchises ; and the lia- bility to repair roads or sea-walls. Yet, except as to the immedi- ate parties to such suits, judgments are only primd facie proof of liability or of duty.^ Verdicts 'hiay be also received for the same purpose, under conditions to be hereafter stated.^ II. WHEN JUDGMENT MAY BE IMPEACHED. A judgment entered by a court which, on the face of the record, has either no jurisdiction, or a jurisdiction which d6es not attach, is coram non judice, and may be impeached even by the party in favor of whom the judgment was obtained ; * a fortiori by the party against whom it was given.^ An inferior court must show on §795. Judgment may be collaterally impeached for want of jurisdic- tion. Land v. Keirn, 52 Miss. 341 ; Ben- ton V. O'Fallon, 8 Mo. 650; Fish v. Lightner, 44 Mo. 268 ; Sawyer v. Boyle, 21 Tex. 28. 1 Craudallw. Gallup, 12 Conn. 365. 2 See fully supra, § 200; Reed v. Jackson, 1 East, 357; Brisco v. Lo- max, 8 A. & E. 198; Evans o. Rees, 10 A. & E. 151 ; R. V. Leigh, 10 A. & E. 398; Pim v. Curell, 6 M. & W. 234; Croughton v. Blake, 12 M. & W. 205; Spencer v. Dearth, 43 Vt. 98; Fowler V. Savage, 3 Conn. 96 ; Gib- son V. Nicholson, 2 S. & R. 422 ; and see Freeman on Judgments, § 419. 8 Infra, §831. * Mercier v. Chace, 9 Allen, 242. So a judgment for the defendant for want of jurisdiction is no bar to a suit by the same plaintiff against the same 722 defendant in a court having jurisdic- tion. Offutt u. Offutt, 2 Har. & G. 178. 6 R. V. Chester, 1 W. Bl. 25 ; R. v. Washbrook, 4 B. & C. 732 ; Briscoe V. Stephens, 2 Bing. 213 ; 9 Moore, 413 ; Huthwaite v. Phaire, 1 M.& Gr. 159 ; Rogers v. Wood, 2 B . & Ad. 245; Whyte u. Rose, 3 Q. B. 493; Linnell v. Gunn, L. R. 1 Ecc. 363; Custis V. Turnpike Co. 2 Cranch C. C. 81 ; Lincoln v. Tower, 2 McLean, 473; Board ot Works v. Columbia College, 17 Wall. 521; Thompson v. Whitman, 18 Wall. 457 ; Hill v. Men- denhall, 21 Wall. 453 ; Stevens v. Fassett. 27 Me. 266 ; Penobscot R. R. V. Weeks, 52 Me. 466 ; Gay v. Smith, 38 N. H. 171; Com. v. Goddard, 13 Mass. 457; Borden v. Fitch, 15 Johns. CHAP. X.] WHEN JUDGMENTS MAY BE IMPEACHED. [§ 795. the record that it had jurisdiction.' The same distinction holds good with respect to superior courts with limited statutory juris- diction,^ and with regard to courts of any class, apparently tran- scending their powers.^ If the record, however, avers the facts necessary to constitute jurisdiction, the prevalent opinion is that such averments cannot (except in cases of fraud to be hereafter noticed) be collaterally disputed.* Nor where the record shows jurisdiction (unless with the exception already noticed), can parties or privies collaterally dispute the rulings of courts on questions of jurisdiction which they did not dispute at the time.^ Consequently, so it is argued, a party against whom the effort is 1 21 ; Latham v. Edgerton, 9 Cow. 227; Gage V. Hill, 43 Barb. 44 ; Smith v. Ferris, 1 Daly, 18; Kintz v. McNeal, 1 Denio, 436; State u. Cooper, 1 Green N. J. 361 ; Fisher v. Long- necker, 8 Barr, 41 ; James v. Smith, 2 S. C. 183 ; Parish v. Parish, 32 Ga. 653 ; Richardson v. Hunter, 23 La. An. 255 ; Bates v. Spooner, 45 Ind. 489 ; Bonsall v. Isett, 14 Iowa, 309 ; Mayo V. Ah Loy, 32 Cal. 477; Dor- sey V. Kendall, 8 Bush, 294 ; North V. Moore, 8 Kans. 143. 1 Harris v. Willis, 15 C. B. 709 ; Crawford v. Howard, 30 Me. 422; Clark V. Bryan, 16 Md. 171 ; Adams V. Tiernan, 5 Dana, 394; Gray;;. Mc- Neal, 12 Ga. 424. 2 Harris v. Hardeman, 14 How. U. S. 334; Morse v. Presby, 25 N. H. 299; Carleton v. Ins. Co. 35 N. H. 162; Huntington v. Charlotte, 15 Vt. 46 ; Embury v. Conner, 3 Comst. 322. See, however, Hahn v. Kelly, 34 Cal. 391,; Tibbsu. Allen, 27 111. 119; and remarks in Bigelow on Estoppel, 2d ed. 124. But when " all the facts necessary to the exercise" of the "jurisdiction are shown to exist," the judgments of such courts are " no more subject to impeachment in a collateral proceed- ing than the judgment of any other court of exclusive jurisdiction." Da- vis, J., Secombe v. K. E. 23 Wall. 119. 8 Windsor v. McVeigh, 93 U. S. 274 ; cited infra, § 796 ; Rhoades v. Delaney, 50 Ind. 468. * McCormick v. Sullivant, 10 Wheat. 192; Granger v. Clarke, 22 Me. 128 ; Penobscot Co. v. Weeks, 52 Me. 456; Cook v. Darling, 18 Pick. 393 ; Morse v. Presby, 25 N. H. 299 ; Carleton v. Ins. Co. 35 N. H. 162 ; Coit V. Haven, 30 Conn. 190 ; Hart- man V. Ogborn, 54 Penn. St. 120 ; Clarku. Bryan, 16 Md. 171 ; Simmons V. McKay, 5 Bush, 25 ; Callen v. Elli- son, 13 Ohio St. 446 ; Moffitt v. Mof- fitt, 69 111. 641 ; Rice o. Brown, 77 111. 549 ; Hahn v. Kelly, 34 Cal. 391; 35 Cal. 533 ; MoCauley v. Fulton, 44 Cal. 355 ; Smith v. Wood, 37 Texas, 616 ; though see Comstock v. Craw- ford, 3 Wall. 397, where it was held that the jurisdictional recitals of a statutory probate court were only prima facie evidence of the facts re- cited. In New York, as will be presently seen more fully, a party may collat- erally contest an appearance entered in a judgment against him. Ferguson V. Crawford, infra. That a judgment against a dead person is a nullity, see Edwards v. Whited, 29 La. An. 647. ' Sheldon v. Wright, 5 N. Y. 497; Fitshugh V. McPherson, 9 Gill & J. 51. 723 § 796.] THE LAW OF EVIDENCE. [BOOK II. made to enforce a judgment is not permitted, mediately or imme- diately, to show that he was not served when the record avers service, or was not rightfully in court.^ In New York, however, this view has been rejected, and it has been held open to a party to show, on a suit brought to enforce a domestic judgment, that the record averring him to have been served, and to have appeared by attorney, was false, and that he had no notice of the suit.^ § 796. Where a person is sued in one state, on a judgment ob- Illustrated t^ii^®*^ i° another, he may defend by pleading specially by judg- that in point of fact the court rendering judgment had sister not jurisdiction of his person ;^ and that the return of service was false, and that the defendant was not a citi- zen of or resident in the state in which the judgment was en- tered.* So, wherever the record does not aver an appearance in 1 Granger v. Clarke, 22 Me. 128 ; Penobscot R. R. v. Weeks, 52 Me. 456 ; Blaisdell u. Pray, 68 Me. 269; Win- gate V. Hayward,40 N. H. 437 ; Cook V. Darling, 18 Pick. 393; Coit v. Ha- ven, 30 Conn. 190 ; Clark v. Bryan, 16 Md. 171; Callon v. Ellison, 13 Ohio St. 446; Horner v. Doe, 1 Ind. 131; Pierce v. GrifBn, 16 Iowa, 552; McDonald v. Leewright, 31 Mo. 29; Hahn v. Kelley, 34 Cal. 291. " Ferguson v. Crawford, 70 N. Y. 253, where the prior cases are exam- ined at large, by Rapallo, J., in an opinion of much force, in the course of which it is said : "The powers of a Court of Equity being vested in our courts of law, and equitable defences being allowable, there is no reason why, to an action upon a judgment, the defendant should not be permitted to set up, by way of defence, any mat- ter which would be ground of relief in equity against the judgment; and it is conceded in those states where the record is held conclusive, that when the judgment has been obtained by fraud, or without bringing the de- fendant into court, and the want of jurisdiction does not appear upon the 724 face of the record, relief may be ob- tained in equity Such a judg- ment (as that contested in this suit) would never be upheld in equity, even in favor of one ignorant of the fraud and claiming bona fide under it. He stands in no better position than any other party claiming honafide under a forged instrument." See Bridgeport Bk. V. Eldredge, 28 Conn. 559; McCa- hill V. Ass. Soc. 26 N. J. L. 531 ; Lownsberry v. Bakershaw, 14 Kans. 151. 8 Infra, § 803; Thompson v. Whit- man, 18 Wall. 457; Knowles v. Gas Co. 19 Wall. 58. * See cases cited supra ; Ferguson V. Crawford, 70 N. Y. 253 ; Ruehling V. Leherman, 2 Weekly Notes, 616; Scott u. Noble, 72 Penn. St. 115; No- ble V. Oil Co. 79 Penn. St. 354, and cases cited infra in this section and §§ 801-3 ; Ponce v. Underwood, 55 Ga. 601. See Elliotts. PiersoU, 1 Pet. 828 Williamson v. Barry, 8 How. 495 Sanborn v. Fellows, 22 N. H. 273 Tebbetts v. Tilton, 31 N. H. 273 Carleton v. Brickford, 13 Gray, 591 _ Price V. Ward, 25 N. J. L. 225 ; Shields V. Miller, 9 Kans. 390; Hanson v. Wal- cott, 19 Kans. 245; Maston v. Duncan, CHAP. X.] WHEN JUDGMENTS MAY BE IMPEACHED. [§ T96. person, it is open to a party to contest a judgment by pleading that the appearance of an attorney, as averred by the record, was unauthorized by the party.^ Extrinsic proof is also admissible to show that the record was wrong in any other averment essen- tial to jurisdiction.^ And where the record does not show ser- vice, the judgment is not admissible against the party not served.' Sup. Ct. Kans. 1878; Cent. L. J. 1878. p. 328. In Pennywhit v. Foote, 27 Ohio St. 98, it is said by the court : " From a careful review of numerous cases, we find the rule now well settled that neither the constitutional provision, that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevents any in- quiry into the jurisdiction of the court in which a judgment offered in evi- dence was rendered, and such a judg- ment may be contradicted as to the facts necessary to give the court juris- diction, and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may re- cite that they did exist, and this is true either as to the subject matter or the person, or in proceedings in rem. as to the thing. Harris v. Hardiman et al. 14 How. S. C. 334; Borden v. Fitch, 15 Johns. 121 ; Christmas v. Russel, 5 Wall. 290; Elliott v. Piersoll, 1 Pet. 328 ; United States v. Arredondo, 6 Pet. 691 ; Vorhees v. Bank of U. S. 10 Pet. 449; Moulin v. Insurance Co. 4 Zab. 222 ; Mackay v. Gordon, 34 N. J. 286 ; Wilson V. Bank of Mt. Pleasant, 6 Leigh, 570 ; Story on Const. § 1307 ; Story on Confl. of Laws, § 609 ; Thomp- son V. Whitman, 18 Wall. 457; Spencer V. Brockway, 1 Ohio, 261 ; Goodrich V. Jenkins, 6 Ohio, 44 ; Anderson v. Anderson, 8 Ohio, 108 ; Paine's Les- sees V. Mooreland, 15 Ohio 445." 1 Shelton v. Tiffin, 6 How. U. S. 163 ; Hall v. Mendenhall, 21 Wall. 453 ; Watson v. Bank, 4 Met. 343 ; Bodurtha v. Goodrich, 3 Gray, 508 ; Denison v. Hyde, 6 Conn. 508 ; Kerr v. Kerr, 41 N. Y. 272 ; Westcott t'. Brown, 13 Ind. 83 ; Lawrence v. Jarvis, 32 111. 304 ; Harshey v. Blackmarr, 20 Iowa, 161 ; Warren v. Lusk, 16 Mo. 102; Baker v. Stonebraker, 34 Mo. 172 ; Watson v. Hopkins, 27 Tex. 637. See Wiley v. Pratt, 23 Ind. 628. Con- tra, Brown v. Nichols, 42 N. Y. 26. 2 Thompson v. Whitman, 18 Wall. 457 ; Knowles v. Gaslight Co. 19 Wall. 58 ; Sanborn v. Fellows, 22 N. H. 273; Tebbetts v. Tilton, 31 N. H. 273; Bissell v. Wheelock, 11 Cush. 277 ; Bodurtha v. Goodrich, 3 Gray, 508 ; Carlton v. Brickford, 13 Gray, 591; Aldrich v. Hyde, 6 Conn. 380; Sears v. Terry^ 26 Conn. 273 ; Coit v. Haven, 30 Conn. 192; Kerr v. Kerr, 41 N. Y. 242 ; Ferguson v. Crawford, 70 N. Y. 253; Sherrard v. Nevins, 2 Ind. 241 ; Westcott v. Brown, 13 Ind. 83 ; Lawrence v. Jarvis, 32 Ind. 304; Pollard V. Baldwin, 22 Iowa, 328. That in such cases the plea must be special, see Hill v. Mendenhall, 21 Wall. 453; Price v. Hickok, 30 Vt. 292; Aldrich v. Kinney, 4 Conn. 380; Shumway v. Stillman, 4 Cow. 292, 447 ; Starbuck v. Murray, 5 Wend. 148; Bimeler v. Dawson, 4 Scam. 536; Hopkins v. Woodward, 75 111. 62. Infra, § 803. ' " A personal judgment, rendered in one state against several parties jointly, upon service of process on some of them, or their voluntary ap- pearance, and upon publication against the others, is not evidence, outside of 725 § 796.] THE LAW OF EVIDENCE. [book II. It has been sometimes said that only judgments obtained in sister states can be thus impeached. But this position cannot be main- tained under the Constitution of the United States, which gives the judgment of a sister state all the force, when sued upon, of a domestic judgment. Wherever the judgment of a sister state can be thus impeached, a domestic judgment can be impeached.^ In either case, an alleged judgment is open to attack for want of jurisdiction ; for it is &petitio principii to say that it is unimpeach- able because it is a judgment, and that it is a judgment because it is unimpeachable. If this mode of argument is sound, there is no document that can be impeached.^ It should be added, that a judgment may be collaterally attacked as to all matters which are ultra vires.^ the state where rendered, of any per- sonal liability to the plaintiff of the parties proceeded against by publica- tion." Bradley, J., Board of Public Works V, Columbia College, 17 Wall. 521. 1 Ferguson v. Crawford, 70 N. Y. 253. Of course, from the rule in the text is to be excepted cases in which states prescribe a mode of service (e. g. publication) which, while binding their own subjects, do not bind per- sons not personally served, residents and subjects of other states. See in- fra, § 808. " See infra, § 927. That an accept- ance of service out of the state where the judgment is entered will not give jurisdiction, see Scott v. Noble, 72 Penn. St. 115. 8 "All courts," says a, learned judge of the Supreme Court of the United States, giving the opinion of the court in a case decided in 1876 (Windsor v. McVeigh, 93 U. S. 264, see cases in- fra, § 893), "enve the highest, are more or less limited in their jurisdic- tion ; they are limited to particular classes of actions, such as civil or criminal; or to particular modes of administering relief, such as legal or equitable ; or to transactions of a spe- 726 cial character, such as arise on navi- gable waters, or relate to the testa- mentary disposition of estates ; or to the use of particular process in the enforcement of these judgments. Norton v. Meador, Circuit Court for California. Though the court may possess jurisdiction of a cause, of the subject matter and of the parties, it is still limited in its modes of procedure and in the extent and character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by law. If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the sub- ject and parties, has no power to pass judgment of imprisonment in the pen- itentiary upon the defendant. If the action be for a libel or personal tort, the court cannot order in the case a specific performance of a contract. If the action be for the possession of real property, the court is powerless to admit in the case the probate of a will. Instances of this kind show that the general doctrine stated by counsel is subject to many qualifications. The judgments mentioned, given in the cases supposed, would not be merely erroneous, they would be absolutely CHAP. X.] WHEN JUDGMENTS MAY BE IMPEACHED. [§ 797. § 797. Whenever a party seeks to avail himself of a former judgment, fraudulently entered, the opposite party may Former show the fraud and thus avoid the judgment. In crim- may'be"'^ inal issues this is settled law. An acquittal or convic- ''™(''o£"" tion a party manages to have entered against himself fraud- is no bar to a second prosecution.^ The same reasoning applies to civil issues, in cases in which a party, suing for a just debt, finds himself confronted by a judgment entered against him in a suit fraudulently and collusively brought in his name, but with- out his authority ; ^ or where third parties find their rights so imperilled.^ If an attorney should fraudulently bring suit in void, because the court in rendering them would transcend the limits of its authority in those cases. See the language of Mr. Justice Miller, to the same purport, in the case of Ex parte Lange, 18 Wall. 163. So it was held by this court in Bigelow v. Forrest, 9 Wall. 351, that a judgment in a confiscation case condemning the fee of the property was void for the re- mainder after the termination of the life estate of the owner. To the ob- jection that the decree was conclusive that the entire fee was confiscated, Mr. Justice Strong, speaking the unani- mous opinion of the court, replied : ' Doubtless, a decree of a court having jurisdiction to make the decree cannot be impeached collaterally; but under the act of Congress the District Court had no power to order a sale which should confer upon the purchaser rights outlasting the life of French Forrest (the^ owner). Had it done so, it would have transcended its juris- diction.' 9 Wall. 350. So a depart- ure from established modes of proce- dure will often render the judgment void ; thus, the sentence of a person charged with felony, upon conviction by the court without the intervention of a jury, would be invalid for any purpose. The decree of a court of equity upon oral allegations, without written pleadings, would be an idle act, of no force beyond that of an ad- visory proceeding of the chancellor. And the reason is, that the courts are not authorized to exert their power in that way." 1 R. V. Davis, 12 Mod. 9; R. r. Furzer, Say. 90 ; State v. Little, 1 N. H. 257 ; State v. Brown, 16 Conn. 54; Com. v. Alderman, 4 Mass. 4 77; Com. v. Jackson, 2 Va. Cas. 501 ; Bulson v. People, 31 111. 409 ; Dunlap V. Cody, 31 Iowa, 260 ; Hul- verson u. Hutchinson, 39 Iowa, 316; State V. Davis, 4 Blackf. 3i5; State V. Atkinson, 9 Humph. 677; State v. Colvin, 11 Humph. 599; Ellis v. Kel- ly, 8 Bush, 621; State v. Jones, 7 Ga. 422 ; State v. Cole, 48 Mo. 70. ^ "It is also important to bear in mind that the validity of a judgment of a court of competent jurisdiction, upon parties legally before it, may be questioned on the ground that it was pronounced through fraud, connivance, or covin of any description, or not in a real suit, or if pronounced in a real and substantial suit between parties who were really not in contest with each other. Earl of Bandon v. Becher, 3 CI. & F. 510." Powell's Evidence, 4th ed. 231. But the proof of fraud must go to the concoction of the judg- ment. Ross V. Wood, 70 N. Y. 8 ; Hunt V Hunt, 72 N. Y. 217. 8 Philipson v. Egremont, 6 Q. B. 609; 727 § 797.] THE LAW OF EVIDENCE. [book II. the name of a party, and should suffer judgment to be taken against such party, it would be a gross perversion of justice to hold that such party, afterwards suing in ignorance of such judg- ment, could not set up its fraud when it is sprung upon him on trial by the defendant. In accordance with this view, we find numerous cases in which the right of a party to attack for fraud a fraudulent judgment is declared. In such case, however, the evidence must be plain, and the fraud must be directed against the rights of the complainant as an innocent party.^ Thus it has been held by the Supreme Court of the United States, that a nominal plaintiff, who brings suit for the use of his assignee, cannot, by a dismissal of such suit by agreement, however solemn, with the defendant, bar the plaintiff's right to institute a second suit on the same cause of action.^ So by the same high tribunal, as has been already noticed, it has been determined that where a judgment is entered by agency of an unauthorized attorney, it may be avoided by setting up this defence in a special plea.^ No doubt we have several cases which contain rulings apparently impugning the position that has been just announced.* Inde- Perry I). Meddowcroft, 10 Beav. 122 ; stone, 31 Iowa, 276; Hulverson v. Eyre v. Smith, L. R. 2 C. P. D. 435; Crosby v. Lang, 12 East, 409; Siden- sparker v. Sidensparker, 52 Me. 481 ; Bridgeport Ins. Co. v. Wilson, 34 N. Y. 281; Hall J). Hamlin, 2 Watts, 354. ^ Bayley v. Buckland, 1 Exch. R. 1; Thatcher v. D'Aguilar, 11 Exch. R. 436; Reynolds ■-. Howell, L. R. 8 Q. B. 398 ; Hubbart v. Phillips, 13 M. & W. 703; Humes v. Scruggs, 94 U. S. 22; Smith v. McKean, 26 Me. 411; Beekley n. Newcomb, 24 N. H. 359; Hawley u. Mancius, 7 Johns. Ch. 182; Mandeville v. Reynolds, 68 N. Y. 528; Ferguson v. Crawford, 70 N. Y. 253; Davis v. Headley, 22 N.J. Eq. 115; Martin v. Rex, 6 S. & R. 296 ; Hall v. Hamlin, 2 Watts, 354 ; Ulrich V. Voneida, 1 Penn. R. 250; Hartman v. Ogborn, 54 Penn. St. 620; Com. V. Trout, 76 Penn. St. 379; Miners' Bank v. Roseberry, 81 Penn. St. 809; Second Nat. Bank's Appeal, 85 Penn. St. 528; Whetstone v. Whet- 728 Hutchinson, 39 Iowa, 316; Indepen- dent School u. Schreiuer, 46 Iowa, 172 ; Scranton v. Stewart, 52 Ind. 68; Field V. Flanders, 40 111. 470 ; Mar- tin V. Judd, 60 111. 78; Cox v. Hill, 3 Ohio, 411; Ellis v. Kelly, 8 Bush, 621; Hayes v. Shattuck, 21 Cal. 51; Edgell V. Sigerson, 20 Mo. 494; Sweet V. Maupin, 65 Mo. 65 ; Thou- venin v. Rodrigues, 24 Tex. 468 ; Morris v. Halbert, 36 Tex. 19. See Lowry v. McMillan, 8 Penn. St. 157; Henck v. Todhunter, 7 Har. & J. 275; Hill V. Reifsnicker, 46 Md. 555; Stell w. Glass, 1 Ga. 476; Dalton v. Dalton 83 Ga. 243. That the plea must specially aver the facts, see supra, § 796. ^ Welsh V. Mandeville, 1 Wheat. 233. « Hill V. Mendenhall, 21 Wall. 453. See Ferguson v. Crawford, 70 N. Y. 253, and other cases cited § 796. * See Christmas v. Russell, 5 Wall. CHAP. X.] WHEN JUDGMENTS MAY BE IMPEACHED. [§ 798. pendently, however, of the fact that these cases refer to actions governed by common law and not by equity, we may reconcile them, even at common law, with the principle asserted above, by holding that fraud cannot be collaterally set up by a party to a judgment in any case in which he is either directly or con- structively, either by action, or by want of vigilance when he was bound to be vigilant, a party to the fraud. That when an innocent person, who is not chargeable with laches, is defrauded by a judgment entered against him by unauthorized parties, he can have no relief in those cases where such a judgment is sprung on him collaterally, cannot be rightfully maintained either in equity or at common law ; and it is in this sense that we must understand Chancellor Kent, when in a case already cited ^ he declares that a party cannot collaterally impeach a judgment ex- cept in cases of fraud.^ It is agreed generally that fraud can always be set up by strangers to the judgment.^ § 798. It must be remembered at the same time, that when a party has the opportunity of applying to the court en- tering the judgment to open it, he must do so, and can- when party not, if his omission be imputable to his negligence, re- tunity o"' sort to a collateral attack.* Thus in a case decided in the court'" New York, in 1876, it is said by a learned judge: " The entering ' •' JO the jiidg- judgment could not be impeached collaterally, nor could ment for the same facts be retried between the same parties. The offer of the plaintiff was in effect to retry the issue. Judg- ments may be impeached in equity for fraud, but for no other 290; Granger v. Clark, 22 Me. 130; » R. v. Duchess of Kingston, 20 Davis u. Davis, 61 Me. 395 ; Atkin- How. St. Tr. 544; Phillipson v. Egre- sons !). Allen, 12 Vt. 619; McRae v. raont, 6 Q. B. 605; Perry v. Med- Mattoon, 13 Pick. 53 Krekeler v. dowcroft, 10 Beav. 122; Harrison v. Bitter, 62 N. Y. 372; Anderson u. Southampton, 4 De Gex, M. & G. Anderson, 8 Ohio, 108; Smith u. 137; Great Falls Co. f. Worster, 45 Smith, 22 Iowa, 516; Kelley v. Mize, N. H. 110; Atkinsons v. Allen, 12 Vt. 3 Sneed, 59. And see other cases 619; Mitchell v. Kin tzer, 5 Barr, 216; cited infra, § 803. Thompson's Appeal, 57 Penn. St. ^ Hawley v. Mancius, 7 Johns. Ch. 175; De Armond v. Adams, 25 Ind. 182. 455; Callahan w. Griswold, 9 Mo. 775. " See, as containing intimations to Supra, § 760. the same effect, Bandon v. Becher, 8 * See Vose v. Morton, 4 Cush. 27; CI. & F. 479. Griswold v. Stewart, 4 Cow. 458. 729 799.] THE LAW OF EVIDENCE. [BOOK U. reason.i The remedy of the plaintiff was by application for a re- trial in the Superior Court, or for other relief, if the judgment had been procured by false or mistaken testimony, and other evidence had been discovered by which the truth could be established." ^ " The power of the Supreme Court to annul a judgment or decree for fraud in procuring it," so it is said by another learned judge of the same state, " is undoubted, although the jurisdiction is carefully limited and guarded, and will only be exercised in clear cases. The jurisdiction in one court to vacate, in an indepen- dent proceeding, the judgment of another having power to render it, is in its nature so extraordinary as to demand a close adher- ence to principles and precedents in exercising it. Courts do not exercise it when there has been negligence on the part of the party seeking the relief. That a judgment is final and conclu- sive of the right or thing adjudicated by it is the rule ; and judg- ments and decrees of a competent court will not be annulled for a suspicion of fraud, or because the party complaining may in fact have been unjustly cast in judgment." ^ At the same time we must remember that it has been subsequently held by the same court that a party against whom a judgment is unexpect- edly sprung may show by parol that he never appeared to such judgment, and that the appearance entered was forged.* § 799. Mere irregularities, however, in a record, will not be But not for ground for collaterally impeaching a judgment, unless i^reguiari- ^^^^ irregularities show want of jurisdiction, or afford ''^^- a presumption of fraud, or exhibit a gross violation of the ordinary rules of justice.^ Thus, it is no objection to a judg- ment record offered in evidence, that the record shows that the 1 Davoue v. Fanning, 4 J. Ch. 199. » Bragg v. Lorio, 1 Woods, 209; 2 Krekeler v. Hitter, 62 N. Y. 372, Wood v. Wilson, 4 Houston (Del.), 374, 375, Allen, J. ; and see Ross v. 94; Bigelow v. Barre, 30 Mich. 1; Wood, 15 N. Y. Supr. Ct. 185 ; 70 N. B^tes v. Spooner, 45 Ind. 489; Mur- Y. 8. phy V. Williamson, 85 111. 188; Mylar " Andrews, J., Smith v. Nelson, 62 v. Hughes, 60 Mo. 105; McCauley v. N. Y. 288; citing Stilwoll v. Carpenter, Harvey, 49 Cal. 497; Wyehe v. Clapp, 59 N. y. 414 ; Foster v. Wood, 6 Johns. 43 Tex. 543. The fact that the service Ch. 89; Simpson v. Howden, 3 Myl. of the original judgment was certified &Cr. 108; Powers u. Butler, 3 Green's to have been on defendant "Brennan," Ch. 465; Dobson v. Pearee, 1 2 N.Y. 157. when the true name was " Brenham," * Ferguson v. Crawford, cited supra, is an immaterial variance. Miller v. § 795. Brenham, 69 N. Y. 83. Supra, § 796. 730 CHAP. X.J JUDGMENTS AND AWARDS. [§ 800. cause was tried without the intervention of a jury, and did not show that the jury had been waived in the mode provided by the statute ; it being held, that though this error might be fatal in a direct revision, it could not be attacked collaterally.^ Nor is it an objection that the record shows no service, if the defend- ant appeared.^ III. AWARDS. § 800. An award of arbitrators or referees, duly appointed, is as conclusive on parties and privies as is a judgment.3 Awards When the award is final and is ostensibly on all the J'£e"ft''rcIo£ matters submitted, the presumption is that the arbitra- judgments. tor disposed of all such matters referred.* So when an arbitrator has not transcended his authority ; ° whether he be a professional or non-professional man,^ the court will not interfere with his award.^ It is essential, in such case, however, that the award should be certain,^ and practicable.^ Even an arbitration in pais, when submitted to and accepted by the parties, cannot be im- peached, exception proof of fraud or gross irregularities.^*^ An award, like a judgment in a civil suit, cannot, in order to prove the facts it avers, be put in evidence in a criminal prosecution. ^^ It has also been held that an award, under the English practice, unlike a verdict or judgment, cannot be received as evidence in the nature of reputation.^^ 1 Maxwell v. Stewart, 21 Wall. 71. & Croydon Can. Co. 9 A. & E. .526, '^ Goarw. Moranda, 57lnd. 339. See per Ld. Denman. Fahs V. Darling, 82 111. 142. ' Toby v. Lovibond, 5 Com. B. 784, " Doe V. Rosser, 3 East, 15; Com- per Wilde, C. J.; Barrett v. Wilson, mings V. Heard, 10 B. & S. 606; S. C. 1 C, M. & R. 586; Johnson v. Durant, L. R. 4 Q. B. 669; Pease v. Whitton, 2 B. & Ad. 925; Phillips v. Evans, 12 31 Me. 117 ; Lloyd v. Barr, 11 Penn. M. & W. 309. St. 41. See Ravee v. Farmer, 4 T. ' Williams v. Wilson, 9 Ex. R. 90. R. 146 ; Bates v. Townley, 2 Exc. R. » Wenman v. Mackenzie, 5 E. & B. 152; Newall v. Elliot, 1 H. &. C. 797; 447, per Ld. Campbell ; Alder v. Sa- Darlington v. Gray, 5 Wharton R. vill, 5 Taunt. 454 ; Taylor, § 1498. 487. As to effect on sureties, see ^^ Males v. Lowenstein, 10 Ohio St. Jordan v. Volkenning, 72 N. Y. 300. 512; Burrows v. Guthrie, 61 111. 70 ; * Bhear v. Harradine, 7 Ex. R. 269; Reynolds v. Roebuck, 37 Ala. 408. Harrison v. Creswick, 13 C. B. 399; " R. «. Fontaine Moreau, 11 Q. B. Jewell V. Christie, L. R. 2 C. P. 296. 1028. 6 Stroud, in re, 8 C. B. 518. 12 Evans v. Rees, 10 A. & E. 151 ; 2 " Fuller V. Fenwick, 3 Com. B. 705, P. & D. 627, S. C. ; R. v. Cotton, 3 711, per Wilde, C. J. ; In re Brown Camp. 444; Wenman v. Mackenzie, 5 E. & B. 447; Taylor, § 1498. 731 § 801.] THE LAW OF EVIDENCE. [BOOK II. IV. JUDGMENTS OF FOEEIGN AND SISTEE STATES. § 801. Whatever may at former periods have been regarded Foreign as the law in England, it is now settled in that country fudgments that the final judgment of a foreign court, entered as to ZimZrt a matter within the jurisdiction of the court, is conclu- conclusive. ^.^^ ^^ ^-^^ merits, if such judgment be for a definite sum ; 1 and this even though the judgment proceeded on a mis- taken notion of English law.^ This result, however, was not reached without hesitation, and at one time there was an incli- nation to hold that a foreign judgment is not to be treated as constituting a record debt, but only as evidence of a simple contract debt.^ But it was finally decided by the House of Lords,* and by the judicial committee of the Privy Council,^ that the home tribunal cannot act as a court of appeal from the for- eign tribunal; i. e. a foreign judgment cannot be impeached as being erroneous on the merits, or as founded on a mistake either of law or fact. The question, however, was reserved, whether when a foreign court wilfully refuses to apply English law, when by the comity of nations it is applicable, the judgment of such foreign court is then impeachable in an English court. In the opinion of Lord Hatherley it is.^ To entitle such judgments to be accepted as binding, however, they must be entered in con- ' Bank of Australasia v. Mas, 16 ministrator of the same estate. Tighe Q. B. 717; Patrick v. Shedden, 2 E. v. Tighe, Ir. Rep. 11 Eq. 203. & B 14 ; Scott V. Pilkington, 2 Best & ' Hall v. Odber, 11 East, 124; Plum- S. 11; Paul V. Roy, 15 Beav. 433; mer v. Woodburne, 4 B. & C. 625; Arnott V. Redfern, 3 Bing. 353 ; Dog- Smith v. NicoUs, 5 Bing. N. C. 208. lioni V. Crispin, L. B. 1 H. L. 301 ; See article in London Law Times, Godard v. Gray, L. R. 6 Q. B. 139; June 2, 1877, p. 75. Ricardo v. Garoias, 12 CI. & F. 368; * Castrique v. Imrie, L. R. 4 H. L. Castrique J). Imrie, L. R. 4 H. L. 414; 415. See Imrie t>. Castrique, 8 C. B. Gen. St. Nav. Co. !;. Gouillou, llMees. N. S. 405 ; overruling Castrique v. & W. 877; Simpson v. Fogo, 1 J. & Imrie, Ibid. And see fully cases cited H. 18; S. C. 1 H. & M. 195. infra, § 803. ^ Godard v. Gray, L. R. 6 Q. B. » Messina v. Petrococchino, L. R. 139- 4P. C. 150;41 L. J. P. C. 27; 20W. A colonial judgment against the co- R. 451 ; Godard v. Gray, L. R. 6 Q. lonial administrator of a deceased per- B. 139-150. son has been held in Ireland not evi- « See Simpson v. Fogo, 1 J. & H. dence of the debt against an Irish ad- 18 ; Powell's Ev. 4th ed. 129. See Meyer v. Ralli, L. R. 1 C. P. D. 359. 732 CHAP. X.] FOREIGN JUDGMENTS. [§ 801. foi-mity witli the settled principles of private international law.^ Among these principles are the following : — (1.) The court, in personal actions, mast have jurisdiction of the person of the party affected.^ (2.) The court, in real actions, must have jurisdiction of the thing. (3.) The parties interested must have had opportunity to come in and be heard.^ (4.) The judgment, if in personam, and for a pecuniary claim, must be for a fixed sum.* That a plaintiff can rely on a foreign judgment as the basis of a suit, and that this judgment is at least primd faoie proof of his claim, is admitted on all sides. The fered for controversy which has been just noticed is as to the P ^"" conclusiveness of such foreign judgment. Mr. Smith, in an authoritative note to the Duchess of Kingston's case, has pre- sented the arguments on both sides with his usual clearness. " Now, upon one side it is said that the tribunals of this country are not hound to enforce the judgments of a foreign court ; that, when they do so, it is de gratid, and from a wish to extend the limits of justice — amfliare justitiam. But that it would be to amplify injustice, were they to enforce a sentence which ought never to have been pronounced, because against the party with whom right was. On the other side, it is answered with great force that invariable experience shows that facts can never so well be inquired into as on the spot where they arose, laws never administered so satisfactorily as in the tribunals of the country governed by them ; that if our courts were to allow matters judi- cially decided upon to be again opened at any distance of time or place, the consequence would be, in ninety-nine cases out of a ' Shaw V. Gould, L. R. 3 H. of L. and see Rebstock v. Rebstock, 2 Pitts. 55; Castrique v. Imrie, L. R. 4 H. of (Penn.) 124; Crafts v. Clark, 31 Iowa, L. 428 ; Bischoff v. Wethered, 9 Wall. 77. And see supra, § 796. 812; Whart. Confl. of L. 792. ^ Henderson v. Henderson, 6 Q. B. '^ Infra, § 803. If this jurisdiction 288 ; Sadler v. Robins, 1 Camp. 253. is by international law it is enough, That it may be for costs, see Russell though in exercising it the court may v. Smyth, 9 M. & W. 810; though see transcend its own rules. Vasquelin Sheehy v. Ass. Co. 2 C. B. (N. S.) V. Bouard, 15 C. B. N. S. 341. 211. 8 See Whart. Confl. of Laws, § 793; 733 § «01.J THE LAW OF EVIDENCE. [book II. hundred, that they would be deceived by the concoction of testi- mony, or by the abstraction of it, or by the want of it, and that injustice and mistakes, instead of being amended, would be gen- erated." >■ 1 2 Smith's L. C. 686. The de- crees of foreign courts in equity, it is said, are open to more doubt than are the judgments of foreign courts of law ; but it has been intimated that an Eng- lish Court of Chancery would, in a proper case, entertain a bill founded on such foreign decree, for the pur- pose of giving effect to it in regard to English property. Henderson v. Hen- derson, 6 Q. B. 297, perLd. Denman; Houlditch V. M. of Donegal, 8 Bligh N. S. 301; 2 CI. & Fin. 470; Lloyd & G. 82, S. C. Mr. Taylor (§ 1553) thus marshals the English authorities on this contro- versy. It has several times been held by the Court of the Queen's Bench ; Henderson v. Henderson, 6 Q. B. 288, 298, 299; Eerguson v. Mahon, 11 A. & E. 179,183; 3 P. & D. 143, 5. C.;Bk. of Australasia ». .Nias, 16 Q. B. 717; Munroe v. Pilkington, 31 L. J. Q. B. 81; 2 B. & S. 11, S. C, nom. Scott 0. Pilkingto i ; once by the Court of Common Pleas; Vanquelin v. Bouard, 15 Com. B. N. S. 341 ; 33 L. J. C. P. 78, S. C. ; and once by the Court of Exchequer; De Cosse Brissac v. Rath- bone, 6 H. & N. 301; 30 L. J. Ex. 238, S. C. ; that no inquiry can be in- stituted into the merits of the original action, or the propriety of the deci- sion, and that the defendant is not at liberty to raise any objection, which would have constituted a defence in the foreign court, and which, conse- quently, should there have been plead- ed and finally disposed of. The same doctrine, too, has been advanced with more or less confidence, by Lord Not- tingham (Gold V. Canham, cited in note to Kennedy v. Cassillis, 2 Swanst. 325), Lord Kenyon (Galbraith v. Nev- 734 ille, 1 Doug. 6, n.), Lord Ellenbor- ough (Tarleton v. Tarleton, 4 M. & Sel. 22), Sir L. Shad well (Martin v. Nicholls, 3 Sim. 458), Lord Wensley- dale (citing Martin v. Nicolls, in Bec- quet V. MacCarthy, 2 B. & Ad. 954), and the Court of Exchequer of Ireland (Sims V. Thomas, 3 Ir. Law R. 415). On the other hand, Lord Hardwicke (Isquierdo v. Forbes, cited by Lord Mansfield in 1 Doug. 6), Lord Mans- field (Walker v. Witter, 1 Doug. 1), Chief Baron Eyre (Phillips v. Hunter, 1 Doug. 1), Mr. Justice BuUer (Gal- braith V. Neville, 1 Doug. 6, n.; Mes- sin V. Ld. Massareene, 4 T. R. 493), Mr. Justice Bayley (Tarleton v. Tarle- ton, 4 M. & Sel. 23), and especially Lord Brougham (Houlditch v. M. of Donegal, 8 Bligh N. S. 301, 337-342; 2 CI. & Fin. 470, 477-479, S. C. ; Den xi. Lippman, 5 CI. & Fin. 1, 20-22), have strenuously argued that such judgments are on\y prima facie proof of the facts they aver. In McEwen v. Zimmer, Sup. Ct. Mich. 1879 (Am. Law Reg. Feb. 1879), Ch. Just. Cooley thus reviews the recent English cases: — " In Bank of Australasia v. Nias, 16 Q. B. 717, the defendant, who was a stockholder in a joint stock company in New South Wales, was sued in England on a liability as such stock- holder, which it was claimed was es- tablished by a judgment against the chairman of the company in New South Wales, under a statute which permitted the chairman to be sued as representative of the company. The statute was sustained, and the action was supported. Lord Campbell, in his opinion, declares that the statute was passed for the benefit of the com- CHAP. X,] FOREIGN JUDGMENTS. [§ 801. A foreign judgment in personam, it should be remembered, may come into court, when adduced by the defendant, when of- in two ways : (1.) The plaintiff, having obtained judg- defendant. pany, and that there was nothing at all repugnant to the law of England, or to the principles of natural justice, in enacting that actions upon contracts made by the company, instead of be- ing brought individually against all the stockholders, should be brought against the chairman whom they had appointed to represent them. The case is treated as one in which the parties, by accepting the benefits of a statute, had consented to certain forms of procedure for which it provided. " A case more important to the present discussion is that of Schibsby V. Westenholz, Law Kep. 6 Q. B. 155. The action in that case was upon a French judgment, obtained without personal service of process, under a statute not differing essentially from the statute of Upper Canada, which is supposed to sustain the judgment now in question. The only difference of moment between that case and the present is, that there the contract on which the French court gave judg- mment was an English contract, while in this case the judgment was given for services performed by the plaintiff in Canada, and possibly it may be claimed that the implied contract to pay for these services was a Canada contract, though the defendant was not in Canada at the time. Whether this difference has any legal signifi- cance will be considered further on. Putting this circumstance aside, the two cases are strictly analogous, and it is fortunate that, in passing upon the force that should be given to a Canadian judgment under the circum- stances, we are afforded the light of a decision by one of the courts at West- minster on the very point in dispute. " It should be stated here that the statute of Upper Canada was a sub- stantial reproduction in that province of the provisions of the English Com- mon Law Procedure Act (1852), which in terms permit judgment to be taken against persons out of the realm on a service of process made abroad. The case was therefore one in which it might be urged with great force that comity required that the courts in England should recognize the validity of judgments obtained in France upon a service precisely analogous to that which the English statute made suf- ficient to support a judgment in that country. Blackburn, J., in delivering the opinion of the court, proceeded to declare as the true principle on which the judgments of foreign tribunals are enforced in England, that stated by Parke, B., in li^issell v. Smyth, 9 M. & W. 819, and repeated in Williams V. Jones, 13 M. & W. 633, that the judgment of a court of competent ju- risdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the courts of England are bound to enforce, and that conse- quently anything which negatives that duty or forms a legal excuse for not performing it, is a defence to the ac- tion, proceeds to say : ' We were much pressed on the argument with the fact that the British legislature has, by the Common Law Procedure Act (1852), conferred on our courts a power of summoning foreigners, under certain circumstances, to appear, and in case they do not, giving judgment against them by default. It was this consider- ation principally which induced me at the trial to entertain the opinion which I then expressed and have since changed; and we think that if the 735 § 801.J THE LAW OF EVIDENCE. [book II. ment in the same cause of action in a foreign court, sues in the home court on such cause of action, saying nothing about principle on which foreign judgments ■were enforced was that which is loosely called "comity,"' we could hardly decline to enforce a foreign judgment given in France against a resident of Great Britain, under cir- cumstances hardly, if at all, distin- guishable from those under which we, mutatis mutandis, might give judgment against a resident in Prance; but it. is quite different if the principle be that which we have just laid down. Should a foreigner be sued under the provi- sions of the statute referred to, and then come to the courts of this coun- try and desire to be discharged, the only question which our courts could entertain would be whether the acts of the British legislature, rightly con- strued, gave us jurisdiction over this foreigner, for we must obey them. But if, judgment being gioen against him in our courts, an action were brought upon it in the cou/rts of the United Stales, — where the laiu as to the enforcing foreign judgments is the same as our own, — a further question loould be opened, viz., not only whether the British legislature had given the Eng- lish courts jurisdiction ooer the de- fendant, but whether he loas un- der any obligation which the American courts could recognize, to submit to the jurisdiction thus created.' And further on he says that the real ques- tion which the court of the United States must pass upon in the supposed case would be this: Can the island of Great Britain pass a law to bind the whole world? A question which he ventures to answer without hesitation in the negative. " But for a single remark in this opinion by Mr. Justice Blackburn, it should, as it seems to us, be accepted on all sides as covering completely the 736 present case. The remark referred to is in the nature of a suggestion, that if at the time when the obligation was contracted the defendants were in a foreign country, but left it before the suit was instituted, perhaps the laws of the foreign country ought to bind them. The remark was not relevant to any facts then before the court, nor, in our opinion, does the present case require us to consider how far the sug- gestion has force. This defendant was not in Canada when the, demand accrued, and in no manner has he sub- mitted himself to its laws, unless he can be said to have done so in employ- ing the services of the plaintiff in that country. If we might assume, which we cannot under the circumstances, that the supposed contract was a Canada contract, it is not by any means clear to our minds that the fact should affect the decision. If the ob- ligation on the courts of one country to enforce the judgments of another be grounded in comity, it ought to ap- pear that, under corresponding circum- stances, it would be expected in this state that the courts of Canada would enforce a judgment given in Michigan on a Michigan contract against a resi- dent of Canada, who was never served with process, except in the Dominion. So far is it from being the fact that such an expectation would exist, that the courts of this state are not per- mitted, by virtue of any statute or of any principles supposed to be derived from the common law, to render any such judgment; and should it by in- advertence, or by mistake of law, be entered up by any court of this state, any other court, and indeed the party defendant, might treat it, so far as it assumes to establish a personal de- mand against him, as an absolute nul- CHAP. X.] FOREIGN JUDGMENTS. [§ 801. the foreign judgment. In such case it has been ruled that the defendant cannot set up the foreign judgment, if unsatisfied (as lity. No better illustration of the views held by our own courts upon this subject can be instanced than the case of foreclosure suits in equity against non-resident mortga- gors, where, although the case may pro- ceed to decree on notice given by pub- lication, or personally served in a for- eign jurisdiction, yet the notice is never accepted as the full substitute for ser- vice of process within the state ; and though the case goes to a decree for the sale of the land, a personal decree against the party liable for the mort- gage debt is never permitted to be taken upon such notice. Lawrence v. Fellows, Walk. Ch. 468; Outwhite v. Porter, 13 Mich. 533; Tyler v. Peatt, 30 Mich. 63. We may then dismiss comity from consideration as consti- tuting any basis for the enforcement of the judgment now before us. We should certainly, mutatis mutandis, not expect it to be enforced. And we may add that in the still more pointed case of the attachment of lands of a non- resident as the commencement of a suit to collect a debt, though the stat- ute provides for the case proceeding to judgment against the defendant on proof of the statutory notice by publication, yet the judgment is not regarded as establishing a personal demand against the defendant, and we should neither expect it to be enforced as such abroad, nor enforce it our- selves. This is so well understood in this state that the point is never mooted." Copin V. Adamson, L. R. 9 Ex. 345, not noticed in the above summary, was an action on a French judgment. To this the defendant pleaded that he was not at any time before judgment resi- dent or domiciled in France, or with- in the jurisdiction of the court, or sub- voL. I. 47 ject to French law; that he was never served with any process, nor had any notice or opportunity of defending himself. Replications: (1.) That the defendant was holder of shares in a French company, having its legal domicil in Paris, and became thereby subject, by the law of France, to all the liabilities, &c., belonging to hold- ers of shares, and, in particular, to the conditions contained in the statutes or articles of association ; that by these statutes it was provided and agreed that all disputes arising during liqui- dation between shareholders should be submitted to the jurisdiction of the French court; that every shareholder provoking a contest must elect a dom- icil, and, in default, election might be made for him at the office of the imperial procurator of the civil tribu- nal of the department in which the office of the company was situated; and that all summonses, &c., should be validly served at the domicil for- mally or impliedly chosen; that the company became bankrupt, and de- fendant's unpaid calls became payable to the plaintiff as assignee; that he made default and provoked a contest; that he never elected a domicil, and thereupon the plaintiff caused sum- monses, &c., to be served at the office aforesaid; that by the law of France that office was the defendant's implied domicil of election for the purpose of service, and the service was regular; and that the defendant was bound to appear, but did not, whereupon judg- ment by default was recovered against him. (2.) A similar replication, al- leging that defendant was a share- holder as in the first replication men- tioned, and stating provisions of the law of France to the same effect as those contained in the above-men. 737 § 801.J THE LAW OF EVIDENCE. l^BOOK II. he could a domestic judgment), as a defence.^ The plaintiff, such is the reason given, has no higher remedy in consequence of the foreign judgment, and he cannot issue immediate execution upon it in this country, but can only enforce it by bringing a fresh action on contract.^ It is, however, plain, that if the foreign judgment has been satisfied, this will bar the suit.^ In cases falling under this general head, also, as the plaintiff elects to sue on the contract and not on the judgment, the contract may be disputed by the defendant.* (2.) If, to a suit on an or- dinary cause of action, the defendant adduces a foreign judg- ment, on the same cause of action, in his favor, this, if properly pleaded, will bar the suit." In such case, however, although the tioned statutory articles of associa- tion, but omitting all reference to the statutes or articles of association, and alleging that defendant did not elect a domicil, and also that the company became bankrupt, &o., and that a summons was served, as in the first replication stated. On demurrer, it was held that the first replication was good, and (by Amphlett and Pigott, BB., Kelly, C. B., dissenting) that the second replication was bad. Copin v. Adamson; Copin v. Strachan, Law Kep. 9 Ex. 345. In Meyer v. Ralli, L. K. 1 C. P. D. 369, the principle of Schibsby v. Wes- tenholtz, that the obligation of a for- eign judgment rested on duty, such judgment being obligatory only on subjects of the state, was reaffirmed. This, and not comity, is the ^nly ground on which the validity of a for- eign judgment can be rested. Did the court,' entering judgment, have jurisdiction over the person or over the thing as to which the judgment was entered? If the person was a domiciled subject of the state from which the judgment proceeds, or if he was in the state at the time of the ser- vice of the writ, and was duly served, or duly entered an appearance, then there is jurisdiction; otherwise there 738 is no jurisdiction, nor is there jurisdic- tion as to a proceeding in rem, when the thing attached was not at the time within the state in which the writ is issued. An elaborate view of the same topic will be found in Bigelow on Estoppel, chap. iv. ' The student is referred, for notices of European law on the subject of foreign judgments, to the Journal du Droit Int. Priv^, a valuable periodical, which since 1874 has been published in Paris by M. Clunet. Particular reference is made to vol. i. pp. 21, 76, 185, 239, 242, 276; vol. ii. pp. 21, 118, 188-9, 218, 417, 464; vol. iii. pp. 103, 182, 226, 230, 298, 359-60, 511; vol. iv. pp. 210, 234, 424-5; vol. V. pp. 138, 234, 243, 376, 606, 616. 1 See, as to merger, and to judg- ments of sister states, intra, § 805. ^ See infra, § 805 ; and see Smith v. Nicolls, 5 Bing. N. C. 208, 220, 221 ; 7 Scott, 147, S. C. ; Wilson v. Dun- sany, 18 Beav. 293. 8 Barber v. Lamb, 29 L. J. C. P. 234; 8 Com. B. N. S. 95, S. C. 4 Infra, § 805. 6 Phillips V. Hunter, 2 H. Bl. 410, per Eyre, C. J.; Plummer v. Wood- burne, 4 B. & C. 625; 6 D. & R. 25, CHAP. X.] FOREIGN JUDGMENTS. [§ 802. plea, in England, need no longer set forth the proceedings and judgment at length,^ nor contain, as formerly was the case,^ any- formal commencement or conclusion ; yet if it contain no aver- ment that the plaintiff was, at the commencement of the foreign suit, subject to the jurisdiction of the foreign country by reason of allegiance, domicil, or temporary presence,^ or that the foreign court had jurisdiction over the subject matter of the suit, or that, by the law of the foreign country, the judgment recovered was final and conclusive, so as to be an absolute bar to a fresh action ; * or that the matters in issue in the foreign court were identical with those sought to be put in issue in the present suit ; ^ in any of these cases, the plea will be exposed to the risk of being held bad on demurrer.^ On the other hand, if the defendant, instead of pleading judgment, contents himself with putting it in evi- dence, it is subject to the contingencies to which, according to local practice, a domestic judgment, when not pleaded, is, sub- ject.'? § 802. In this country we have many rulings to the effect that foreign judgments are only primd facie evidence of debt, though most of these rulings rest upon English cases to the same effect, which cases are now, in England, overruled.^ The tendency, S. C; Ricardo v. Garcias, 12 CI. & Aieken, 1 Caines, 460; Pawling v. Fin. 368. Bird, 13 Johns. R. 192; Benton v. 1 Ricardo v. Garcias, 12 CI. & Fin. Burgot, 10 S. & R. 240; Taylor v. 368. Phelps, 1 Har. & G. 492 ; Barney v. 2 Gen. St. Navig. Co. v. Guillou, 11 Patterson, 6 Har. & J. 182; Pritchett M. & W. 877, 894. V. Clark, 3 Har. (Del.) 517; Williams 8 Gen. St. Navig. Co. v. Guillou, 11 v. Preston, 3 J. J. Marsh. 600; Gar- M. & W. 877, 894. land v. Tucker, 1 Bibb, 361; Clark v. * Plummer v. Woodburne, 4 B. & Parsons, Riee, 16; Bimeler v. Dawson, C. 625; 7 D. & R. 25, S. C. ; Frayes 4 Scam. 536. See Burnham v. Web- t;. Worms, 10 Com. B. N. S. 149. ster, 1 Wood. & M. 172. 5 Ricardo v. Garcias, 12 CI. & Fin. It should be noticed that, " in two of 368. the cases just cited (Barney v. Patter- ^ Taylor's Ev. § 1548. son and Taylor v. Phelps), it is said ' See supra, § 765. that, when foreign judgments are only ^ Middlesex Bank v. Butmann, 29 incidentally involved, they have the Me. 19; Rankin v. Goddard, 54 Me. same conclusiveness as domestic judg- 28 ; Taylor v. Barron, 30 N. H. 78; merits; and in Cummings v. Banks, 2 Boston Co. V. Hoitt, 14 Vt. 92; Bart- Barb. 602, it is said that all the Amer- lett V. Knight, 1 Mass. 400; Bissell v. ican authorities agree in this propo- Briggs, 9 Mass. 462; Aldrich v. Kin- sition." Bigelow on Estoppel (2ded.), ney, 4 Conn. 380; Hitchcock v. 177.. 739, § 803.J THE LAW OF EVIDENCE. [BOOK II. however, is now to hold that a foreign judgment in personam binds parties appearing before the court rendering the judgment, when such court has jurisdiction internationally over such persons.^ § 803. A foreign judgment, as we have seen,^ is always im- peachable for want of jurisdiction ;3 and hence, for want of personal service, within the jurisdiction, on the defendant, this being internationally essential to juris- diction in all cases in which the defendant was not a subject of the state entering judgment.* Thus where a settle- Impeach able for want of jurisdic- tion or fraud. 1 Lazier v. Westcott, 26 N. Y. 146. See Cummings v. Banks, 2 Barb. 602; McEwen v. Zimmer, supra, § 801. 2 Supra, § 801. « Schibsby v. Westenholz, L. R. 6 Q. B. 155 ; Novelli v. Rossi, 2 B. & Ad. 767; Blackburn, J., Castrique v. Irarie, 39 L. J. C. P. 358; Shelton v. Tiffin, 6 How. 163; Carleton «. Bick- ford, 13 Gray, 591 ; Folger v. Ins. Co. 99 Mass. 266; Borden v. Fitch, 15 Johns. R. 121; Andrews v. Herriot, 4 Cow. 524; Kerr v. Kerr, 41 N. Y. 272. * Ferguson v. Mahan, 11 Ad. & E 179; Don v. Lippman, 5 CI. & Fin 1; Cavan v. Stewart, 1 Stark, 525 Houlditch V. Donegal, 8 Bligh N. S, 338; Vallee v. Dumergue, 4 Ex. 290 Brook, in re, 16 Com. 'B. N. S. 403 Schibsby v. Westenholz, L. R. 6 Q, B. 288; Meyer v. Ralli, L. R. 1 C. P, D. 358; Kuehling v. Lebermann, 2 Weekly Notes, 616; Kerr v. Condy, 9 Busli, 372. We may hold, as a general rule, that a judgment in personam is extra-ter- ritorially invalid where the defend- ant, not being domiciled in the state of the judgment, was not there served with process, and did not volunta- rily appear, and that the averments of the record of jurisdictional facts of this class are not conclusive. Bis- choff I). Wethered, 9 Wall. 812 ; Coop- er I). Reynolds, 10 Wall. 308; Thomp- son u.Whitmore, 18 Wall. 457; Knowles 740 V. Gas Co. 1 9 Wall. 58 ; Pennoyer v. Neff, 95 U. S. 714; McVickeru. Budy, 31 Me. 314 ; Whittier v. Wendell, 7 N. H. 257; Price v. Hickok, 37 Vt. 292; Carleton v. Bickford, 13 Gray, 591; Wood V. Wilkinson, 17 Conn. 500 ; Frothingham v. Barnes, 9 R. I. 474; Shower w. Blaidard, 29 Barb. 25; Hofi'man v. Hoffman, 46 N. Y. 30; Peo- ple V. Baker, N. Y. Ct. App. 1879; Kuehling v. Lebermann, 2 Weekly Notes, 616; Reber v. Wright, 68 Penn. St. 471 ; Scott v. Noble, 72 Penn. St. 115; Noble u. Oil Co. 79 Penn. St. 354; Arndt v. Arndt, 15 Ohio, 83 ; Zepp v. Hager, 70 111. 223; Outwhite V. Porter, 13 Mich. 533; Ty- ler V. Pratt, 30 Mich. 63 ; McEwen u. Zimmer, S. C. Mich. 1879, 18 Am. L. Reg. 93 ; Jones v. Spencer, 15 Wis. 583 ; Williams v. Preston, 3 J. J. Marsh. 600 ; Davidson v. Sharpe, 6 Ired. L. 14; Miller v. Miller, 1 Bailey, S. C. 242; Ponce v. Underwood, 55 Ga. 601;- Windston w. Taylor, 28 Mo. 82. See contra, Field v. Gibbs, 1 Pet. C. C. 155; Roberts t). Caldwell, 5 Dana,512. That non-service of a writ within the jurisdiction may not be fatal where the defendant impliedly waives service, see Copin v. Adamson, L. R. 1 Ex. D. 17; aff. S. C. L. R. 9 Ex. 345; tliough see contra, Scott v. Noble, 72 Penn. St. 113. That such is the rule as to judgments of sister states, see supra, § 796. CHAP. X.] FOREIGN JUDGMENTS. [§ 803. ment was made in England on a marriage Jbetween a Turk domi- ciled in England and an English lady, the former promising to reside always in England, Hall, V. C, held that a Turkish court could not, by a decree of divorce pronounced without notice to the wife or other persons interested under the settlement, make void the settlement.^ So it has been held that a foreign judg- ment can be contested for fraud in its concoction ; ^ or for its flagrant violation of justice ;3 or for non-identity of subject A plea to the jurisdiction, in order to be good, must aver that the defend- ant was not a subject of the foreign state, or resident, or even present in it, at the time when the proceedings were instituted, so that he could not be bound, by reason of allegiance, or domicil, or temporary presence, by the decision of the courts. Gen. Nav. Co. V. Guillou, 11 M. & W. 894; Cowan V. Braidwood, 1 M. & Gr. 892, 893, per Tindal, C. J. ; Russell v. Smyth, 9 M. & W. 810 ; Reynolds i;. Fenton, 3 Cora. B. 187. If true, it may be in addition averred that the defendant had no notice of the suit. Cowan v. Braidwood, 1 M. & Gr. 893. It has been further said (though this posi- tion, except in suits commenced by attachment, cannot be maintained, at least in the United States), that the plea must allege that the defendant was not the owner (see Taylor's Evi- dence, § 1537) of real property in such state; for otherwise, since his property would be under the protec- tion of its laws, he might be considered as virtually present though really ab- sent. Cowan V. Braidwood, 1 M. & Gr. 882; 2 Scott N. R. 138, S. C. ; Douglas V. Forrest, 4 Bing. 686, 701- 703; 1 M. &P. 663, S. C. When want of service is to be pleaded in defence, it is necessary, so it has been held in England, for the defendant to negative every state of facts on which the judgment can be supported. It is, therefore, prudent to aver that, without process, the suit in the foreign court would be a nul- lity unless, so it has been intimated, the plea contains a distinct averment that the defendant has had no notice or knowledge whatever of the suit. Reynolds v. Fenton, 3 Com. B. 187; Sheehy o. The Profess. Life Assur. Co. 13 Com. B. 787; Maubourquet u. Wyse, L. R. 1 C. L. 471. It will, at the same time, be remembered that in Ferguson v. Mahon, 11 A. & E. 179; 3 P. & D. 143, S. C, the plea was held good, though it merely de- nied a notice of process ; but Mr. Taylor (§ 1540) objects that that case, which was an action on an Irish judg- ment, can only be sustained, if at all, on the ground that an English court will judicially recognize the fact that an action must be commenced by proc- ess in Ireland. Reynolds v. Fenton, 3 Com. B. 191, per Maule, J. See Meyer v. Ralli, L. R. 1 C. P. D. 358. 1 CoUiss V. Hector, L. R. 19 Eq. 334; 23 W. R. 485; 44 L. J. Ch. 267; Powell's Evidence (4th ed.), 234. 2 Phillimore Int. Law, iv. 678 ; Foote's Priv. Int. Law, p. 449; Black- burn, J., Godard u. Gray, L. R. 6 Q. B. 149; Oehsenbein v. Papelier, L. R. 8 Ch. 695. See Wood v. Watkinson, 17 Conn. 500; Welsh v. Sykes, 3 Gilm. 197. ' Price V, Dewhurst, 8 Sim. 279 Ferguson v. Mahon, 11 Ad. & E. 181 Henderson v. Henderson, 6 Q. B. 298 741 § 805.] THE LAW OF EVIDENCE. [BOOK II. matter ; ^ or for incurable defectiveness or obscurity ; ^ or for manifest errors in its processes ; ^ or, generally, for any jurisdic- tional violation of the principles of international law.* But if there be jurisdiction, a mere mistake of law on the part of the foreign court will in England be no defence,^ unless both parties admit that the foreign court has wrongly interpreted its own law.® § 804. "We will elsewhere see ^ that the proceedings of courts Jurisdic- of justice are presumed to be regular, until the contrary sume^'if appears. This presumption is applicable so far to for- proceed- ema iudgments, that if the record itself is regular, a ings are , . . , regular. party suing on such judgment need not allege in his declaration, either that the foreign court had jurisdiction over the parties or the cause,^ or that the proceedings had been prop- erly conducted.^ On the other hand, as we have seen, there are English cases intimating that it is still necessary for a defendant to state these particulars, when he pleads such judgment by way of estoppel or justification.^" § 805. Whether a foreign judgment entered on a debt merges Foreign the debt, is a question which has been already dis- asfmer- cussed. Ic was once argued that when the foreign s*"'- court has jurisdiction in personam, there is such a merger ; ii but this view, as we have seen, has been superseded. Cowan V. Braidwood, 1 M. & Gr. 895 ; & M. 195 ; Kerr v. Condy, 9 Bush, Windsor v. McVeigh, supra, § 796. 372. 1 Eicardo v. Garcias, 12 CI. & Fin. ^ Castrique v. Tmrie, L. E. 4 H. L. 368. See Burnham v. Webster, 1 414; Godard ». Gray, L. E. 6 Q. B. Wood. & M. 172. 151. 2 Obicini v. Bligh, 8 Bing. 335. » Meyer v. Ealli, L. E. 1 C. P. D. " Eeimers u. Druoe, 23 Beav. 145; 358. Simpson v. Togo, 1 Johns. & Hem. ' Infra, § 1302. ' 18; 1 Hem. & M. 195; Windsor i). « Eobertson v. Struth, 5 Q. B. 941. McVeigh, 93 U. S. 274. Supra, § » Cowan v. Braidwood, 1 M. & Gr. 796. 882, 892, 895, per Maule, J.; 2 Scott * Shaw V. Gould, L. E. 3 H. of L. N. R. 138, S. C. 65; Bank v. Mas, 16 Q. B. 717 ; Liver- i» CoUett v. Ld. Keith, 2 East, 260; pool Marine Co. v. Hunter, L. R. 3 Gen. St. Navig. Co. v. Guillou, 11 M. Ch. 479; S. C. L. E. 4 Eq. 62; Bar- & W. 877. See Eioardo v. Garcias, ingi;. Clagett, 3 B. & P. 215; Wolff 12 CI. & Fin. 868. Supra, §§ 801-3. V. Oxholm, 6 M. & Sel. 92 ; Simpson " Eicardo u. Garcias, 12 CI. & Fin. V. Fogo, 1 Johns. & Hem. 18; 1 Hem. 368; McGilvray v. Avery, 30 Vt. 538; Westlakc Priv. Int. Law, art. 393. 742 CHAP. X.] FOREIGN JUDGMENTS. [§ 807. and it has been held,^ that a plaintiff, who has obtained a foreign judgment in his favor, may either resort to such original cause, or bring an action on contract upon the judgment.^ At the same time, as has been properly observed, when the plaintiff waives the judgment, the defendant, notwithstanding the pro- duction of the judgment, may dispute the plaintiff's demand ; for it may well be contended, that, by this mode of declaring, the plaintiff has himself courted a reinvestigation of the merits.^ A judgment in a court of a sister state can in this relation be treated as a domestic judgment, and a judgment intermediately obtained can be pleaded specially puis darrein continuance.'^ § 806. What has been said with regard to the right of im- peaching foreign judgments applies only, it must be remembered, to cases where the validity of such judg- judgment ments come directly in litigation. When such judg- dtsputed^ ments are regularly entered by courts having exclusive a"]'!*'^"^' jurisdiction, they cannot be disputed collaterally.^ § 807. Judgments of courts of the Confederate States during the late war are to be treated, it has been argued, as Confeder- foreign judgments.^ But to this view there is a serious ments. ^' Walsh V. Dunkin, 12 Johns. 99. As to foreign judgments, see supra, § 801. 1 See supra, § 801. 2 Hall V. Odber, 11 East, 118, 126, 127, per Bayley, J.; Smith u. Nicolls, 5 Biug. N. C. 221, 222, per Tindal, C. J. ; Bk. of Australasia v. Harding, 19 L. J. C. P. 345; 9 Com. B. 661, S. C. ; Kelsall v. Marshall, 26 L. J. C. P. 19; 1 Com. B. N. S. 241, ,S. C. See U. S. V. Dewey, 6 Biss. 501; Mid- dlesex Bank. I'. Butman, 29 Me. 19; McVicker v. Beedy, 31 Me. 314. 8 2 Smith L. C. 683. * Where a suit is commenced in the State of A., and then a second suit on the same cause of action in the State of B., the existence of the prior suit in A. is no bar to the suit in B.; but if judgment be obtained in A., it may be pleaded in bar to the suit in B. by means of a plea puis darrein continu- ance. Paine v. Ins. Co. 11 R. I. 411; North Bank v. Brown, 50 Me. 214; Baxley v. Linah, 16 Penn. St. 214. See Bourne v. Joy, 9 Johns. E. 221 ; The fact that the judgment offered in bar as a merger has been appealed from does not render it less a bar. Paine v. Ins. Co. 11 K. I. 411; citing Bank of N. Am. v. Wheeler, 28 Conn. 433. " We will add however, as matter of practice, that we think the pendency of the appeal in New York may be a good ground for delaying judgment here until the appeal is disposed of, for otherwise we may give the judg- ment here a permanently conclusive effect ; whei-eas in New York, if the appeal is successful, it will be conclu- sive only for a short time." Durfee, C. J., Paine v. R. R. ut supra. 5 See Tarleton v. Tarleton, 4 M. & Sel. 20; recognized by Lord Brougham in Houlditch v. M. of Donegal, 8 Bligh N. S. 341; 2 CI. & Fin. 478, S. C. ^ Pepin V. Lachenmeyer, 46 N. Y. 743 § 808.] THE LAW OF EVIDENCE. [BOOK II. practical objection. It is logical, indeed, to adopt the theory that the seceding states were never out of the Union, and that consequently judgments of such states are under the protec- tion of the federal Constitution. It is also logical to treat the courts of the Confederate States as out of the pale of the Consti- tution. The difficulty, however, is in pleading. The declara- tion would aver a judgment in a state not belonging to the American Union. Such a declaration would be virtually on a foreign judgment. But a foreign judgment, rendered in the courts of a state whose independence our own government has not acknowledged, cannot be recognized as a judgment on which suit can be brought. The better view is to treat all judgments of distinctively Confederate courts created for national purposes by the Confederate government as nullities ; but to regard all judgments of duly constituted courts of the seceding states as judgments of states in the Union, unless when such judgments in some way impair the rights of the federal government or of citizens under the Constitution, as in cases where such judgments are put in evidence against citizens of non-seceding states.^ § 808. So far as concerns the judgments rendered on the mer- 27; Shaw v. Lindsay, 46 Ala. 290. the clients, did not authorize him to Per contra, Penn v. Tollison, 26 Ark. waive any of their rights, nor could 545. such consent or waiver confer on the ' Horn V. Lockhart, 17 How. 580. court jurisdiction over the case, or In Ohio, in Pennywit v. Foote, 27 over the person of defendants. See Ohio St. 600, it was held that as be- to same effect, Botts u. Crenshaw, tween parties residing in the State of Chase's Dec. 227; Livingston v. Jordan, Arkansas and within the insurgent Chase's Dec. 454; Brooks v. Feler, lines, after the secession of Arkansas, 35 Ind. 402. See White «. Cannon, and a citizen of Ohio, resident within 6 Wall. 443 ; Hickman v. Jones, 9 the Union lines, between whom the Wall. 197; Steere v. Tenney, 50 N. war made intercourse impossible, there H. 463 ; Pennywit !>. Kellogg, 1 Cinn. could be no jurisdiction in Arkansas, 17; Blackwell t. Willard, 65 N. C. by which the rights of non-residents 555. In Alabama it has been held could be injuriously affected. And it that a judgment rendered by a court was held that such jurisdiction could under the Confederate system would not be acquired by the consent or be treated as only primd facie proof, waiver of an attorney practising in after reconstruction. Martin v. Hew- Arkansas, who was employed and ap- itt, 44 Ala. 418; Mosely v. Tuthill, 45 peared for the non-resident defend- Ala. 621. In Arkansas such judg- ants before the war commenced. His ments have been held void. Penn v. general authority as an attorney, be- Tollison, 26 Ark. 545; Thompson v. fore the war, though not revoked by Mankin, 26 Ark. 586. 744 CHAP. X.] FOREIGN JDDGMENTS. [§ 808. its in tbe several states of the American Union, when offered in a sister state as the , basis of a suit, it is now agreed j^jgrnenta by the state courts, under the lead of the Supreme of states of •' _ . . ■, 1 American Court of the United States, that nil debet is a bad plea Union are , . , , ■!_ • 1 conclusive. to such a judgment ; that the proper plea to it is nm tiel record ; and that it is conclusive on the merits. ^ It is nev- ertheless open to a party to deny the jurisdiction of the court rendering the judgment ;2 and as evidencing want of jurisdiction to aver by plea that the defendant was not an inhabitant of the state rendering the judgment, and had not been served with process, and did not enter his appearance, or that the attorney was without authority to appear.^ We have already noticed* 1 Mills V. Duryee, 7 Cranch, 481 ; Hampton v. McConnel, 3 Wheat. 234; Logansport Gas Co. v. Knowles, 2 Dill. 421; McElmoyle v. Cohen, 13 Pet. 312 ; Christmas v. Russel, 5 Wall. 290; Sweet «. Brackloy, 53 Me. 346 ; Rankin v. Goddard, 54 Me. 28 ; Bis- soll o. Briggs, 9 Mass. 462; Com. u. Green, 17 Mass. 515; Hall v. Wil- Shumway w. Stillman, 4 Cow. 292; Starbuck v. Murray, 6 Wend. 447 ; Kerr v. Kerr, 41 N. Y. 272; Reel u. Elder, 62 Penn. St. 308; Eby's Appeal, 70 Penn. St. 308 ; Noble v. Oil Co. 79 Penn. St. 354; Westeott v. Brown, 13 Ind. 83; Lawrence v. Jar- vis, 32 HI. 304. In Illinois, however, it is said that liams, 6 Pick. 232; Stookwell v. Mc- judgments of courts of other states Cracken, 109 Mass. 84; Brainerd v. Fowler, 119 Mass. 265; Rocco v. Hackett, 2 Bosw. 579 ; Rogers v. Burns, 27 Penn. St. 525; Merchants' Ins. Co. V. De Wolf, 33 Penn. St. 45. See Brinkley v. Brinkley, 50 N. Y. 184 ; De Ende v. Wilkinson, 2 Pat. & H. 663 ; Matoon v. Clapp, 8 Ohio, 248; Burnley v. Stevenson, 24 Ohio St. 474 ; Indiana v. Helmer, 21 Iowa, 370; Cone v. Hooper, 18 Minn. 533; Walton V. Sugg, Phil. (N. C.) 98. 2 D'Arcy v. Ketchum, 11 How. 165; Board of Public Works v. Columbia College, 17 Wall. 521; Thompson v. Whitman, 18 Wall. 457; Galpin v. Page, 18 Wall 350; Knowles v. Gas Cori9Wall. 58; Hill w. Mendenhall, 21 Wall. 453 ; Hall v. Williams, 6 Pick. 232; Folger v. Ins. Co. 99 Mass. 266; Kerr v. Kerr, 41 N. Y. 272; Aldrich v. Kinney, 4 Conn. 380; are only prima facie evidence of the right of the plaintiff to recover against one who at the bringing of the suit on whicli such judgment is based, was a resident of Illinois. Jones v. War- ner, 81 111. 343. See Zepp v. Hager, 70 111. 223-4. ' Supra, § 796; Hall v. Lanning, 91 U. S. 160 ; Watson i-. Bank, 4 Met. 343 ; Denison v. Hyde, 6 Conn. 508 ; Shumway v. Stillman, 6 Wend. 447; Pennywit v. Foote, 27 Ohio St. 600; Puekett V. Pope, 3 Ala. 552; Jones v. Warner, 81 111. 844; Harshey v. Blackmarr, 20 Iowa, 161; Slee v. El- ledge, 18 Kans. 296. In Pennoyer v. Neff, 95 U. S. 714, it was held that a personal judgment is without any validity, if it be ren- dered by a state court in a personal suit against a non-resident, on whom there was no personal service within * Supra, § 796. 745 § 809.] THE LAW OF EVIDENCE. [book II. that on the main, judgments of sister states, and domestic judg- ments, are governed by the same rules in this respect. To this rule, however, there is an important exception. So far as con- cerns those domiciled v^ithin its boundaries, a state may prescribe any method of service it may deem best, and its subjects will be bound by its laws. If it enacts that a service may be by publica- tion, then service by publication, as to such persons, is good. But it cannot bind by such service domiciled citizens of another state who are not personally served, and who do not appear to the suit.-' It has already been noticed that a judgment in one state, on the same demand, may be pleaded in abatement of a second suit in another state.^ § 809. It follows, therefore,^ that what has been said in re- Suchjudg- spect to domestic judgments is applicable, by reason of be^avoided ^^® provision in the Constitution of the United States, by proof of \7ith the exceptions above noticed, to a judgment of the state, and who did not appear; though the state might attach any property he has within the state merely on service by publication. To determine his personal rights, ser- vice by publication is in any case in- admissible. Process sent to him when out of the state, or service out of the state, is equally unavailing. To same effect see Schwinger v. Hickok, 53 N. Y. 280 ; Bartlett v. McNeil, 60 N. Y. 53 ; Bartlett v. Spicer, N. Y. App. 1879. In Sears v. Dacey, 122 Mass. 388, it was held that, in an action upon a judg- ment of a sister state, the question whether such judgment binds the de- fendant depends upon the question whether the writ in that action was duly served upon hiai. In this case, the defendant, having introduced evi- dence that he was not at the time of such alleged service, and had never since been, in the state where such Judgment was rendered, evidence of an admission by the defendant that he knew of the bringing of the action in such state, taken in connection with 746 other testimony introduced by the plaintiff to show that the defendant was in that state at the time of the service, was held competent to con- tradict the evidence introduced by the defendant, and to support the plain- tiff's action upon the judgment. 'See Knowles n. Gaslight Co. 19 Wall. 98; McDermott v. Clary, 107 Mass. 501. The court of a state granting a di- vorce will not recognize its validity in a case where the wife, who was the defendant, had been previously taken to another state, and there confined in an asylum, under her husband's di- rections, and who was thus confined when sued, and was notified only con- structively by publication. Newcomb i>. Newcomb, 13 Bush, 544. 1 D'Arcy w. Ketchum, 11 How. 165 Gaslight V. Knowles, 19 Wall. 98 Pennoyer v. Neff, 95 U. S. 714 Brown V. Nichols, 42 N. Y. 26. See Blaisdell v. Pray, 68 Me. 269. " Supra, § 805. • See authorities cited in two pre- vious notes. CHAP. X.J ADMINISTRATION AND PROBATE. [§ 810. one state in the American Union, when sued on in f™""? T o 1 • 1 • 1 ■ • 1 non-]uris- another state. Such judgment, as is a domestic judg- diction, ment, is open to be impeached for fraud or want of jurisdiction, or for gross irregularities or perversions of justice.^ V. ADMINISTRATION AND PROBATE. § 810. We have ah-eady said that a judgment as to status is not necessarily extra-territorially binding. Under this Letters of head may be noticed the German Todes-Erklarung, or adminis- iudicial declaration of death, which, though a protec- proof of :. , . , . , . , . . . , title but tion to innocent third persons, is omy prima facie proof, notof re- so far as concerns the parties, of the facts it recites.^ Still less can letters of administration be regarded as proof of the fact of death of the alleged decedent ; and when oHered, even as between parties or privies, they may be rebutted and inval- idated by proof that the party whom they declared to be dead was really alive.^ There is no question that, so far as concerns the effect of a judgment of probate,* it is evidence as against all the world ; and that the letters are primd faeie proof of the title of the administrator, if the court has jurisdiction.^ A court of 1 See authorities cited supra, §§ v. Frazier, 7 J. J. Marshall, 426 ; 795 et seq. It is true that it is said English u. Marray, 13 Tex. 366. See in Christmas v. Kussell, 5 Wall. 290, fully infra, § 1278. and in Maxwell v. Stewart, 22 Wall. * See supra, § 759; Dayton v. 77, that fraud could not be pleaded Mintzer, 22 Minn. 393. as a defence to an action at law on a ' Blackham's case, 1 Salk. 290; judgment of a sister state; but this Barrs u. Jackson, 1 Phill. 588; Cutts rule does not apply to cases where v. Haskins, 9 Mass. 543; Holyoke such fraud would be ground for im- v. Harkins, 9 Pick. 259; Barker, ex peaching the judgment in the state of parte, 2 Leigh, 719. See Milligan v. rendition. Hampton v. McConnell, 3 Bowman, 46 Iowa. 55. Wheat. 234; Dobson t'. Pearce, 12 Thus in New York, " when the com- N. Y. 156 ; Pearce v. Olney, 20 plaint alleges the death of the intes- Conn. 544; Rogers v. Gwinn, 21 Iowa, tate, and the due and legal appoint- 58. See supra, § 797. ment of the plaintiff as administrator ' Whart. Confl. of L. § 133. of the estate, and the answer contains ' Thompson v. Donaldson, 3 Esp. only a general denial of those allega- 63; Moons v. De Bernales, 1 Russ. 301; tions, the letters of administration in Newman v. Jenkins, 10 Pick. 515; due form, produced in evidence, are McKimm V. Riddle, 2 Dall. 100; Cun- sufficient to establish the representa- nincham v. Smith, 70 Penn. St. 458; tive character in which the plaintiff Tisdale v. Ins. Co. 26 Iowa, 170; Lan- assumes to sue. 2 R. S. 80, §§ 56, caster v. Ins. Co. 62 Mo. 121; French 58 ; 2 Steph. N. P. 1904; Starkie on 747 § 810.J THE LAW OF EVIDENCE. [BOOK II. high authority has gone so far as to hold that a grant of letters to A. as administrator of B., when B. is still living, though sup- posed to be dead, is a protection to a person making bond fide payment to A. of a debt due B.i To sustain this conclusion it is argued by Earl, J., that the decision of a Court of Probate, as to the death of a party, cannot be collaterally impeached. But this conclusion assumes that the Probate Court had jurisdiction, which, unless under a peculiar and local statute, could not be if there was no deceased person to be administered to. Apart from such statute, we must hold that letters of administration to a living person are void.^ We must, on similar reasoning, hold that when the suit depends upon proof of the death of a particular person, as a substantive fact, letters of administration, being res inter alios acta, are inadmissible to prove such death.^ And it is now settled by the Supreme Court of the United States that let- ters of administration are not admissible as evidence, in proof of death, in a suit brought by a plaintiff in his individual character, and not as administrator, to recover a claim on a policy of life insurance, the right of action depending on the death of the third person, whose life the policy insured.* Nor is there any reason why such letters should be evidence to prove death, in an action brought on the policy ty the administrator.^ Ev. 9th Amer. ed. *394, 361; 3 Phil. « See Carroll i'. Carroll, 60 N. Y. on Ev. *665, 548, 5tli Am. ed. ; New- 123, quoted infra, § 1278. man v. Jenkins, 10 Pick. 515 ; Jeffers " Mutual Ins. Co. v. Tisdale, 91 U. V. Radcliff, 10 N. H. 242; and see S. (1 Otto) 238; citing 2 Phil, on Dale, Adm., v. Eoosevelt, 8 Cow. 333. Evid. (ed. 1868) 93, m; Clayton v. The letters produced in evidence 'in Gresham, 10 Ves. 288; Moons u. De this case were sufficient, prima facie, Bernales, 1 Riiss. 307. to prove the plaintiff's character as ^ See Cent. L. J., March 17, 1876. administrator of the effects of Charles In an Irish case, however, where Belden, deceased." Folger, J., Bel- the question raised was whether a den V. Meeker, 47 N. Y. 310. child had been born alive or dead, 1 Eoderigas v. Savings Inst. 63 N. Lord Chancellor Sugden held, that a Y. 460; Am. Law Rep. Ap. 1876, grant of letters of administration to ^^^- its effects was a fact from which, in = Allen V. Dundas, ST. R. 125; the absence of evidence to the con- Jochumsenu. Bk. 3 Allen, 87; Griffith trary, he was bound to presume that V. Frazier, 8 Cranch, 9, per Marshall, the child was born alive. Reilly v. C. J. ; Fisk v. Norvel, 9 Tex. 13; and Fitzgerald, 6 Ir. Eq. 849. See Jeffers see a learned note of Judge Redfield, v. Radcliff, 10 N. H. 242. in Am. Law Reg. Ap. 1876, 212. 748 CHAP. X.J ADMINISTRATION AND PROBATE. [§ 811. § 811. A probate of a will is the judicial action of a court having jurisdiction, admitting a will as primd facie genuine and valid. Technically it is a copy of the will, sealed with the seal of the Court of Probate, and attached to a certificate that the will has been proved, and that administration of the goods of the deceased has been granted to one or more of the executors' named, or, in default of executors, to administrators. A probate of a will, if admissible at all, is only primd facie proof Probate of of the validity of the will as against persons seeking to conclusive avoid it on ground of insanity,^ or on the ground of gera, bS"' other incompetency, 2 or of imperfect execution.^ And ""\erwise ,'-,'' , ^ , as to par- a person indicted for forging a will cannot set up the ties. probate of the will as even primd facie a defence.* Letters of administration are conclusive as to the probate of the will to which the letters are attached, though they may be avoided by showing the will to be itself inoperative.^' The probate is at least primd facie proof of the title of the executor to sue.^ On the other hand, where there is a decree of a Court of Probate as to a matter exclusively within its jurisdiction, such matter being at issue and intelligently decided, the decree is conclusive against parties ; and when in rem, as to a matter over which the court has jurisdiction, against all the world.^ This rule has been extended to a sentence of a Court of Probate declaring a particular person to be next of kin.^ But the probate of a will purporting to have been executed by a married woman in pur- suance of a power is no evidence that the power has been duly 1 Marriot v. Marriot, 1 Str. 671. and see fully infra, § 1278. See Spen- 2 Dickinson v. Hayes, 31 Conn. 417. cer i: Williams, L. R. 2 P. & D. 230. 8 Charles 1). Huber, 78 Penn. St. 449. ' Canjolle u. Ferrie, 13 Wall. 465; * R. f. Buttery, R. & R. 342. Potter v. Webb, 2 Greenleaf, 259; ^ Bradley, J., Mutual Ins. Co. v. Lawrence v. Englesby, 24 Vt. 42; Tisdale, 91 U. S. (1 Otto) 243; cit- Loring v. Steineman, 1 Met. (Mass.) ing 2 Smith's Ld. Cas. (6th Am. ed.) 204 ; Crippen v. Dexter, 13 Gray, 669; Vanderpoelu. Van Valkenburg, 6 330; Rose v. Lewis, 3 Lans. 350; N.Y. 190; Coltonu. Ross 2 Paige, 396. Rudy v. Ulrich, 69 Penn. St. 177; « Noel W.Wells, 1 Lev. 235; Marriot Harris v. Colquitt, 44 Ga. 663; V. Marriot, 1 Str. 671 ; Jones v. Chase, Jourden v. Meier, 31 Mo. 40; Carter 55 N. H. 234; Emery v. Hildreth, 2 v. McManus, 15 La. An. 766. Gray, 228; Belden K.Meeker, 47 N.Y. " Barrs v. Jackson, 1 Phill. 582; 307; Carroll K. Carroll, 60 N.Y. 121; Thomas v. Ketteriche, 1 Ves. Sen. Charles v. Huber, 78 Penn. St. 448 ; 333; Doglioni v. Crispin, L. R. 1 H. Morcland v. Lawrence, 23 Minn. 84; L. 301. 749 § 812.] THE LAW OF EVIDENCE. [book II. executed.! It need scarcely be added that executors and pther parties claiming under a will are bound by the decree of the Court of Probate establishing it.^ With regard to recitals (e. g. that of the presence of a party in court), a decree of a Court of Probate has been held to be primd facie evidence as to strangers,^ though this can only be good to prove the record action of the court. Such recitals cannot be received to estop parties not served, but who should have been served.* § 812. Inquisitions of lunacy are necessarily ex parte, so far as Inquisition concems the person claimed to be a lunatic ; since, on o£ lunacy ^jjg assumption by which alone they have validity, he /ocie proof, ig a lunatic, and if a lunatic, he is not capable of put- ting in a valid appearance. Were it not for the theory, hereaf- ter noticed, that such proceedings are in rem^ they could not be held admissible against strangers ; and at the most, as to stran- gers dealing lond fide with the alleged lunatic, they are but •primd facie proof." As to parties who promote such an inquisi- tion, however, it is conclusive, so far as to preclude those taking part in the procedure from contesting the insanity of the alleged lunatic at the particular time.'^ ' Barnes v. Vincent, 5 Moo. P. C. 201. See Noble v. Willock, L. E. 2 P. &. D. 276. In respect to recent English au- thorities on this point, it must be re- membered that the ^ct of parliament passed in 1857 for the establishment of the Court of Probate (20 & 21 Viet. c. 77; and 20 & 21 Vict. c. 79, Ir.) has materially altered the law with respect to the admissibility and effect of pro- bates, and of letters of administration with wills annexed. Formerly these documents were uniformly rejected, whether tendered as primary or as secondary evidence of the contents of a will, on the trial of any cause relat- ing to real estate. Doe v. Calvert, 2 Camp. 389, per Lord EUenborough, The ecclesiastical tribunals by which they were granted had no control over devises of real property; and even when a will of lands was irretrievably 750 lost, nothing would induce them to look at the probate. Doe v. Calvert, 2 Camp. 389, per Ld. EUenborough. In respect to personalty, however, the probate wouhl have furnished conclu- sive evidence. Allen v. Dundas, 3 T. R. 125. In this country tliis dis- tinction never was recognized. See Taylor's Ev. § 1565. '^ Judson V. Lake, 3 Day, 318; Love- lady V. Davis, 33 Miss. 577; Potter v. Adams, 24 Mo. 159. s Sawyer i>. Boyle, 21 Tex. 28. See Lovell V. Arnold, 2Munf. 167. * Randolph v. Bayue, 44 Cal. 366. But such decrees are binding on sure- ties in absence of fraud or collusion. Seofield u. Churchill, 72 N. Y. 565. Supra, § 770. 5 See infra, § 817. ' See cases cited infra, § 1254. ' See infra, § 1254; Houstoun, in re, 1 Russ. R. 312. CHAP. X.] JUDGMENTS AS PROTECTING JUDGES. [§ 813. T. JUDGMENT AS PROTECTION TO A JUDGE. § 813. Another important evidentiary property of judgments is founded upon the rule of law which, on grounds of ^ ^ . .... Judgment policy, protects judges from collateral responsibility aconciu- for errors of judgment. A judge, whether inferior or tectionto otherwise, orders a seizure of property, on a case being •'" ^°" proved before him, which in his opinion justifies such seizure. He is sued for trespass, and in his defence the record of his judgment is produced. It may be that this record assumes as proved one of the very facts necessary to the jurisdiction of the court. But yet even in this case we have English rulings that the judgment is conclusive as to these facts. ^ The position, how- ever, that the record of a magistrate is conclusive in his favor, has been regarded in this country as advanced too far when it includes those points which are the prerequisites to the attaching of jurisdiction .2 But however this may be (and the point is one of anxious difficulty), we must regard it as settled that in all other respects the magistrate's record, if on its face regular, is conclusive in his favor if sued civilly for an erroneous judgment. It should be, in any view, kept in mind, that the record only protects a judge when acting in a judicial papacity.^ It has con- sequently been held that a magistrate's warrant cannot be set up by him as a defence to an action of trespass brought against him for issuing a warrant of distress to enforce payment of a high- way rate, should the rate prove invalid ; for although the rate must be good in order to give him jurisdiction, he cannot judi- cially decide upon its validity.* 1 Basten v. Carew, 3 B. & C. 649 ; » Fernley v. Worthington, 1 M. & Mould V. Williams, 5 Q. B. 469. See Gr. 491. Brittain v. Kinnaird, 1 B. & B. 432; * Mould v. Williams, 5 Q. B. 476, affirmed in R. v. Bolton, 1 Q. B. 74; per Ld. Denman; Weaver v. Price, 3 R. U.Buckinghamshire, 3 (J. B. 809; B. & Ad. 409; Morrell v. Martin, 3 Mould V. Williams, 5 Q. B. 473. M. & Gr. 593, per Tindal, C. J.; Ld. 2 Clapper, ex parte, 3 Hill (N. Y.), Amherst v. Ld. Sommers, 2 T. R. 372; 458. Taylor's Ev. § 1485. 751 § 814.J THE LAW OF EVIDENCE. [book II. VII. JUDGMENTS IN KEM. § 814. The decree of a Court of Admiralty or of Exchequer, Admiralty having jurisdiction internationally, when the proceed- ji^dgra^ntY ings are in rem, in cases of collision, prize, or forfeiture, in rem good ]^ g extra- territorial validity, whether the court be for- against all ^ ,,-.,-. the world, eign or domestic.^ This ubiquity of authority is applied even in cases where the sentence is founded on mistake of law.^ It is otherwise, however, if the jurisdiction does not appear, or if, in cases where the effort is to make the judgment personal in its operation, there was no personal summons and appearance,^ or hearing,* or where the judgment was fraudulent,^ or where the sentence is outrageously unjust.® But in cases where the 1 Stringer v. Ins. Co. L. E. 4 Q. B. 6 76 ; Hughs v. Cornelius, Ld. Ray. 473; Scott u. Shearman, 2 W. Black. 977 ; Lothian v. Henderson, 3 B. & P. 499 ; Bernardi v. Motteux, 2 Doug. 674; The Helena, 4 Ch. Rob. 3; Cooke V. Sholl, 5 T. R. 255; Godard v. Gray, L. R. 6 Q. B. 139; Dalgleish ti. Hodg- son, 7 Bing. 504 ; Bolton v. Gladstone, 5 East, 160 ; Croudson v. Leonard, 4 Cranch, 434 ; Peters v. Ins. Co. 3 Sumn. 389 ; Bradstreet v. Ins. Co. 3 Sumn. 600; Mankin v. Chandler, 2 Brock. 125; Dunham v. Ins. Co. 1 Low. 253 ; The Vincennes, 3 Ware, 171; French v. Hall, 9 N. H. 137; Whitney v. Walsh, 1 Cush. 29 ; Den- ison V. Hyde, 6 Conn. 508 ; Grant v. McLachlin, 4 Johns. 34 ; Gelston ii. Hoyt, 13 Johns. 561 ; 3 Wheat. 246 ; Street t.. Ins. Co. 12 Rich. (S. C.) 13 ; Duncan v. Stokes, 47 Ga. 593 ; Stateu. R. R. lONev. 47. See Brown V. Bridge, 106 Mass. 563. 2 Imrie v. Castriquc, 8 C. B. N. S. 403 ; L. R. 4 H. L. 414 ; Williams v. Amroyd, 7 Cranch, 423. ^ NefFt). Pennoyer, 3 Sawyer, 274; Pennoyer i;. Neff, 95 U. S. 714; Sheri- dan V. Ireland, 66 Me. 138. * Windsor D. McVeigh, 93 U: S. 274; supra, § 796; The Griefswald, Swabey, 752 430 ; Bradstreet v. Ins. Co. 3 Sumn. 600; Rose v. Himely, 4 Cranch, 241; Slocom K.Wheeler, 1 Conn. 429; Saw- yer V. Ins. Co. 12 Mass. 291; Kueh- ling V. Lebermann, 2 Weekly Notes, 616. See Denlson v. Hyde, 6 Conn. 508. 5 Shand v. Du Boisson, L. R. 18 Eq. 283 ; Messina v. Petrocochino, L. R. 4 P. C. 144. ' Ibid. As to foreign prize judg- ments, it is well to remember that Lord Thurlow and Lord EUenborough held that the practice of receiving such judgments at all in evidence rested upon an overstrained comity, and was often productive of cruel injustice. Fisher v. Ogle, 1 Camp. 419, 420 ; DonaldSon v. Thompson, Ibid. 432. In all cases, it should be remem- bered, the elFect of the decree, unless the defendant be within the jurisdic- tion of the court at the time, or ap- pears as a party, is limited to the thing as to which the judgment is ob- tained. Infra, § 818. Thus in Bart- lett V. Spicer, decided by the New York Court of Appeals, on January 21, 1879, reported in Alb. L. J. for 1879, the majority owners of a vessel filed a libel in admiralty in the United States District Court, to obtain pos- CHAP. X.J JUDGMENTS IN REM. [§ 814. court has jurisdiction as to the particular property attached, and as to other matters which the defendant is duly summoned to contest, the decree of a Court of Admiralty, or of other court acting in rem, is held in this country conclusive as to the essen- tial facts on which the decree rests ; ^ and this view is now accepted in England.^ It is otherwise as to the proceedings of session of the vessel, which had been seized by the sheriff on execution, on a judgment for tort against the minor- ity owner, in Louisiana, upon default, without personal service of the sum- mons or appearance of the defendant, a. non-resident. The majority own- ers, in order to get possession of the vessel for a particular voyage, had executed a stipulation for the return of the vessel or the payment of the minority interest to the minority own- er, and this action was brought "upon that stipulation in the Supreme Co,urt of this state. It was held by the Court of Appeals : 1. That the Su- preme Court had no jurisdiction of the action, but that the Admiralty Court had exclusive jurisdiction. The stipulation was but an incident to the possessory action, standing in place of the vessel, and to be enforced accord- ing to the practice of that court. ' Palmyra, 1 2 Wheat. 1 ; Brig Alliga- tor, 1 Gallison, 148 ; Benedict's Ad- miralty, §17; The HoUen and Cargo, 1 Mason, 435. The practice is pro- vided for by the rules of that court, and is entirely different from that on ordinary bail or appeal bonds in com- mon law courts. When the action is in rem the jurisdiction is exclusive; Steamboat v. Chase, 16 Wall. 522- 532; and if the original action is in rem the incidents must be of the same nature. 2. The judgment was invalid. A valid judgment in personam cannot be obtained against a non-resident of the state who is not personally served VOL. 1. 48 with process, and who has not ap- peared in the action, and it is not competent for a state to authorize such a judgment which will bind prop- erty not within the state at the time, and not proceeded against in rem. Pennoyer v. Neff, 95 U. S. (5 Otto), 714; Schwinger v. Hickok, 53 N. Y. 280; Bartlett v. McNeil, 60 Ibid. 53. 3. The recitals of the judgment and execution in the stipulation are not conclusive, as the libel expressly puts in issue the validity of the judgment. The stipulation must be construed with reference to the allegations in the libel. A decree of admiralty, it may be added, that a master has forfeited his wages, is no bar to a common law suit by him for the wages. Murphy V. Granger, 32 Mich. 358. ^ Croudson v. Leonard, 4 Cranch, 434; Baxter v. Ins. Co. 6 Mass. 277 ; Calhoun v. Ins. Co. 1 Binn. 299; Street V. Ins. Co. 12 Rich. (S. C.) 13; Gron- ing V. Ins. Co. 1 Nott & McC. 537. Contra, Johnson v. Ludlow, 1 Caines Sel. Ca. 30; Radcliff v. Ins. Co. 9 Johns. 277; Ocean Ins. Co. k. Francis, 6 Cow. 404; Thompson v. Stewart, 8 Conn. 171; Ins. Co. v. Bathurst, 5 Gill & J. 159; Bailey v. Ins. Co. 1 Treadw. (S. C.) 381; Bourke v. Granberry, Gilm. (Va.) 16. See Bigelow on Es- toppel, 2d ed. 161 et seq. ^ Lothian v. Henderson, 3 Bos. & P. 499; Hobbs v. Henning, 17 C. B. N. S. 791. 753 § 815.J THE LAW OF EVIDENCE. [BOOK II. foreign courts acting irregularly, and without proper pleadings.^ Nor can recitals of facts not absolutely necessary to the decree bind strangers. 2 In cases of condemnation, the ground of con- demnation, to be conclusive, must clearly appear.^ So it is held in England that the decree may be disputed and the facts opened, when the language of the sentence, by setting out several rea- sons for judgment, leaves it uncertain whether the ship was con- demned upon a ground which would warrant its condemnation by the law of nations, or upon other ground, which amounts only to a breach of the municipal regulations of the condemning coun- try.* In any way, it is agreed that the decree is conclusive only as to matters essential to the decree.^ § 815. Independently of prize and admiralty judgments, which Judgment have been just noticed, a judgment in rem, entered by bindTall ^ court having jurisdiction, is conclusive everywhere the world, and against everybody,^ as to the thing attached,^ pro- 1 Bradstreet v. Ins. Co. 3 Sumn. 600; Sawyer v. Ins. Co. 12 Mass. 291. = Van Vechten v. Griffiths, 4 Abb. (N. Y.) App. 487. * See Lothian u. Henderson, ut svr- pra; Christies. Secretran, 8T. R. 192; Bradstreet v. Ins. Co. 3 Sumn. 600; Robinson v. Jones, 8 Mass. 536 ; Gray V. Swan, 1 Har. & J. 142. It should be remembered that Tin- dal, C. J., has held that, in order to bind strangers, the ground of the decision must appear clearly upon the face of the sentence, and that it will not suffice for it to be collected by in- ference only. Dalgleish v. Hodgson, 7 Bing. 504 ; Fisher u. Ogle, 1 Camp. 418, per Ld. EUenborough. And it is argued that if, in an action upon a policy of insurance containing a war- ranty of neutrality, the underwriter were to rely upon a general sentence of condemnation, the assured might still show that in fact the judgment had proceeded upon some other ground n that of an infraction of neutral- ity. Calvert v. Bovill, 7 T. E. 527. 764 * Dalgleish w. Hodgson, 7 Bing. 495, 504; 5M. & P. 407, S. C. ; Hobbs v. Henning, 17 Com. B. N. S. 791 ; 34 L. J. C. P. 117, S. C; Bernard! v. Motteux, 2 Doug. 575; Calvert v. Bovill, 7 T. R. 523 ; Baring u. Clag- ett, 3 B. & P. 216; TayloT's Ev. § 1642. « Calvert v. Bovill, 7 T. R. 523 ; Maley v. Shattuck, 3 Cranch, 458; Fitzsimmons u. Ins. Co. 4 Cranch, 186. ^ 2 Smith's Lead. Cas. 661; Han- naford v. Hunn, 2 C. & P. 155 ; Cam- mell V. Sewell, 3 H. & N. 646 ; The Rio Grande, 23 Wall. 458; Thomp- son V. O'Hanlan, 6 Watts, 492 ; Nor- ris's App. 30 Penn. St. 122; Penn. R. R. V. Pennock, 51 Penn. St. 244; Noble V. Oil Co. 79 Penn. St. 854. See Webster v. Adams, 68 Me. 317; Moore V. R. R. 43 Iowa, 885. ' A judgment by attachment in a court of another state is only conclu- sive that the debt sued on was due to the plaintiff to the amount of the prop- erty attached. Peebles v. Patapso Co. 77 N. C. 233. OHAP. X.] JUDGMENTS IN REM. [§ 815. vided the court have jurisdiction in rem as to the object of the judgment,^ and the proceedings be not fraudulent or in gross vio- lation of international law.^ Mr. Smith, in his Leading Cases,^ defines a judgment in rem to be " an adjudication pronounced upon the status of some particular subject matter, by a tribunal having competent authority for that purpose ; " and this defini- tion is declared by Mr. Taylor to be " the best, if not the only reliable one, to be found in the books ; " but he at the same time suggests that the definition may be regarded as unduly broad, as including criminal convictions, and inquisitions in lunacy.* Nor is this iihe only criticism to be made on the unqualified use of the word status in Mr. Smith's definition. A judgment as to status is not a judgment in rem, so far as concerns persons. A foreign conviction of infamy determines the status of the convict; but such conviction is not extra-territorially regarded as operative in attaching infamy. So a state may by statute or otherwise defer the majority of its subjects until they are thirty ; but the better opinion now is that this status of pupilage does not cling to them exfra-territorially, but that in other countries they can, at twenty-one, be made responsible for their debts. So non- business men are by German and French law incapacitated, un- der certain circumstances, from making negotiable paper ; but no one now regards this prohibition, though it is emphatically one of status, as ubiquitous.^ By text-writers, also, of high authority the term judgment in rem is extended to cover divorces, and ad- judications in bankruptcy. But a decree in divorce is not neces- sarily ubiquitously valid ; * and a foreign bankrupt discharge only protects the bankrupt as to claims against him by persons domi- ciled in the same state.^ So, also, slavery was eminently a status ; yet it was held by the Supreme Court of the United States that 1 Penn. R. R. v. Pennock, 51 Penn. 196, where it was said that a foreign St. 244 ; Noble v. Oil Co. 79 Penn. judgment in rem did not estop a party St. 354, per Mercur, J. from reasserting his claim in his home ^ Shand v. Du Boisson, L. R. 18 courts. Eq. 283; Messina v. Petrocochino, ^ 2 Smith's Lead. Cas. 662. L. R. 4 P. C. 144. But the fraud must * Taylor's Evidence, § 1487. not be such as could have been de- * See the cases collected in Whar- feated in the foreign court. Bank ton Confl. of Laws, §§ 84-122. Andalusia t). Nias, 16 Q. B. 717. See « See Wharton Confl. of Laws, § Simpson v. Fogo, 29 L. J. Ch. 657; 204. Infra, § 817. 1 Johns. & Hem. 18; 1 Hem. & M. ' Wharton Confl. of Laws, § 852 a. 755 § 816.J THE LAW OF EVIDENCE. [BOOK II. a judgment declaring a person to be free bound only parties and privies, and was not a judgment in rem, good against all the world.^ § 816. From what has just been said it will be seen that grave differences exist as to the limits of judgments in rem, judgments Supposing that to judgments in rem it is an essential *" '"'"'■ incident that they should be extra-territorially conclu- sive. That this quality cannot be absolutely predicated of for- eign judgments of marriage and of legitimacy has been already incidentally noticed.^ How far judgments of prize and admi- ralty courts are extra-territorially conclusive has been just con- sidered. It may be now in addition noticed that the English courts have recognized as judgments in rem, forfeitures pro- nounced by the Court of Exchequer,^ letters of probate,* or ad- ministration ; ^ sentences of deprivation and expulsion, whether delivered by the spiritual court, a visitor, or a college ; ^ orders of justices for dividing roads under the Act of 34 G. 3, c. 64 ;^ decrees of settlement by an order of justices, whether unappealed against ^ or confirmed by a Court of Quarter Sessions on appeal ; ^ and judgments of outlawry .!•* In Ireland the same quality has been assigned to judgments by the commissioners or sub-com- missioners of excise, inland revenue, or customs.^! Yet all these rulings relate to infra-territorial courts, under the local law es- tablished by a common sovereign. We have nothing to show, » Davis V. Wood, 1 Wheat. 215. ' R. v. Hickling, 7 Q. B. 880. 2 The authorities on this topic are s jj. u. Kenilworth, 2 T. R. 599, per discussed at large in my work on Con- Buller, J. flict of Laws, to which, for the sake ' R. v. Wick St. Lawrence, 5 B. & of brevity, I now merely refer. Ad. 533, per Ld. Denman. " Geyer v. Aguilar, 7 T. R. 696, w Co. Lit. 352 5. per Ld. Kenyon; Scott v. Shearman, u Maingay v. Gahan, Ridg. L. & S. 2 W. BI. 977; Cooke v. Sholl, 5 T. 1, 79; 1 Ridg. P. C. 43, 44, u., S. C. R- 255. There, according to Mr. Taylor (§ * Noel V. Wells, 1 Lev. 235, 236; 1488), the Irish Ex. Ch. expressly Allen V, Dundas, 8 T. R. 125. overruled Henshaw v. Pleasance, 2 « Bouchier v. Taylor, 4 Br. P. C. W. Bl. 1174, a decision which, accord- 708. See Prosser v. Wagner, 1 Com. ing to Fitzgibbon, Ch. (see Ridg. L. & B. (N. S.) 289; though see supra, S. 79), was reprobated by Ld. Mans- § 810. field, in Dixon v. Cock, and was fre- » Philips V. Bury, 2 T. R. 346, per quently condemned by Ld. Lifford, Ld. Holt; R. v. Grundon, 1 Cowp. Ch. 315, 321, 322, per Ld. Mansfield. 766 CHAP. X.] JUDGMENTS IN EKM. [§ 817. that, so far as concerns personal status, an English court would hold itself bound absolutely by the decree of a foreign tribunal.^ That a foreign decree of bankruptcy, though a decree as to status, cannot be regarded as imposing disabilities on the bankrupt which pursue him to every country in which he settles, would not be seriously maintained either in England or the United States.^ § 817. It is with the qualification just stated (i. e. that the term does not necessarily imply ubiquitous conclusive- ^^ ^^^^ ^^ ness) that we are to understand other rulings to the to personal -^ . "^ . status not effect that a judgment as to personal status is a judg- necessarily ment in rem. Thus it has been held by the Supreme Court of the United States that the proceedings of a competent court, determining pedigree, is in rem,^ yet we would not hold, as to a foreign decree of legitimacy (e. g. in a polygamous de- scent), that it determined questions our courts could not revise. So it has been declared that the order of a court, having jurisdic- tion of a minor, appointing his tutor, is good against all the world ; * but we do not at the same time regard foreign non-nat- ural decrees of minority as everywhere binding. So, extra-terri- torial validity has been claimed for the decree of a court appoint- ing a guardian of a lunatic, the decree emanating from the proper court of his domicil ; but if the lunatic appears as sane in a foreign land, this decree would not bar foreign creditors.* That a judgment of divorce can only be in a qualified sense re- garded as extra-territorially binding is amply shown in another work whose conclusions are^ here reaffirmed.® 1 See, also, Roberts u. Fortune, 1 Savigny, Rom. Eecht, viii. § 380; Bar, Harg. L. Tracts, 468, n., per Lee, C. Int. Privat Recht, § 106; but see, con- J. ; Terry v. Huntington, Hardr. 480; tra, .Tohnstone v. Beattie, 1 Phil. Ch. and Fuller v. Fotch, Carth. 346. 17; 10 CI. & Fin. 42; Dawson v. Jay, 2 See this point discussed in Whart. 2 Sm. & Giflf. 199; S. C. 3 D., M. & Confl. of Laws, §§ 101, 388. As to G. 764; explained in Stuart u. Bute, limits of judgment in rem, see Meyer 9 H. L. C. 440; Story's Confl. of L. V. Ralli, L. R. 1 C. P. D. 359. § 499. 8 Ennis v. Smith, 14 How. 400. ^ Wharton's Confl. of Laws, § 269. See, however, Kearney v. Dean, 15 See Houstoun, in re, 1 Russ. R. 312. Wall. 51 ; Bigelow on Estoppel (2d Supra, § 812. ed.), 144. ° Wharton's Confl. of Laws, §§ 127 * Garrison's Succession, 15 La. An. et seg. 27; Whart. Confl. of Laws, § 259; 757 § 818.] THE LAW OF EVIDENCE. [BOOK II. § 818. It is scarcely necessary to repeat that a judgment in rem of a foreign state cannot, unless there has been such a in rmdT personal service within the territory of the state of proc- ptr^J!" ess as gives jurisdiction to the court, bind in personam beliTa?' extra-territorially.^ If there be no appearance of the cordance defendant in the suit, and the defendant was not at the lished rules time within the jurisdiction of the court, the defendant justice. .^ ^^^^ bound as to the effects attached. No valid ubiq- uitous judgment in personam can be thus obtained.^ Hence a foreign bankrupt adjudication does not extra- territorially bind a party over whom the court has not acquired personal jurisdic- tion.^ Nor, even as to property attached, can a judgment in rem be maintained against collateral attacks, unless the proceedings be conducted according to established rules of justice, forming part of private international law.* Thus it was held by the Supreme Court of the United States, in 1876, in a case already cited, that the jurisdiction acquired by the seizure of property, in a proceeding in rem for its condemnation for alleged forfeiture, does not authorize the attaching court to pass upon the question of forfeiture absolutely, but only to pass upon that question after opportunity has been afforded to its owner and parties interested to appear and be heard upon the charges for which the forfeiture is claimed. To that end some notification of the proceedings, beyond that arising from the seizure, prescribing the time within which the appearance must be made, is essential to sustain the judgment.^ 1 See supra, § 815; 2 Phillipps in the record that notice had been Evid. 198; Story's Confl. of Laws, given to defendants out of the state, §549; 3 B urge's Com. 1014; D'Arcy where their property was attached V. Ketchum, 11 How. 165; Boswell within the state, cannot be impeached V. Otis, 11 How. 336 ; Bissell v. Briggs, collaterally in the courts of the state in 9 Mass. 462; Phelps !). Brewer, 9 Cush. which judgment was entered. Blais- 390; Steel v. Smith, 7 W. & S. 447; dell o. Pray, 68 Me. 269. Scott V. Noble, 72 Penn. St. 120. « Kuehling v. Lebermann, Sup. Ct. " Pennoyer «. Neff, 96 U. S. (5 Otto) Penn. 1876, 2 Weekly Notes of Cas. 714; Nefiu. Pennoyer, 3 Sawyer, 274; 616. Sheridan c. Ireland, 66 Me. 138; * Wharton Confl. of Laws, § 792; Schwinger v. Hickok, 53 N. Y. 280; Bradstreet v. Ins. Co. 3 Sumn. 601; Bartlett v. McNeil, 60 N. Y. 53 ; and see cases cited supra, § 814. Fitzsimmons v. Marks, 66 Barb. 833; * Windsor v. McVeigh, 93 U. S. Bartlett v. Spicer, cited supra § 814. 274, quoted supra, § 796. But it is said in Maine that a recital 768 CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 820. Tin. RECORDS VIEWED EVIDENTIALLY. § 819. It is not merely the judgment that the parties to a suit are precluded from disputing ; they are equally bound by the incidental action of the court to whose arbitra- of record ment they submit. Hence, when the parties are the guit°a™*'^ same, the record of a former suit may be put in evi- ^'(^^''''^ dence to establish a controverted fact. The parties are same parties. concluded by the record, unless fraud be shown. ^ But to make the record thus admissible (e. g. as in cases of returns to executions), the parties must be virtually the same, or the par- ties to the second suit must be privies to the parties in the first.^ § 820. The distinction elsewhere ^ noticed, between bilateral and unilateral proofs, applies necessarily to records. Records A record is bilateral when introduced between parties sib™eyi- and privies, and when so used, as we have seen, cannot . Littlefield, 7 Wend. 454; Keyu. Dent, 14 Md. 86 ; Gray v. Gray, 3 Litt. (Ky.) 465 ; Bumpass v. Webb, 3 Ala. 109 ; Ryburn v. Pryor, 14 Ark. 505 ; Dexter v. Paugh, 18 Cal. 372. As to ancient records, see supra, § 200. ^ Tomlinson v. Collins, 20 Conn. 759 § 821.] THE LAW OF EVIDENCE. [BOOK II. ure are among the most conspicuous illustrations of the principle before us ; and as to these, as we have already seen, judgments, and even verdicts, are admissible in all cases in which common reputation would be received .^ A writ of restitution, also, un- accompanied by the judgment, and inter alios acta, has been re- ceived for a plaintiff, not to establish a title, but to show what the property was, of which the plaintiff was possessed, and the extent of his occupancy.^ So, as we have occasion elsewhere to see, the issuing of letters of administration has been held to be collaterally primd facie proof of the administrator's title, though not of the averments of the record.^ So decrees of courts, settling administration accounts, have been held in collat- eral proceedings primd facie proof of such accounts, there being averment of due notice.* But, as a rule, the acts of courts, as well as the acts of individuals, are mere hearsay as to strangers,^ unless such judgments be in rem, or are offered to prove public acts, or inducement, as hereafter defined.^ § 821. It is also proper to observe that a judgment of a Record ad- "ourt of law, Or a decree of chancery, is admissible, missibie to though res inter alios acta, to prove a link in a chain prove link ° . . in title. of title. The record, as it impdrts absolute verity, is conclusive between parties and privies ; '^ though open, as is else- where seen, to be explained by parol when obscure, or to be im- 364. See "Wilder v. Holden, 24 Pick. ^ See supra, §§ 175; infra, §§ 1078, 8. 1088. 1 Supra, §§ 200, 794. e jnf^a, § 823. 2 Lee V. Stiles, 21 Conn. 500. See ' Inman v. Mead, 97 Mass. 310; Calvert v. Marlow, 18 Ala. 67. Casler v. Shipman, 35 N. Y. 533; Den « Supra, § 810; French «. Frazier, v. Hamilton, 7 Halst. (N. J.) 109 7 J. J. Marsh. 425 ; Tisdale v. Ins. Coursin v. Ins. Co. 46 Penn. St. 323 Co. 26 Iowa, 170; English w. Murray, House v. Wiles, 12 Gill & J. 338 13 Tex. 366. Barney v. Patterson, 6 Har. & J. 182 * Owens «. Collins, 8 Gill & J. 25; Shanks v. Lancaster, 5 Grat. 110 Evans V. Iglehart, 6 Gill & .L 171; Baylor v. Dejarnette, 13 Grat. 152 Stockett V. Jones, 10 Gill & J. 276; Buckingham v. Hanna, 2 Ohio St. 551 Atwell V. Milton, 4 Hen. & M. 253; White v. Rice, 48 Ind. 225; Splahn v. Smith V. Hoskins, 7 J. J. Marsh. 502; Gillespie, 48 Ind. 397 ; Niohol v. Mo- Neville V. Robinson, 1 Bailey, 361; Calister, 52 Ind. 586 ; Turpin !>. Bran- Brown V. Wright, 5 Ga. 29. See non, 3 McCord, 261; Doe v. Roe, 36 Wilhelm v. Cornell, 3 Grant, 178; Ga. 821; Montgomery w. Robinson, 49 Street v. Street, 11 Leigh, 498. Cal. 259. 760 CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 823. peached on ground of fraud.^ But, as to strangers, a recital in a record, that a party whose lands are sold was heir to a former owner, is not sufficient to make out the chain. The fact of heirship must be independently proved by the introduction, when necessary, of partition proceedings or other records.^ So a deed from a sheriff is to be preceded by record authority in the sheriff to sell.^ Hence, in making up such record title, when depending upon a sheriff's sale, it is proper to put in evidence not merely the execution, but the judgment,* though beyond this it has been held unnecessary to go, as against the judgment de- fendant's successors.^ § 822. When the object is to show justification, in cases where damages are sought for a trespass, it is admissible to prpve by record an authorization of court.® So when of admis- the object is to show payment by the plaintiff for the defendant, a record is admissible to show a decree against the plaintiff and the defendant jointly, and full satisfaction by the plaintiff.^ § 823. We have already had occasion ^ to dwell upon the im- portant distinction between judgments, when offered judgments between parties and privies, in which cases thev are admissible .,.,... against (with certain limitations already expressed) conclusive strangers as to their subject matters ; and judgments when of- their legal fered for or against strangers, in which case they are * °'^'^' admissible only to prove their existence and their effects. In other words, judgments in the latter case are admissible to prove, not why they were given, for this is res inter alios acta ; but what they did, for this, when it is- relevant, is admissible against all the world. A judgment by A. against B., for instance, in a private claim, is not admissible in a suit by A. against C, as proof of any direct indebtedness from C. to A. ; but if in A.'s suit against C. it becomes relevant to show that A. had obtained and col- lected a judgment against B., then the record of the judgment in the suit of A. against B. is admissible for this purpose. 1 See infra, § 985. ' Fortier v. Zimpel, 6 Ga. 53. 2 Lovell V. Arnold, 2 Munf. 167; « State v. Hyde, 29 Conn. 564; Archer v. Bacon, 12 Mo. 149 ; Ward- Plummer v. Harbut, 5 Iowa, 308; Tay- law V. Hammond, 9 Rich. (S. C.) 4.54. lor's Ev. § 1481. » Infra, §§ 1312-15 ^ Davidson v. Peck, 4 Mo. 438. * See Gaskell v. Morris, 7 Watts & » Supra, §§ 759, 820. S. 82. 761 § 823.] THE LAW OF EVIDENCE. [book II. When a judgment is offered for such purpose, it is sometimes said in the books to be offered as inducement ; though it would be more correct to say that as against strangers a judgment is ad- missible to prove its existence and legal effects.^ Thus, a j udg- ment establishing the relationship of debtor and creditor between A. and B. may be afterwards used collaterally to show primd facie such relationship.'^ In a suit against a deputy sheriff for misconduct, the record of a judgment against his principal is admissible to show that such a judgment was rendered, but not to prove the deputy's default for which such judgment was ren- dered.^ A judgment, also, against the guarantor, may be always introduced in a suit brought for reimbursement by the guarantor against his principal.* So, in order to prove diligence, but for no other purpose, it is admissible in a suit against the indorsers of a note, to prove a judgment against the maker pi'osecuted to insolvency.^ In all cases, to pass to another line of illustrations, where it is sought to discredit a witness, a record of the convic- tion of the witness is admissible when pertinent, whoever may be the parties to the suit,^ and when a witness is to be contra- ^ Stephen's Ev. art. 40; Green v. New River Co. 4 T. R. 590 ; S. C. 2 Smith's Lead. Cas. 585 ; King v. Chase, 15 N. H. 9; Vogt v. Ticknor, 48 N. H. 242; Spenceru. Dearth, 43 Vt. 98; Griffin V. Brown, 2 Pick. 304; Weld V. Nichols, 1 7 Pick. 538 ; Com. Bk. v. Eddy, 7 Met. (Mass.) 181; Goodnow V. Smith, 97 Mass. 181; Kip ». Brig- ham, 7 Johns. 168; Farmers' Bank v. R. R. 72 N. Y. 188; McMiehael v. Mc- Dermott, 17 Penn. St. 353; Borough of York V. Forscht, 23 Penn. St. 391 ; Key u. Dent, 14 Md. 86; Ray v. Clemens, 6 Leigh, 600 ; Gaither v. Brooks, 1 A. K. Marsh. 409; Head v. McDonald, 7 T. B. Mon. 203 ; Stale V. Foster, 3 McCord, 442; Havis v. Taylor, 13 Ala. 324 ; Donnell v. Jones, 17 Ala. 689; McGill v. Monette, ,37 Ala. 49; Fox v. Fox, 4 La. An. 135; Lee V. Lee, 21 Mo. 531. ^ Sidensparker v. Sidensparker, 52 Me. 481; Chamberlain v. Carlisle, 26 762 N. H. 540 ; Candee v. Lord, 2 Comst. 269. It has been held, however, in Alabama^ that in a .suit to set aside a conveyance, by a creditor of the grant- or, a judgment in favor of the cred- itor and against the grantor is inad- missible to affect the grantee. Troy v. Smith, 33 Ala. 4C9. See contra, Vogt V. Ticknor, 48 N. H. 242 ; Church v. Chapin, 36 Vt. 231 ; Inman u. Mead, 97 Mass. 310. « Lewis V. Knox, 2 Bibb, 453. See, also, Cox V. Thomas, 9 Grat. 823. * Copp u. McDugall, 9 Mass. 1 ; Lee V. Clarke, 1 Hill, 45. ^ Lane v. Clark, 1 Mo. 657. For parallel cases, see Preslar v. Stall- worth, 37 Ala. 405; Marlatt v. Clary, 20 Ark. 251; Gragg v. Richardson, 25 Ga. 570. « Wharton's Cr. L. § 659; Real, in re, 55 Barb. 186, S. C; 7 Abb. Pr. N. S. 26 ; Morrison u. Chapin, 97 Mass. 72. CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 824. dieted by showing his testimony on a former trial, the record of such former trial may be put in.^ In an action of malicious prosecution, also, the record of acquittal is admissible to prove such acquittal, though not to prove want of probable cause.^ Where there is a judgment against a master for the servant's negligence, and the master sues the servant, the servant can- not controvert the^fact that the judgment was entered against the master, though the judgment (if the servant was not sum- moned to come in and defend) is no evidence of the servant's liability .3 On the other hand, where the servant is jointly sued with the master, or is notified to come in (bringing before us, in sharp contrast, judgments as to parties and judgments as to strangers), then he is bound, as to his liability, by the judg- ment ; * and where a judgment has been recovered against a city for a nuisance, after it has notified the author of the nuisance of the suit, then such judgment is conclusive against the latter in a suit against him by the city for reimbursement.® How far criminal judgments can be put in evidence in civil cases has been already discussed.^ § 824. If the object of the evidence be to prove, as an estoppel, or as a link of title, a particular judicial result '■ e. g^ „ the entering of a judgment ; it is not enough to have judgment, a certificate of the result. The whole record, so far must be as it concerns the formal stages, must be either pro- ^ duced ' or exemplified, and if exemplified, the exemplification must show on its face that the record is complete,^ nor can the 1 Clarges v. Sherwin, 12 Mod. 343. ham, 6 Johns. 158; Bond v. Ward, 1 2 Supra, § 776. N. & McC. 201. See other authori- The fact that a judgment or de- ties cited supra, § 763, note 4, and cree might, if directly attacked, be Bigelow on Estoppel, 2d ed. p. 66. held invalid, does not preclude it from * Supra, § 776. being used for the purposes above ' Britton v. State, 54 Ind. 535 ; noted. Sebastian v. Ford, 6 Dana, Gest v. R. R. 30 La. An. 28. Supra, 436 ; Wildey v. Bonney, 31 Miss. 644. § 106. See Hill v. Parker, 5 Rich. S. C. 87. s gge supra, §§ 95-106, 120 ; R. v. » Green v. New River, 4 T. R. 590; Smith, 8 B. & C. 341 ; Godofrey v. Pritchard v. Hitchcock, 6 M. & G. Jay, 3 C. & P. 192; R. i;. Robinson, 165 ; 2 Smith's Lead. Gas. 585. 1 C. & D. 329 ; Porter v. Cooper, 6 * Bailey v. Bussing, 37 Conn. 349. C. & P. 354; R. v. Birch, 3 Q. B. 431 ; ^ Rochester v. Montgomery, 72 N. Jay v. East Livermore, 56 Me. 107 ; Y. 66; relying on Boston u. Worthing- Merrill d. Foster, 33 N. H. 379; ton, 10 Gray, 497 ; S. P., Kip v. Brig- Hawks v. Truesdell, 99 Mass. 567; 763 § 824.] THE LAW OF EVIDENCE. [book II. record be patched with parol.^ The component parts of the rec- ord should be so attached that it will appear that the certificate extends to them all.^ A certificate that a transcript is true and perfect, enumerating all the usual parts of a record, is sufficient.^ So far as concerns other courts, a record of an unfinished suit cannot be received for dispositive purposes.* Hence, when a Davidson v. Murphy, 13 Conn. 213; Belden v. Meeker, 2 Lansing, 470 ; Com. V. Trout, 75 Penn. St. 379; Numbers v. Shelly, 78 Penn. St. 426 ; Davis V. Com. 13 Bush, 318; Carrick V. Armstrong, 2 Coldw. 265 ; Evans v. Reed, 2 Mich. N. P. 212; Sternburg V. Callanan, 14 Iowa, 251; Smith v. Smith, 22 Iowa, 516 ; Miles v. Wingate, 6 Ind. 458 ; Miller v. Deaver, 30 Ind. 371 ; Young v. Thompson, 14 111. 380; Oliver V. Persons, 30 Ga. 391; Jones V. Easley, 53 Ga. 454; Mitchell o. Mitchell, 40 Ga. 11 ; Halletu. Eslava, 3 St. & P. 105 ; Anderson v. Cox, 6 La.. An. 9; Loper v. State, 4 Miss. 429; Wash v. Poster, 3 Mo. 205; Mason V. Wolff, 40 Cal. 246 ; Ogden V. Walters, 12 Kans. 282; Stark v. Billings, 15 Pla. 318. As to verdicts, see infra, § 831. ' Montgomery v. Merrill, 36 Mich. 67. 2 Susquehanna K. R. u. Quick, 68 Penn. St. 189 ; Herndon v. Givens, 16 Ala. 261. ° Coffee V. Neely, 2 Heisk. 304. * Heath v. Page, 63 Penn. St. 108. See, as to exemplifications generally, supra, § 85. The formal English prac- tice was undoubtedly (Co. Lit. 260 a; 8 Bl. Com. 24) to enroll the record in full length on parchment. This prac- tice has never been insisted on in this country; Brainard v. Fowler, 119 Mass. 262; and in England is now subjected to many exceptions. In courts of inferior jurisdiction a full formal enrolment is not attempted. Dyson V. Wood, 3 B. & C. 449. Thus in a case where an act of parliament 764 authorizing the owners of lands taken by 1 railroad company to claim dam- ages from the company, the amount in case of dispute to be settled by a sheriff's jury, directed that the ver- dicts and judgments thereon should be deposited with the clerk of the peace for the county among the rec- ords, and should be deemed records, the court held that, on proof of non- compliance with this direction, parol evidence of such a verdict, and of the grounds on which it proceeded, might be given, and the under-sheriff was called for the purpose. Manning v. E. Cos. Ry. Co. 12 M. & W. 237, 243, 249. Quarter sessions orders, also, directing the removal of paupers, may be proved by the pauper book, in which the proceedings of the court have been entered by the clerk of the peace, or by a copy of it, provided the minutes sufficiently disclose the jurisdiction of the court, and it be shown that, in practice, no other rec- ord of a more formal character is kept. R. V. Yeoveley, 8 A. & E. 806. Road proceedings by the quarter sessions are treated with the same lib- erality, though if the jurisdiction do not appear in the minutes, — as, for instance, if the caption be omitted, — neither the book nor the copy can be received. R. v. Ward, 6 C. & P. 366, explained in R. v. Yeoveley, 8 A. & E. 818, 819 ; Giles v. Siney, 13 W. R. 92. The decrees or other action of ec- clesiastical courts may be proved, if it appear there is no other record, by the minute books in which they are en- CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 824. judgment is introduced in evidence, to sustain an attachment, the declaration goes in with the judgment,^ and all relevant por- tions of the declaration are proof, for what they are worth.^ A complete extension of the record, however, will not be exacted when all that is substantial appears.* But in some shape, if the tered, or by copies of such books. Houliston V. Smyth, 2 C. & P. 25 ; R. V. Hains, Comb. 337, per Lord Holt; Skin. 584, S. C. And by the prac- tice of the House of Lords a judgment may be proved, either by an examined copy of the minute, or by producing a copy of the journal in which it is en- tered, purporting to be printed by the authorized printer. Jones v. Randall, 1 Cowp. 1 7 ; Taylor's Ev. Ibid. § 1408. It is otherwise, however, when the object for which the testimony is of- fered is to prove an admission of a party (infra, §§ 828, 839), or to estab- lish the fact that a certain judicial proceeding has taken place ; as, for instance, that a trial has been had, a verdict given, or a writ issued, with- out regard to the facts disputed at the trial, found by the jury, or mentioned in the writ, and irrespective of all ul- terior proceedings in the cause ; in which cases it has been held that the record need not be formally drawn up. Pitton V. Walter, 1 Str. 162; Fisher V. Kitchingham, Willes, 367. Infra, §§ 828, 831. In R. v. Gordon, C. & Marsh. 410, Lord Denman held that an allegation in an indictment for per- jury, that judgment was " entered up " in an action, was proved by producing from the judgment office the book in which the inscription was entered. On the other hand, in R. v. Thring, 5 C. & P. 507; and R. v. Robinson, 1 Crawf. & D. C. C. 329, it was held that, on an indictment for perjury in a prosecution, the record of the former trial must be made up. 1 Hageman v. Salisberry, 74 Penn. St. 280 ; Numbers v. Shelly, 78 Penn. St. 426. ' Numbers v. Shelly, ut supra. In this case, Gordon,' J., said : " The whole record was admissible, and the narr. was part of the record. Erb v. Scott, 2 Harris, 20. As the judgment was evidence, so was also the declara- tion, for by it that upon which the judgment was founded would appear. We apprehend that, as the record, as a whole, imports unity, so every part of it is admissible to prove that which it legitimately sets forth. It is no doubt true, that, where the narr. con- tains allegations not pertinent or ma- terial to the case, such allegations would not be admissible. Such, how- ever, was not the case with the matter in hand ; the waiver, as set forth, was not only pertinent and material, but it was part of the record." ^ See supra, § 95. "It is not now denied that the record of the Court of Common Pleas for Luzerne County, in the State of Pennsylvania, offered in evidence by the plaintiff, was duly au- thenticated according to the statutes of the United States and of this com- monwealth. U. S. Sts. 1790, c. 11; 1804, c. 56; Gen Sts. c. 131, § 61. It is not extended with the formality and accuracy required in the records of our own courts, but it is sufficient in sub- stance, and contains all the essential requisites of a judicial record. It shows the parties to the suit, the subject mat- ter of the suit, j urisdiction over the par- ties, a final judgment of the court for fixed sums in damages and costs, and the date of the judgment. Knapp v. Abell, 10 Allen, 485. It was, there- fore, rightly admitted in evidence." Brainard v. Fowler, 119 Mass. 262, Morton, J. In Kansas it has been 765 § 825.] THE LAW OF EVIDENCE. [BOOK II. judgment of a court is put in evidence to effect a transfer of rights, the preliminary conditions of the judgment must appear on the record. Even a sentence in admiralty, to sustain its ad- missibility for such purpose, must have attached to it the pre- liminary proceedings on which it is based ; ^ and a judgment of an ecclesiastical or probate court cannot prove title without pro- ducing the libel and answer, and the defensive allegations.^ To admit, for the same purpose, an award, when made under rule of court or by voluntary submission, the necessary constitution of the authority and regular procedure of the arbitrators must appear.^ When, under the terms of the reference, the award is to be good, although it be executed by a less number than all the arbitrators, it must be shown that the arbitrator, who has not signed the instrument, has had notice to attend the execu- tion, and has omitted or refused to do so.* To awards, however, by public administrative officers, in the absence of evidence of any usage inconsistent with the award, the maxim Omnia prae- sumuntur riti esse acta,^ will be held to apply .^ § 825. The journals of a court, in those jurisdictions where Journals of such journals are separately kept, though not techni- Sibleto cally part of the record, are to be regarded as proof, action of '^^en duly verified, of the action of the court in any court. matter to which they relate. They are therefore ad- missible in any view, provisionally .^ In such case, the object be- ing to show that some other proceeding has occurred before the ruled that a certificate of the entry of Eads v. Williams, 4 De Gex, M. & G. a, foreign judgment may be received 674; Lord v. Lord, 5 E. & B. 404. as prima, facie proof of the judgment, * White v. Sharp, 12 M. & W. 712; without requiring the whole record to Wright v. Graham, 3 Ex. R. 134, per be certified. Haynes v. Cowen, 15 Parke, B. ; In re Beck & Jackson, 1 Kans. 637. Com. B. N. S. 695; Tayloi;'s Ev. § 1 Com. Dig. Ev. C. 1; Taylor's Ev. 1420. § 1411. 6 Infra, § 1318. 2 Leake v. M. of Westmeath, 2 M. « R. v. HaslingfieUl, 2 M. & Sel. & Rob. 394, per Tindal, C. J., over- 558; Doe v. Gore, 2 M. & W. 321; ruling Stedman w. Gooch, 1 Esp. 6. Doe v. Mostyn, 12 Com. B. 268; 8 Antram v. Chace, 15 East, 209; Heyshara v. Forster, 5 M. & R. 277. Brazier u. Jones, 8 B. & C. 124; Gis- See Manning v. East. Cos. Ry. Co. borne v. Hart, 5 M. & W. 56; Stal- 12 M. & W. 237; Williams w. Eyton, worth i.'. Inns, 13 M. & W. 466; 27 L. J. Ex. 176; 2 H. & N. 771, Wright V. Graham, 3 Ex. R. 131 ; S. C. ; 4 H. & N. 357, S. C. in Ex. Ch. ' R. V. Browne, 3 C. & P. 572. 766 CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 826. same court, a minute of the former proceeding will be admitted in lieu of the record, whenever the formal record cannot be pre- sumed to have been made up.^ The minutes of a court, how- ever, cannot be introduced to contradict a record.^ § 826. What has been said of the minutes of the court applies, a fortiori, to the docket entries, regularly made by the Docket clerk or prothonotary,^ which give the details from admissible' which the record is in part made up, and which can be ^^'"=1 f "" r r ' record can received in place of the record until it is made up.* No be had. limit is fixed for the time when this admissibility expires. " In New Hampshire the record is never extended, except in very particular cases, unless a party desires a copy to sustain a suit on it, or for some other use. And this is often made up twenty or thirty years after the rendition of the judgment. Until such extension, everything rests on the docket entries."^ But though » R. V. Tooke, 25 How. St. Tr. 446- 449; recognized in R. v. Smith, 8 B. & C. 343 ; R. V. Robinson, 1 Craw. & D. C. C. 329 ; R. V. Reilly, Ir. Cir. R. 795, per Dolierty, C. J.; Robinson V. Brown, 82 111. 279. So far, however, as concerns the tes- timony of a former witness, a judge's notes are not original evidence, but can only be used to refresh his mem- ory. Supra, § 180; and see Fitzpat- rick V. Fitzpatrick, 6 R. I. 64. As to justice's minutes, see Grosvenor v. Tarbox, 39 Me. 129. As to trial lists, see Wilkins v. Anderson, 11 Penn. St. 399, ^ Den V. Downam, 13 N. J. L. 135; Mandeville v. Stockett, 28 Miss. 398. See Strong v. Bradley, 13 Vt. 9. 8 Com. V. Balkom, 3 Pick. 281; Townsend r. Way, 5 Allen, 426; Kel- ler V. Killion, 9 Iowa, 339; Prentiss V. Holbrook, 2 Mich. 372; Heir v. Melvin, 2 Jones L. 59 ; Handley v. Russel, Hard. (Ky.) 145. * Williams v. U. S. 17 Pet. 144; 1 How. 290 ; Ellis v. Madison, 13 Me. 312 ; Willard v. Whitney, 49 Me. 235; Leathers v. Cooley, 49 Me. 337; Jay V. Livermore, 56 Me. 109 ; State t'. Neagle, 65 Me. 468 ; Willard v. Har- vey, 24 N. H. 344 ; Benedict v. Cut- ting, 13 Met. 181 ; Read v. Sutton, 2 Cush. 115 ; Pruden v. Alden, 23 Pick 184 ; Cent. Corp. v. Lowell, 15 Gray 106 ; Boyd v. Com. 36 Penn. St. 355 Boothe V. Dorsey, 11 Gill & J. 247 Boteler v. State, 8 Gill & J. 359 Weighorst v. State, 7 Md. 442 Maguire B. State, 47 Md. 497 ; Gar- field V. Douglass, 22 111. 100; East- man u. Harteau, 12 Wis. 267; Hart- ley V. Chandler, 5 Ala. 867; Governor V. Bancroft, 16 Ala. 605 ; Ross v. Davis, 30 Ga. 823. See Boyd, in re, 4 Sawyer, 262. 6 Willard u. Harvey, 24 N. H. 344; cited Jay v. Livermore, 56 Me. 117. The same practice exists in Pennsyl- vania. " With us a full record is sel- dom, perhaps never, formally made up ; but the docket, which stands in its place, must contain the substantial parts of it, from which, together with the other records in the office, such a record might be formed." Gibson, C. J., Hamilton v. Com. 16 Penn. St. 1 29. For Massachusetts practice, see Com. V. Weymouth, 2 Allen, 144. 767 § 827.] THE LAW OF EVIDENCE. [BOOK II. while the record is as yet inchoate, docket entries are part of its material, yet, after the record is extended, they cannot be used to impeach it collaterally. The court which controls the record must be applied to for relief.^ Nor can such entries be received as representing the record, when the record is completed. In such case, if objection be made, the duty of the party offering the proof is to have the record fully extended and certified.^ Thus in a suit against the indorser of a writ, the docket entry stating the indorsal by the defendant is not admissible when the writ itself can be produced.^ Bankruptcy also must be proved by the whole record, not by certified copies of particu- lar parts of the process.* Nor in any view can docket entries be substituted for the entire record of the proceedings of another court, if the object be to prove the judgment as a bar or as a title.^ If the record, however, be lost, the docket entries be- come primary evidence.^ When lost, the docket entries can be proved by parol.' § 827. An ancient record, taken from the proper depository, Rule re- ^^J ^^ proved in fragments, when no fuller proof is at- andenf '" tainable.^ Thus it has been held in England, that an- records. cient depositions may be read without the interroga- tories, or, as the case may be, without the bills and answers to which they relate, proof being given that fruitless search has been made for the interrogatories or bill ; ^ and so as to ancient sur- veys, and returns to inquisitions, coming from the proper custody (which is essential) ,1" though the commissions on which such 1 Leveringe v. Dayton, 4 Wash. C. Goldsmith v. Kilbourn, 46 Md. 289; C. 698; Southgate w.Burnham, 1 Me. Brown v. Hathaway, 10 Minn. 303;' 369; Willard v. Whitney, 49 Me. Sharp w. Wickliffe, 3 Litt. (Ky.) 10. ' 235 ; Austin v. . Howe, 17 Vt. 654 ; e Harvey t.. Thomas, 10 Watts, 63; Read v. Sutton, 2 Cush. 115. Boyd v. Com. 36 Penn. St. 355. = Leveringe v. Dayton, 4 Wash. C. ' Pruden v. Alden, 23 Pick. 187 • C. 698; Austin W.Howe, 17 Vt. 654; Tillotson v. Warner, 3 Gray, 574'. Brown V. Hathaway 10 Minn. 303; See supra, § 135. Sharp «. Wickliffe, 3 Litt. (Ky.) 10. 'See fully supra, §§ 136, 194; » Wilson V. Hobbs, 32 Me. 85. Beverley i;. Craven, 2 M. & Rob. 140; < Waterman v. Robinson, 5 Mass. Hawkins v. Craig, 1 B. Mon. 27. 303; Moore v. Voss, 1 Cranch C. C. » Bay ley v. Wylie, 6 Esp. 85; Rowe 179. See infra, § 826. „. Brenton, 8 B. & C. 765; Byam v. « Leveringe v. Dayton, 4 Wash. Booth, 2 Price, 234. Supra, § 136. 698; Austin v. Howe, 17 Vt. 654 ; " Leighton v. Lelghton, 1 Str. 308- 768 CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 828. surveys and inquisitions were based could not be found.^ It is otherwise, however, when the fragments offered have no internal evidence of authority .^ § 828. It frequently happens, as is elsewhere incidentally noticed,* that record proof is appealed to merely to establish evidentially (as distinguished from disposi- tialpur- tively, or from estoppel) some circumstance relevant to tions'o/" '" the case.* Thus, for instance, it may be one of the be^admTt^^ links of proof in a case that as a mere evidential fact **<•.' *■ 9- '■ . writs and a decree of chancery was made on a particular day ; and their re- if so, it will be necessary only to prove the decree.^ Or again, the object is to prove that A. B. was resident at C. at the particular time. As an item of proof in such a case, it is ad- missible to put in evidence a justice's writ, of the date in ques- tion, in favor of A. B. of C.^ If the object be to prove an arrest or attachment, the officer's return to this effect establishes a primd facie case.' And, generally, when the object is to intro- duce certain record facts as a part of the indicatory evidence of a case (as when the object is to show that a certain writ issued, or was returned in a particular way), then the pertinent por- tions of a record may be certified and put in evidence sepa- rately.^ The document required may be either brought into court Evans v. Taylor, 7 A. & E. 617; « Blower w. HoUis, 1 C. & M. 396; Beaufort v. Smith, 4 Ex. R. 450. Leake v. Westmeath, 2 M. & R. 397; 1 Taylor's Ev. § 1423, citing Rowe Attwood v. Taylor, 1 M. & Gr. 289; ». Brenton, 8 B. & C. 747; Doe v. Whitmore u. Johnson, 10 Humph. 610. Roberts, 13 M. & W. 520; Anderton ° Cavendish v. Troy, 41 Vt. 99. V. Magawley, 3 Br. P. C. 588; Gab- ' Allen v. Gray, 11 Conn. 95; bett V. Clancy, 8 Ir. R. 299; and see Browning v. Hanford, 5 Denio, 586; supra, §§ 137, 200; Little u. Downing, Boynton ■-■. Willard, 10 Pick. 166; 37 N. H. 355; Hawkins v. Craig, 1 B. Perryman v. State, 8 Mo. 208. Mon. 27. ' See infra, § 834; Tindall v. Mur- " Taylor's Ev. § 1423, citing Evans phy, Hempst. 21; Oldtown v. Shap- V. Taylor, 7 A. & E. 617; 3 N. & P. leigh, 33 Me. 278; Potter v. Tyler, 2 174; Vaux Barony, Min. Ev. 67; Met- (Mass.) 58; Huntington v. Leighton v. Leighton, 1 Str. 308. Rumnill, 3 Day, 390; Lee v. Stiles, »°Supra, §§ 820, 823 ; infra, § 1082. 21 Conn. 500 ; Spoor v. Holland, 8 * See Benedict v. Heineberg, 43 Wend. 445; Glenn w. Garrison, 17 N. Vt. 231; Lee v. Stiles, 21 Conn. 500; J. L. 1; Capling v. Herman, 17 Mich. Smith V. Pattison, 45 Miss. 619; 524; Chicago R. R. ». Mahan, 42 111. Watts V. Clegg, 48 Ala. 561; and see 159; Sowden i;. Craig, 26 Iowa, 156; English cases cited in § 824, note 4, Hobson v. Doe, 4 Blackf. 487 ; Chinn pp. 764-5. V. Caldwell, 4 Bibb, 543 ; Lock u. VOL. I. 49 769 § 828 a.] THE LAW OF EVIDENCE. [BOOK II. by its proper custodian, or certified.^ In England, the rule is said to be that before the return a writ must be produced ; af- ter the return it must be certified.^ Where a sheriff sues a purchaser at sheriff's sale for damages for breach of contract of sale, the judgment, as well as the ex- ecution, must be put in evidence.^ § 828 a. By strict practice, depositions in chancery cannot be read without bill and answer in the case in which depositions they were taken.* In such case, however, the bill and swertln answer are not evidence for the jury, and only for the chancery, ju^gg for the purpose of determining whether the depositions are evidence, by seeing what was in issue in the suit.* In any way, depositions, by themselves, may be put in evidence, as admissions against the party making them, without Winston, 10 Ala. 841 ; Creagh v. Savage, 14 Ala. 454; Smith v. Mc- Gehee, 14 Ala. 404 ; Price v. Emer- son, 14 La. An. 141 ; Henderson v. Ca,rgill, 31 Miss. 367; Lee v. Lee, 21 Mo. 657; Vassault v. Austin, 32 Cal. 597. See Myers v. Clark, 3 W. & S. 535; Wharton Peer. 12 CI. & F. 301. " The return ' not found,' upon the execution against the person, was suf- ficient evidence against the sherifl" of the escape of the debtor, and that the sherifi had not detained him in cus- tody. 2 R. S. 382, § 31 ; Bradley V. Bishop, 7 Wend. 353 ; Boomer v. Laine, 10 Ibid. 525." Earl, C, Ben- sel V. Lynch, 44 N. Y. 165. See infra, §834. " The effect of a writ oi fieri facias varies according to circumstances. If an execution debtor bring an action against the sheriff for seizing his goods, the defendant may justify his conduct by producing the writ with- out any copy of the judgment ; but if the action be brought by a stranger, both the writ and the judgment must be proved. Doe v. Murless, 6 M. & Sel. 114, per Bayley, J. The reason for this distinction seems to be, that in the former case the plaintiff, hav- 770 ing been a party to the original action, must be aware of the existence of the judgment, and might have moved to set it aside, if it be open to objection. Doe V. Murless, 6 M. & Sel. 114, per Bayley, J. The rule being once es- tablished, it applies as well to a case where the vendee of the sheriff is a party, as where it is the sheriff him- self, and where he is plaintiff as well as where he is defendant. Perhaps, however, the rule does not apply, where the purchaser from the sheriff is the execution creditor. "^ 2 Ph. Ev. 95; Taylor, § 1570. 1 Phelps V. Hunt, 48 Conn. 194. Supra, § 106. 2 Taylor's Ev. § 1424, citing B. N. P. 234. But a paper, to be certified, must be an office paper. Bank v. Don- aldson, 6 Penn. St. 179. « Gaskell w. Morris, 7 Watts & S. 32. * Infra, § 1104; Laybourn v. Crisp, 4 M. & W. 326, per Ld. Abinger; Blower v. HoUis, 1 C. & M. 896, Maule, argu.; 2 Ph. Ev. 149; B. N. P. 240 ; Nightingal v. Devisme, 5 Burr. 2594. ' Chappel ti. Purday, 14 M. & W. 303. See, also, Cazenove v. Vaughan, 1 M. & Sel. 4. CHAP. X,] RECORDS VIEWED EVIDENTXALLY. [§ 831. putting in evidence the rest of the record.^. And although an answer in chancery, in the old practice, could not be put in evi- dence without putting in evidence the bill,^ in England this ia now changed by the new rules ; and even in the old practice, the reading of the interrogatory part of the bill was alone re- quired, and that only when the answer was ambiguous, without referring to the questions.^ To prove reputation, also, a part of an ancient record may be introduced.* § 829. Under the American bankrupt system, certified copies of the assignment in bankruptcy, and of an assessment decreed by the court, are admissible to sustain the right assign- of the bankrupt assignee to sue for the assessment.^ The schedule also, filed by a bankrupt, is competent evidence on the issue whether his discharge was fraudulent.® § 830. In order, however, to admit separate portions of record to prove certain facts, they must be shown to be com- But such plete in their relation to such facts.' Thus, if the ob- ^°^^tll ject be to show that a search-warrant legally issued, it complete, must appear that it was preceded by the proper oath ; ^ if the object is to prove service of process, an officer's return must be set forth.' § 831. It may happen that it may be material to prove that verdict was taken in a particular case in a particular verdict in- way, not for the purpose of concluding the parties, but ^^iJSouj"''® for evidentiary effect ; e. g. for refreshing the memory recrd. of a witness, or for forming one of the links of the chain of cir- cumstantial evidence in a matter collateral to the merits of the 1 Highfield v. Peake, M. & M. 109. « Stevens v. Thompson, 17 N. H. Supra, § 824 (note 4, pp. 764-6). 103. See Simpson v. Carleton, 1 Al- 2 See infra, § 1105. len, 109. » Pennell t>. Meyer, 2 M. & Rob. '' Buford ». Hickman, 1 Hempst. 98 ; 8 C. & P. 470 ; S. P., McGowen 232; Glenn t'. Garrison, 17 N. J. L. 1 ; V. Youn. Warfield, 3 G. Greene, 293. 771 § 832.] THE LAW OF EVIDENCE. [book II. verdict. In such case the verdict may be put in evidence as a mere evidentiary fact, not as in any way showing that the ver- dict was true, but simply as proving that it was taken. ^ For the purpose of proving reputation, a verdict, without judgment, has been held admissible,^ even against strangers, when the ver- dict goes directly to reputation. But this holds good only as to ancient verdicts and such as have been acquiesced in by the par- ties ; ^ and, as a general rule, a verdict cannot be put in evidence unless judgment has been entered on it ; and then it binds by estoppel only parties and privies.* § 832. We have observed that, in order to prove an estoppel, the whole record of a case must be put in. When a record is put in for collateral purposes, however, not only is it true, as has been seen, that portions of the record can be put in by themselves, but there are cases in which they can only be received when offered sepa- Thus in proving, as we have seen, the opposing party's admissions in answer to a bill of discovery, only so much of the bill as is necessary to explain the answers can be admitted.^ Whenever it happens that a part of a record may be admissible Admissi- bility of part does notnecessi tate admis- sion of whole. rately.^ 1 R. V. Tooke, 25 How. St. Tr. 446; R. V. Smith, 8 B. & C. 343. Supra, §§ 824 (note 4, pp. 764-5), 825. " Supra, §§ 200, 827. ' Schaeffer v. Kreitzer, 6 Binn. 430. * Davis V. Wood, 1 Wheat. 6 ; U. S. V. Addison, 6 Wall. 291 ; Mahoney V. Ashton, 4 Har. & M. 295; Donald- son V. Jude, 2 Bibb, 57. This strictness does not apply, however, when the record is not at the time complete. E. v. Browne, 3 C. & P. 572. Supra, § 825. Where records are made up infor- mally, judgment, however, may be in- ferred. Deloach v. Worke, 3 Hawks, 36; Foster v. Compton, 2 Stark. R. 364; Garland v. Seoones, 2 Esp. 648. In England, a verdict cannot, in general, be proved by putting in the nisi prius record with the posiea in- dorsed, but a copy of the judgment 772 rendered upon it must be produced. Pitton V. Walter, 1 Str. 162; Lee v. Gansel, 1 Cowp. 3, per Ld. Mansfield; Fitch V. Smalbrook, T. Raym. 32 ; Fisher v. Kitchingman, Willes 367; Gillespie v. Gumming, Long. & T. 181; Holt V. Miers, 9 C. & P. 1 96. This has been deviated from in two N. P. cases: Foster v. Compton, 2 Stark. R. 364; and Garland f. Seoones, 2 Esp. 648. It has been said, also, that this rule does not apply to the issues out of Chancery or out of Court of Admiralty, because in these cases it is not usual to enter up judgment. See Taylor's Evidence, § 1407 ; BuUer N. P. 324. Nor to cases where the court in which the verdict is rendered has no power to set it aside. Felter v. MuUiner, 2 Johns. 181. 5 See supra, §§ 692, 823, 832. « McGowen v. Young, 2 St. (Ala.) 276. Supra, § 828. CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 833 a. evidence for one of the parties while the rest is inadmissible, only the admissible part can be read to the jury.^ § 833. So, for other reasons than those just stated, when a record is ancient, and when its imperfect condition is to , be ascribed to the usual deteriorating effects of time, it ancient FBcords is admissible, as has been already noticed, to prove such may be re- portions of it as are attainable, imperfect as they may be.^ When lost, such records may be supplied by parol.^ § 833 a. An officer's return in execution of a writ may be ad- missible for the following purposes : — 1. As a link in title or in any other way as a basis of suit. In this case it goes in as part of a record, and cannot. Return of for the reasons before stated as to records generally, be ^^ evi-"^^ collaterally attacked by parties or privies. If false, . Francis, 4 Conn. 424; e Infra. §§ 988, 991. Watson V. Watson, 6 Conn. 384; San- » Freeman oii Executions, § 366. ford U.Nichols, 14 Conn. 324; Patter- » Ibid. ; infra, § 1118. son V. Britt, 11 Ired. L. 383 ; Jackson 774 CHAP. X.] RECORDS VIEWED EVIDENTIALLY. [§ 834. erally. The redress must be by application to the court from which the execution issues.^ When, however, a return is am- biguous, it may be explained by parol.^ 4. As proving its legal effects. A return may be put in evi- dence against strangers to prove that it issued ; or to prove, in the same manner as may a judgment, its legal effects.^ But when used to affect the interest of strangers, such returns, so far as concerns facts which it is the duty of the oflBcer to state, are only primd facie evidence, at the best, and as to other facts are not evidence at all.* § 834. A fi. fa. returned nulla bona, or returned in such a way as to indicate insolvency in the execution defendant, „ 1 . -1 . /. . , • ,-1 Return of may be put m evidence as prima facie proof m a unk nulla bona in the evidence to prove such insolvency.^ To the exe- to prove in- cution, however, it has been held proper that the record s"'^*""?- should be attached ; ^ and even if this be dispensed with, the ex- ecution must have the seal of the court.'^ Proceedings in insol- 1 Infra, §§ 982-3. See Freeman on Executions, § 364. " Infra, § 986 ; Herman on Exe- cutions, §§ 240, 244, 295. » See supra, §§ 822-4 ; R. v. El- kins, 4 Burr. 2129; Gyfford v. Wood- gate, 11 East, 299; Oldtown v. Shap- leigh, 33 Me. 278; Claggett v. Rich- ards, 45 N. H. 363; Hathaway v. Goodrich, 5 Vt. 65 ; Witherell v. Goss, 26 Vt. 750; Whitaker v. Sumner, 7 Pick. 189; Potter v. Tyler, 2 Met. (Mass.) 58 ; Cornell w. Cook, 7 Cow. 310 ; Browning v. Hanford, 7 Hill, 120; Diller v. Roberts, 13 S. & R. 60; Paxson's App. 49 Penn. St. 195; Hill K.Kling, 4 Ohio, 137; Phillips v. El- well, 14 Ohio St. 244; Bank i-. PuUen, 4 Dev. 297; Crow v. Hudson, 21 Ala. 561 ; Kendall v. White, 19 Mo. 248. * Cow. & Hill's Notes to Phil, on Ev. No. 383 ; Freeman on Executions, § 365 ; Angler «. Ash, 6 Fost. 105 ; Claggett tt, Richards, 45 N. H. 363 ; Witherell v. Goss, 26 Vt. 750; Bott v. Burnell, 11 Mass. 165; Bruce v. Hol- den, 21 Pick. 189 ; Philips v. Elwell, 14 Ohio St. 244. See infra, § 1155. ^ Brown v. Brooks, 25 Penn. St. 210; Wheelock v. Kost, 77 111. 296; Phillips V. Webster, 85 III. 146 ; Col- lins V. Fitzpatrick, 6 J. J. Marsh. 67; Buttram ». Jackson, 32 Ga. 409; Mc- Murphy v. Bell, 16 La. An. 369; Eichelberger v. Pike, 22 La. An. 142. See Palister ». Little, 6 Greenl. 350 ; Meyer v. Mohr, 1 Robt. (N. Y.) 333 ; Carr v. Youse. 39 Mo. 346. See Leonard v. Simpson, 2 Bing. N. C. 1 76. ' Tindall v. Murphy, Hempst. 21 ; Glenn «. Garrison, 17 N. J. L. 1 ; State V. Records, 5 Harr. (Del.) 146 ; Vas- sault V. Austin, 32 Cal. 597; Coonce t). Munday, 3 Mo. 374. See, however, to the effect that the record of the judgment is unnecessary, Potter ti. Tyler, 2 Met. (Mass.) 58. As to in- troducing, for other purposes, single writs, see supra, § 828. ' Davis V. Ransom, 26 111. 100. 775 § 836.] THE LAW OF EVIDENCE. [BOOK II. §836. vency are in like manner admissible to. prove, in collateral pro- ceedings, the debtor's insolvency .^ § 835. As between the parties, proceedings in error, including Bills of ex- bills of exceptions, are admissible.^ But this will not '^'^a'°"^.„ authorize the reading, on a second trial, of ex parte proceed- statements introduced into bills of exceptions or appli- Sr "" cations for review.^ A bill of exceptions, on the plea of res adjudicata, is admissible to show the identity of the two IX. EECOEDS AS ADMISSIONS. A judgment may be also treated as evidentiary when it involves a self-disserving admission of the party against whom it is offered.^ Thus the record of a judgment on default, which has been paid, recovered in a former suit between the same parties, upon a note of the same character as that in suit, is admissible in the latter suit.* A plea of guilty, in a criminal case, may be in like manner and for similar purposes put in evidence.'^ A judgment may be thus used even when offered by a stranger.^ A., for instance, brings against T. a suit in which A., as we shall hereafter see, charges T. with damaging goods intrusted to A. by P. ; P., in a suit against A., may use the rec- ord of the suit of A. against T. for the purpose of showing that A., at the time, held P.'s goods.® The same rule applies as to the admissibility of parts of a record. So far as these are used as substitutes for evidence in a trial, and are acted upon by the opposite party, they cannot, except in cases of fraud or gross Record may be re- ceived ,when it in- volves an admission by tlie party against whom it is offered. * Hey wood v. Reed, 4 Gray, 574; Simpson u. Carleton, 1 Allen, 109 ; McMurphy v. Bell, 16 La. An. 369. ^ Levers v. Van Buskirk, 4 Penn. St. 309 ; Voorhies v. Eubank, 6 Iowa, 274; Emery I). Whitwell, 6 Mich. 474; Beauchampu. Mudd, Hard. (Ky.) 163; Warden v. Mendocino County, 32 Cal. 655. ' Wheeler v. Ruckman, 35 How. Pr. 350 ; Francis v. Hazlerig, 1 A. K. Marsh. 93; Beeler v. Young, 3 Bibb, 520. 776 * Sharp V. Carlile, 5 Dana, 487. ^ Boston V. Richardson, 18 Allen, 146; Truby v. Seibert, 12 Penn. St. 101 ; McDermott v. Hoffman, 70 Penn. St. 52. " City Bank v. Dearborn, 20 N. Y. 244. ' See supra, § 776 ; infra, §§ 838, 1113-1120. ^ Smith V. Shackleford, 9 Dana, 452. » Tiley V. Cowling, 1 Ld. Ray. 744. CHAP. X.] RECORDS AS ADMISSIONS. [§ 837. mistake, be -withdrawn. ^ The effect of such admissions, so far as concerns strangers, is considered in another section.^ § 837. When an officer, or his sureties, is sued on his return, then such return is conclusive against him so far as it parties involves admission of the reception of goods by him- ^liy^^ J,™" self.^ Returning that the goods were taken as prop- JJfg'/;o*^of erty of the defendant does not estop him, however, record. from showing that the goods were not the property of the de- fendant.* A party, also, who has obtained possession of property by decree of court solemnly prayed for by himself, cannot after- wards, in a suit against him to recover claims on such property, deny the ownership.^ Again : a party may preclude himself from offering evidence inconsistent with the attitude assumed by him in a particular suit.^ Thus whenever a party solemnly, on record, claims and obtains a right or privilege, he is ordinarily precluded afterwards, even as against strangers, from denying such right or privilege,^ and if he admits a fact on record on a trial, this binds him on subsequent trials of the same suit.^ A party, also, who recognizes another on record as the possessor of a property or privilege, is estopped, in the same suit, from deny- ing such property or privilege ; ^ though he may offer evidence 1 BlaiQ V. Patterson, 47 N. H. 523; 161; Fowler v. Stevens, 29 La. An. Huntington v. Bank, 6 Pick. 340; El- 253. wood V. Lannon, 27 Md. 200; Adams ' Infra, § 1136; Bui. N. P. 242; V. Adams, 23 Ind. 50; Carradine v. Stephen's Ev. 52; Tiley v. Cowling, Carradine, 33 Miss. 698 ; Devall v. 1 Ld. Ray. 744 ; Jermain v. Lang- Watterston, 18 La. An. 138. don, 8 Paige, 41; Giles v. Halbert, 12 2 See infra, § 1120. N. Y. 32; Bowen v. De Lattre, 6 » Supra, § 833 a; infra, §§ 1110-20, Whart. R. 430; Armstrong v. Fahne- 1155; Stevens v. Bigelow, 12 Mass. stock, 19 Md. 58; Carlisle w. Foster, 434; Winchell v. Stiles, 15 Mass. 230; 10 Ohio St. 199 ; Dunn v. Keegin, 4 Kuhlman v. Orser, 5 Duer, 242; Peo- 111. 292; Hawkins v. Hall, 3 Ired. Eq. pie V. Reeder, 25 N. Y. 302. See Bai- 280; McQueen v. Sandel, 15 La. An. ley V. Kimball, 26 N. H. 351. 140 ; Field v. Langsdorf, 43 Mo. 32. * Arnold v. Brown, 24 Pick. 89; See, as to admissions in pleadings, in- Hopkins v. Chandler, 1 7 N. J. L. 299. fra, §§ 1110-20. ^ Flanigan v. Turner, 1 Black U. ' Woodcock v. Calais, 68 Me. 244. S. 491. See, to same general effect. See HoUey v. Young, 68 Me. 215 ; The Mary, 1 Mason, 365 ; Pitts v. Easton v. Tel. Co. 68 Me. 63. Gilliam, 1 Head, 549. ° Kelleran v. Brown, 4 Mass. 443 ; ' See Rudesill v. Jefferson, 85 111. Hinsdale v. Earned, 16 Mass. 65 ; 446; Soulie v. Ransom, 28 La. An. Kuypers v. Church, 6 Paige, 670 . 777 § 838.] THE LAW OF EVIDENCE. [book II. to explain, though not to contradict, such admissions.^ As will be hereafter seen, the rule before us does not prevent a party from trying several separate though inconsistent forms of action or pleas,^ nor from making tentative averments in pleading, even though under oath, as against third parties.^ And an heir, who in a bill in equity against an executor admits the due exe- cution of a will, is not precluded, in proceedings before the sur- rogate, from contesting such execution.* § 838. We will elsewhere notice the extent to which an attor- ney may make admissions for his client.* It is proper Pleadings ,, , . , , , , t ,. • may be ad- to ^dd at this place that the pleadmgs of a party in one suit may be used in evidence against him in another, not as estoppel, but as proof, open to rebuttal and explanation, that he admitted certain facts.^ But in order to bring such admission home to him, the pleading must be either signed by him, or it must appear that it was within the scope of the attor- ney's authority to admit such facts.^ Yet even if such admis- sions are thus brought home to the party, they are entitled to Piper V. Sloneker, 2 Grant (Penn.), 113; Kingsbury V. Buchanan, 11 Iowa, 387 ; Johnstone v. Scott, 11 Mich. 232. ' Whitcher v. Morey, 39 Vt. 459 ; Yawger v. Manning, 30 N. J. L. 182. = Porter v. Nelson, 4 N. H. 130; Child V. Allen, 33 Vt. 476; Wheeler V. Buckman, 1 Roberts. (N. Y.) 408; Gillespie v. Mather, 10 Penn. St. 28; Zeigler v. King, 9 Md. 330; Hess v. Heebie, 4 Serg. & R. 246. Infra, § 838. » Hotchkiss V. Hunt, 49 Me. 213; Beatty v. Randall, 5 Allen, 441 ; \Verk- heiser u. Werkheiser, 3 Bawie, 326; McLemore v. Nuckolls, 1 Ala. Sel. Cas. 691; Warren t». Hall, 6 Dana, 455. See infra, §§ 838, 1110-20. * Ma5on V. Alston, 5 Selden, 28. 6 Infra, §§ 1184-8. ' Washington Ice Co. v. Webster, 68 Me. 433; Siebert ». Leonard, 21 Minn. 442. ' Infra, § 1110; Parsons v. Cope- land, 33 Me. 370; Green v. Bedell, 48 778 N. H. 546; Currier v. SiUoway, 1 Allen, 19; Gordon v. Parmelee, 2 Allen, 212; Bliss v. Nichols, 12 Allen, 443; Brown v. Jewell, 120 Mass. 215; Cook V. Barr, 44 N. Y. 156; Tabb v. Cabell, 17 Grat. 160. See Hammat i>. Russ, 16 Me. 171; Ayers v. Ins. Co. 17 Iowa, 176; Meade v. Black, 22 Wis. 241; Hobaon v. Ogden, 16 Kans. 388. As to estoppels by record admissions, see infra, §§ 1110-1120. " The allegations by the defend- ant in the suits brought by her were competent evidence in the nature of admissions of the tacts in controversy. They appear to have been made by her authority, and she prosecuted the suits in which these allegations were the foundation of her claim. Currier V. SiUoway, 1 Allen, 19; Gordon v. Parmelee, 2 Allen, 212. The latter case is a direct authority upon the point." Hoar, J., BJiss v. Nichols, 12 Allen, 445. See limitations in § 837. CHAP. X.] RECORDS AS ADMISSIONS. [§ 838. little weight. At the time they were made they were self-serv- ing, not self-disserving ; as a matter of practice, pleadings are often framed by counsel rather to put an issue into shape than to exhibit the client's actual stand-point as to particular facts ; and even where the client signs such papers, he does so as a matter of mere form.^ A plea of guilty, in a criminal issue, however, being presumed to be solemnly entered by the defend- ant himself, may be put in evidence against him as a confession of the fact in a civil issue.^ And a plea verified by affidavit, or an answer in chancery, may be properly viewed as a solemn admission, susceptible of being introduced in other suits against » Melvin v. Whiting, 13 Pick. 184 Owens V. Dawson, 1 Watts, 149 Banks v. Johnson, 4 J, J. Marsh. 649 Newell V. Newell, 34 Miss. 385. See Church r. Shelton, 2 Curt. 271; Ram- hler V. Cheat, 1 Cranch C. C. 167. That admissions not put in issue hy the pleadings will not he received in evidence in equity, see Copeland v. Toulmin, 7 CI. & F. 856; and see Boileau v. Rutlin, 2 Ex. 680; Rowell V. Mitchell, 68 Me. 21. In Massachusetts, by Rev. Sts. c. 100, § 18, statements in pleading can- not he put in evidence on trial. Wal- cott V. Kimball, 13 Allen, 460; Lyons V. Ward, 124 Mass. 864. In accordance with the distinction above stated, it has been properly ruled that a disclaimer of title in an action at law on which judgment has been entered, but which has been adjudged by a decree in equity to be founded in mistake, is not admissible in a subse- quent suit as evidence of an admission by the party disclaiming. Currier v. Esty, 116 Mass. 577. " In the suit in equity between these parties, it was adjudged that the dis- claimer in the writ of entry and the judgment thereon was founded in mis- apprehension and mistake of facts, and that the defendant should be per- petually enjoined from availing him- self of them, by way of estoppel, against the plaintiff. Currier v. Esty, 110 Mass. 536. " At the trial of the present action of trespass, the defendant did not attempt to disregard the decree in equity, by availing himself of the dis- claimer and the judgment at law as an estoppel. He only offered the dis- claimer as evidence of a declaration by the plaintiff against his interest; and the judgment as vesting the title in himself. " But the disclaimer, having been judged to be founded in mistake, was no .evidence of an admission by the plaintiff. And a judgment upon a disclaimer does not transfer title, or operate otherwise than by estoppel. Oakham v. Hall, 112 Mass. 535." Gray, C. J., Currier v. Esty, 116 Mass. 577. As to pleas in abatement as admis- sions, see infra, § 1111. As to equity practice, infra, § 1112. As to paying money into court, in- fra, § 1114. 2 Supra, § 783; Anon, cited Phil. Ev. 25; R. V. Fontaine Moreau, 11 Q. B. 1033; Bradley v. Bradley, 2 Fairf. 367; Green v. Bedell, 48 N. H. 546 ; Clark v. Irvin, 9 Ham. 131 . See supra, § 776. § 839.] THE LAW OF EVIDENCE. [book II. the party by whom it is intelligently made.i It has been held that the admission of a party, on an amicable reference of the correctness of an account, is evidence, however slight, against him subsequently ; ^ though it is otherwise as to an admission in a case stated for the opinion of the court,^ and as to an admis- sion in a plea, signed by a party's attorney in his behalf, but rejected by the court.* Such admissions, when not contractual, are always rebuttable.^ § 839. Pleadings, however, so far as they consist in the written contentions of the parties to a cause, are not in any view evidence, collaterally, of the truth of the facts they aver. They may, as part of a record, be intro- duced for the purpose of showing, when it is relevant, that a particular issue was adjudicated in a particular but they are inadmissible, as between strangers, for the Pleadings not evi- dence of facts against tiiird par- ties. way ; " ' Infra, § 1116; McMahon v. Bur- chell, 1 Coop. Ca. 209; Williams v. Cheney, 3 Gray, 215; Central, &c. Corp. V. Lowell, 15 Gray, 106; Van Rensselaer v. Akin, 22 Wend. 549 ; Stump u. Henry, 6 Md. 201 ; Hunter V. Jones, 6 Rand. (Va.) 541 ; Earl v. Shoulder, 6 Ohio, 409 ; Tupper v. Kil- duff, 26 Mich. 394 ; McNair v. Rag- land, 1 Dev. N. C. Eq. 533 ; Cooper V. Day, 1 Rich. Eq. S. C. 26 ; Lun- day V. Thomas, 26 Ga. 537 ; Whit- lock V. Crew, 28 Ga. 289 ; Brandon V. Cabiness, 10 Ala. 156 ; McLemore V. Nuckolls, 1 Ala. Sel. Ca. 591 ; S. C. 37 Ala. 662; Pearsall v. McCart- ney, 27 Ala. 110; Alford u. Hughes, 14 La. An. 727; Henderson «. Car- gill, 31 Miss. 367; Cook v. Hughes, 37 Tex. 343; Hobson i-. Ogden, 16 Kans. 388. A party's answer to a bill of discovery cannot of course be put in evidence for himself. Clark v. Depew, 25 Penn. St. 509. See, how- ever, Rees V. Lawless, 4 Litt. (Ky.) 219. That affidavits of a party are admissible against him when admit- ting facts pertinent to issue, though the suit be by strangers, see Cook ». Barr, 44 N. Y. 158; Fulton w. Gracey, 780 15 Grat. 314 ; Trustees v. Bledsoe, 5 Ind. 133; Davenport a. Cummings, 15 Iowa, 219; Mushat v Moore, 4 Dev. &B. 124. In New York, it may be noticed, a verified answer is not evidence unless put in by the opposing party. " The old equity rule, that where a bill is so framed as to compel an answer on oath, and the verified answer denies any fact alleged in the bill, the alleged fact is not established unless shown by two witnesses, or by proof equiva- lent to the testimony of two witnesses, does not apply to pleadings under the Code. A verified answer is not evi- dence, and so does not weigh as one wit- ness." Stilwell V. Carpenter, 62 N. Y. 639. " Tarns V. Lewis, 42 Penn. St. 402. See, as to other cases of record admis- sions, infra, §§ 1110-20. « Hart's Appeal, 8 Penn. St. 32. * Com. v. Lannan, 18 Allen, 563. « Supra, § 837; infra, § 1117. And see, generally, Kimball v. Bellows, 13 N. H. 58; Crump v. Gerock, 40 Mi.ss. 765. ' See Com. v. McPike, 3 Cush. 181. CHAP. X.] RECORDS AS ADMISSIONS. [§ 841. purpose of proving even such facts as were essential to the find- ing.i § 840. The effect of a judgment on a demurrer, when offered to bar a subsequent suit, has been already noticed.^ Ademur- With regard to a demurrer as an admission, it may be ^e an^ad- here stated that " the admission, even by way of de- mission. murrer, to a pleading in which the facts are alleged, is just as available to the opposite party as if the admission had been made ore tenus before a jury." ^ At the same time, a " demurrer only admits the facts which are well pleaded ; it does not admit the accuracy of an alleged construction of an instrument when the instrument is set forth in the record, if the alleged construction is not supported by the terms of the instrument."* And so the " mere averments of a legal conclusion are not admitted by a demurrer, unless the facts and circumstances set forth are suffi- cient to sustain the allegation." ^ A demurrer to the plaintiff's evidence admits all the facts that the evidence tends to prove.^ § 841 . Wherever a fact, pertaining to a record, is not entered on the record, then, in ordinary practice, it may be cer- Certificate tilled to by the proper clerk, and the certificate received miss1we°to' as evidence.'' Thus the certificate of a clerk of a circuit P''."y? '??'' wittiin tii3 court has been received to prove that a cause was not range, tried at the circuit ; * and the certificate of a court of appeals is evidence to prove reversal of a judgment.^ 1 Ibid ; Com.