OJortif U Ham Bt\^m\ Hibtarg 
 
Cornell University Library 
 KF 8935.H89 
 
 An illustrated treatise on the law of ev 
 
 3 1924 020 129 221 
 
The original of tliis 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/cu31924020129221 
 
AN 
 
 ILLUSTRATED TREATISE 
 
 ON THE 
 
 LAW OF EVIDENCE 
 
 BY 
 
 T. W. HUGHES, U> M. 
 
 PBOmssaa un IiAm, JsiXBasixz ox Jxusois 
 
 THIED IMPEESSION 
 
 CHICAGO 
 
 CALLAGHAN AND COMPANY 
 
 1907 
 
/^ f/^ ? ^ 
 
 COPYEIQHT 1905 
 BY 
 
 CALLAGHAN & COMPANY 
 
 
PREFACE 
 
 To the trial lawyer no subject in the law curriculum is of 
 more importance than Evidence. In this branch of the law 
 questions arise very frequently, and usually they must be 
 answered on the spur of the moment. It is essential, therefore, 
 that the lawyer have at his tongue's end the rules and their 
 exceptions. Moreover, since the test of the keen lawyer is his 
 ability to make fine legal discriminations, it is also essential that 
 he possess a well disciplined mind in the art of applying them. 
 In the present volume an attempt has been made to state point- 
 edly and systematically these various rules and exceptions; 
 and since the law is an applied science, numerous illustrations 
 have been given to elucidate their application. Every topic is 
 fully illustrated; every illustration is founded upon an actual 
 case, and for each case the citation is given. With the view of 
 securing compactiiess, these illustrations, instead of being scat- 
 tered throughout the book, have been made a distinct part of 
 it and placed after the text proper. This plan, it is believed, 
 will meet with general approval. As an aid in developing ability 
 to make fine legal discriminations the reader is earnestly advised 
 to study carefully these illustrations and where practicable to 
 do so to read the cases upon which they depend. 
 
 In the preparation of this volume it has been the aim of the 
 author to produce a text-book which will prove serviceable when 
 used independently of any other work; but believing that it 
 will also be found serviceable in connection with the study of 
 Thayer's "Cases on Evidence" the general arrangement of 
 topics in that work has been followed. 
 
 That a real need exists for a suitable text-book on the law 
 
IV PEEFACB 
 
 of Evidence, for use in law schools which do not look with favor 
 upon the case-method of teaching, is generally conceded. The 
 exhaustive treatises upon the subject are much too voluminous 
 for this purpose; while the smaller ones, for various reasons, 
 fall short of meeting it. That the present volume will meet this 
 need is the earnest hope of the author, who, for fourteen 
 years, — six in the University of Midhigan and eight iu the Uni- 
 versity of Illhiois,^has had the pleasure df quizzing upon and 
 teaching this important subjedt. "With this end in view, no 
 pains has been spared to secure system, clearness, brevity and 
 accuracy. 
 
 T. W. HuaBES. 
 University of Itlinois, 
 
 August 1st, 1906. 
 
AS A TRIBUTE OF RESPECT AND GRATITUDE 
 
 THIS VOLUME IS DEDICATED 
 
 TO 
 
 HON. 0. A. HAEKEE, M. A. 
 
 DEAN OP THE COLLEGE OF LAW, UNIVERSITY OF ILLINOIS 
 
 WHO FOR TWENTY-FIVE YEARS WAS AN HONORED MEMBER OF THE 
 BENCH OF THE STATE OP ILLINOIS, AND WHOSE LEGAL LEARN- 
 ING AND ABILITY, STERLING INTEGRITY AND KINDNESS OP 
 HEART, HAVE WON FOR HIM THE CONFIDENCE AND RE- 
 SPECT OP THE MEMBERS OF THE BAR, OF THE MEMBERS 
 OF HIS FACULTY AND, OP THE STUDENTS OF HIS COL- 
 LEGE, AND OF THE PEOPLE GENERALLY THROUGH- 
 OUT THE STATE. 
 
TABLE OF CONTENTS. 
 
 PART I. 
 PRELIMINARY TOPICS. 
 
 CHAPTEE I. 
 
 SOME BRIEF DEFINITIONS. 
 
 SECTION PAGE 
 
 1. Evidence 1 
 
 2. Primary evidence 1 
 
 3. Secondary evidence 1 
 
 4. Hearsay evidence 1 
 
 5. Direct evidence 1 
 
 6. Circumstantial evidence 1 
 
 7. Presumptive evidence 2 
 
 8. Relevant evidence 2 
 
 9. Parol evidence 2 
 
 10. Real evidence 2 
 
 11. Competent evidence 2 
 
 12. Cumulative evidence 2 
 
 13. Prima facie evidence 2 
 
 14. Conclusive evidence 3 
 
 15. Satisfactory evidence 2 
 
 16. Proof 3 
 
 17. Res gestae , 3 
 
 CHAPTEE II. 
 JUDICIAL NOTICE. 
 
 1. Rule and exceptions 4 
 
 2. Scope 4 
 
 3. Classification 5 
 
 4. Compulsory judicial notice 5 
 
 5. Public laws 5 
 
 6. Constitutions 5 
 
 7. Treaties 5 
 
 8. Federal public statutes 5 
 
 9. State public statutes 5 
 
 10. The law of nations 5 
 
 11. Tlie law merchant 6 
 
 vii 
 
Vm TABLE OP CONTENTS. 
 
 SECTION PAGE 
 
 12. The common law ® 
 
 13. Tlie supreme court of United States ^ 
 
 14. Foreign public laws ^ 
 
 15. Municipal charters ^ 
 
 16. Municipal ordinances ^ 
 
 17. Charters of Railroad Corporations and Banks 6 
 
 18. Private corporations 6 
 
 19. Foreign corporations 7 
 
 30. Private statutes ''' 
 
 21. Courts 7 
 
 22. Matters of public interest 7 
 
 23. Matters peculiarly within the knowledge of the court 8 
 
 34. Matters of universal notoriety 8 
 
 25. Discretionary judicial notice 8 
 
 CHAPTER III. 
 
 PRESUMPTIONS. 
 
 1. Scope 9 
 
 2. Origin , 9 
 
 3. Definition 9 
 
 4. Classification 9 
 
 5. Sub-classifications 10 
 
 6. Presumptions, of law 10 
 
 7. Conclusive presumptions of law 10 
 
 8. Disputable presumptions of law 10 
 
 9. Presumptions of, fact 12 
 
 CHAPTER IV. 
 
 BURDEN OF PROOF. 
 
 1. Double sense '. 15 
 
 2. Upon whom it rests ' 15 
 
 3. Effect of presumptions 15 
 
 4. Amount of proof required in criminal cases 16 
 
 5. Insanity as a defence in criminal cases 16 
 
 6. Insanity as a defence in will cases 16 
 
 7. Negligence 17 
 
 8. Negligence of common carriers 17 
 
 9. Negligence of bailees 18 
 
 10. Negligence of innkeepers 18 
 
 11. Quo warranto proceedings j^g 
 
 12. Statute of limitations ^q 
 
 13. Fraud j^g 
 
 14. Exception to a statute -^g 
 
 15. Promissory notes jg 
 
 16. Statutes j^g 
 
 17. The right to open and close \ 20 
 
TABLE OP CONTENTS. IX 
 
 CHAPTEE V. 
 ADMISSIONS. 
 
 SECTION PAGK 
 
 i. beflnitioia Si 
 
 3. Classification 21 
 
 3. By whom binding admissions can be made 21 
 
 4. Admissions of an agent 21 
 
 5. Admissions of a partner 21 
 
 6. Admissions of a prior owner of real estate 22 
 
 7. Admissions of a prior owner of personal property 22 
 
 8. Admissions of a joint owner, of a tenant in common, and of a 
 
 landlord 22 
 
 9. Admissions of an executor or admlnistr'ator, of a devisee or 
 
 legatee, aild of an heir 23 
 
 10. Admissions of an ancestor, of a testator, of an intestate, and 
 
 of a tenant for life 23 
 
 11. Admissions of a trustee, and cestui que trust 23 
 
 12. Admissions of a principal debtor, of a joint debtor, and of a, 
 
 joint tort feasor 23 
 
 13. Admissions of a husband, and of a wife 24 
 
 14. Admissions of an attorney-at-Uw 24 
 
 15. A demurrer and a plea as admissions 25 
 
 16. Basis and effect of admissions 25 
 
 17. Admissions excluded 25 
 
 CHAPTER VI. 
 
 LAW AND PACT. 
 
 1. General rule 36 
 
 2. Questions of law In civil cases 36 
 
 3. Questions of law in criminal cases 36 
 
 4. Matters which constitute questions of law 36 
 
 5. Withdrawal of the case from the jury 27 
 
 6. Matters which constitute questions of fact 38 
 
 7. Matters which constitute mixed questibns of law and fact 38 
 
 CHAPTER VII. 
 
 DEMURRERS TO EVIDENCE. 
 
 1. Definitions 31 
 
 3. Their origin and use 31 
 
 3. Their purpose and effect 31 
 
 4. Joinder in demurrer. 33 
 
 5. Form and substance of the demurrer 33 
 
 6. Proceedings In a higher court 33 
 
 7. Analogous proceedings ■ 33 
 
TABLE OF CONTENTS. 
 
 PART II. 
 
 LEADING PRINCIPLES AND RULES OF 
 EXCLUSION. 
 
 CHAPTER I. 
 FACTS EXCLUDED ALTHOUGH LOGICALLY RELEVANT. 
 
 SECTIOW PAGE 
 
 1. Relevancy 35 
 
 2. Subsequent acts of precaution 35 
 
 3. Similar acts of defendant which cause injuries to others 36 
 
 4. Injuries caused to others by the same act 37 
 
 5. Proof of the value of land by sales of other similar land in 
 
 the vicinity 37 
 
 6. Methods and appliances adopted by others as a standard of 
 
 comparison 38 
 
 CHAPTER II. 
 
 CHARACTER. 
 
 1. Definitions 39 
 
 2. Application of terms 39 
 
 3. The general rule 39 
 
 4. The rule in criminal cases 39 
 
 5. The rule in civil cases 41 
 
 6. Particular acts as evidence of character 42 
 
 7. General reputation 42 
 
 8. Personal opinion of character 43 
 
 9. Character of witness for veracity 43 
 
 CHAPTER III. 
 
 CONFESSIONS. 
 
 1. Definition 44 
 
 3. Classification 44 
 
 3. Judicial confessions 44 
 
 4. Extra-judicial confessions 44 
 
 5. Voluntary confessions 4.4 
 
 6. Involuntary confessions ". 44 
 
 7. Burden of proof 45 
 
 8. Nature and requisites of the inducement 45 
 
 9. A person in authority 4g 
 
 10. Confessions made under oath, at a former trial or preliminary 
 
 proceeding ^g 
 
 11. Criminating statements of facts 4» 
 
TABLE OF CONTENTS. XI 
 SECTION PAGE 
 
 12. Confessions made by the accused while he was asleep or In- 
 
 toxicated 47 
 
 13. The accused entitled to have the whole of the confession 
 
 introduced 47 
 
 14. The confession in writing 47 
 
 15. The confession made by a person other than the accused.... 48 
 
 16. Weight and sufficiency of confessions 49 
 
 17. Facts discovered as a result of an involuntary confession.... 50 
 
 CHAPTEE IV. 
 
 HEARSAY EVIDENCE. 
 
 1. Definition 51 
 
 2. Application of the term 51 
 
 3. The general rule, and reasons therefor 51 
 
 CHAPTER V. 
 APPARENT EXCEPTIONS TO THE RULE AGAINST HEARSAY. 
 
 1. The making of the statement a principal fact in issue 53 
 
 2. The making of the statement circumstantial evidence of a fact 
 
 in issue 53 
 
 3. General reputation 53 
 
 4. Market values 53 
 
 5. Statements indicating Intention, motive, or state of mind 54 
 
 CHAPTER VI. 
 REAL EXCEPTIONS TO THE RULE AGAINST HEARSAY. 
 
 1. Origin and scope 55 
 
 2. The principal classes of real exceptions to the rule against 
 
 hearsay 55 
 
 CHAPTER VII. 
 
 REPORTED TESTIMONY, AND CERTAIN DECLARATIONS UNDER 
 
 OATH. 
 
 1. Classification 57 
 
 2. Evidence given at a former trial, or proceeding 57 
 
 3. Disabilities of the original declarant 57 
 
 4. The questions in issue the same 58 
 
 5. The parties the same 59 
 
 6. The right to cross-examine the witness at the former trial 59 
 
 7. Mode of proving former testimony 60 
 
 8. Extension of the general rule 61 
 
 9. Depositions 61 
 
Xll TABLE OP CONTENTS. 
 
 CHAPTBE VIII, 
 
 DYING DECLARATIONS. 
 
 SECTIOrr PAGE 
 
 1. Definition ^2 
 
 2. Grounds of admissibility 63 
 
 3. Constitutionality of this exception to the hearsay rule 63 
 
 4. Essentials of admissibility 64 
 
 5. Competency of the declarant 64 
 
 6. Declarant in extremis, and conscious thereof 65 
 
 7. Mode of proving declarant's consciousness of his impending 
 
 death 66 
 
 8. Nature and scope of dying declarations 66 
 
 9. Form of dying declarations 68 
 
 10. Mode of proving dying declarations 68 
 
 11. Right to impeach or corroborate dying declarations 69 
 
 12. Weight of dying declarations 69 
 
 13. Preliminary evidence requisite and mode of introducing it. . 70 
 
 14. Burden of proof 70 
 
 15. Other declarations of deceased person distinguished 70 
 
 CHAPTER IX. 
 DECLARATIONS RELATING TO PEDIGREE. 
 
 1. Definition 72 
 
 2. Grounds of admissibility 72 
 
 3. Requisites of admissibility 72 
 
 4. Death of the declarant 73 
 
 5. Qualifications of the declarant 73 
 
 6. The declaration must have been made ante litem motam.... 74 
 
 7. The necessity for a question of pedigree to be involved in the 
 
 issue 74 
 
 8. Declarations pertaining to illegitimacy 75 
 
 9. Declarations pertaining to age 75 
 
 10. Declarations by husband and wife 75 
 
 11. Declarations relating to particular facts of time and place. . 75 
 13. Form of the declaration 76 
 
 13. Proof required of the genuineness of the declaration when 
 
 made in writing 76 
 
 14. Weight of , declarations relating to pedigree 77 
 
 CHAPTER X. 
 
 DECLARATIONS RELATING TO PUBLIC OR GENERAL INTEREST. 
 
 1. Definitions 78 
 
 2. Grounds of admissibility 78 
 
 3. Requisites of admissibility 79 
 
TABLE OF CONTENTS. Xlll 
 
 SECTION PAGE 
 
 4. Death of the declarant. 79 
 
 5. Opportunity for knowledge 79 
 
 6. The declarations must be macje ante litem motam , . . . 79 
 
 7. The declarations must be community reputation and not 
 
 merely individual opinions 80 
 
 8. Nature, of. the, interest involved 80 
 
 9. Particular, facts. 81 
 
 10. Necessity of proof, of enjoyme,n,t of. the interest or right 82 
 
 11. The. declaration njay deny the existence of the interest or 
 
 right 82 
 
 13. Form of the declarations 83 
 
 CHAPTER XL 
 PUBLIC DOCUMENTS. 
 
 1. Definitions and classifications 83 
 
 2. Grounds of admissibility ,. . 84 
 
 3. Limitations 84 
 
 4. State papers '. 85 
 
 5. Legislative journals 85 
 
 6,. Judicial records 85 
 
 7. OflScial records and reports 86 
 
 8. Official certificates 87 
 
 9. Same, not evidence of, coUateraJ fact? 87 
 
 1.0. Municipal records 87 
 
 11. Unofficial piublic documents 88 
 
 12. Newspapers 88 
 
 13. Books of general literature, of history, and of science and art 88 
 
 14. Almanacs ■ 89 
 
 15. Mortality and tide tables 89 
 
 16. Mode of provi-ng public documents '. 90 
 
 CHAPTER XII. 
 
 ANCIENT DOCUMENTS. 
 
 1. Definition 91 
 
 3. Mode of computing the time 91 
 
 3. The general rule 93 
 
 4. Exceptions to the general rule 93 
 
 5. Suspicious circumstances, including erasures and interlinea- 
 
 tions 93 
 
 6. Production of document from proper custody 94 
 
 7. Corroborative evidence of the authenticity of the document. . 95 
 
 8. Necessity of proof that the instrument is an ancient document 95 
 
 9. Scope of admissibility of ancient -documents j9fi 
 
Xiv TABLE OF CONTENTS. 
 
 CHAPTER XIII. 
 
 DECLARATIONS AGAINST INTEREST BY PERSONS SINCE 
 DECEASED. 
 
 SECTION PAGE 
 
 1. Definitions ^"^ 
 
 2. The general rule 97 
 
 3. Grounds of admissibility 97 
 
 4. Essentials of admissibility 97 
 
 5. Tbe adverse Interest of tbe declarant 98 
 
 6. Declarations against interest which are also, in a measure, 
 
 self-serving 98 
 
 7. Competency of the declarant 99 
 
 8. The declarant must be dead 100 
 
 9. Admissible to prove collateral or independent facts 100 
 
 10. Admissible in a suit between strangers 101 
 
 11. Declarations made by an agent 101 
 
 12. Other declarations distinguished 101 
 
 13. Form of the declaration 102 
 
 14. Inadmissible to prove contracts, or the execution or revoca- 
 
 tion of a will 102 
 
 15. Weight of this class of declarations 103 
 
 16. The question of admissibility 103 
 
 CHAPTER XIV. 
 ACCOUNT-BOOKS OF PARTIES TO THE LITIGATION. 
 
 1. Definitions 104 
 
 2. Account-book entries versus entries made in the regular course 
 
 of business 104 
 
 3. The early English rule 104 
 
 4. The modern English rule 105 
 
 5. The American rule 105 
 
 6. Grounds of admissibility 106 
 
 7. Requisites of admissibility 106 
 
 8. Entries must be original 107 
 
 9. Entries must be contemporaneous 107 
 
 10. The person who makes the entry must have personal knowl- 
 
 edge 108 
 
 11. The nature of the business 108 
 
 12. The nature of the entries 109 
 
 13. Entries must be free from suspicion HI 
 
 14. Death of entrant not essential HI 
 
 15. Mode of proof m 
 
 16. Effect of statutory enactments which make parties to the suit 
 
 competent witnesses 113 
 
TABLE OF CONTENTS. XV 
 
 BECTIOTr PAGE 
 
 17. Statutory enactments wlilcli make account-book entries ad- 
 
 missible 114 
 
 18. Functions of court and jury 114 
 
 CHAPTEE XV. 
 
 DECLARATIONS OF THIRD PERSONS MADE IN THE REGULAR 
 COURSE OF DUTY OR BUSINESS. 
 
 1. Tlie general rule 117 
 
 2. Origin and scope of tbe rule 117 
 
 3. Other declarations distinguished 117 
 
 4. Grounds of admissibility 118 
 
 5. Requisites of admissibility 118 
 
 6. The entries must be made in the discharge of a duty, or In the 
 
 usual course of business 118 
 
 7. The entries must be contemporaneous with the transactions 
 
 to which they relate, or be made within a reasonable time 
 thereafter 119 
 
 8. As a general rule, the entrant must have personal knowledge 
 
 of the transactions 119 
 
 9. The entrant must be dead, or, at least, unavailable as a witness 130 
 
 10. Partnership entries ISl 
 
 11. Application of entries made in the regular course of business. 131 
 13. Mode of proof 133 
 
 CHAPTER XVI. 
 
 DECLARATIONS BEARING UPON THE PHYSICAL OR MENTAL 
 CONDITION OF THE DECLARANT, OR UPON HIS INTENTION. 
 
 1. The general rule 133 
 
 3. Grounds of admissibility 133 
 
 3. Requisites of admissibility 124 
 
 4. The declarations must relate to internal conditions 124 
 
 5. They must be spontaneous and natural expressions of the pain 
 
 or suffering 135 
 
 6. They must be contemporaneous with the pain or suffering... 135 
 
 7. To whom the declarations may be made 126 
 
 8. Effect of statutes which permit parties to the suit to testify. . 127 
 
 9. Declarations bearing upon the mental condition of the declar- 
 
 ant 128 
 
 10. Misapplication of the res gestae principle 128 
 
 11. Declarations of affection, emotion, malice, prejudice, etc 139 
 
 13. Testamentary declarations 130 
 
 13. Ante-testamentary declarations 130 
 
 J4. Post-testamentary declarations 131 
 
XVI TABLE OF CONTENTS. 
 
 SECTION PAGE 
 
 15. other Oaeories relating to post-testamentary declarations 153 
 
 16. Purposes for which testamentary declarations are held admis- 
 
 sible 132 
 
 17. The decisions not harmonious 133 
 
 CHAPTEE XVll. 
 PECLARATIONS RELATING TO RES GESTAE. 
 
 1. Definitions. Res gestae. Transaction 134 
 
 3. Origin of the term "res gestae" 134 
 
 3. Scope of the term "res gestae" 135 
 
 4. The verbal act doctrine and its misapplication 135 
 
 5. Verbal acts which constitute part of the issue 136 
 
 6. Declarations which constitute a verbal part of an act material 
 
 in the case 137 
 
 7. Requisites of admissibility of declarations which constitute a 
 
 verbal part of an act 137 
 
 8. The d'eclarations must be contemporaneous with the act 138 
 
 9. The declarations must limit, characterize, or explain the act. 138 
 
 10. The act must be independently material to the issue 138 
 
 11. The act must be equivocal 138 
 
 13. Declarations made by a party in possession of property 139 
 
 13. Declarations made by an accused person found in possession 
 
 of stolen property 139 
 
 14. Declarations made by an alleged bankrupt 140 
 
 15. Declarations made by a testator affecting a revocation of his 
 
 will 141 
 
 16. Declarations as to doinlcil 141 
 
 17. Declarations which constitute circumstantial evidence of an 
 
 existing condition . . ,. 14^ 
 
 18. Spontaneous declarations 144 
 
 19. Grounds of admissibility 144 
 
 20. Not essential that the declarations be strictly contemporaneous 145 
 
 21. A confusing and misleading statement by Professor Greenleaf 146 
 23. Declarations of agents 147 
 
 23. Declarations in rape cases 148 
 
 24. Three theories of admissibility 148 
 
 25. The first theory 148 
 
 26. The second theory 149 
 
 27. The third theory 150 
 
 28. Much conflict in the decisions 150 
 
 S9. The American doctrine 151 
 
 30. The true doctrine 151 
 
 31. Declarations of bystanders 152 
 
 32. The rule in criminal cases 153 
 
 33. The tendency of some courts to relax this exception to the 
 
 hearsay rule ,.,,.,,.,, , . . 454 
 
TABLE OF OON'EB-NTS. XVii 
 
 CHAPTER XVIII. 
 OPINION EVIDENCE. 
 
 SECTION PAGE 
 
 1. Befinition 155 
 
 3. Origin, 155 
 
 3. Opinions and facts distinguished 155 
 
 4. Expert testimony as to certaiiii facts 156 
 
 5. Expert opinion evidence 157 
 
 6. Basis of expert opinion evidence 157 
 
 7. An expert witness 158 
 
 8. The hypothetical question 159 
 
 9. Compensation of expert witnesses 160 
 
 10. Number of expert witnesses allowable 161 
 
 11. By whom expert witnesses are chosen and paid 161 
 
 12. Proof of handwriti-ng by non-experts 163 
 
 13. Proof of handwriting by experts 163 
 
 14. Proof of handwriting by comparison 163 
 
 15. Comparison of a disputed handwriting with copies 163 
 
 PART III. 
 REAL EVIDENCE. 
 
 CHAPTER I. 
 
 INSPECTION ANB VIEW BY COURT AND JURY. 
 
 1. Classification and definijtion. Early view 165 
 
 3. Modern use of the term. Definition 165 
 
 3. The general rul& 166 
 
 4. Origin and development of the rule 166 
 
 5. Application of the rule in civil cases 167 
 
 6. Application of the rule in criminal cases 167 
 
 7. Photographs, maps and models 168 
 
 8. Mechanical contrivances, inventions 169 
 
 9. View by jury, discretion of court 169 
 
 10. The objection raised to a view 170 
 
 11. The objection of undue prejudice 171 
 
 13. The objection of indecency or other impropriety 173 
 
 13. Voluntary exhibition of the person in personal injury cases . . 173 
 
 14. Compulsory examination of the person in civil cases 174 
 
 15. When application for an order for a compulsory examination 
 
 should be made 175 
 
 16. Mode of examination .' 175 
 
XVIU TABLE OF CONTENTS, 
 
 SECTIOlf PAGE 
 
 17. Mode of enforcing the order 176 
 
 18. Compulsory examination of the person of the accused in a crim- 
 
 inal case 176 
 
 19. Examination of the peraon of the prosecuting witness 177 
 
 20. Compulsory examination of the person where impotence is al- 
 
 leged as the ground for a divorce 177 
 
 21. Weight to which real evidence is entitled 178 
 
 CHAPTER II. 
 
 EVIDENCE OF EXPERIMENTS. 
 
 1. Definition 179 
 
 3. The rule 179 
 
 3. Discretion of the court 179 
 
 4. Experiments out of court by jurors 179 
 
 5. Experiments out of court by witnesses 180 
 
 6. Experiments which unduly delay the progress of the trial 180 
 
 7. Evidence of experiments admissible to explain or support opin- 
 
 ion evidence 180 
 
 8. Evidence of experiments also admissible to explain or support 
 
 non-expert evidence 181 
 
 9. Evidence of experiments admissible to show that under certain 
 
 conditions a certain result would, or would not, follow. . . . 183 
 10. Admissibility of evidence of experiments made with blood- 
 hounds 183 
 
 FART IV. 
 WRITINGS. 
 
 CHAPTER I. 
 PROOF OP AUTHORSHIP. 
 
 1. Dual character of writings 185 
 
 2. Classification of written evidence 185 
 
 3. Definition. Attestation. Authentication. Exemplification... 186 
 
 4. Attested writings — ^the common law rule 186 
 
 5. Origin of the rule 187 
 
 6. Reasons for the rule 187 
 
 7. Statutory restrictions of the rule 188 
 
 8. Meaning of the term "Attesting Witness" 188 
 
 9. Extrajudicial admissions by the adverse party 189 
 
 10. Effect when the attesting witness denies the execution of the 
 
 document 189 
 
 11. The rule when the attested document is acknowledged under a 
 
 statute 189 
 
TABLE OF CONTENTS. XIX 
 
 SECTION PAGE 
 
 13. Excuses for not calling attested witnesses 190 
 
 13. The rule when the attesting witness is unavailable 191 
 
 14. Ancient documents 192 
 
 15. The common law rule not applicable in this country to col- 
 
 lateral writings 193 
 
 16. Authentication of a judgment, or other judicial record 193 
 
 17. Same. Provision of United States constitution. Act of con- 
 
 gress 193 
 
 18. Effect of the act of congress 194 
 
 19. Mode of attestation under act of congress 195 
 
 30. Mode of attestation in some states 196 
 
 31. Mode of attestation at common law. Foreign judgments 196 
 
 23. Mode of proving federal court records 196 
 
 33. Mode of proving state court records 197 
 
 34. Mode of proving the records of justice of the peace courts 197 
 
 35. Mode of proving quasi-judicial records 198 
 
 26. Mode of proving unattested writings 198 
 
 27. Public records.' Their mode of proof 199 
 
 28. Same. State statutes. Act of congress 199 
 
 29. Same. Executive documents. State papers 200 
 
 30. Same. Municipal records 201 
 
 31. Same. Post oflSce records . ; 301 
 
 33. Same. School records. Prison records 301 
 
 33. Same. Tax records 201 
 
 34. Same. Weather reports 802 
 
 CHAPTER II. 
 ALTERATION OF WRITINGS. 
 
 1. Definitions and classifications 203 
 
 3. Effect of alterations. Early rule. Modern rule 203 
 
 2. Reasons for the rule 304 
 
 4. Application of the rule 205 
 
 5. Same. Bona fide purchasers of negotiable instruments 206 
 
 6. Same. Certified checks 207 
 
 7. Same. Innocent assignee of a mortgagee 307 
 
 8. Filling blanks 307 
 
 9. Ratification of alterations 209 
 
 10. Alterations in wills 209 
 
 11. Alterations made accidentally or by mistake 210 
 
 12. Altei-ations made to correct mistakes of expression 210 
 
 13. Material alterations versus immaterial alterations 211 
 
 14. Presumptions and burden of proof 313 
 
 15. Parol evidence. Admissions 315 
 
 16. Expert opinion evidence 215 
 
 17. Province of court and jury 316 
 
XX TABLE OP- CONTENTS. 
 
 CHAPTBE III. 
 PROOF 0^ CONTENTS. THE BEST EVIDENCE RULE. 
 
 SECTIOW PAGE 
 
 1. The rule 317 
 
 2. A more comprehensive statement of the rule by Stephen 317 
 
 3. Origin and development of the rule 317 
 
 4. Secondary evidence. Its meanings and scope 318 
 
 5. When secondary evidence is admissible 219 
 
 6. Degrees of secondary evidence 230 
 
 7. Same. Burden of proof 221 
 
 8. Proof of searcih in the case of lost documents 331 
 
 9. Same. Destruction of original by proponent 333 
 
 10. Same. Notice or demand to produce the original 224 
 
 11. Same. Erroiieous reasons for the rule 224 
 
 13. What constitutes reasonable notice 325 
 
 13. When notice to produce is not essential 337 
 
 14. Consequences of refusal to produce 339 
 
 15. The document in the hands of a third party 229 
 
 16. Application of the best evidence rule to chattels and inscrip- 
 
 tions on chattels 230 
 
 17. Same. Professdr Wigmore's view 233 
 
 18. Rules limited to the terms of the document 233 
 
 CHAPTER IV. 
 
 THE PAROL EVIDENCE RULE. 
 
 1. The rule 235 
 
 3. Origin and meaning of the term "parol" 235 
 
 3. Origin and development of the "parol evidence rule" 236 
 
 4. Misapplication of the rule 236 
 
 5. Reasons for the rule 237 
 
 6. Merger of prior and contemporaneous agreements conclusively 
 
 presumed 238 
 
 7. Exceptions and limitations '. 239 
 
 8. Stephen's comprehensive statement 239 
 
 9. Existence and validity of the contract 340 
 
 10. Incomplete documents 242 
 
 11. Collateral contemporaneous or prior parol agreements 244 
 
 12. Same. Oral warranties 245 
 
 13. Usage and custom 345 
 
 14. Receipts versus releases 348 
 
 15. To show a deed absolute on its face a mortgage 246 
 
 16. Consideration 348 
 
 17. Dates 349 
 
 18. Meaning of phrases, 'tt^ords and abbreviations 349 
 
 19. To Identify parties or subject-matter 349 
 
 30. To aid Interpretation 250 
 
tabijE of -contents. XSl 
 
 BECWION PAGE 
 
 31. An excessive description not inherently fatal 351 
 
 32. To rebut or support an equity 253 
 
 23. To establish, a resulting trust 255 
 
 24. To show alteration of a document 256 
 
 25. To show fraud, duress and undue influence 356 
 
 26. To show accident and mistake 356 
 
 27. To show illegality and iniiapacity 356 
 
 38. To explain an ambiguity. To interpret an equivocation 357 
 
 29. Same. Lord Bacon's view 357 
 
 30. Same. Chaplin's view 358 
 
 31. Same. trnderhiU's view 358 
 
 32. Declarations of intention. Equivocation 359 
 
 33. Same. Schouler's view 360 
 
 34. Same. Underhill's view 360 
 
 35. The much-conBidered case of Miller v. Travers 261 
 
 36. The paradoxical case of Doe v. Hiscocks 261 
 
 37. Effect of Doe v. Hiscocks 382 
 
 38. Rule applicable to the legal import of a document 363 
 
 39. Rule not applicable to subsequent parol agreements 263 
 
 40. Rule not applicable to strangers to the document 364 
 
 PART V. 
 WITNESSES. 
 
 CHAPTER I. 
 
 COMPETENCY. 
 
 1. Definitions 265 
 
 2. Competency v. credibility 265 
 
 3. Persons disqualified at common law 365 
 
 4. Parties to the record 266 
 
 5. Persons pecuniarly interested , 366 
 
 6. The common law rule abolished 370 
 
 7. Persons mentally incompetent or otherwise incapacitated.... 370 
 
 8. Insane persons 270 
 
 9. Idiots 273 
 
 19. Deaf and dumb persons 273 
 
 11. Intoxicated persons 373 
 
 13. Infants of tender years 274 
 
 13. Same. Cross-examination. Weight of testimony 275 
 
 14. Persons convicted of iikfamous crimes 376 
 
 15. Persons who lack in religious belief 376 
 
 16. Husband or wHe of party to suit 378 
 
 17. Accomplices 280 
 
 18. Judicial officers 281 
 
 49. Petit jurors 5 282 
 
XXii TABLE OF CONTENTS. 
 
 BECTIOW ^'*-™ 
 
 20. Grand jurors ^^^ 
 
 21. Arbitrators ^^^ 
 
 32. Attorneys 2^* 
 
 CHAPTER II. 
 
 PRIVILEGED COMMUNICATIONS. 
 
 1. Definitions 286 
 
 2. The grounds and attributes of privileged communications 286 
 
 3. Four classes of privileged communications 286 
 
 4. Professional communications 287 
 
 5. Communications between attorneys and their clients 287 
 
 6. Communications between physicians and their patients 290 
 
 7. Same. Waiver of the privilege 293 
 
 8. Same. Exceptions to the general rule 294 
 
 9. Communications between spiritual advisers and laymen 295 
 
 10. Same. Waiver of the privilege 296 
 
 11. Political communications. State secrets 296 
 
 12. Communications which pertain to affairs of state 297 
 
 13. Communications which pertain to the administration of penal 
 
 justice , 298 
 
 14. Judicial communications 301 
 
 15. Deliberations of judges 301 
 
 16. Deliberations of petit jurors 301 
 
 17. . Same. Impeaching their verdict 302 
 
 18. Same. The three principles involved 302 
 
 19. Same. The first principle 302 
 
 20. Same. The second principle 302 
 
 21. Same. The third principle 303 
 
 22. Same. The early English rule 303 
 
 23. Same. Lord Mansfield's view. 303 
 
 24. Same. The modern English rule 304 
 
 35. Same. The American rule 305 
 
 36. Same. The Iowa rule 305 
 
 27. Same. Mr. Freeman's view 305 
 
 28. Same. Chief Justice Shaw's view 306 
 
 29. Same. Justice Allen's view 306 
 
 30. Deliberation of grand jurors 307 
 
 31. Deliberation of arbitrators 307 
 
 33. Social communications. Husband and wife 311 
 
 33. Business communications. Telegraphic dispatches ...316 
 
 CHAPTER III. 
 
 EXAMINATION OF WITNESSES. 
 
 1. Swearing the witnesses 3 jg 
 
 3. Form of administering the oath 319 
 
 3. Same. Usual forms at common law 330 
 
TABLE OF CONTENTS. XXUl 
 
 SECTION PAGE 
 
 4. The custom of kissing the hlble 321 
 
 5. Constitutional and statutory provisions relating to oaths 331 
 
 6. Same. Constitutional and statutory provisions in Illinois 323 
 
 7. Extent of the option to swear or affirm 323 
 
 8. Effect of testifying without being sworn or affirmed 323 
 
 9. Effect where an atheist takes the oath and testifies. Brad- 
 
 laugh's case . . .' 334 
 
 10. The true purpose of the oath. The early view. Its injustice. 
 
 The modern view 325 
 
 11. Capacity of infants to testify. Oath-capacity and testimonial 
 
 qualifications distinguished 326 
 
 12. The custom of swearing several witnesses at the same time. . . 328 
 
 13. Publicity of the examination. Its advantages. Its limitations 328 
 
 14. Sequestration of witnesses. Origin of the rule 331 
 
 15. Reason for the rule 332 
 
 16. Discretion of the court. The early English rule. The modern 
 
 rule 333 
 
 17. Same. The better view 333 
 
 18. Exceptions to the rule 334 
 
 19. Penalty for violating the court's order 335 
 
 20. Refreshing present recollection versus adopting past recollec- 
 
 tion 336 
 
 21. Refreshing present recollection .' 336 
 
 23. Same. Right of opposing counsel and the jury to inspect the 
 
 memorandum 338 
 
 23. Adopting a past recollection ^ 340 
 
 24. An unorthodox doctrine 342 
 
 25. Effect of suspicious circumstances 343 
 
 26. Enforced inspection of memoranda 343 
 
 27. The right to begin. The order of examination 343 
 
 28. The examination in chief 345 
 
 29. Same. Anticipating the defense 347 
 
 30. The cross-examination. Its importance 348 
 
 31. Same. Its dangers 350 
 
 32. Same. Scope of the cross-examination 350 
 
 33. Same. Witness called by court 354 
 
 34. Same. Leading questions 354 
 
 35. Same. Preliminary examinations by the court 355 
 
 36. Impeachment of witnesses 356 
 
 37. Same. Impeachment of one's own witness 366 
 
 38. Same. Party calling witness surprised. His right to show 
 
 inconsistent statements made out of court 358 
 
 39. Impeachment of a witness of the adverse party 360 
 
 40. Same. Disproving by other witnesses material statements 360 
 
 41. Same. Proving by other witnesses inconsistent statements pre- 
 
 viously made 360 
 
 43. Same. Attacking the character of the witness for truth and 
 
 veracity • 362 
 
XXIV TABLE OP CONTENTS. 
 
 SECTION PAOB 
 
 43. Same. Hayward's case 366 
 
 44. Same. Impeachment of prosecutrix for rape 366 
 
 45. Same. Impeaehment by showing indictment, arrest or con- 
 
 viction 3.67 
 
 46. Same. Mode of proving general reputation 368 
 
 47. Same. Weight to be given Impeaching evidence 369 
 
 48. Impeachment by showing bias, hostility, sympathy, etc 370 
 
 49. Corroboration of witness. Definition 3,74 
 
 50. Same. When corroborative eviden^ce Is allowable 374 
 
 51. Same. Corroboration of prosecutrix in a rape case 376 
 
 53. Same. Corroboration of complainant in a divorce case 377 
 
 53. Same. Corroboration of an accomplice. Definition 378 
 
 54. Some practical suggestions on the examination of witnesses. .. 381 
 
 55. Same. The examination-in-chief 381 
 
 56. Same. The ordinary witness 382 
 
 57. Same. The hostile witness 383 
 
 58. Same. The rapid witness 383 
 
 59. Same. Duties of opposing counsel- during the examination-in- 
 
 chief 383 
 
 60. Same. Cross-examination 384 
 
 61. Same. Duties of opposing counsel during the cross-examina- 
 
 tion 386 
 
 63. Same. The re-examination 387 
 
 ILLUSTRATIONS. 
 
 PAOE 
 
 Judicial notice 389 
 
 Presumptions 396 
 
 Burden of proof 405 
 
 Admissions 414 
 
 Law and fact 420 
 
 Demurrers to evidence 439 
 
 Facts excluded although logically relevant 435 
 
 Character 445 
 
 Confessions 453 
 
 Hearsay evidence 461 
 
 Apparent exceptions to the rule against hearsay 465 
 
 Reported testimony, and other declarations under oath 471 
 
 Dying declarations 480 
 
 Declarations relating to pedigree 489 
 
 Declarations relating to matters of public or general interest 496 
 
 Public documents , 501 
 
 Ancient documents 510 
 
 Declarations against interest by persons since deceased 516 
 
TABLE OP CONTENTS. XXV 
 
 PAGE 
 
 Account-book entries 528 
 
 Declarations made In the regular course of business 535 
 
 Declarations bearing upon the physical or mental condition of the 
 
 declarant, or upon his Intention 543 
 
 Declarations relating to, or forming part of the res gestae 549 
 
 Opinion evidence 560 
 
 Real evidence 567 
 
 Evidence of experiments 573 
 
 Proof of authorship 578 
 
 Alterations of -writings 582 
 
 Proof of contents and the best evidence rule 592 
 
 The parol evidence rule 600 
 
 Competency of witnesses 611 
 
 Privileged communications 616 
 
 Examination of witnesses 625 
 
TABLE OF CASES CITED. 
 
 [EEFEBENOES ABE TO THE PAGES.] 
 
 Abat V. RIon, 225. 
 Abbott V. Abbott, 211, 579. 
 Abbott V. Pearson, 121. 
 Abbott v: Striblen, 615. 
 Abrams v. Pomeroy, 249. 
 Abrams v. Union Nat. Bank, 207. 
 Abrath v. N. B. Ry. Go., 405; 
 Accola V. Chic, B. & Q. Ry. Co., 
 
 395. 
 Adams v. Board of Trustees; 268* 
 Adams Ex. Co. v. Haynes, 266. 
 Adams & Co. v. Hickox, 463. 
 Adam v. Kers, 578. 
 Adams v. Lawson, 449. 
 Adams v. Lisherj 194. 
 Adams v. People, 481. 
 Adams v. Smitli, 446. 
 Adams v. Stamjan, 81. 
 Adams v. Way, 197. 
 Adams v. Wheeler, 359. 
 Adriance V. Arnot, 345. 
 Agnew V. Jobson, 176. 
 Ala., etc., Co. v. Hill, 568, 
 Alabama, etc., Ry. Co. v. Burgess, 
 
 180. 
 Alabama, etc.. Land Co. v. ThomJ)- 
 
 son, 216. 
 Alberti v. New York, etc., Ry. Co., 
 
 294. 
 Alden v. Goddard, 289. 
 Alden v. St. Peters Parish, 392. 
 Alderson V; Langdale, 588. 
 Aldons V; Cornwall, 94. 
 Aldons V. Cornwell, 204. 
 Aldrich v. Wetmore, 170. 
 Alexander v. United States, 288. 
 Allfen v: Killinger, 418. 
 Allen V. Lyon, 610. 
 Allison y, People, 305. 
 
 Alonzo V. State, 460. 
 Alward v. Oakes, 373. 
 Ames V. Snider, 405. 
 Amherst Bank v. Root, 186. 
 Am. Fife Ins. Co. v. Hazen, 449. 
 Amick V. YoUng, 552. 
 Amor V. Stoeckele, 341. 
 Anchor Milling Co. v. Walsh, 111. 
 Anderson v. Langdale, 206. 
 Anderson v. So. Chic. Co., 415. 
 Anderson v. Whalley, 341. 
 Anderson v. Whittaker, 245. 
 Andrews v. Knox Co., 392. 
 Angelo v. People, 399. 
 Anglesey v. Hatherton, 514. 
 Anthony v. Mercantile, etc., Assoc, 
 
 202. 
 Antle T. Sexton, 256. 
 Arbuckle v. Tfempleton, 100. 
 Armstrong v. The Town of Ackley, 
 
 127, 461. 
 Arnold v. Jones, 203, 206. 
 Ash V. Ash, 303. 
 Ashley y. Johnson, 595. 
 Ashworth v. Kittridge, 89. 
 Asken r. People, 565. 
 Aspy V. Botkins, 175, 176. 
 Atcheson v. Bveritt, 320. 
 Atchison Ry. Co. v. U. S., 158. 
 Atkinson v; Lay, 394. 
 Attorney General v. Briant, 300. 
 Attorney-General v. Brand, 325. 
 Atwood V. ImpSon, 363. 
 Auberle v. McKeesport, 564. 
 Augusta V. Windsor, 535, 541. 
 Avery v. Clemens, 139. 
 Aveson v. Kinnaird, 134, 312, 315. 
 Ayres v. Duprey, 369. 
 
 XXVll 
 
XXVIU 
 
 TABLE OF CASES CITED. 
 
 [befeeences aeb to the pages.] 
 
 Babb V. Clemson, 206. 
 
 Baccia v. People, 151. 
 
 Bacon v. Towne, 465. 
 
 Bagley v. Mason, 127. 
 
 Bagley v. McMickle, 224. 
 
 Bailey v. Bailey, 353. 
 
 Bailey v. Bidwell, 189. 
 
 Bailey v. Taylor, 215. 
 
 Baird v. Baird, 247, 248. 
 
 Baker v. Blount, 191. 
 
 Baker v. Taylor, 517. 
 
 Baldridge v. Penland, 108. 
 
 Baldwin v. Bank of Newbury, 608. 
 
 Baltimore Turnpike Co. v. State, 
 
 563. 
 Bank V. Burns, 205. 
 Bank v. Clark, 206. 
 Bank v. Lacy, 61. 
 Bank V. Zorn, 340. 
 Bank of B. N. A. v. Delafield, 121. 
 Barber v. Merriam, 545. 
 Barden v. Southerland, 207. 
 Barhyte v. Summers, 346. 
 Barker v. Cunard Steamship Co., 
 
 293. 
 Barker v. Haskell, 108. 
 Barker v. Steamship Co., 294. 
 Barkley v. Copeland, 373. 
 Barnes v. Harris, 287, 616. 
 Barnett v. Nolte, 206. 
 Barnett v. State, 151. 
 Barney v. Newcomb, 269. 
 Barr v. Armstrong, 227, 228. 
 Barrie & Son v. Frost, 241. 
 Bartholomew v. Farwell, 112. 
 Bartholomew v. People, 628. 
 Bartlett v. Delprat, 134. 
 Bartlett v. Patton, 519. 
 Bartlett v. Smith, 420. 
 Barton v. Thompson, 449. 
 Bass V. Gobert, 109. 
 Bass V. Sevier, 91, 515. 
 Bassett v. Shares, 346. 
 Bassett v. United States, 311. 
 Batdorff v. Farmers' Nat. Bank of 
 
 R., 370. 
 Baustian v. Young, 168. 
 
 Baxter v. City of Cedar Rapids, 
 
 617. 
 Bay V. Cook, 109. 
 Beama v. Russell, 215. 
 Beardsley v. Wildman, 372. 
 Beaton v. Skene, 297. 
 Beatson v. Skene, 300. 
 Beatty v. Clement, 98, 527. 
 Becker v. Quigg, 356. 
 Beeson v. Beeson, 288. 
 Beitman v. Hopkins, 315. 
 Belk V. Cooper, 278. 
 Belknap v. National Bank of North 
 
 America, 206, 212. 
 Bell T. Morrison, 419. 
 Bell V. Prewitt, 353. 
 Bell V. Ry. Co., 227. 
 Bell T. Smith, 269. 
 Benedict v. Miner, 216, 583. 
 Benjamin v. McConnell, 212. 
 Bennett v. O'Brien, 411, 412. 
 Bennett v. People, 140. 
 Benson v. Gray, 245. 
 Benson v. Olive, 91. 
 Benson v. United States, 281, 613. 
 Berdell v. Berdell, 378. 
 Bergen v. People, 58, 473. 
 Berney v. Mitchell, 58. 
 Berryman v. Cox, 375. 
 Berwick v. Huntress, 208. 
 Bergman v. Shoudy, 342. 
 Berry v. Watkins, 448. 
 Bessette v. State, 367. 
 Beveridge v. Minter, 312. 
 Beyerline v. State, 312. 
 Blckley v. Bank, 225. 
 Bigles V. Rayher, 288. 
 Billingsley v. Hiles, 87. 
 Binns v. State, 486, 557. 
 Bird V. Hueston, 98, 100. 
 Bird V. Stone, 568. 
 Bissell V. Edwards, 197. 
 Blackburn v. Crawfords, 490. 
 Blackington v. Johnson, 351, 352. 
 Blackstone v. State, 319. 
 Blackwell v. State, 176. 
 Blair v. Corby, 249. 
 
TABLE OF CASES CITED. 
 
 XXIX 
 
 [BEFBEENCES ABE 
 
 Blair v. Ins. Co., 418. 
 
 Blake V. People, 346. 
 
 Blanchard v. Child, 467. 
 
 Bland v. Warren, 111. 
 
 Blasey v. Delius, 590. 
 
 Blaudy-Jenkins v. Dunraven, 513. 
 
 Blevlns v. Pope, 230. 
 
 Blizzard v. Hays, 448. 
 
 Board of Com., etc., v. Leggett, 128. 
 
 Boch V. Iowa Cent. Ry. Co., 168. 
 
 Bogle V. Chambers, 93. 
 
 Boiling T. Fannin, 111. 
 
 Bonnet v. Glattfeldt, 351, 626. 
 
 Bookman v. Stegman, 464. 
 
 Booth V. Cook, 221. 
 
 Booth T. Powers, 204, 211, 215. 
 
 Boothby v. Stanley, 215. 
 
 Borgess Investment Co. v. Vette, 
 
 105. 
 Boston V. Benson, 206. 
 Boston V. State, 393. 
 Boston Water Power Co. v. Hanlon, 
 
 511. 
 Bower v. Bower, 290. 
 Bowles V. Kansas City, 292. 
 Bowman v. Wettig, 222. 
 Boyd V. Ladson, 111. 
 Boyd V. State, 575. 
 Boyle V. Graham, 511. 
 Boyle V. State, 89, 154. 
 Boyer v. Sweet, 533. 
 Boyle V. Wiseman, 230. 
 Boyle V. The State, 480. 
 Boynton v. Kellogg, 447. 
 Bradley v. Dells Lumber Co., 215. 
 Bradley v. Rees, 609. 
 Brain v. Preece, 540. 
 Brand v. Johnrowe, 214. 
 Brandt v. Klein, 219. 
 Braydon v. Goulman, 345. 
 Bressler v. People, 374, 622. 
 Brick V. Brick, 248. 
 Bridgeport Bank v. New York, etc., 
 
 Ry. Co., 208. 
 Bridges v. Armour, 269. 
 Bridges v. N. L. Ry. Co., 422. 
 Brigham v. Palmer, 579. 
 
 TO THE PAGES.] 
 
 Brock V. Brock, 316. 
 Brockett v. Mountfort, 212. 
 Brodnax v. Groom, 199. 
 Brooke v. Chicago, etc., Ry. Co., 
 
 182. 
 Brooks V. Holden, 289. 
 Brotherton v. People, 486. 
 Brott V. State, 183. 
 Brown v. Baboock, 270. 
 Brown v. Bellows, 357. 
 Brown v. Booth, 227, 228. 
 Brown v. Board of Education, 407. 
 Brown V. Byrne, 246. 
 Brown v. Com., 485. 
 Brown v. Hannibal Ry. Co., 290. 
 Brown v. Johnson, 315. 
 Brown v. Piper, 389. 
 Browne v. Murray Ry. & Mood., 
 
 348. 
 Bruendle In re, 292, 293. 
 Bryan v. Forsyth, 85, 201, 503. 
 Bryant v. Stilwell, 232. 
 Bryant v. Tidgewell, 374. 
 Buchanan v. Buchanan, 269. 
 Buchanan v. State, 161. 
 Bucher v. Jarratt, 234. 
 Bucklin v. State, 369. 
 Buhl V. Mechanics' Bank, 243. 
 Bulkley v. Devine, 605. 
 Bullard v. Pearsall, 359. 
 Bullen V. Michel, 513. 
 Bulllner v. People, 335, 336, 625. 
 Buntain v. Baily, 198. 
 Burchfield v. Moore, 207. 
 Burg V. Chicago, etc., Ry. Co., 180. 
 Burgwin v. Bishop, 205. 
 Burnett v. Simpkins, 449. 
 Burnham v. Roberts, 290. 
 Burns v. Lynde, 207. 
 Burns v. Mill, 470. 
 Burrell v. North, 232. 
 Burrough v. Martin, 341. 
 Burrows v. Lock, 189. 
 Burt V. State, 151, 377. 
 Burton V. Driggs, 219. 
 Burton v. Morrow, 243. 
 Burke v. Dulaney, 241. 
 
XXX 
 
 TABLE OF CASES CITED. 
 
 [BEFEBENCES ABE 
 
 Burwell v. Orf, 205, 206, 582. 
 
 Bushnell v. Simpson, 112. 
 
 Bustin V. Rogers, 110. 
 
 Butler V. Manhattan Ry. Co., 294, 
 
 Butler V. Price, 417. 
 
 Byers v. Railroad, 182. 
 
 Cadwell v. Meek, 267. 
 Cady V. Norton, 324. 
 Cady V. Walker, 284. 
 Calder v. Creditors, 121. 
 Caldwell v. Murphy, 124. 
 Call T. Dunning, 188. 
 Camp V. Shaw, 210, 591. 
 Campau v. North, 290. 
 Campbell v. People, 381. 
 Campbell v. State, 357. 
 Campbell v. Wilson, 73. 
 Campbell V. St. Louis, etc., Ry. Co., 
 
 201. 
 Canon v. Grigsby, 209. 
 Capital Bank v. Armstrong, 206. 
 Capling V. Herman, 196. 
 Cardinal v. Hadley, 248. 
 Carey v. Hubbardson, 168. 
 Carpenter v. Calvert, 406. 
 Carpenter y. Dame, 220. 
 Carpenter v. State, 372. 
 Carr v. Moore, 370. 
 Carr v. Welch, 212. 
 Carr v. State, 144. 
 Carroll v. State, 365. 
 Cartwrlght v. McGown, 403. 
 Catlin Coal Co. v. Lloyd, 585. 
 Caufman v. Cedar Spring, 496. 
 C. & A. Ry. Co. V. Logue, 183. 
 C. & A. Ry. Co. V. Pennell, 424. 
 C. & A. R. R. Co. V. Strawboard Co., 
 
 530, 533. 
 C, B. & Q. Ry. Co. v. Lee, 632. 
 C. C, etc., Ry. Co. v. Patton, 172. 
 C. C. C. & St. L. Ry. Co. v. Jenkins, 
 
 392. 
 C, C, C. & St. L. Ry. Co. v. Mona- 
 
 ghan, 570. 
 
 TO THE PAGES.] 
 
 C, C, C. & St L. Ry. Co. V. New- 
 
 lin, 220, 221, 226. 
 C. & B. I. Ry. Co. V. Chancellor, 
 
 542. 
 C. & E. I. Ry. Co. V. O'Connor, 422. 
 C. £ N. W. Ry. Co. V. Moranda, 
 
 Admx., 426. 
 C, R. I & P. Ry. Co. V. Bell, 632. 
 C, R. I. & P. Ry. Co. V. Boyce, 426. 
 C, R. I. & P. Ry. Co. V. Clark, 452. 
 Central Ry. Co. v. AUmon, 353. 
 Chadron v. Glover, 175. 
 Chaffee & Co. v. U. S., 122. 
 Chaffee v. U. S., 537. 
 Chambers v. Bernasconi, 119, 535. 
 Chamberlain v. Chamberlain, 527. 
 Chamberlain v. Litchfield, 87. 
 Chamberlain v. White, 211. 
 Chambers v. Hunt, 234. 
 Chandler v. Morez, 241. 
 Chandler v. Von Roeder, 256. 
 Chapin v. Lapham, 343. 
 Chapman v. Twitchell, 418. 
 Charlesworth v. Tinker, 477, 478. 
 Chase v. Lowell, 468. 
 Chase v. Me. Cent. Ry. Co., 423. 
 Chase v. Palmer, 207. 
 Chase v. United States, 315. 
 Chasemore v. Richards, 401. 
 Chateaugay, etc., Co., v. Blake, 121. 
 Chelmsford Co. v. Demarest, 418. 
 Chelton v. State, 371. 
 Chenie v. Watson, 231. 
 Cherry v. Boyd, 82. 
 Cherry v. State, 76. 
 Chever v. Sodo, 269. 
 Chicago & A. R. Co. v. American 
 
 Strawboard Co., 341. 
 Chicago City Ry. Co. v. Biederman, 
 
 275. 
 Chicago Ry. Co. v. Becker, 8. 
 Chic. Ry. Co. v. Chancellor, 54. 
 Chicago, etc., Ry. Co. v. Beach, 264. 
 Chicago, etc., Ry. Co. v. Chancel- 
 lor, 128. 
 Chicago, etc., Ry. Co. v. Clausen, 
 
 172. 
 
TABLE OP OASES CilTED. 
 
 XXXI 
 
 [BEFEBENCES ABE 
 
 Chicago, etc, Ry. Co. v. Trayes, 87. 
 Chicago, etc., Ry. Co. v. IngersoU, 
 
 222. 
 Chicago, etc., Ry. Co. v. Thomas, 
 
 373. 
 Chicago Lumbering "Co. v. Hewitt, 
 
 120. 
 Chicago Lumbering Co. v. Hewitt, 
 
 108. 
 Chic. Ry. Co. v. Chancellor, 469. 
 Chicago W. D. Ry. Co. v. Becker, 
 
 553. 
 Chirac v. Reinicker, 290: 
 Chisholm v. Beaman Mach. Co., 
 
 108, 530. 
 Chisholm v. Beaver Lake Lumber 
 
 Co., 596. 
 Chisholm v. Machine Co., 120, 538. 
 Cicero Street Ry. Co. v. Priest, 545. 
 Citizens' Co. v. Dew, 494. 
 City Council of Montgomery v. M. 
 
 & W. Plank-Road Co., 392. 
 City of Boston v. Richardson, 511. 
 City of Chicago v. Gage et al, 518. 
 City of Chicago v. McKechney, 
 
 121. 
 City of Chicago v. Powers, 441. 
 City of Salem v. Webster, 546. 
 City of South Bend v. Turner, 
 
 175, 176, 568. 
 City of Springfield v. Dalbey, 171. 
 Clapp V. Norton, 169. 
 Clark V Bank, 341. 
 Ul^yk V. Bradstreet, 567, 569. 
 Clark T. Brooklyn Heights Ry. Co., 
 
 568. 
 Clark V. B. & M. Ry. Co., 423. 
 Clark T. Hills, 81. 
 Clark V. Houghton, 250. 
 Clark T. State, 577. 
 Clark V. Turner, 544. 
 Clarkson v. Woodhouse, 95. 
 Claycojnb T. Butler, 310. 
 Clifford V. Drake, 341. 
 Cline et al. v. Jones et at, 416. 
 Clemeijtine v. State, 365. 
 
 TO THE PAGES.] 
 
 Cleveland Refining Co. v. Dunning, 
 241, 244. 
 
 Cleveland Ry. Co. v. Perkins, 227. 
 
 Clinton v. Howard, 563. 
 
 Clinton v. State, 319. 
 
 Close v. Samm, 171. 
 
 Cloud V. Clinkinbeard's Executors, 
 400. 
 
 Cluggage V. Swan, 304. , 
 
 Coate V. Speer, 498, 500. 
 
 Coates & Sons v. Buck, 396. 
 
 Cobbett V. Hudson, 615. 
 
 Cochran r. Nebeker, 212. 
 
 Codman v. Caldwell, 109. 
 
 Coffee V. Groover, 394. 
 
 CoghlU V. Boring, 267. 
 
 Cole V. Anderson, 112. 
 
 Cole V. Cole, 312. 
 
 Coleman v. Com., 272, 273, 611. 
 
 Cole V. Fall Brook, etc., Co., 568. 
 
 Coles V. Yorkes, 207. 
 
 , Columbia, etc., Ry. Co. v. Haw- 
 thorne, 316. 
 
 Columbian Accident Co. v. Sanford, 
 424. 
 
 Coll V. Easton Transit Co., 556. 
 
 Collins V. Ball, 215. 
 
 Collins V. Com., 58. 
 
 Collins V. Grantham, 76. 
 
 Com. V. Allen, 267. 
 
 Com. V. Anthes, 428. 
 
 Com. V. Beau, 362. 
 
 Com. V. Blood, 233. 
 
 Com. V. Bond, 458. 
 
 Com. V. Brelsford, 173, 576. 
 
 Com. V. Brooks, 379. 
 
 Com. 'v. Brown, 167. 
 
 Com. V. Chance, 139, 168. 
 
 Com. V. Choate, 410. 
 
 Com. V. Churchill, 451. 
 
 Com. V. Cleary, 553. 
 
 Com. V. Cuftee, 455. 
 
 Com. V. Culver, 456. 
 
 Com. v. Curtis, 457. 
 
 Com. V. Dorsey, 565. 
 
 Com. V. Doughty, 50. 
 
xxxu 
 
 TABLE OF CASES CITED. 
 
 [bbfebences aee 
 Com. V. Dunlop, 393. 
 Com. V. Emigrant, etc.. Bank, 212. 
 Com. V. Felch, 54, 128, 543. 
 Com. V. Goodwin, 454. 
 Com. V. Gratt, 488. 
 Com. V. Griffin, 314. 
 Com. V. Grose, 451. 
 Com. y. Hackett, 146, 154. 
 Com. V. Hardy, 445. 
 Com. V. Hayes, 312, 315. 
 Com. V. Hill, 307. 
 Com. V. Hollis, 167, 568. 
 Com. V. Homer, 67. 
 Com. V. Howe, 459, 613. 
 Com. V. Jeffs, 338. 
 Com. V. Jordan, 568. 
 Com. V. Kennon, 364. 
 Com. V. Knapp, 456. 
 Com. T. Leonard, 445. 
 Com. V. Maroh, 280. 
 Com. V. Mead, 308, 309, 399, 615. 
 Com. V. Messlnger, 225. 
 Com. V. Murphy, 451. 
 Com. V. Morrell, 231, 355. 
 Com. V. McKenna, 479. 
 Com. V. M'Pike, 145. 
 Com. V. Nott, 454. 
 Com. T. Peckham, 391. 
 Com. V. Porter, 428. 
 Com. V. Preeee, 455. 
 Com. V. Reagan, 420. 
 Com. V. Reynolds, 50. 
 Com. V. Richards, 64, 473, 475, 488. 
 Com. V. Robinson, '275, 421, 444, 
 
 612. 
 Com. V. Roddw 486. 
 Com. V. Scott, 560. 
 Com. V. Smith, 220, 309, 455. 
 Com. V. Sturtivant, 566. 
 Com. V. Switzer, 169. 
 Com. V. Thompson, 333. 
 Com. V. Trefethen, 54, 128, 468, 
 
 469, 542, 543. 
 Com. V. Van Horn, 557. 
 Com. V. Vose, 466. 
 Comer v. Comer, 594. 
 Comfort V. People, 140, 552. 
 
 TO THE PAGES.] 
 
 Conant v. National State Bank, 
 
 603. 
 Conant v. Nat. etc., Bank, 245. 
 Con. Mut. Life Ins. Co. v. Union 
 
 Trust Co., 290. 
 Conn., etc.. Life Ins. Co. v. Lathrop, 
 
 181, 561. 
 Conn. Mut. Life Ins. Co. v. Ellis, 
 
 508. 
 Conn. Mut. L. Ins. Co. v. Schwenk, 
 
 76, 491. 
 Cons. V. Harris, 367. 
 Continental Nat. Bank v. First Nat. 
 
 Bank, 539. 
 Conway v. State, 280. 
 Conwell T. S. & N. W. Ry. Co., 238. 
 Cook V. Brown, 372. 
 Cook V. Castner, 306. 
 Cook V. Stout, 473. 
 Cooke V. Tanswell, 578. 
 Coonrod v. Madden, 219, 593. 
 Copeland v. New Bng. Ins. Co., 
 
 433. 
 Corbett v. Underwood, 245. 
 Corcoran v. Peekskill, 435. 
 Cornell v. Green, 475. 
 Cornett v. Williams, 220. 
 Coskery v. Nagle, 410. 
 Costello V. Eddy, 244. 
 Costigan v. Lunt, 476. 
 Cottrell V. Cottrell, 335. 
 Coughlin V. Haenssler, 61. 
 Coulson V. Disborough, 346, 354. 
 Coulson V. Walton, 93. 
 Coulter V. Am. Merch. U. Ex. Cb., 
 
 357, 358. 
 Countryman v. Bunker, 111. 
 Coupe V. Roger, 423. 
 Cowman v. Rogers, 398. 
 Cox V. Montague, 316. 
 Cox V. State, 135. 
 Crabtree v. Hagenbaugh, 369. 
 Craft V. Com., 379. 
 Crafter v. Metrop. Ry. Co., 438. 
 Craig V. Rohrer, 362. 
 Cram v. Ingalls, 192. 
 Cramer v. Hurt, 293, 295, 618. 
 
TABLE OF CASES CITED. 
 
 XXXlll 
 
 [befbrences abb 
 Cramer v. Shrimer, 234. 
 Crandall v. Dawson, 16. 
 Crane v. Marshall, 95, 510. 
 Crank v. Frith, 190. 
 Crary v. Sprague, 58. 
 Crawford v. West Side Bank, 206, 
 
 590 
 Creamer v. Shannon, 112 
 Crease v. Barrett, 82, 100. 
 Crispin v. Doglioni, 75, 494. 
 Crosby v. Percy, 190. 
 Croskey v. Skinner, 209. 
 Cross V. People, 379. 
 Crowe V. People, 33, 431, 434. 
 Culver V. Dwight, 565. 
 Cumins v. Wood, 411. 
 Cummings v. McKinney, 226. 
 Currie v. Child, 190. 
 Currier v. Gale, 100. 
 Curry v. Colburn, 240. 
 Curtis V. Belknap, 580. 
 Curtis V. Harrison, 244. 
 Curtis V. March, 391. 
 Curtis V. Marrs, 270. 
 Cutter V. Fanning, 267. 
 
 Dacey v. People, 407. 
 
 Dagget T. Willey, 81. 
 
 Daggett V. Bonervitz, 87. 
 
 Dale V. Roosevelt, 257. 
 
 Dalrymple v. Williams, 307, 621. 
 
 Dan V. Clark, 241. 
 
 Daniels v. Fowler, 121. 
 
 Darling v. Westmoreland, 443. 
 
 Davidson v. Cooper, 205. 
 
 Davidson v. Peck, 234. 
 
 Davies v. Humphreys, 100, 520. 
 
 Davis V. Com., 453. 
 
 Davis V. Field, 340. 
 
 Davis V. State, 183, 184, 372, 399. 
 
 Davis v. Sup. Lodge, etc., 290. 
 
 Davis V. Symonds, 606. 
 
 Davis V. Teachout, 221. 
 
 Davis V. United States, 407. 
 
 Day V. Stickney, 372. 
 
 Dean v. Wllkerson, 525. 
 
 De Armond v. Neasmith, 202, 
 
 TO THE PAGES.] 
 
 Decker v. Decker, 263, 610. 
 
 Deery v. Cray, 514. 
 
 Delmel v. Brown, 534. 
 
 DeLong v. Soucie, 216, 587. 
 
 Den V. M'Allister, 227. 
 
 Denman, L. C. J., in R. v. Bliss, 
 
 496. 
 Denning v. Butcher, 290. 
 Derham v. Derham, 311, 313. 
 Deshon v. Merch. Ins. Co., 408. 
 Detroit Advertiser v. Detroit, 245. 
 Deu V. Clark, 257. 
 Deum V. Deum, 216. 
 Deury v. Foster, 208. 
 Deury v. Midland Ry. Co., 96. 
 Devanbagh v. Devanbaugh, 572. 
 DeWitt County Nt. Bank v. Nixon 
 
 et at., 404. 
 DeWolf V. Strader, 288, 617. 
 Dickinson v. Breeden, 222, 393. 
 Dickerson v. Talbot, 230. 
 Dickinson v. Shee, 351. 
 Dietrich v. Mitchell, 616. 
 Dillon V. Crowley, 189. 
 Dimick v. Downs, 363, 451, 631. 
 Dismukes v. State, 144. 
 Disotell V. Henry Luther Co., 568. 
 District of Columbia v. Armes, 
 
 441, 611. 
 District of Columbia v. Arnes, 271. 
 District of Columbia v. Camden 
 
 Iron Works, 249. 
 Dittrich v. Detroit, 293. 
 Doane v. Hadlock, 210, 591. 
 Dobyns v. Rawley, 211. 
 Dodge V. Freedman's Co., 415. 
 Doe d. Patteshall v. Turford, 536. 
 Doe V. Beynon, 514. 
 Doe V. Cockell, 229. 
 Doe V. Hiscocks, 261, 262, 263. 
 Doe V. Lurford, 101. 
 Doe V. Palmer, 131, 227. 
 Doe V. Pearce, 514. 
 Doe V. Pulman, 95. 
 Doe V. Robson, 99. 
 Doe V. Ross, 220. 
 Doe V. Somertpn, 227, 
 
xxxiv 
 
 TABLE OF CASES CITED. 
 
 [BEFEEBNCBS ABE 
 
 Doe V. Stacey, 101. 
 
 Doe V. Wolley, 92, 515. 
 
 Doke V. James, 283. 
 
 Doki V. James, 622. 
 
 Bolder v. Huntingfield, 391. 
 
 Donlin v. Bradley, 255. 
 
 Donehoo v. Johnson, 252. 
 
 Donnelly v. State, 278. 
 
 Donohue v. Whitney, 168. 
 
 Donovan v. Ry. Co., 120. 
 
 Dormandy v. State Bank, 430. 
 
 Doty V. Brown, 301. 
 
 Douglass V. Tousey, 369. 
 
 Dounell Mfg. Co. v. Jones, 207. 
 
 Dowie V. Black, 629. 
 
 Downer v. Dana, 361. 
 
 Downey v. Dillon, 449. 
 
 Downs V. N. Y. Cent. Ry. Co., 506 
 
 Doyle V. Wiley, 222, 596. 
 
 Draper v. Draper, 274. 
 
 Draper v. Wood, 586. 
 
 Drayton v. Wells, 472. 
 
 Drinkwater v. Porter 82, 500. 
 
 Driver v. Ford, 263. 
 
 Drum V. Harrison, 371. 
 
 Drye v. State, 365. 
 
 Dubois V. Baker, 216. 
 
 Du Bost V. Beresford, 467. 
 
 Duffies V. The State, 451. 
 
 Dufresne v. Wise, 375. 
 
 Duncan v. Seeley, 338. 
 
 Dunham v. Clogg, 209. 
 
 Dunlop V. Berry, 337. 
 
 Dunlop V. Servas, 490. 
 
 Dunn T. People, 484. 
 
 Dupree v. State, 369. 
 
 Durpree v. State, 477. 
 
 Du Pont v. Davis, 493. 
 
 Dwyer v. Collins, 225, 226. 
 
 Eames v. Kaiser, 353. 
 Earll V. People, 379. 
 Eason v. Chapman, 629. 
 Eaton et al. v. Alger et al., 58. 
 Ebert v. Arends, 243. 
 Eckert v. Louis, 211. 
 
 TO THE PAGES.] 
 
 Edington v. Mut. Life Ins. Co., 291. 
 
 Egbers V. Egbers, 406, 518. 
 
 Bichelberger v. Old Nat. Bank, 208. 
 
 Eidt V. Cutler, 180. 
 
 Bisfield V. Dill, 216. 
 
 Elgin, J. & E. Ry. Co. v. Reese, 574. 
 
 EUicott V. Pearl, 498. 
 
 Elliott V. Blair, 586. 
 
 Ellis V. Newell, 523. 
 
 Ellis V. Saltan, 283. 
 
 Ellis V. Park, 395. 
 
 Ellis V. State, 367, 368. 
 
 Ellison V. Weathers, 310. 
 
 BUmaker v. Buckley, 352. 
 
 Elmer v. Pessenden,«123. 
 
 Elms V. Chevis, 541. 
 
 Emerson v. Lowell Gas Co., 437. 
 
 Emery v. Mohler, 605. 
 
 Emmert v. Hays, 610. 
 
 Enfield V. Ellington, 87. 
 
 English V. Smith, 195. 
 
 Enloe V. Hall, 234. 
 
 Enthoven v. Hoyle, 207. 
 
 Erie, etc., Co. v. Miller, 33.7. 
 
 Erie Preserving Co. v. Miller, 626. 
 
 Brrissman v. Brrissman, 333, 625. 
 
 Bschbach v. Collins, 210. 
 
 Erskine v. Davis, 400. 
 
 Eskridge v. State, 273. 
 
 Estate of Casner v. Stafford, 242. 
 
 Estate of Lefevre, In re, 463. 
 
 Evans V. Eaton, 268. 
 
 Evans v. Hettick, 272. 
 
 Evans V. State, 577. 
 
 Evans v. Urban District, 85. 
 
 Evans v. Williamson, 212. 
 
 Evanston v. Gunn, 87, 199, 202, 
 
 502. 
 Ewing V. Sandoval Coal & Mining 
 
 Co., 606. 
 
 Fahey v. Crotty, 449, 450. 
 Faivre v. Manderscheld, 569. 
 Falkner v. Beers, 227. 
 Falmouth v. Moss, 316. 
 Farrington v. Farrington, 269. 
 
TABUS OF OASES CITED. 
 
 XXXV 
 
 [BIIFEBEI^CBS ABE 
 
 Faxon T. Hollis, 107, 532. 
 
 Fawkner v. Smith Wall Paper Co., 
 243. 
 
 Faye v. Patch, 241 
 
 F. H. Hill Co. v. Somer, 106. 
 
 Featherstone v. People, 612. 
 
 Feney v. Long, 292. 
 
 Fell V. The B. C. R. & N. Ry. Co., 
 473. 
 
 Fell V. Young, 93, 511. 
 
 Pelton V. Pitman, 190. 
 
 Ferguson v. Miles, 225. 
 
 Ferguson v. Mills, 227. 
 
 Ferguson v. Sutphen, 241, 256. 
 
 Ferris v. Hard, 374. 
 
 Finn v. Com., 58, 478. 
 
 First Nat. Bank of Springfield v. 
 Ryan, 586. 
 
 First Nat. Bank v. L. B. & W. Ry. 
 Co., 440. 
 
 Fisher v. Bishop et al., 409. 
 
 Fisher v. King, 212. 
 
 Fisher v. Mayor, 119. 
 
 Fitch V. Chapman, 100. 
 
 Fitch V. Ellis, 206. 
 
 Fitch V. Pinckard, 509. 
 
 Flannigan v. Althouse, Wheeler & 
 Co., 463. 
 
 Fleming v. McClure, 394. 
 
 Flora V. Anderson, 75, 493. 
 
 Plynn v. Gardner, 626. 
 
 Folkes V. Chadd, 561. 
 
 Follansbee v. Walker, 284, 615. 
 
 Foote V. Bentley, 593. 
 ■ Forbes v. Walker, 346. 
 
 Foot V. Silliman, 222. 
 
 Forsythe v. Hardin, 192, 579, 581. 
 
 Fosgate v. Herkimer Mfg., etc., Co., 
 506. 
 
 Foster t. Hall, 289. 
 
 Foster v. People, 167. 
 
 Foster v. Shaw, 60. 
 
 Foulk V. Eckert, 365, 368. 
 
 Fountaine v. Gunter, 206. 
 
 Fowle V. Com. Council of Alexan- 
 dria, 433. 
 
 Fowler v. Mtna, Fire Ins. Co., 450. 
 
 TO THE PAGES.] 
 
 Fox V. Bearlock, 540. 
 
 Framingham, D. C, Co. v. Barn- 
 ard, 519. 
 
 Framingham Mfg. Co. v. Barnard, 
 121. 
 
 Frank v. Longstreet, 228. 
 
 Frank v. Pennie, 111. 
 
 Franklin v. State, 168, 570. 
 
 Fraser v. Berkeley, 143. 
 
 Fraser v. Jennison, 76, 294, 566. 
 
 Frear v. Drinker, 284, 615. 
 
 Freeman v. Brewster, 98. 
 
 French t. French, 313, 314. 
 
 Frick V. Kabaker, 111. 
 
 Friedberg v. People, 379. 
 
 Friend v. Hamill, 142. 
 
 Friend v. Miller, 241. 
 
 Frink v. McClung, 267. 
 
 Frost V. Holland, 196. 
 
 Frye v. Bank of 111., 363, 451, 629, 
 631. 
 
 Fulkerson v. Homes, 72. 
 
 Fulkerson v. Holmes, 95, 96, 514. 
 
 Fulton V. Bank, 351. 
 
 Fulton V. Cent. Bank, 352. 
 
 Fulton's Estate, In re, 531. 
 
 Fuller V. Green, 212. 
 
 Fuller V. Fuller, 311. 
 
 FuUerton v. Ford^ce, 568. 
 
 Funk V. Ely, 116.' 
 
 Furdson t. Clogg, 519. 
 
 Gage V. Campbell, 229. 
 
 Gage V. Davis, 202. 
 
 Gage V. Eddy, 276, 628. 
 
 Gale V. People, 352. 
 
 Galen v. Brown, 250. 
 
 Galena, etc., Ry. Co. v. Fay, 550. 
 
 Gallaway v. Burr, 465. 
 
 Gait V. Galloway, 199. 
 
 Galveston, etc., Ry. Co. v. Davis, 
 
 153. 
 Ganahl v. Shore, 110. 
 Garden City, etc., Co. v. Miller, 194. 
 Gardiner v. Harback, 212. 583. 
 
XSXYl 
 
 TABLE OF CASES CITED. 
 
 [kbperbnces abb 
 Gardner v. Gardner, 131. 
 Gardner v. Granniss, 515. 
 Gardner v. Eberhart, 227. 
 Gardner v. Granniss, 91. 
 Gardner v. Inhab. of Brookline, 
 
 438. 
 Gardner v. LIghtfoot, 244. 
 Gardner v. Mathews, 243. 
 Garrett v. Hanshue, 187. 
 Garrettson v. Pegg, 403. 
 Gartside v. Connecticut Mut. Life 
 
 Ins. Co., 292. 
 Garvin v. State, 569. 
 Gates V. People, 375. 
 Gaunt V. State, 568. 
 Gavan v. Bllswortli, 477. 
 Gavit V. Snowhill, 195. 
 Geer T. Goudy, 311, 316. 
 Geer t. Lumber and Mining Co., 
 
 572. 
 Geist V. Detroit City Ry. Co., 392. 
 Gentry v. McGinnis, 171, 178. 
 George v. Stubbs, 267. 
 Georgia Pac. Ry. Co. v. Propst, 220. 
 Gerapulo v. Wieler, 187. 
 German Ins. Co. v. Gibe, 247. 
 German Theo. Scliool v. Dubuque, 
 
 168. 
 Germania Ins. Co. v. Klewer, 16. 
 Germania Fire Ins. Co. v. Klewer, 
 
 425. 
 Gerrish r. Sweetzer, 417. 
 Gettysburg Nat. Bank v. CMsolm, 
 
 215. 
 Gibbons v. Bressler, 606. 
 Gibson v. Hunter, 429. 
 Gifford T. People, 364, 375, 451. 
 Gilbert v. Kennedy, 234. 
 Gilbert v. McGinnis, 245. 
 Gilchrist v. Bale, 130. 
 Gildersleeve v. Atkinson, 374. 
 Gill V. Bouchard, 295. 
 Gill V. Hopkins, 208. 
 Gillett V. Sweat, 205, 584, 585. 
 Gill V. Caldwell, 319, 321. 
 Gillham v. State Bank, 432. 
 Gilmer v. Higley, 353. 
 
 TO THE PAGES.] 
 
 Gindrat v. People, 167. 
 
 Gitchell V. People, 309. 
 
 Givan v. Masterson, 241. 
 
 Givens v. Bradley, 450. 
 
 Gleadon v. Atkins, 99. 
 
 Gleason v. Kinney, 110. 
 
 Globe Accident Ins. Co. v. Gerisch, 
 544. 
 
 Gloss V. Hallowell, 593. 
 
 Glover v. Gentry, 214, 216. 
 
 Glover v. Hembree, 121. 
 
 Glover v. Patten, 289. 
 
 Goelz V. Goelz, 314, 623. 
 
 Goggans v. Myrick, 505. 
 
 Goltra V. Wolcott, 616. 
 
 Goodright d. Stephens v. Moss, 489. 
 
 Goodrum v. State, 312. 
 
 Goods of Wilkinson, In re, 210. 
 
 Goodspeed v. Fuller, 248. 
 
 Gordon v. Burris, 131. 
 
 Gordon v. Com., 283, 614, 622. 
 
 Gorton v. Hadsell, 421. 
 
 Gould V. Schermer, 89. 
 
 Govin V. De Miranda, 523. 
 
 Gower v. Emery, 289. 
 
 Grable v. Margrave, 452. 
 
 Graham v. Graham, 283, 311. 
 
 Graham v. Penn. R. R. Co., 564. 
 
 Graham v. Sadler, 239. 
 
 Grand Rapids & I. Ry. Co. v. Hunt- 
 ley, 124, 125. 
 
 Grand Trunk Ry. Co. v. Richard- 
 son, 439. 
 
 Granger v. Warrington, 616. 
 
 Grant v. Maddox, 249. 
 
 Grant v. Masterton, 121. 
 
 Grant v. State, 205, 335. 
 
 Graves v. Key, 246. 
 
 Gray v. Pentland, 230. 
 
 Greason v. Davis, 200. 
 
 Green v. Caulk, 341. 
 
 Green v. Gould, 374. 
 
 Green v. Phoenix Mut. Life Ins. 
 Co., 346. 
 
 Green v. Sneed, 208. 
 
 Greenebaum v. Gage, 241. 
 
 Greenfield v. People, 154. 
 
TABLE OF CASES CITED. 
 
 XXXVll 
 
 [BEFEEENCES ABE TO THE PAGES.] 
 
 Greenfield Savings Bank v. Stow- 
 
 ell, 204, 206. 
 Greer v. Missouri, etc., Ry. Co., 
 
 168. 
 Gregg V. Forsyth, 85. 
 Greenough v. Eccles, 359. 
 Gresham v. Manning, 138. 
 Griffin v. Griffin, 617. 
 Griffith V. State, 364. 
 Grimes v. Martin, 336. 
 Grlswold V. Hazard, 256. 
 Grob V. Cushman, 85. 
 Grubhs v. McDonald, 591. 
 Gt. West. Ry. Co. v. Bacon, 408. 
 Gugy V. Maguire, 296. 
 Guhl V. Whitcomb et al., 571. 
 Gulf, etc. Ry. Co. v. Johnson, 365. 
 Gunn V. Thruston, 523. 
 Gurney v. House, 199. 
 Guptill V. Verback, 293. 
 
 Haas V. Chicago Bld'g. Society, 418. 
 
 Habbe v. Viele, 241. 
 
 Hadduck v. Murray, 426. 
 
 Hagan v. Merchants' Ins. Co., 214. 
 
 Hagebush v. Ragland, 412. 
 
 Hagerman v. Wigent, 312. 
 
 Haines v. Guthrie, 491. 
 
 Haish V. Munday, 347. 
 
 Haish y. Payson, 566. 
 
 Haley v. State, 374. 
 
 Halvorsen v. Moon & Kerr Lumber 
 
 Co., 97, 102, 517. 
 Halley v. Gregg, 352. 
 Hall V. Hall, 314. 
 Hall T. People, 367. 
 Hall V. Phelps, 187, 189. 
 Hamilton v. People, 369. 
 Hamilton v. Nott, 316. 
 Hancock v. Kelly, 110. 
 Haney v. Com., 67. 
 Hank v. State, 295. 
 Hanley v. Donoghue, 390. 
 Hannum v. Belchertown, 301. 
 Hanrick v. Patrick, 212. 
 
 Hanselman y. Doyle, 225. 
 Hanson v. Armstrong, 222. 
 Hanson v. Crawley, 211. 
 Happel V. Brethauer, 200. 
 Harbaugh t. City of Monmouth, 
 
 408. 
 Harbison v. Shook, 16. 
 Harden v. Hays, 367. 
 Hargrave v. Hargrave, 397. 
 Harland v. Eastman, 73. 
 Harsh v. Klepper, 204. 
 Hart y. L. & Y. Ry. Co., 36. 
 Harter v. Ry. Co., 36. 
 Hartford Fire Ins. Co. v. Webster, 
 
 242. 
 Hartford Life Ins. Co. v. Gray, 190. 
 Hartford v. Palmer, 271, 273. 
 Harts V. Emery, 264. 
 Harvey v. Smith, 584. 
 Harriman v. Brown, 81. 
 Harrington v. Hamburg, 373. 
 Harrington v. Worcester, etc., St. 
 
 Ry. Co., 180. 
 Harris v. Murphy, 264. 
 Harrison v. People, 567. 
 Harrison v. Sutter Ry. Co., 293. 
 Harrow Spring Co. v. Whipple 
 
 Harrow Co., 263. 
 Haskins v. Warren, 245. 
 Hathaway v. Spooner, 190. 
 Hatton v. Robinson, 287, 288. 
 Havens v. Seashore, etc., Co., 95. 
 Haver v. Cent. Ry. Co., 373. 
 Hawkes v. Baker, 323. 
 Hawkins v. Fall River, 181. 
 Hawkinson v. Vantine, 264. 
 Hawley v. Hawley, 597. 
 Hay v. Reid, 352. 
 Hayes v. Gorham, 269. 
 Hayes v. Parmelee, 278. 
 Hayes v. Smith, 371. 
 Hayes v. Wagner, 585. 
 Hays V. Com., 487. 
 Hays V. Peck, 248. 
 Hay ward v. People, 366. 
 Hazer v. Strelch, 341. 
 Healey v. Simpson, 434. 
 
XXXYIU 
 
 TABLE OF CASES CITED. 
 
 [EEPEEBNCES ABE TO THE PAGES.] 
 
 Heath v. Broadway, etc., Ry. Co., 
 
 291. , 
 Heath v. Crealock, 289. 
 Heckert v. Halne, 193. 
 Hedderioh v. State, 393. 
 Heiskell v. Rollins, 122. 
 Helberg v. Schumann, 246. 
 Helser v. McGrath, 352. 
 Helwig V. Lascowski, 371. 
 Hendershot v. West. Union Tel. 
 
 Co., 291. 
 Henderson v. Carbondale Coal & 
 
 Coke Co., 401. 
 Hendrick v. Hughes, 201. 
 Henlslaw v. Preedman, 317, 318. 
 Hennessy v. Wright, 296. 
 Henry v. Bishop, 189. 
 Henry v. Lee, 337. 
 Henry v. People, 172. 
 Herod v. State, 365. 
 Hermann v. State, 568. 
 Herster v. Herster, 470. 
 Hewett V. Chapman, 302, 621. 
 Hewins v. Cargill, 204. 
 Hewitt V. State, 598. 
 Hewitt V. Taunton Street Ry. Co. 
 
 436. 
 Hibblewhite v. M'Morlne, 207. 
 Hickory v. United States, 359, 404 
 Higgins V. People, 377. 
 Higgs V. Shehee, 112. 
 Higham v. Ridgway, 100, 101, 518, 
 
 519. 
 Hlghfill V. Missouri Pac. Ry. Co., 
 
 294. 
 Hilbert v. Com., 314. 
 Hill V. Am. Surety Co., 389. 
 Hill V. Com., 64. 
 Hill V. Montgomery, 627, 633. 
 Hill V.' State, 846, 367. 
 Hinchman v. Whetstone, 598. 
 Hingeston v. Kelly, 405. 
 Hinshaw v. State, 283, 310, 375. 
 Hitchcock V. Moore, 316. 
 Hoare v. Allen, 134. 
 Hoare v. Silverlock, 395. 
 Hodges V. Percival, 436. 
 
 Holbrook v. Gay, 111. 
 
 Holbrook v. McBride, 348. 
 
 Holcomb V. Harris, 294. 
 
 Holcombe v. Hewson, 437. 
 
 Holman v. Bachus, 312. 
 
 Holmes V. Marden, 105, 112. 
 
 Holland v. Hatch, 587. 
 
 Hollenbach v. Todd, 617. 
 
 HoUenbeck v. Stanberry, 227. 
 
 Hollingsworth v. Holbrook, 206. 
 
 Holly, V. Bennett, 88. 
 
 Home V. Bentirick, 300. 
 
 Homer v. Cilley, 95, 510. 
 
 Homer v. Wallis, 211. 
 
 Hooker r. State, 577. 
 
 Hopkins v. Grimshaw, 311, 314, 
 316. 
 
 Hopps V. People, 407. 
 
 Hord V. Taubman, 204. 
 
 Horn V. Hanson, 243. 
 
 Horst V. Wagner, 586. 
 
 Horton v. Critchford, 390. 
 
 Hosack V. Rogers, 269. 
 
 Hosford V. Rowe, 102. 
 
 Hosley v. Brooks, 446. 
 
 Houck V. Graham, 211. 
 
 Houlton V. ManteufEel, 76. 
 
 Houselman v. People, 552. 
 
 Houston V. Blythe, 58. 
 
 Houston, etc., Ry. Co. v. White, 
 
 365, 369. 
 How V. Hall, 224, 228. 
 Howard v. Babcock, 412. 
 Howard v. 111. Trust Bank, 168. 
 Howard v. 111. Tr. & Sav. Bank, 
 
 570. 
 Howard v. McDonough, 337. 
 Howard v. Patrick, 473. 
 Howe V. Hardy, 245. 
 Howell V. Moores, 248. 
 Howser v. Com., 283. 
 Hoyt V. People, 380. 
 Hronek v. People, 277. 
 Hubbard v. Marshall, 601. 
 Huff V. Bennet, 337. 
 Huffman v. Cauble, 345. 
 Hughes V. Boone, 290. 
 
TABLE OF CASES CITED. 
 
 XXXIX 
 
 [eefeebnces abb 
 Huls T. Kimball, 222. 
 Humes v. O'Bryan, 57, 522. 
 Humphreys v. GulUon, 215. 
 Humphreys v. Spear, 533. 
 Hunnicut v. Peyton, 498. 
 Hunt V. Adams, 238. 
 Hunt V. Eaton, 314. 
 Hunt V. Gray, 214, 216. 
 Hunt V. Lowell Gas Co., 438. 
 Hunter v. N. Y., O. & W. Ry. Co., 
 
 395. 
 Hunter v. Parsons, 215. 
 Hunter v. State, 135. 
 Huntsville, etc., Ry. Co. v. Corpen- 
 
 Ing, 352. 
 Hurd V. Brown, 269. 
 Hurlbut V. Meeker, 353. 
 Huston V. Council Bluffs, 87, 202. 
 Hutchason v. State, 315. 
 Hurst V. Beach, 253. 
 Huse V. Hamblin, 249. 
 Hutchinson v. Bowker, 423. 
 Hyde v. Gannett, 311. 
 Hynes v. McDermott, 572. 
 Hypes V. Griffin, 608. 
 
 Indiana C. Co. v. Parker, 569. 
 
 Ingalls V. State, 379. 
 
 Ingram v. Little, 208. 
 
 111. C. Ry. Co. V. Ashline, 61. 
 
 111. Cent. Ry. Co. v. Copeland, 266. 
 
 111. Cent. Ry. Co. v. Sutton, 125. 
 
 111. Land, etc., Co. v. Bonner, 220. 
 
 HI. Mut P. Ins Co. Y. Marseilles 
 Mfg. Co., 269. 
 
 III. Mut. Ins. Co. V. Marseilles Mfg. 
 Co., 611. 
 
 I. & St. L. Ry. Co. V. Link, 431. 
 
 Indianapolis, etc., Ry. Co. v. Houli- 
 han, 248, 249. 
 
 Indianapolis Union Ry. Co. v. Hou- 
 lihan, 604. 
 
 Ingleden v. Northern Ry. Co., 180. 
 
 Inhabitants of North Brookfield v. 
 Inhabitants of Warren, 495. 
 
 Inness v. Boston, etc., Ry. Co., 128. 
 
 TO THE PAGES.] 
 
 Ins. Co. V. Hogan, 403. 
 Insurance Co. v. Mosley, 124, 137, 
 
 154. 
 Ins. Co. V. Weides, 530. 
 Ins. & Tr. Co., In re. 
 Inslee v. Prall, 105, 106. 
 Inslee v. Prall's Executor, 109. 
 Ireland v. Powell, 500. 
 Irvin V. Irvin, 238. 
 Isack V. Clarke, 91. 
 Israel v. Brooks, 448. 
 Izer V. State, 283, 309. 
 
 J., A. & N. Ry. Co. V. Velie, 433. 
 
 Jackson v. Blanshan, 91. 
 
 Jackson v. Boneham, 493. 
 
 Jackson v. Jackson, 75. 
 
 Jackson v. Malin, 591. 
 
 Jackson v. Root, 190. 
 
 Jackson v. State, 60, 64, 375, 475, 
 
 488. 
 Jamieson v. Ind., etc., Co., 394. 
 Janesville Cotton Mills v. Ford, 
 
 249. 
 Jaques v. Horton, 342. 
 Jeffersonville M. & I. Ry. Co. v. 
 
 Bowen, 170. 
 Jenkins v. State, 307. 
 Jennings v. State, 372. 
 Johns V. Harrison, 209. 
 Johnson v. Brown, 370. 
 Johnson v. Glover, 263. 
 Johnson v. Johnson, 211, 406. 
 Johnson v. People, 377, 446. 
 Johnson v. Pollock, 215, 241. 
 Johnson v. Richardson, 18, 410. 
 Johnson v. State, 335. 
 Johnson v. Trinity Church Society, 
 
 466. 
 Johnson v. Wiley, 351, 
 Joiner v. Duncan, 314, 623. 
 Jones V. Bond, 408. 
 Jones Constr. of Com. t. Trade 
 
 Cont, 245, 
 Jones V. E. Tenn. etc., Ry. Co., 422. 
 Jones V. Henry, 189. 
 
xl 
 
 TABLE OP CASES CITED. 
 
 [BEFEBENCES ABE 
 
 Jones V. Hoskins, 268. 
 Jones V. Howard, 100. 
 Jones V. Jones, 568. 
 Jones V. Long, 108. 
 Jones V. Portland, 373. 
 Jones V. Roberts, 190. 
 Jones V. State, 167. 
 Jordan v. State, 154, 313. 
 Justen V. Scharf, 168. 
 
 Kan. City, etc., Ry. Co. v. Smith, 
 168. 
 
 Kankakee Ry. Co. v. Horan, 60, 61. 
 
 Kansas Pac. Ry. Co. v. Miller, 233. 
 
 Karr v. Jackson, 196. 
 
 Kearney v. King, 393. 
 
 Keating v. People, 172. 
 
 K. C, F. S. & G. Ry. Co. v. Mor- 
 rison, 425. 
 
 Kelly V. Andrews, 315. 
 
 Kelly V. State, 167. 
 
 Keen v. Monroe, 212. 
 
 Keist V. Chicago etc., Ry. Co., 291. 
 
 Keith V. New Hampshire, etc., Co., 
 173. 
 
 Kell V. Charmer, 250. 
 
 Kelly V. Trumble, 582, 594. 
 
 Kennedy v. Doyle, 503, 539, 540. 
 
 Kennedy v. Evans, 267. 
 
 Kent V. Garvin, 120. 
 
 Kenyon v. City of Mondovi, 617. 
 
 Kerr v. Gillespie, 316. 
 
 Keyes v. City of Cedar Falls, 127, 
 557. 
 
 Keyes v. State, 154. 
 
 Kibhe v. Bancroft, 532, 533. 
 
 Kilbourne v. Supervisors, 409. 
 
 Kilbum v. Bennett, 142. 
 
 Kilkelly v. Martin, 209. 
 
 King V. Barrett, 288. 
 
 King V. Hunt, 232. 
 
 King V. King, 313. 
 
 King V. Jemison, 283. 
 
 King V. Mead, 480. 
 
 King V. Sears, 514. 
 
 King V. State, 177. 
 
 TO THE PAGES.] 
 
 King V. Worthington, 593. 
 Kingman v. Cowles, 194. 
 Kingan v. Silvers 205. 
 Kinkead v. United States, 199. 
 Kinney v. Springfield, 175. 
 Kirby v. Com., 154. ^ 
 
 Kirk V. Garrett, 283. 
 Kirkpatrick v. Clark, 234. 
 Klssam v. Forrest, 351. 
 Kitteringham v. Dance, 369. 
 Kline v. Raymond, 212. 
 Kling V. Kansas City, 292. 
 Knight V. House, 368. 
 Knight V. Lee, 295. 
 Knights and Ladies of America v. 
 
 Ida B. Weber, 509. 
 Knill V. Williams, 212. 
 Knott V. Sargent, 308. 
 Knowles v. Crampton 173. 
 Kramich v. Sherwood, 256. 
 Krebs V. State, 485. 
 Kringle v. Rhomberg, 256. 
 Kuppitz, etc.. Brewing Co. v. Behm, 
 
 245. 
 Kurtz V. Hibner, 250. 
 
 Laelede Bank v. Keeler, 629. 
 Lake Shore, etc., Ry. Co. v. Brown, 
 
 345. 
 Lake Shore Ry. Co. v. Herrick, 
 
 128. 
 Lake St. Blev. Ry. Co. v. Shaw, 
 
 126, 545. 
 Lamb v. Moberly, 234. 
 Lambe v. Manning, 552. 
 Lammlman v. Detroit Citizens' St. 
 
 Ry. Co., 292. 
 Lamprey v. Munch, 352. 
 Lanark v. Dougherty, 172. 
 Lander v. People, 551. 
 Lane v. Boicourt, 294. 
 Lane v. Harris, 199. 
 Lane v. Moore, 470. 
 Lane v. Sharpe 238. 
 Langdon v. Hulls 228. 
 Langhorn v. Com., 371. 
 
TABLE OF CASES CITED. 
 
 xli 
 
 Langhorne v. Com., 372. 
 
 Lanphere v. State, 377. 
 
 Lamed v. Buffinton, 449. 
 
 Larue v. Russell, 334. 
 
 La Salle Nat. Bank of La Salle T. 
 
 Tolu Rock and Rye Co., 608. 
 Lassone v. Bositon & L. R. Ry. Co., 
 
 541. 
 Lauder v. Petiple, 3, 144. 
 Laughton v. Atkins, 591. 
 Laughlln y. State, 377. 
 Lauretta v. Holcomb, 189. 
 Lawrence v. Clark, 226. 
 Lawrence v. Kimball, 519. 
 Lawyer v. Smith, 548. 
 Le Baron v. Crombie et al., 58. 
 Leconfield v. tjonsdale, 401. 
 Lee V. Butler, 205, 256. 
 Lehman v. Central R., etc., Co., 
 
 ■205. 
 Leland v. Kauth, 367. 
 Levering v. Shockey, 603. 
 Lewis V. Hartley, 231. 
 Lewis V. Watson, 214. 
 Lewiston Steam Mill Co. v. An- 
 droscoggin Water Power Co., 181. 
 Libby v. Brown, 98, 527. 
 Libby v. Scherman 179, 576. 
 Life Ins. Co. v. Lathrop, 156. 
 Lincoln v. The Saratoga, etc., Ry. 
 
 Co., 562. 
 Lindley t. Lacey, 244. 
 Lindsay v. Chicago, 87, 88. 
 Lindsay v. City of Chicago, 201, 
 
 504. 
 Lindsay v. Hoke, 249. 
 Lindsay v. People, 280. 
 Lingle v. Chicago, 234. 
 Linton v. The State, 568. 
 Lister v. Ferryman, 421. 
 Little V. Bailey, 608. 
 Littlejohn v. Arbogast, 627. 
 Livingston v. Arnoux, 100. 
 Lombar v. The Village of Bast 
 
 Tawas, 436. 
 Lonergan v. Courtney, 245. 
 Long v. Colton, 498. 
 
 [BEFEBENOBS ABE TO THE PAGES.] 
 
 Long et al. v. Long et al., 416. 
 
 Longfellow v. Moore, 242. 
 
 Longworthy v. Green, 173. 
 
 Loranger v. Jardine, 228. 
 
 Lord V. Am. Mut, etc., Assoc, 241. 
 
 Lord Tindal in Trimlestown t. 
 Kemmis, 514. 
 
 Louisville, etc., Ry. Co. v. Pearson, 
 172. 
 
 Louisville Ry. Co. v. Wood, 568. 
 
 Louisville & N. R. Co. v. York, 332. 
 
 Louisville, etc.. Packet Co. v. Sam- 
 uel's Adm'x., 550. 
 
 Love V. Masoner 448. 
 
 Lovell V. Quitman, 210. 
 
 Lowe V. Bliss, et al., 395. 
 
 Lowenthal v. McCormick, 121. 
 
 Loyd V. Freshfield, 316. 
 
 Ludek V. Sutherland, 242, 602. 
 
 Lukin V. Halderson, 288. 
 
 Lund V. Tyngsborough, 137, 154. 
 
 Lunsford v. Butler, 111. 
 
 Lurton v. Gilliam et al., 503. 
 
 Lush V. McDaniel, 124, 126. 
 
 Lycoming F. Ins. Co. v. Jackson, 
 256. 
 
 Lynn v. Lyerle, 617. 
 
 Lyon V. Prouty, 314. 
 
 Mackall v. Mackall, 256. 
 Maclean v. Scripps, 168. 
 Magee v. People, 375, 402, 629. 
 Magruder v. State, 373. 
 Mahaska County v. Ingalls, 98, 100. 
 Mahoiwe Bank v. Douglass, 211. 
 Malcomson v. O'Dea, 95. 
 Malcomson v. O'Dea et al., 512. 
 Man V. Ricketts, 92. 
 Mann v. Forein, 279, 613. 
 Manners v. Postan, 188. 
 Marcy v. Barnes, 163, 570. 
 Marcy v. Stone, 102, 519. 
 Marks v. Butler, 266. 
 Marine Bank v. Birney, 249. 
 Mariner v. Saunders, 220, 222. 
 Marks v. Beyfus, 299. 
 
xlii 
 
 TABLE OF CASES CITED. 
 
 [BEFERENCES ABE 
 
 Marquis of Anglesey v. Hatlierton, 
 
 500. 
 Marriage v. Lawrence, 509. 
 Marshall v. Gridley, 607. 
 Marshall v. Chicago, etc., Ry. Co., 
 
 480. 
 Marshall v. State, 280. 
 Martin v. Barnes, 372. 
 Martin v. Ehrenfels, 305. 
 Martin v. Kline, 216. 
 Martin v. State, 372. 
 Martin v. Tradesmen's Ins. Co., 
 
 204, 205. 
 Martin v. Tuttle, 215. 
 Marx V. HUsendegen, 368. 
 Mask V. State, 351. 
 Mason v. Bradley, 211. 
 Mason v. Jones, 267. 
 Massey v. Allen, 98, 536. 
 Massey v. Bank, 629. 
 Mast V. Pearce, 245. 
 Master v. Miller, 206. 
 Mathes v. Robinson, 111. 
 Mathews v. Granger, 628 
 Mathews v. State, 377. 
 Mattox V. United States, 480. 
 Matzenbaugh v. People, 276, 628. 
 Mauch v. Hartford, 168. 
 Mayers v. Dunlap, 212. 
 Maynard v. Buck, 439. ' 
 Maynard v. Vinton, 315. 
 Mayor v. Murray, 352. 
 Mayor v. Second Ave. Ry. Co., 
 
 119, 537. 
 Mayor V. Warren, 101. 
 McBride v. Com., 128. 
 McCague v. Miller, 312. 
 McCain v. State, 367. 
 McCarrlck v. Kealy, 549. 
 McCarty V. People, 364. 
 McChesney v. City of Chicago, 201, 
 
 595. 
 M'Chesney v. Lansing, 265. 
 McClelan v. State, 333. 
 McClintOck v. State Bank, 214. 
 McCloskey v. Leadbetter, 349, 
 McConnel v. Ins. Co., 16. 
 
 TO THE PAGES.] 
 
 McConnell v. Osage, 294. 
 McCornack v. Sage,- 602. 
 McCray Refrig., etc., Co. v. Woods, 
 
 242. 
 McCray R. & C. S. Co. v. Woods, 
 
 245. 
 McCrea v. Purmort, 246,- 248. 
 McGlnnls v. State, 228. 
 McGovern v. Hope, 176. 
 McGregor v. Hampton, 194. 
 McGregor v. Wait, 227. 
 McGuff V. State, 172, 177, 572. 
 McGuire v. McDonald, 371. 
 McGuire v. People, 275, 812. 
 McHugh V. State, 336. 
 Mclntire v. Levering, 448. 
 Mcintosh V. Mcintosh, 334. 
 McKee v. Bldwell, 36. 
 McKelton v. State, 375. 
 McKlnney v. People, 321. 
 McKinnon v. Bliss, 218. 
 McKlsson V. Sherman, 368. 
 McLaughlin v. Gilmore, 616. 
 McLean v. State, 486. 
 McMaster v. Scriven, 290. 
 McMillan v. Bethold, Smith & Co., 
 
 596. 
 McMillan v. Bissell, 247, 604. 
 McMillan v. De Tamble, 245. 
 McMillan et al. v. McDill et al, 
 
 416. 
 McNab V. Young, 209. 
 McNail V. Welch, 256. 
 Mears v. Cornwall, 345. 
 Meath v. Winchester, 95. 
 Mechanic's Bank v. Valley Packing 
 
 Co., 212. 
 Meegan v. Boyle, 93. 
 Meek v. Walthall, 269. 
 Mellmish v. Collier, 358. 
 Mercer v. State, 311, 312, 314, 624. 
 Merchants' Ins. Co. v. Morrison, 
 
 605. 
 Meres v. Ansell, 236. 
 Merritt v. Boyden, 215. 
 Merriam v. Hartford, etc., Ry. Co., 
 
 374. 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 [refbbences abb 
 Merrjam v. Mitchell, 201. 
 Mersman v. Werggs, 205. 
 Mersey Docks v. Cameron, 199. 
 Met. Ry. Co. v. Jackson, 422. 
 Metheny v. Bohn, 491. 
 Meyer v. Brown, 120. 
 Meyer v. Knights of Pythias, 291. 
 Michaels v. Olmstead, 244. 
 Middleton v. Melton, 518. 
 Milbery v. Storer, 210. 
 Miles V. Stephens, 503. 
 Miles V. Vanhorn, 449. 
 Milford V. Sherman, 87. 
 Miller v. Bpykin, 201. 
 Miller v. City of Indianapolis, 505. 
 Miller V. Finley, 205. 
 Miller v. Gilleland, 211. 
 Miller v. Miller, 351. 
 Miller V. Preble, 626. 
 Miller v. Salomons, 320. 
 Miller v. State, 488. 
 Miller v. Stevens, 249. 
 Miller V. Travers, 261, 262, 263. 
 Millikin v. Marlin, 216, 587. 
 Milne V. , Leisler, 152. 
 Miner v. Philips, 361. 
 Minert v. Emerick, 206. 
 Mima Queen v. Hepburn, 461. 
 Mitchell V. Belknap, 112. 
 Mitchell V. Com., 485. ) 
 
 Mitchell V. Jacobs, 230. 
 Mitchell V. Kingman, 257. 
 Mitchell V. State, 362. 
 Mixell V. Lutz, 266. 
 Moeck V. People, 481. 
 Moeckel v. Heim, 315. 
 Mo. Pac. Ry. Co. v. Johnson, 176. 
 Moonshower v. State, 89, 389. 
 Moore v. N. Y., etc., Ry. Co., 396. 
 Monaghan v. School Dist., 201. 
 Monahan v. Worcester, 447. 
 Monroe v. Snow, 121. 
 Montag V. Linn, 212. 
 Montag V. People, 555. 
 Montgomery v. Crossthwait, 204, 
 
 209, 214, 241. 
 Montgomery v. State, 483. 
 
 TO THE PAGES.] 
 
 Montgomery v. The State, 555. 
 Montgomery, etc., Co. v. Webb, 269. 
 Moore v. Cans, etc., Co., 202. 
 Moots V. State, 122. 
 Morgan v. New York Nat'l. etc., 
 
 Assoc, 194. 
 Morgan v. Nicholl, 471. 
 Morris v. Harmer, 88, 507. 
 Morris v. Hazlewood, 450. 
 Morris v. Moyris, 294. 
 Morris v. New York, etc., Ry. Co., 
 
 293. 
 Morrison v. Chapln, 341. 
 Morrow v. Com., 228. 
 Morton v. Foilger, 81. 
 Morton v. Folger et at, 497. 
 Morton v. Murray, 241. 
 Morton V. State, 550. 
 Mosley v. Ins. Co., 449. 
 Moulton V. Mason, 229. 
 Mueller v. Rebhan, 417. 
 Mullaney v. Duffy, 499. 
 Mumford v. Tolman, 263. 
 Munroe v. Perkins, 235. 
 Murchie v. Peck, 263. 
 Murphy v. Olberding, 597. 
 Murray v. Graham, 211. 
 Murray v. Supreme Lodge, 86. 
 Mutual Life Ins. Co. v. Hillmon, 
 
 123, 469, 543. 
 Myers v. Ladd, 252. 
 Mytne v. Keen, 616. 
 
 Names v. Names, 197. 
 Napman v. People, 88. 
 Nash V. Classen, 467. 
 Naumberg v. Young, 244, 245. 
 Needles v. Hanifan, 607. 
 .Needles v. Shaffer, 211, 212. 
 Neely v. Neely, 190. 
 Neil V. Thorn, 353. 
 Nelson v. Johnson, 215. 
 Nelson v. Nederland Life Ins. Co., 
 
 292, 293. 
 Nelson v. NelEion, 524. 
 Nelson V. State, 333, 368. 
 
xliv 
 
 TABLE OP CASES CITED. 
 
 [BErEBENCES ABB 
 
 Newcomb r. Griswold, 368. 
 
 Newcomb v. State, 130. 
 
 Newell V. Nichols, 398. 
 
 New Haven, etc., Co. v. Goodwin, 
 
 121. 
 Newman v. King, 211. 
 Newson v. Luster, 191, 222, 581. 
 Newton v. Bramlett, 210. 
 Newstrom v. St. Paul, etc., Ry. Co., 
 
 312. 
 New York Life Ins. Co. v. Aitkin, 
 
 252. 
 Nicholls V. Parker, 82. 
 Nicholls V. Webb, 118. 
 Nicbols V. Haynes, 112. 
 Nichols V. Johnson, 211. 
 Nix V. Heddin, 88. 
 Nixon V. Beard, 344. 
 Noble V. People, 277. 
 Nofire V. United States, 404. 
 Noland v. The State, 281. 
 Normanshan v. Normanshan, 295. 
 North Bank v. Abbot, 121. 
 North Brookfield v. Warren, 75, 76, 
 
 219. 
 North V. People, 480, 483. 
 North Chicago Rolling Mill Co. v. 
 
 Mouka, 508. 
 North Chicago St. Ry. Co. v. South- 
 wick, 370. 
 Northern Assur. Co. v. Chicago, 
 
 etc., Assoc, 264. 
 Northern Pac. Ry. Co. v. Uelin, 127. 
 Northrop v. Hale, 75, 492. 
 Noyes v. The State, 281. 
 Nuzum V. Pittsburgh, etc., Ry. Co., 
 
 33. 
 
 Oakes v. U. S., 501. 
 Obermier v. Core, 506. 
 O'Brien v. La Crosse, 176. 
 O'Connor v. Majoribanks, 279. 
 Ogden V. People, 560. 
 O'Hara v. Mobile, etc., Ry. Co., 194. 
 Old Dominion Cotton Mills, 33. 
 Oliver v. Oliver, 590. 
 
 TO THE PAGES.] 
 
 Olson V. Vil. of Manistique, 423. 
 0. & M. Ry. Co. V. Webb, 564. 
 Omaha S. Ry. Co. v. Bmminger, 
 
 569. 
 Omichund v. Barker, 277, 320, 325. 
 Ordeman v. Lawson, 249. 
 Orthwein v. Thomas, 491. 
 Osborne v. Detroit, 179. 
 Osborn v. Hall, 211. 
 Osborn v. Van Houten, 204, 205. 
 Osborne v. City of Detroit, 573. 
 Ottawa, O. & P. R. Val. Ry. Co. y. 
 
 Hall, 241. 
 Otto V. Trump, 194. 
 Overtoom v. Chicago & B. I. Ry. 
 
 Co., 593. 
 Overtoom v. Chicago, etc., Ry. Co., 
 
 628. 
 Owen V. State, 316. 
 Owen V. Warburton, 304. 
 Owens V. Frank, 316. 
 Owens V. Owens, 309. 
 Owings et al. v. Hull, 390. 
 
 Packard v. Dunsmore, 189. 
 Page, In re, 133, 544. 
 Page V. Faucet, 89. 
 Pahlman v. Taylor, 584. 
 Paige V. Cagwin, 415. 
 Paine v. Boston, 438. 
 Painter v. People, 167, 172. 
 Palmer v. Goldsmith, 530. 
 Palmer v. Henderson, 278. 
 Palmer v. Newell, 254. 
 Palmer y. White, 345. 
 Palmeri v. Manhat. Ry. Co., 365. 
 Panton v. Williams, 421. 
 Pardee v. Lindley, 222. 
 Paris V. Lewis, 393. 
 Parker v. Cleveland, 506. 
 Parkhurst v. Berdell, 312. 
 Parmelee v. McNulty, 266. 
 Patch V. White, 610. 
 Patek V. Waples, 244. 
 Patrick v. Gibbs, 194. 
 Patterson v. Boston, 283. 
 
TABLE OF CASES CITED. 
 
 xlv 
 
 [BEFEBENCBS ABE TO THE PAGES.] 
 
 Patterson v. Park, 244. 
 Patterson v. Winn, 219. 
 Payson v. Lamson, 250. 
 P. C. & St. L. Ry. Co. V. McGrath, 
 
 477. 
 Peabody v. Bement, 243. 
 Peck V. Brewer, 621. 
 Peck V. Clark, 81. 
 Peck V. Ritchie, 362. 
 Peck V. Valentine, 119, 537. 
 Pedlgo V. Com., 183. 
 Pedler v. Paige, 190, 541. 
 Pelzer v. Cranston, 109. 
 Penn. Co. v. Bray, 365. 
 Penn. Coal Co. v. Kelly, 168. 
 Penn. Mut. Life Ins. Co. v. Wiler, 
 
 294. 
 Penn., etc., Ins. Co. t. Wiler, 294. 
 Penn. S. V. R. Co. v. Ziemer, 438. 
 Pennsylvania Co. v. Feana, 423. 
 Pennsylvania Coal Co. v. Kelly, 573. 
 People V. Abbott, 362. 
 People V. Anderson, 373. 
 People V. Annis, 369. 
 People V. Barker, 351. 
 People V. Bennett, 282. 
 People V. Beverly, 486, 487. 
 People V. Bill, 613. 
 People V. Brooks, 372. 
 People V. Buchanan, 288 
 People V. Burns, 335. 
 People V. Cloonan, 379. 
 People V. Cole, 351. 
 People V. Considine, 333. 
 People V. Copey, 365. 
 People V. Corey, 62. 
 People V. De France, 290. 
 People V. Dohrig, 282. 
 People V. Dohring, 614 . 
 People V. Dorothy, 364, 365. 
 People V. Dow, 87. 
 People V. Downs, 406. 
 People V. Duncan, 151. 
 People V. Durrant, 316. 
 People V. Fernandez, 167. 
 People V. Gage, 559. 
 People V. Garbutt, 40. 
 
 ' People V. Gates, 295. 
 People V. Glover, 292. 
 People v. Hall, 89. 
 People V. Harris, 295. 
 People y. Hayes, 314, 351. 
 People V. Hicks, 558. 
 People V. Howes, 455. 
 People V. Hulbut, 310. 
 People V. Irving, 367. 
 People V. Johnson, 169. 
 People V. Kemmler, 292. 
 People T. Kemp, 121. 
 People V. Kinney, 173. 
 People V. Knapp, 69. 
 People V. Koerner, 290, 292, 492. 
 People V. Kraft, 481. 
 People V. Lander, 308. 
 People V. Lane, 295. 
 People V. Levine, 180, 574, 576, 577. 
 People V. Machen, 335. 
 People V. Mayes, 151. 
 People V. Mayhew, 379. 
 People V. McCoy, 176. 
 People V. MoCrea, 461. 
 People V. McLaughlin, 342. 
 People V. Miller, 194. 
 People V. Milner, 171. 
 People V. Minck, 504. 
 People V. MuUings, 313, 316. 
 People V. Murphy, 292, 295. 
 People V. Murray, 201, 331. 
 People V. Newman, 58. 
 People V. Noelke, 365. 
 People V. Olmstead, 487. 
 People V. O'Sullivan, 553. 
 People V. Organ, 207. 
 People V. Parker, 373. 
 People V. Pustolka, 168. 
 People V. Schuyler, 293. 
 People T. Silva, 362. 
 People V. Sutherland, 172. 
 People V. Sweatland, 228. 
 People V. Thompson, 308. 
 People V. Tyler, 367. 
 People V. Warner, 313. 
 People V. Webster, 371, 373. 
 People V. Wood, 311, 315, 470. 
 
xlvi 
 
 TABLE OF CASES CITED. 
 
 [befebbnces abb to the pages.] 
 
 People V. Worthington, 373. 
 
 People V. Yeager, 330. 
 
 People V. Young, 283. 
 
 Peoria G. & C. Co. t. Peoria Term. 
 
 Ry Co., 438. 
 Perry v. Porter, 346. 
 Perry v. Randall, 312. 
 Peugh V. Davis, 248. 
 Pew V. Laughlin, 205. 
 Phelps V. Sullivan, 209. 
 Phene's Trusts, In re, 396. 
 Phenix v. Castner, 371. 
 Phila., etc., Ry. Co. v. Stimpson, 
 
 351. 
 Philadelphia & T. Ry. Co. v. Stimp,- 
 
 son, 344. 
 Phillips V. TJ. S. Benev. Soc, 220, 
 
 230. 
 Phipps V. Mahon, 405. 
 Pickens v. Davis, 141, 548. 
 Pickett V. Green, 603. 
 Pickup V. Thames Ins. Co., 408. 
 Pierce v. Langflt, 391. 
 Piercey v. Piercey, 212. 
 Pierpont v. Shopland, 347. 
 Pitman v. Maddox, 105. 
 Pitman v. State, 58. 
 Piatt V. Mlua. Ins. Co., 243. 
 Plaxton V. Dare, 514. 
 Pixley et al. v. Boynton et at, 413. 
 Poignard v. Smith, 356. 
 Polk V. State, 371. 
 Poison V. State, 151. 
 Pope V. Dodson, 628. 
 Poole V. Dicas, 106, 118, 536. 
 Post V. Kemerson, 105. 
 Poteete v. State, 485. 
 Potter V. Baston, 243. 
 Potter V. Inhabitants of Ware, 285, 
 
 615. 
 Powell V. Banks, 215. 
 Powell V. Edmunds, 245. 
 Powell V. Powell, 141. 
 Powell V. State, 335. 
 Powers V. Rugsell, 4Q5. 
 Pratt V. 'WWte, 106, 115, 122, 531. 
 Prentice v. Achorn, 257. 
 
 State Land 
 
 Priewe v. Wisconsin 
 
 Co., 199. 
 Price V. Earl of Torrington, 532. 
 Price V. Hudson, 240. 
 Price V. Lord Torrington, 117. 
 Price V. State of Ohio, 4^8. 
 Price V. The Earl of Torrington, 
 
 536. 
 Price V. Torrington, 105, 114. 
 Price V. Wolfer, 234. 
 Primrose v. Browning, 234. 
 Proctor V. Houghtaling, 446. 
 Produce Exchange, etc., Co. v. Bre- 
 
 berbach, 211. 
 Protection Life Ins. Co. v. Dill, 
 
 220. 
 Pulliam V. Pensoneau, 283, 310, 
 
 615, 622. 
 Purinton v. Northern 111. Ry. Co., 
 
 244. 
 Pym V. Campbell, 241. 
 Pyle V. Onstatt, 278, 312. 
 
 Queen v. Bedfordshire, 499. 
 Quick V. Quick, 131. 
 Quinn v. Eagleston, 513. 
 
 R. V. 
 
 R. V. 
 
 R. V. 
 
 R. V. 
 
 R. V. 
 
 R. V. 
 
 R. V. 
 
 R. Y. 
 
 R. V. 
 
 R. V. 
 
 R. V. 
 
 R. V. 
 
 R. V. 
 
 R. V. 
 
 R. V. 
 
 R- V. 
 
 R, V. 
 
 R. V. 
 
 Antrobus, 500. 
 Baldry, 454. 
 Berger, 499. 
 Clapham, 540. 
 Clewes, 454. 
 Elworthy, 228. 
 Francis, 442. 
 Garner, 444. 
 Gazard, 60. 
 Geering, 444. 
 Gilham, 453. 
 Gould, 458. 
 Gray, 443. 
 Ha worth, 228. 
 Holt, 442. 
 Lloyd, 453. 
 Moore, 458. 
 Oddy, 441. 
 
TABLE OF CASES CITED. 
 
 ilvii 
 
 [BEFEBENCES ABE TO THE PAGES.] 
 
 R. V. Paul, 459. 
 
 R. V. Richardson, 443. 
 
 R. V. Rowton, Leigh & Cave, 446. 
 
 R. V. SpUsbury, 459. 
 
 R. V. Thompson, 456. 
 
 R. V. Walhwrlght, 128. 
 
 Radclllfe v. Barton, 473. 
 
 Radlgan v. Johnson, 243. 
 
 Railway Company v. Arterz, 358. 
 
 Raines v. Raines, 98. 
 
 Rainwater v. Elmore, 334. 
 
 Rand v. Dodge, 193, 580. 
 
 Rankin v. Crow, 356. 
 
 Rankin v. Crowe, 222. 
 
 Raphael v. Bank of England, 304. 
 
 Rass V. Sebastian, 216. 
 
 Rawles V. The State, 451. 
 
 Rawllngs v. Y. M. C. A., 221. 
 
 Rawson v. Davidson, 211. 
 
 Raynor v. Norton, 190. 
 
 Razor v. Razor, 256, 605. 
 
 Kea V. Tucker, 452. 
 
 Be Dwlght V. Maclam, 317. 
 
 Re Smith, 317. 
 
 Real V. People, 365, 368. 
 
 Rearlck's Executors v. Rearlck, 
 237. 
 
 Redlich v. Bauerlee, 528. 
 
 Redlich v. Doll, 209. 
 
 Reed v. McCord, 414. 
 Reed v. Orton, 472. 
 Reed v. Roark, 212. 
 Reedy v. Millizen, 11. 
 Rees v. Walters, 95. 
 Reeves Jr. v. Herr, 313. 
 Reg. V. Edge, 232. 
 Reg. V. Evans, 140. 
 Reg. V. Farr, 232. 
 Reg. V. Gazard, 282. 
 Reg. V. Hill, 271. 
 Reg. V. Hlnley, 232. 
 Reg. V. Inhabitants of Bedford- 
 shire, 78. 
 Reg. V. Inhabitants of Worth, 536. 
 Reg. V. James, 323. 
 Reg. V. Overseers of Birmingham, 
 519. 
 
 Reg. T. Payne, 266. 
 
 Reg. V. Taylor, 89. 
 
 Reg. V. Worth, 102. 
 
 Reglna v. Beddlngfield, 145, 557. 
 
 Regina v. Bliss, 80. 
 
 Reglna v. Buckley, 121. 
 
 Regina v. Cox, 288. 
 
 Regina v. Hastings, 378. 
 
 Regina v. Hay, 619. 
 
 Reglna v. Llllyman, 151. 
 
 Regina v. Megson, 377. 
 
 Regina v. Palmer, 173. 
 
 Regina v. Walker, 151. 
 
 Reglna v. Willshlre, 398. 
 
 Reid V. Reid, 369. 
 
 Reisterer v. Carpenter, 603. 
 
 Remsen v. People, 40. 
 
 Rennlck v. Sanford, 240. 
 
 Renihan v. Dennln, 291. 
 
 Renner v. Bank of Columbia, 220. 
 
 Renoux v. Geney, 373. 
 
 Rensselaer Glass Factory v. Reid, 
 104. 
 
 Renter v. Stuckart, 91, 515. 
 
 Rex. V. Akers, 300. 
 
 Rex. V. Baker, 484. 
 
 Rex. V. Brasler, 327. 
 
 Rex. V. Brooke, 351. 
 
 Rex. V. Cotton, 500. 
 
 Rex. V. Holmes, 367. 
 
 Rex. V. Hunt, 88, 220. 
 
 Rex. V. Johnson, 233. 
 
 Rex. V. Long Buckley, 514. 
 
 Rex. V. Marsh, 309. 
 
 Rex. V. Martin, 367. 
 
 Rex. V. Dates, 85. 
 
 Rex. V. Pike, 487. 
 
 Rex. V. Ramsden, 338. 
 
 Rex. V. Rosser, 283. 
 
 Rex. V. Sutton, 85. 
 
 Rex. V. St. Martin's, 342. 
 
 Rex. V. Watson, 474, 599. 
 
 Reynolds v. Robinson, 254. 
 
 Rhea v. State, 363. 
 
 R. & B. Ry. Co. V. Thrall, 22a 
 
 Rice V. Howard, 359. 
 
 Rice V. Rice, 568. 
 
xlviii 
 
 TABLE OF OASES CITED. 
 
 [bKFEBENCES ABE 
 
 Richards v. Day, 241, 256. 
 
 Richards v. Humphreys, 254. 
 
 Richards v. State, 335. 
 
 Richardson v. Emery, 111. 
 
 Richardson v. Kelly, 361. 
 
 Richmond, etc., Ry. Co. v. Chil- 
 dress, 176. 
 
 Riddle v. Moss, 269. 
 
 Rider v. People, 379. 
 
 Riggs V. Powell, 128. 
 
 Riggs. V. Myers, 610. 
 
 Riggs V. Taylor, 219, 224, 592. 
 
 Riley v. St. John, 506. 
 
 Risk V. State, 567. 
 
 Ritchey v. People, 612. 
 
 Ritchie v. Richards, 200. 
 
 Rohb V. Lefevre, 269. 
 
 Robertson v. Nat. S. S. Co., 245. 
 
 Robin V. King, 312. 
 
 Robins v. Wards, 121. 
 
 Robinson v. Oilman, 472. 
 
 Robinson v. Nessel, 241. 
 
 Robinson v. Robinson, 314, 459, 
 460. 
 
 Robson V. Kemp, 290, 616. 
 
 Roche V. Brooklyn City & Ry. Co., 
 127. 
 
 Rockwell V. Taylor, 154, 555. 
 
 Rockwood V. Poundstone, 357. 
 
 Rodrian v. N. Y., etc., Ry. Co., 423. 
 
 Roe V. Kiser, 241. 
 
 Roe V. Rawlings, 514. 
 
 Roe V. Strong, 81, 88. 
 
 Roesel v. State, 456. 
 
 Rogers v. Allen, 95. 
 
 Rogers v. People, 367. 
 
 Rogers v. State, 282, 614. 
 
 Rondeau v. New Orleans Imp. & 
 Bank Co., 283. 
 
 Roosa V. Loan Co., 126. 
 
 Root V. "Wood, 361. 
 
 Root V. Wright, 288. 
 
 Rose V. Lewis, 228. 
 
 Roseboom v. Billington, 527. 
 
 r^isenbaum v. Howard, 121. 
 
 Rosenkrans' V. Barker, 448. 
 
 Rothrock V. Gallaher, 472, 
 
 TO THE PAGES.] 
 
 Rowe V. Brenton, 98. 
 
 Ruch V. Rock Island, 58, 472, 475. 
 
 Rudd V. Robinson, 509. 
 
 Rudsill V. Slingerland, 363. 
 
 Ruggles V. Gatton, 112, 533. 
 
 Russell V. Chambers, 374. 
 
 Russell V. Coffin, 375. 
 
 Russell V. Ry. Co., 342. 
 
 Rutzen v. Farr, 101. 
 
 Ry. Co. V. Campbell, 411. 
 
 Ry. Co. V. Larmon, 411. 
 
 Ry. Co. V. Quaintance, 411. 
 
 Ryan v. B. & O. R. R. Co., 391. 
 
 Ryan v. First Nat. Bank, 211, 587. 
 
 Ryan v. People, 368. 
 
 Ryan t. State, 375. 
 
 Ryder v. Alton, etc., Ry. Co., 509. 
 
 Ryder v. Faxon, 243. 
 
 Ryder v. Wombwell, 421. 
 
 S. & N. Ala. Ry. Co. v. Wood, 412. 
 
 Sands v. Southern Ry. Co., 352. 
 
 Sandy White v. United States, 199, 
 201. 
 
 Sanitary District of Chicago v. Al- 
 len, 583. 
 
 Sasser v. Herring, 496. 
 
 Saunders v. Blythe, 249. 
 
 Saukville v. State, 390. 
 
 Sauntry v. United States, 352. 
 
 Saus V. People, 209. 
 
 Savannah, etc., Ry. Co. t. Quo., 283. 
 
 Sayer v. Glossop, 230. 
 
 Scates V. Henderson, 252. 
 
 Schearer v. Harber, 474. 
 
 Schell V. Plumb, 362. 
 
 Schierstein v. Schierstein, 314. 
 
 Sehlater v. Winpenny, 362. 
 
 Schmidt v. Glade, 283, 615. 
 
 Schmied t. Frank, 315. 
 
 Schmidt v. Wambacher, 341 
 
 Schooler v. State, 462. 
 
 Schotte V. Puscheck, 594. 
 
 Schroeder v. Chicago, etc., Ry. Co., 
 175. 
 
 Schroeder v. Ry. Co., 176. 
 
TABLE OF CASES CITED. 
 
 xllx 
 
 [OEFEBEITOES ABE 
 
 Schultz V. Plankinton, 264. 
 Schuyler, etc.. Bank v. BoUong, 
 
 342. 
 Schwab V. Ginkinger, 242. 
 Schwarz v. Herrenkind, 216. 
 Scott V. Bassett, 222, 223. 
 Scott V. Com., 314. 
 Scott V. Donovan, 167. 
 Scott V. Ford, 101. 
 Scott V. Harris. 289. 
 Scott V. Sampson, 446. 
 Scott V. Schnadt, 605. 
 Scripps V. Poster, 290. 
 Scull V. Mason, 267. 
 Seaton v. Kendall, 278. 
 Seitz Brewers, 245. 
 Seitz V. Seltz, 312. 
 Selig V. Rehfuss, 243. 
 Sessions v. Rice, 345. 
 Shackelford v. State, 465. 
 Shaddock et ux. v. Town of Clifton, 
 
 414. 
 Shaefer v. St. Louis, etc., Ry. Co., 
 
 345. 
 Shaffer v. McCrackin, 114. 
 Shailer v. Bumstead, 143. 
 Shaller v. Brand, 92, 515. 
 Shaner v. Alterton, 316. 
 Sharpe v. Bagwell, 212. 
 Shartzer v. State, 367. 
 Shaughnessy v. Fogg, 290. 
 Shaughnessy v. Lewis, 249. 
 Shaw V. Shaw, 333. 
 Sheldon v. The H. R. Ry. Co., 440. 
 Shepherd v. Pratt, 221. 
 Sherman v. Buick, 240. 
 Sherman v. Wilder, 256. 
 Sherwood v. Merritt, 212. 
 Shinners v. Prop, of L. & C, 436. 
 Shirwin v. People, 367. 
 Shoop V. People, 307. 
 Shore v. Wilson, 251. 
 Short V. Lee, 99. 
 Short V. Smith, 591. 
 Shove V. Wiley, 122. 
 Showman v. Lee, 234. 
 Shuman v. Shuman, 397. 
 
 TO THE PAGES.] 
 
 Shutte V. Thompson, 81. 
 
 Sibery v. Smith, 167. 
 
 Siebert v. People, 54, 128, 469. 
 
 Siebert et at v. People, 542. 
 
 Sllbar V. Ryder, 241, 256. 
 
 Sill V. Reese, 211. 
 
 Silliman v. Whitmer, 252. 
 
 Sills V. Brown, 477. 
 
 Sims V. Glvan, 267. 
 
 Simms v. State, 308. 
 
 Simons v. Busby, 352. 
 
 Simons v. Crook, 196. 
 
 Simons v. People, 480, 483. 
 
 Simpson v. Davis, 215. 
 
 Simpson v. State, 184. 
 
 Simpson v. Union Stock Yards Co., 
 
 200. 
 Singer Manuf. Co. v. Reynolds, 416. 
 Sirrine v. Briggs, 234. 
 Sisson v. Cleveland, 506. 
 Sisson V. Cleve. & Tol. Ry. Co., 467. 
 Skaggs V. State, 345, 612. 
 Skinner v. Brigham, 580. 
 Skinner v. State, 371. 
 Slade V. Leonard, 111. 
 Slaughter v. Whltelock, 324. 
 Sloan V. New York Cent. Ry. Co., 
 
 292. 
 Slocum V. Riley, 19. 
 Smalley v. Bllet, 267. 
 Smith v. Blakey, 522. 
 Smith V. Brennan, 190. 
 Smith v. Brockett, 365. 
 Smith V. Brown, 220. 
 Smith V. Coker, 221. 
 Smith T. Crooker, 203. 
 Smith V. Eames, 305. 
 Smith T. Fenner, 591. 
 Smith V. Jayoe, 215. 
 Smith V. Lehigh Valley Ry. Co., 
 
 571. 
 Smith V. Palmer, 414. 
 Smith V. Powers, 497. 
 Smith V. Scully, 341. 
 Smith V. Smith, 111, 112, 114, 314. 
 Smith V. State, 576. 
 Smith T. United States, 215. 
 
TABLE OF CASES CITED. 
 
 [befeebncbs are 
 
 Smith V. Walters, 270. 
 
 Smith- V. Wilson, 249. 
 
 Snell V. Gregory, 357. 
 
 Snowden v. Guion, 244. 
 
 Snyder v. Free, 256. 
 
 So. Kan. Ry. Co. v. Michaels, 175. 
 
 Sohn V. Jervis, 245. 
 
 Sonnebau v. Bernstein, 375. 
 
 South Berwick v. Huntress, 208. 
 
 Spalding v. Lowe, 472. 
 
 Spangler v. Jacoby, 85, 200. 
 
 Sparf and Hansen v. United States, 
 427, 460. 
 
 Sparhawk v. Sparhawk, 614. 
 
 Sparrenberger v. State, 309. 
 
 Spies V. People, 167, 172, 370. 
 
 Spragins v. White, 423. 
 
 Sprague v. Dodge, 16. 
 
 Springer v. Byram, 290, 291. 
 
 Springer t. City of Chicago, 165, 
 167, 170, 567. 
 
 Springer v. Kroeschell, 255. 
 
 Springfield, etc., Ry. Co. v. Punten- 
 ney, 554. 
 
 Spruck V. Crook, 310. 
 
 St. Louis Perpetual Ins. Co. v. Ho- 
 mer, 600. 
 
 St Louis Public Schools v. Er- 
 skine, 508. 
 
 St. Louis Ry. Co. v. Weaver, 394. 
 
 St. Ry. Co. V. Robbins, 452. 
 
 Stackpole v. Arnold, 241. 
 
 Stackus V. N. Y., etc., Ry. Co., 423. 
 
 Stafford v. Fargo, 353. 
 
 Stallings v. Hullum, 288. 
 
 Standewick v. Hopkins, 304. 
 
 Stanley v. Wilkerson, 120. 
 
 Staring v. Bowen, 92, 515. 
 
 Starkey v. People, 483. 
 
 Starnes v. Allen, 505. 
 
 Starrett v. Bull, 106. 
 
 State V. Able, 475. 
 
 State V. Ah Chuey, 176. 
 
 State V. Anderson, 367. 
 
 State V. Asbell, 574, 577. 
 
 State V. Ashworth, 67. 
 
 State V. Baker, 307. 
 
 TO THE 
 
 State V 
 State 
 State 
 State 
 State 
 State 
 State 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
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 State v. 
 State V. 
 State y. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 PAGES.] 
 
 , Baldwin, 487. 
 , Barrows, 281. 
 , Benner, 309, 357. 
 
 Blodgett, 232. 
 . Blue, 445. 
 
 Bohan, 485. 
 
 Brien, 613. 
 
 Brown, 295, 367. 
 
 Burlingame, 315. 
 
 Campbell, 349. 
 
 Carnagy, 377. 
 
 Castello, 613. 
 
 Clifford, 459. 
 
 Cobb, 212. 
 
 Coggins, 173. 
 
 Collins, 339. 
 
 Cook, 367. 
 
 Costello, 273. 
 
 Crane, 65. 
 
 Danforth, 567. 
 
 Davis, 307. 
 
 Dee, 371. 
 
 Depoister, 294. 
 
 De Wolf, 149. 
 
 Draper, 486. 
 
 Duffy, 50. 
 
 Durham, 230. 
 
 Ellis, 154. 
 
 EUwood, 167. 
 
 Euzebe, 154. 
 
 Farley, 345. 
 
 Fassett, 615. 
 
 Felter, 613. 
 
 Fitzhugh, 485. 
 
 Flanders, 346. 
 
 Fletcher, 577. 
 
 Forshner, 367. 
 
 Frederick, 393. 
 
 Gainor, 154. 
 
 Garrett, 176. 
 
 Gilman, 459. 
 
 Gin Pou, 321. 
 
 Grant, 375. 
 
 Grear, 613. 
 
 Hayes, 394. 
 
 Haynes, 461. 
 
 Hayward, 129. 
 
TABLE OF CASES CITED. 
 
 [BElTEEESrOES 
 
 State V. Horton, 568. 
 
 State V. Houser, B8, 63, 488. 
 
 State V. Howard, 123, 612. 
 
 State V. Hoyt, 314. 
 
 State V. Hudspeth, 558. 
 
 State V. Isaacson, 182. 
 
 State V. Ivins, 151. 
 
 State V. Jarrett, 389. 
 
 State V. Jefferson, 50. 
 
 State V. Johnson, 307, 308, 309. 
 
 State V. Jones, 280. 
 
 State V. Kelly, 334. 
 
 State V. Kidd, 288. 
 
 State V. Kinney, 150, 151, 377. 
 
 State V. Kodat, 316. 
 
 State V. Lenihan, 376. 
 
 State V. Litchfield, 317. 
 
 State V. Maney, 379. 
 
 State V. Marcks, 377. 
 
 State V. Mayberry, 228. 
 
 State V. McKinstry, 373. 
 
 State V. Meyers, 151. 
 
 State V. Miller, 368. 
 
 State V. Morris, 89, 349. 
 
 State V. Mulkern, 553. 
 
 State V. Neal, 149. 
 
 State V. Nelson, 374. 
 
 State V. Nlles, 553. 
 
 State V. Nordstrom, 574. 
 
 State V. Patrick, 374. 
 
 State V. Pennington, 393. 
 
 State V. Perigo, 486. 
 
 State V. Plym, 398. 
 
 State V. Poll, 488. 
 
 State V. Prather, 612. 
 
 State V. Punshon, 373. 
 
 State V. Rice, 375. 
 
 State r. Richards, 377. 
 
 State V. Rinehart, 460. 
 
 State V. Rogers, 363. 
 
 State V. Saidell, 569. 
 
 State V. Sanders, 180. 
 
 State V. Saunders, 64. 
 
 State V. Sayers, 351. 
 
 State V. Scott, 345. 
 
 State V. Shroyer, 362. 
 
 State V. Smith, 292, 293, 568. 
 
 ARE TO THE PAGES.] 
 
 State V. Soper, 299, 620. 
 
 State V. Stewart, 280. 
 
 State V. Stratton, 212. 
 
 State V. Taylor, 368. 
 
 State V. Tisdale, 427. 
 
 State V. Turner, 315, 369. 
 
 State V. Ulrich, 313, 314. 
 
 State V. Unuhle, 280. 
 
 State T. Van Buskirk, 310. 
 
 State of Vermont v. Davidson, 125. 
 
 State V. Vincent, 375. 
 
 State V. Wagner, 507. 
 
 State V. Ward, 335. 
 
 State V. Wentworth, 136. 
 
 State T. Wilson, 485. 
 
 State V. Westfall, 485. 
 
 State V. White, 273. 
 
 State V. Will, 309. 
 
 State V. Wisdom, 140. 
 
 State V. Wood, 128, 309, 486. 
 
 State V. Young, 208, 209. 
 
 State V. Zellers, 333. 
 
 State Bank v. Hutchinson, 136. 
 
 Stebbins v. Duncan, 190. 
 
 Steele t. Lord, 597. 
 
 Stein V. Bowman, 315. 
 
 Stephen v. Metzger, 110. 
 
 Stern v. People, 60, 61. 
 
 Stettaner v. White, 532, 539. 
 
 Stevens v. Pierce, 244. 
 
 Stevens v. Stevens, 210. 
 
 Stevens v. Vancleve, 131. 
 
 Stewart v. Anderson, 346. 
 
 Stewart v. Chicago, 248. 
 
 Stewart v. Chicago, etc., Ry. and 
 
 C. and I. C. Ry. Co., 603. 
 Stewart v. First Nat. Bank, 473. 
 Stewart v. Port Huron First Nat. 
 
 Bank, 209. 
 Stewart v. Sonneborn, 421. 
 Stickle V. Otto, 529 
 Stickney v. Stickney, 315. 
 Stillwell V. Patton, 312. 
 Stockwell V. Chicago, etc., Ry. Co., 
 
 179. 
 Stokes V. Kane, 267. 
 Stokes V. State, 576. 
 
lii 
 
 TABLE OP CASES CITED. 
 
 [EErEBBNCES ABE 
 
 Stolp V. Blair, 375, 376, 629. 
 
 Stone V. Atwood, 310, 622. 
 
 Stone V. Daggett, 241. 
 
 Stone Land, &c., Co. v. Boon, 505. 
 
 Stone V. Ins. Co., 58, 472. 
 
 Stone V. People, 331. 
 
 Story V. State, 167. 
 
 Strader v. Snyder, 596. 
 
 Straker v. Graham, 304. 
 
 Straker v. Ins. Co., 396. 
 
 Strang v. People, 367. 
 
 Stratton v. State, 375. 
 
 Street v. Nelson, 234. 
 
 Strong V. Strong, 283. 
 
 Strudgeon v- Sand Beach, 176. 
 
 Sturla V. Freccia, 55. 
 
 Sturla et al. v. Freccia et ah, 84, 
 
 501. 
 Sturn V. Boker, 214. 
 Sturtees v. Hubbard, 224. 
 Suffel V. Bank, 212. 
 Sugden v. Lord St. Leonards, 124. 
 Sugden v. St. Leonards, 55, 131, 
 
 132, 133, 544. 
 Sullivan v. Com., 180, 574, 577. 
 Sullivan v. People, 390. 
 Sullivan v. State, 153. 
 Sullivan v. Visconti, 249. 
 Summons v. State, 474, 475, 479. 
 Supples V. Cannon, 301. 
 Sutcliffe V. Iowa State, etc., Ass'n, 
 
 291. 
 Sutherland v. Ross, 270. 
 Sutton V. People, 412. 
 Sutton V. Sutton, 316. 
 Swain v. Cheney, 106. 
 Swan V. Thurman, 532, 539. 
 Swanson v. French, 370. 
 Swartz V. Ballou, 208. 
 Sweet V. Naupin, 215. 
 Swet V. Shumway, 373. 
 Swett V. Shumway, 249, 370. 
 Swisher v. Com., 488. 
 
 T. H. & I. Ry. Co. V. Clem, 435. 
 Talbot V. Seeman, 85, 505. 
 Talbottin R'y Co. v. Gibson, 114. 
 
 TO THE PAGES.] 
 
 Taliaferro v. Ives, 110. 
 Tarrant v. Ware, 189. 
 Taylor v. Barclay, 389. 
 Taylor v. Larkin, 301. 
 Taylor v. Peck, 234. 
 Taylor v. Ry. Co., 121. 
 Taylor v. State, 336. 
 Taylor v. Taylor, 211. 
 Taylor v. United States, 373. 
 Taylor v. Witham, 103, 526. 
 Teachout v. People, 459. 
 Tedens v. Schumers, 630, 631. 
 Tedens et al. v. Schumers, 400. 
 Temperance Hall Assoc, v. Giles, 
 
 438. 
 Terre Haute, etc., Ry. Co. v. Voel- 
 
 ker, 422. 
 Terry v. Birmingham Nat. Bank, 
 
 609. 
 Tewksbury v. Schulenberg, 229. 
 Texira v. Evans, 207. 
 Thayer v. Boyle, 273, 449. 
 Thayer v. Deen, 108. 
 The Anheuser-Busch Brewing 
 
 Assoc. V. Hutmacher, 596. 
 The Cent. Mil. Tract Ry. Co. v 
 
 Rockafellow, 277, 611. 
 The Cicero, etc., Ry. Co. v. Priest, 
 
 546. 
 
 The Columbia, etc., Ry. Co. v. Haw- 
 thorn, 435. 
 The County of Mahaska v. Ingalls, 
 
 519. 
 The German Insurance Co. et al. 
 
 V. Bartlett et al., 525. 
 The Kan. City, etc., Ry. Co. v. Fos- 
 
 ,ter, 430. 
 
 The King v. Inhab. of Holy Trini- 
 ty, 598. 
 The King v. Jane Warickshall, 453 
 The Logansport, etc.. Turnpike Co. 
 
 V. Heil, 376. 
 The Louisville, etc., Ry. Co. v. 
 
 Buck, 558. 
 The Pioneer Construction Co. v, 
 
 Howell, 594. 
 The Prior of Tikeford v. The Prior 
 
TABLE OF CASES CITED. 
 
 Uii 
 
 [BEFEBENCES ABE 
 
 of Caldwell, 429. 
 
 The Queen v. The Parish of Bir- 
 mingham, 521. 
 
 The State v. Hindman, 301. 
 
 The State v. Howard, 273. 
 
 The State v. Juneau, 275. 
 
 The State v. Mathes, 69, 481. 
 
 The State v. Read, 451. 
 
 The State v. Terrell, 484. 
 
 The State v. Vansant, 69, 481. 
 
 The Tudor Iron "Works v. Weber, 
 569. 
 
 The United States v. Macomb, 475. 
 
 The Wasburn & Moen Manuf. Co. 
 V. The Galvan. Wire Fence Co., 
 607. 
 
 The Zenia Real Est. Co. v. Macy, 
 335. 
 
 Thlstlewaite et al. v. Thistlewaite 
 et al., 524. 
 
 Thomas v. Barnes, 244. 
 
 Thomas v. Jenkins, 496. 
 
 Thomas v. Miller, 353. 
 
 Thomas v. Scutt, 239, 243. 
 
 Thompson, In re, 438. 
 
 Thompson v. German Val. Ry. Co., 
 296. 
 
 Thompson v. Ish, 293, 294. 
 
 Thompson v. Ligby, 245. 
 
 Thompson v. Owen, 579. 
 
 Thompson v. State, 377. 
 
 Thompson v. Thompson, 413. 
 
 Thornton v. Britton, 477. 
 
 Thornton v. Lane, 199. 
 
 Thrasher v. Pike Co. Ry. Co., 269. 
 
 Thrawley v. State, 575. 
 
 Throckmorton v. Holt, 131. 
 
 Thurston v. Whitney, 277, 278. 
 
 Tibbetts v. Sterberg, 342. 
 
 Tidmarsh v. Wash., etc., Ins. Co., 
 408. 
 
 Title Guarantee, etc., Co. v. Tren- 
 ton, 196. 
 
 Title Guarantee, etc., Co. v. Tren- 
 ton Pot. Co., 200. 
 
 Titus V. State, 65. 
 
 Tome V. Parkersburg, etc., Co., 168. 
 
 TO THE PAGES.] 
 
 Tonns v. State, 375. 
 Toohey v. Plummet, 60, 476. 
 Toole V. Toole, 313. 
 Topliff T. Jackson, 121. 
 Totten T. United States, 297, 619. 
 Townley v. Watson, 210. 
 Townsend v. Downer, 610. 
 Tracy v. People, 488. 
 Trader v. McKee, 198. 
 Trambly t. Ricard, 241. 
 Treadway v. Treadway, 462, 529. 
 Trimlestown v. Kemmis, 93. 
 Trustees of Schools v. Rodgers, 
 
 609. 
 Trustees, etc., v. Rantenberg, 608. 
 Tucker t. Bradley, 112. 
 Tucker v. Page, 310. 
 Tudor Iron Works v. Weber, 167, 
 
 172, 173. 
 Turner v. Dewan, 98. 
 Turner v. State, 167, 172. 
 TurnbuU v. Richardson, 351. 
 Turner v. Yates, 219. 
 Tuttle y. Russell, 365. 
 Tyler t. Anderson, 256. 
 Tyler v. Flanders, 75. 
 Tyler v. Ulman & Co. v. W. U. T. 
 
 Co., 412. 
 Tynes v. Kennedy, 415. 
 Tyrrell v. Painton, 406. 
 
 U. B. Bank of Chicago v. LJ N. A. 
 
 & C. Ry. Co., 238. 
 U. N. Bank of Chicago t. L. N. A., 
 
 etc., Ry. Co., 600. 
 U. P. Ry. Co. V. Botsford, 568. 
 Udderzook v. Com., 168. 
 Ulrich V. People, 576. 
 Underwood v. Simonds, 237. 
 Union Bank v. Knapp, 111, 541. 
 Union Cent. L. I. Co. v. Smith, 341. 
 Union Nat. Bank t. Louisville, etc., 
 
 Ry. Co., 243. 
 Union Nat. Bank v. Roberts, 211. 
 Union Pacific Ry. Co. v. Botsford, 
 
 174. 
 
Uy. 
 
 TABLE OF CASES CITED. 
 
 [EEFEBENCES ABE TO THE PAGES.] 
 
 United States v. Babcoek, 232. 
 United States v. Ball, 575. 
 United States v. Benner, 87. 
 United States v. Britton, 474. 
 United States v. Coolidge, 320. 
 United States v. De Graff, 232. 
 United States v. Gooding, 414. 
 United States v. Hunter, 316. 
 United States v. McGlue, 560. 
 United States v. Moses, .299, 620. 
 United States v. Ortiz, 168. 
 United States v. Porter, 283, 310. 
 United States v. Reed, 283. 
 United States v. Reyburn, 230. 
 United States v. Ross, 3. 
 United States v. Spalding, 94, 204. 
 Upstone V. People, 561. 
 
 Valse V. Delaval, 303. 
 
 Valentine v. Piper, 190. 
 
 Valtez V. O. & M. Ry. Co., 430. 
 
 Valle V. N. W. Ry. Co., 283. 
 
 Van Allen v. Gordon, 295. 
 
 Vance v. Lowther, 206. 
 
 Van Buskirk v. Van Buskirk, 255. 
 
 Vandine v. Burpee, 562. 
 
 Van Vaikenburgh v. Rouk, 257. 
 
 Vicksburg, etc., Ry. Co. v. O'Brien, 
 
 342, 554. 
 Viellesse v. The City of Green Bay, 
 
 569. 
 Viles V. Waltham, 142. 
 Village of Ponca v. Crawford; 126. 
 Vinton v. Peck, 215. 
 Vogel V. Ripper, 586. 
 Vowles V. Young, 489. 
 
 Wabash Ry. Co. v. Jenkins, 569. 
 Wabash Ry. Co. v. McDanlels, 439. 
 Wade V. De Witt, 89. 
 Waite V. High, 230. 
 Walbridge v. Knipper, 476. 
 Walker v. State, 481, 576. 
 Walters v. Senf, 245. 
 
 Walters v. Witherill, 270. 
 Wallace v. Grizzard, 375. 
 Wallace v. Harmsted, 204. 
 Wallace v. Story, 463. 
 Wallace and Park v. Jewell, 205. 
 Ward V. Cheney, 215. 
 Ware v. Brookhouse, 102. 
 Warlick v. White, 172, 178, 569. 
 Warner v. Campbell, 226. 
 Warren v. Flagg, 194. 
 Warsaw v. Fisher, 293, 295. 
 Washburn v. Chicagoi, etc., Ry. Co., 
 
 353. 
 Washburn v. Ry. Co., 171. 
 Washington Savings Bank t. 
 
 Ecky., 206, 589. 
 Waterman v. Whitney, 470, 546, 
 
 547, 548. 
 Watkins V. Holman, 85. 
 Watt V. Kilburn, 191. " 
 Watts V. Holland, 333. 
 Way V. Butterworth, 615. 
 Weaver v. Bromley, 342. 
 Webb V. Bird, 401. 
 Webb V. State, 373, 375. 
 Weber V. Illing, 250. 
 Weeks v. Sparke, 496. 
 Weigle V. Brantigam, 534. 
 Weiss V. Edgerton School Board, 
 
 395. 
 Weigle V. Brantigan, 114. 
 Weitz V. Mound City Ry. Co., 291. 
 Welcome v. Batchelder, 301. 
 Welcome v. Mitchell, 352. 
 Weld V. Brooks, 168. 
 Wellman v. Jones, 341. 
 Wells V. Fletcher, 312. 
 Wells V. Ins. Co., 618. 
 Werbeskie v. McManus, 112. 
 Westbrbok v. People, 482. 
 West Chicago St. Ry. Co. v. Ken- 
 nelly, 126. 
 Western Union Tel. Co. v. Kemp 
 
 BYos., 596. 
 Westfleld Cigar Co. v. Ins. Co., 234. 
 Westover v. Aetna Life Ins. Co., 
 
 296. 
 
TABLE OF CASES CITED. 
 
 iv 
 
 [BEFBBENCES ABE TO THE PAGES.] 
 
 Weyerhauser v. Dun, 208. 
 Wharton v. State, 283. 
 Wheeler v. Le Marchant, 295. 
 Wheeler v. United States, 274, 275, 
 
 612. 
 Wheelock v. Freeman, 203. 
 Whelan v. Lynch, 506. 
 White V. Hass, 216. 
 White V. Holman, 523. 
 White V. Murtland, 447. 
 White V. Old Dom. Co., 417. 
 White V. Perry, 313, 315. 
 White V. Phoenix Ins. Co., 389. 
 White V. State, 289. 
 White Sewing Mach. Co. v. Gordon, 
 
 168. 
 Whitehall v. Smith, 356. 
 Whitehead v. Ragan, 168. 
 Whitehouse v. Beckford, 219. 
 Whitehouse- V. Bickford, 508. 
 Whitelock v. Baker, 72, 73. 
 Whitely v. Clark, 407. 
 Whitewell v. Willard, 104. 
 Whiteford v. Tutin, 230. 
 Whitman v. Heneberry, 91, 94, 95, 
 
 510. 
 Whitman v. Shaw, 512. 
 Whitney v. Boardman, 249. 
 Whitney v. Thacher, 562. 
 Whiton V. Albany and Nar. Ins. 
 
 Go's., 201, 504. 
 Whittuck V. Walters, 492. 
 Whyman v. Garth, 187, 578. 
 Wiel V. Cowles, 290. 
 Wiggins V. Burkham, 391. 
 Wilbur V. Hubbard, 560. 
 Wilbur V. Selwin, 473. 
 Wilbur V. Stoepel, 241. 
 Wilbur V. Wilbur, 406. 
 Wilcoxon V. Read, 279. 
 Wilder v. Cowles, 410. 
 Wiliamson v. Yingling, 344. 
 Willard v. Darrah, 259, 263, 610. 
 Williams v. Benton, 224. 
 Williams v. Gillies, 250. 
 Williams v. Gt. Northern Ry. Co., 
 
 545. 
 
 Williams v. Ins. Co., 227. 
 Williams v. Jarrot, 595. 
 Williams v. People, 408. 
 Williams v. State, 153. 
 Williams v. Stone, 568. 
 Williams v. Williams, 269. 
 Williamson v. Peel, 361. 
 Willis V. Germania Ins. Co., 394. 
 Willock y. Wilson, 580. 
 Wills Point Bank v. Bates, 316. 
 Wilson V. Hayes, 214, 216. 
 Wilson V. Haynes, 215. 
 Wilson V. Noonan, 61. 
 Wilson V. Rastall, 287. 
 Wilson V. State, 367, 577. 
 Wilson V. Wilson, 110, 111. 
 Wilton V. Humphreys, 131. 
 Winkley v. Kaime, 610. 
 Winn V. Patterson, 96. 
 Winslow V. Newlan, 361. 
 Winter v. Pool, 211. 
 Winters v. Earl, 246. 
 Winters v. Mowser, 241. 
 Winters v. Moweer, 215. 
 Winters v. Winters, 289, 290. 
 Wisdom V. Reeves, 94. 
 Wiseman v. Green, 252. 
 Wisener v. Maupin, 333. 
 Wolf T. Bollinger, 591. 
 Wood V. Connell, 269. 
 Wood V. Deury, 191. 
 Wood V. N. W. Ins. Co., 394. 
 Wood V. State, 154. 
 Wood r. Steele, 205, 211. 
 Wood V. Thornly, 616. 
 Woodbury v. Prink, 412. 
 Woodbury v. Northy, 311. 
 Woods V. Hilderbrand, 589. 
 Woods V. Miller, 316. 
 Woods T. People, 367. 
 Woodward v. Gouldstone, 544. 
 Woodward v. Leavitt, 302. 
 Woodward v. Ry. Co., 393. 
 Woodworth v. Anderson, 588. 
 Woolway v. Rowe, 415. 
 Wormsdorf t. Detroit, 39. 
 Wormsdorf v. Detroit Ry. Co., 468. 
 
Ivi 
 
 TABLE OF CASES CITED. 
 
 [BEFEBENCES ABB 
 
 Worthington v. Meuser, 272. 
 Worttiingtoii v. Scribner, 299, 300, 
 
 620. 
 Wright V. Carpenter, 171. 
 Wright V. Doe de Tatham, 51, 462, 
 
 471, 560. 
 Wright V. 111. & Miss. Tel. Co., 305. 
 Wright V. Tatham, 129. 
 Wright V. Tel. Co., 621. 
 Write V. State, 232. 
 Wyman v. Yeomans, 211. 
 Wyngert v. Norton, 346. 
 
 TO THE PAGES.] 
 
 Yale V. Comstock, 472. 
 
 Yates V. People, 180, 183. 
 
 Yoe V. People, 89, 365, 508. 
 
 York V. Pease, 348. 
 
 Yost V. Minneapolis Harvester 
 
 Works, 585. 
 Young V. Bank of Alexandria, 200. 
 Young V. Makepiece, 568. 
 
 Zipp T. Colchester Rubber Co., 598. 
 
HUGHES ON EVIDENCE 
 
 PART I. 
 
 PRELIMINARY TOPICS 
 
 CHAPTER I. 
 
 SOME BRIEF DEFINITIONS. 
 
 § 1. Evidence.— The legal means, exclusive of mere argu- 
 ment, of proving or disproving any matter of fact, the truth 
 of which is submitted to judicial investigation.^ 
 
 §2. Primary evidence.— Evidence which shows on its face 
 that there is no better evidence of the fact in question. It is 
 also called Original Evidence. 
 
 §3. Secondary evidence.— Evidence which is admissible 
 when the primary evidence is not obtainable; and which, owing 
 to this fact, is the best evidence which can be adduced. 
 
 § 4. Hearsay evidence.— Evidence which depends solely for 
 its truth or falsity, m the first instance, upon the statement 
 of someone other than the witness, and has, in and of itself, n( 
 evidentiary force. 
 
 § 5. Direct evidence.— Evidence which tends to prove th« 
 fact, or facts, in question, without the intervention of evidence 
 of any other fact. 
 
 § 6. Circumstantial evidence.— Evidence of some other fact, 
 or facts, from which, taken singly or collectively, the existence 
 or nonexistence of the particular fact, or facts, in question, 
 
 1 — Strictly speaking, the term chaageably with the term "Proof." 
 
 "Evidence" is applicable only to The latter term, however, strictly 
 
 the \medluni of proof. In practice, speaking, is applicable only to the 
 
 however, it is often used inter- eifect of evidence. 
 
 1 
 
2 PEELIMINAEY TOPICS. 
 
 may be inferred as a necessary or probable consequence. This 
 class of evidence is also called Indirect Evidence. 
 
 §7. Presumptive evidence.— Evidence which shoves the ex- 
 istence of one fact, by proof of the existence of one or more 
 other facts, from which the existence of the former one may 
 be inferred. The terms Presumptive Evidence and Circum- 
 stantial Evidence are similar in meaning, but they are not 
 necessarily synonymous.^ 
 
 § 8. Relevant evidence.— Evidence which is legally, as well 
 as logically, applicable to the issue joined.* 
 
 § 9. Parol evidence.— Verbal evidence, as contra-disting- 
 uished from that which is written or documentary. 
 
 § 10. Real evidence.— Evidence acquired directly by the 
 court or jury themselves, through the medium of their own 
 senses, by an inspection of the subject-matter itself. 
 
 § 11. Competent evidence.— Evidence which the very nature 
 of the thing to be proved requires as the fit and appropriate 
 proof in the particular ease. 
 
 §12. Cumulative evidence.— Evidence of the same kind to 
 the same point. 
 
 §13. Prima Facie evidence.— Evidence which is sufficient 
 to establish the fact, or facts, in question, but which may be 
 rebutted and overcome by other evidence. 
 
 § 14. Conclusive evidence.— Evidence which is sufficient to 
 establish the fact, or facts, in question, and which may not 
 be contradicted. - 
 
 § 15. Satisfactory evidence.— Evidence sufficient to ordinar- 
 ily satisfy an unprejudiced mind honestly seeking the truth. 
 
 2 — For comments, and references two facts to -whicli It is applied are 
 
 to discussions, pertaining to the so related to each other that ao- 
 
 distinguishing features of these cording to the common course of 
 
 two terms, see Bouvier's Law Die- events, one either taken by itself 
 
 tionary. Vol. I., p. 703. or in connection with other facts, 
 
 3 — The terms "logically rele- proves or renders probable the 
 
 vant" and "legally relevant" are past, present, or future existence 
 
 not synonymous. Evidence to be or non-existence of the other." This 
 
 admissible must be legally relevant, definition, however, is applicable 
 
 In Art. 1, of Stephen's Digest of to the term "logically relevant"; 
 
 the Law of Evidence, he says: "The and is too broad to apply to the 
 
 word 'relevant' means that any term "legally relevant." Legal 
 
SOME BRIEF DEFINITIONS. 3 
 
 § 16. Proof.— The conviction of the mind of the court or 
 jury, prodaced by legal means, of the existence or nonexistence 
 of the fact, or facts, in question. 
 
 § 17. Res gestae.— Acts or declarations, which are connected 
 with the fact, or facts, in issue, which are contemporaneous 
 with such fact, or facts, and which characterize and explain 
 them.* 
 
 lelevancy requires a higher stand- 
 ard of evidentiary force. See Bou- 
 vier's Law Dictionary, Vol. 2, p. 
 866; United States v. Ross, 98 U. 
 S. 281, 283. 
 
 4 — When it is material to show, 
 upon the trial of a cause, the oc- 
 currence of any fact, it is com- 
 petent and proper to also show 
 any accompanying act, declaration 
 or exclamation, which was con- 
 temporaneous with the occurrence 
 of such fact, and which character- 
 izes and explains it. Such acts, 
 declarations or exclamations, are 
 known as res gestw. The true 
 test of the admissibility of such 
 testimony is, that the act, declara- 
 tion or exclamation, must be so 
 
 Intimately interwoven with the 
 fact which it characterizes and ex- 
 plains, as to be regarded as a part 
 of the transaction itself; and also, 
 to clearly negative any premedita- 
 tion or purpose to manufacture 
 testimony. The true inquiry, in the 
 case of the declaration, is, whe- 
 ther the declaration is a verbal 
 act, explaining and interpreting 
 other parts of the transaction of 
 which it is itself a part; or, is 
 merely a history, or a part of a 
 history, of a completed past trans- 
 action. In the former case, it is 
 admissible in evidence; in the lat- 
 ter case it is not. Lauder v. The 
 People, 104 111., 248; Chicago Ry. 
 Co. V. Becker, 128 III., 545. 
 
CHAPTER II. 
 
 JUDICIAL NOTICE. 
 
 § 1. Rule and exceptions. — A characteristic feature of the 
 English law of evidence is, the facts of a case shall be proved 
 by the best evidence attainable. To this important rule there 
 are two exceptions: (1) Facts of which courts take judicial 
 notice; (2) Facts which are admitted to be true. 
 
 § 2. Scope.— The doctrine of Judical Notice is not peculiar 
 to the la^v of evidence. It is applicable as weU to the law of 
 pleading. It is as broad, indeed, as the general topic of legal 
 reasoning. As its rules prescribe what facts in issue need not 
 be proved, it applies to the law of evidence in a negative sense, 
 and only indirectly. 
 
 The law of evidence is a growth, based very largely upon 
 judicial legislation. It is still growing, and will continue to 
 do so. The doctrine of Judicial Notice is also a growth, and 
 its scope is also becoming more and more extended. Art, sci- 
 ence and general knowledge are making rapid progress in the 
 world, and it behooves courts to keep abreast of this advance- 
 ment. It is important, however, that courts exercise with due 
 care the function of Judicial Notice. If the ground is general 
 knowledge, the requisite notoriety should be found to exist. A 
 reasonable doubt upon this point necessitates proof. As re- 
 gards what constitutes sufficient notoriety, for the proper exer- 
 cise of this function, judicial minds differ. As a result, we 
 find upon this question discordant decisions. Facts, -which 
 courts are bound to judicially notice, are deemed conclusively 
 established; and all evidence relating to them may be rejected. 
 Natural phenomena are judically noticed, but not extraor- 
 dinary circumstances. Facts judicially noticed need not be 
 alleged in the pleadings. The fact that matters judicially no- 
 ticed are incorrectly alleged in the pleadings is not material; 
 nor are such matters admitted by demurrer. The doctrine of 
 Judicial Notice pertains also to jurors, but only to a limited 
 extent. 
 
 4 
 
JUDICIAL NOTICE. 5 
 
 §3. Cflassification.— Facts of which courts take judicial 
 notice may be divided into two general classes: (1) Facts 
 which courts must judicially notice; (2) Facts which courts 
 may judicially notice. The dividing line between these two 
 classes is not a fixed and definite o'le. As already indicated, 
 the two reasons for this are: (1) The field of Judicial Notice 
 is becoming more and more extended; (2) As regards what 
 constitutes sufficient notoriety, judicial minds differ. 
 
 §4. Compulsory judicial notice.— Courts are bound to ju- 
 dicially notice those facts which the statute law, or the common 
 law, makes it their special duty to know and recognize. Such 
 facts include: (1) The public laws; (2) Matters of public in- 
 terest; (3) Matters peculiarly within the knowledge of the 
 particular court; (4) Matters of universal notoriety. 
 
 § 5. Public laws.-^ Public laws are those which extend to 
 all persons within the territorial limits described in them. They 
 include: (1) The Constitution of the United States; (2) The 
 constitutions of the several states; (3) The treaties of the 
 United States; (4) The public statutes of the United States; 
 (5) The public statutes of the several states; (6) The law of 
 nations; (7) The law merchant; (8) The common law. 
 
 §6. Constitutions.— The United States Constitution is ju- 
 dicially noticed by both the federal and the state courts. A 
 state constitution is judicially noticed by the courts of that 
 particular state, and by the federal courts; but not by the 
 courts of the sister states. 
 
 § 7. Treaties.— The treaties of the United States are judi- 
 cially noticed by both the federal and the state courts; but the 
 treaties between foreign countries are not judicially noticed. 
 
 § 8. Federal public statutes.— Federal public statutes are 
 judicially noticed by the courts of both the federal and the 
 state courts. 
 
 § 9. State public statutes.— The public statutes of the sev- 
 eral states are judicially noticed by the courts of those states, 
 respectively, and also by the federal courts, except that, in 
 some cases 'they are not judicially noticed by the Supreme 
 Court of the United States. 
 
 § 10. The law of nations.— The law of nations is judicially 
 noticed by the courts of all civilized countries. 
 
6 PEELIMINAEY TOPICS. 
 
 §11. The law merchant.— The law merchant is judicially 
 noticed by both the federal and the state courts. 
 
 § 12. The common law.— The English common law is judi- 
 cially noticed by both the federal and the state courts. The 
 common law of a state is judicially noticed by the courts of 
 that particiilar state, but not by the courts of the sister states. 
 It is also judicially noticed by the federal courts, except that, 
 in some cases it is not judicially noticed by the Supreme Court 
 of the United States. 
 
 § 13. The Supreme Court of United States.— The Supreme 
 Court of United States, in the exercise of original jurisdiction, 
 and also in the exercise of appellate jurisdiction from a federal 
 court, takes judicial notice of the public laws of the several 
 states. It also takes judicial notice of all federal public 
 statutes. It does not, however, in the exercise of appellate 
 jurisdiction from the highest court of a state, take judicial no- 
 tice of the laws of a sister state. 
 
 § 14. Foreign public laws.— Foreign public laws are not ju- 
 dicially noticed. The laws of one state are foreign to the other 
 sister states, and are not judicially noticed by the courts of 
 those states. 
 
 § 15. Municipal charters.— Municipal charters are public 
 laws, and are judicially noticed by the courts of the state in 
 which they are in force, and also by the federal courts, except 
 that, as already indicated, they are not, in some cases, judicial- 
 ly noticed by the Supreme Court of the United States. 
 
 § 16. Municipal ordinances.— Municipal ordinances are not 
 judicially noticed except by the courts of the particular muni- 
 cipality in which they operate, and by courts of appeal to 
 which cases are taken from that particular municipality. 
 
 §17. Charters of raihroad corporations and banks.— Bail- 
 road corporations, and banks, are organized for private gain; 
 but, by the weight of authority, their charters are public acts 
 and are judicially noticed. 
 
 §18. Private corporations.— Private corporations, created 
 under general incorporation acts, are not judicially noticed; 
 but the general acts, under which they are organized, are judi- 
 cially noticed. Private corporations, created by special acts, 
 
JUDICIAL NOTICE. I 
 
 are not judicially noticed unless a statutory provision exists 
 to the contrary. 
 
 § 19, Foreign corporations.— Foreign corporations are not, 
 as a general rule, judicially noticed. A few courts, however, 
 have made some exceptions to this rule. 
 
 §20. Private statutes,— Private statutes are not judicially 
 noticed. A statute which prohibits the sale of spirituous liquors 
 in certain townships of a particular county is not a private 
 statute, and is judicially noticed. All statutes, which, at the 
 time of their enactment, are declared public acts, are judicially 
 noticed. 
 
 § 21. Courts.- The federal courts take judicial notice of 
 one another, and of the courts of the several states; and the 
 state courts take judicial notice of one another, including those 
 of the sister states, and of the federal courts. 
 
 § 22. Matters of public interest.— Matters of public interest 
 are presumed to be within the knowledge of people generally; 
 and, for this reason, are judicially noticed. They include: The 
 titles and seals of foreign sovereigns, recognized by the United 
 States, and the flags of their countries; foreign notaries and 
 their seals; foreign admiralty and maritime courts; sittings of 
 congress, and of the state legislatures; the accession of the 
 chief executives of the nation, and of the state or territory, and 
 their powers, privileges, and the genuineness of their signa- 
 tures; the heads of departments, and the principal officers of 
 state; the appointment of a cabinet, or foreign, mifiister; the 
 judges of the courts, their seals, and their terms of court as 
 regulated by law, but not their rules of court; the territorial 
 jurisdiction of the United States, and of the state or territory; 
 the political divisions of the State into counties, townships, 
 cities and school districts, and their relative positions, but not 
 their precise boundaries; public proclamations of war and 
 peace; the legal coinage, and the weights and measures of the 
 country; matters of public history; the general geographical 
 features of the country; the ordinary public feasts and festi- 
 vals; general elections, the dates thereof, and the officers to be 
 elected thereat ; the population of a municipality as indicated 
 by the last official census returns; things which must happen 
 according to the course of nature; the general meaning of 
 words, and of common abbreviations. 
 
8 PEELIMINART TOPICS. 
 
 § 23. Matters peculiarly within the knowledge of the court. 
 
 — Such matters are judicially noticed by the particular court. 
 They include: the records of the court; its rules of practice; 
 its own officers; its terms of court; its jurisdiction; proceedings 
 in the pending suit. 
 
 §24. MattOTS of universal notoriety.— Facts which are so 
 notorious as to be universally accepted as true, courts are 
 bound to judicially notice. Such facts are very numerous, 
 many of which might well be classed under the head of mat- 
 ters of public interest. Various natural phenomena, among 
 others, belong to this class. 
 
 § 25. Discretionary judical notice.— Facts, which have only 
 a common notoriety, as distinguished from a universal one, 
 courts may in their discretion, judicially notice. This class? 
 also includes a great variety of facts. No general rule is ap- 
 plicable to it. Each ease is governed by its own particular 
 circumstances. The question, in all cases, is, has the fact suffi- 
 cient notoriety to justify the court to judicially notice it. 
 Among others, many principles of art and science, which are 
 familiar and generally recognized, belong to this class. 
 
CHAPTER III. 
 
 PRESUMPTIONS. 
 
 § 1. Scope — The doctrine of Presumptions and the doctrine 
 of Judicial Notice are similar in the following respects: (1) 
 Neither is peculiar to the law of evidence. (2) Each is as 
 broad as the doctrine of Legal Reasoning. (3) Each pertains 
 to the law of evidence only indirectly. The doctrine of Pre- 
 sumptions is not concerned at all with the admissibility of 
 evidence, but merely with its sufficiency. Prima facie pre- 
 sumptions shift the burden of proceeding with evidence upon 
 the party against whom they operate. In no case, however, do 
 presumptions shift the burden of proof in its true sense. Pre- 
 sumptions are based upon facts established by direct evidence, 
 and not upon other presumptions. 
 
 §2. Origin. — It is probable that all presumptions had their 
 origin in inference. Judges have always been more or less 
 suspicious of juries. It is only natural, therefore, that judges 
 have seized opportunities to control, in a measure, verdicts. 
 In the course of their development, some presumptions have 
 passed through several stages. A good illustration of this is 
 the seven-years' absence rule. In the first stage, a mere infer- 
 ence of death was drawn. In the second stage, the court ad- 
 vised the jury that such inference might well be drawn. In 
 the third stage, the court instructed the jury that such infer- 
 ence ought to be drawn. In the fourth and last stage, the 
 court instructs the jury that such inference must be drawn. 
 Thus, what was formerly a mere inference has developed into 
 a prima facie rule of law. 
 
 §3. Definition.— Presumptions are either rules of law, or 
 inferences, of the existence or nonexistence of one or more 
 facts, which must, or may be drawn from proof of one or more 
 other facts. 
 
 §4. Classification.— Presumptions are of two classes: (1) 
 Presumptions of Law; (2) Presumptions of Fact. Some writ- 
 ers add a third class: Presumptions of Law and Fact. 
 
 9 
 
10 PBELIMINARY TOPICS. 
 
 §5. Sub-classifications.— Presumptions of law are sub- 
 divided into two classes: (1) Conclusive Presumptions of Law; 
 (2) Disputable Presumptions of Law. 
 
 § 6. Presumptions of law.— A Presumption of Law is a rule 
 of law, binding upon the court or jury, and not a mere infer- 
 ence. It establisbes either an absolute fact, or, a prima facie 
 fact. In the former case the presumption is conclusive. No 
 evidence is admissible to rebut it. In the latter case it is dis- 
 putable. Its effect is to shift the burden of proceeding with 
 evidence, upon the party against whom it operates. 
 
 § 7. Conclusive presumptions of law.— Conclusive Presump- 
 tions of Law are, in reality, substantive rules of the positive 
 law. They have always been comparatively few; and, at pres- 
 ent, are more so than formerly. This is owing to the fact that 
 severalpresumptions, which were formerly treated as conclusive, 
 are now treated as disputable. The following cases include the 
 principal presumptions of law which are conclusive: An in- 
 fant, under seven years of age, is conclusively presumed in- 
 capable of committing any crime. Continuous adverse user of 
 land for twenty years conclusively establishes title; and, if the 
 party so holding is unable to produce evidence of his title, 
 there is a conclusive presumption of law that a lost grant 
 exists. A boy under fourteen years of age is conclusively 
 presumed incapable of committing rape. A girl of tender 
 years is conclusively presumed incapable of consenting to sex- 
 ual intercourse. In Queen Elizabeth's reign, the age was fixed 
 by statute at ten years. In this country it varies in the sev- 
 eral states, ranging from twelve to eighteen years. In Illi- 
 nois, it is sixteen years. All persons are presumed to know 
 the law. This presumption is based upon public policy. No 
 effectual administration of the law could exist without it 
 Proof that a custom has existed during living memory raises 
 the presumption that it has existed immemorially ; and proof 
 that it has existed immemorially raises the presumption of 
 legal origin. 
 
 §8. Disputable presumptions of law.— This class of legal 
 presumptions includes many more than the other class. Per- 
 haps the most highly favored one is that of innocence. All 
 persons, accused of crime, are presumed innocent until their 
 
PRESUMPTIONS. Xi. 
 
 guilt is established beyond a reasonable doubt. This presump- 
 tion obtains in both civil and criminal cases; and, when the 
 question of guilt is raised either directly or indirectly. Other 
 illustrations of this class are the following: Persons who co- 
 habit as husband and wife, and who are reputed to be married, 
 are presumed to be legally married. A child, born during 
 lawful wedlock, is presumed to be legitimate. Upon the ground 
 of decency and morality, circumstances may render this pre- 
 sumption conclusive. A married woman, who commits a crime, 
 other than treason, murder, felonious wounding, keeping 
 a bawdy house, and perhaps highway robbery, in the 
 presence of her husband, is presumed to be coerced by him. 
 Parties to a contract are presumed to know its contents, and 
 also its legal effect. This presumption obtains even when the 
 parties cannot read nor write. In the absence of fraud, or 
 mistake, it is conclusive. A sane person is presumed to in- 
 tend the natural and probable consequences of his voluntary 
 acts. In the absence of fraud, or mistake, this presumption 
 is generally conclusive. In the case of crimes, however, in- 
 volving specific criminal intent, it is not conclusive. A person 
 who feloniously kills another by means of a deadly weapon is 
 presumed to do so maliciously. Blackstone says "All homicide 
 is presumed to be malicious until the contrary appeareth in 
 evidence. ' ' This statement has been frequently criticised, how- 
 ever, owing to the fact that it places the burden of proof upon 
 the defendant. When a person has been absent from home for 
 seven years, and has not been heard from during that time, 
 by those who would naturally have heard from him, if alive, 
 he is presumed to be dead. There is no presumption, however, 
 as to the time of his death.^ 
 
 1 — Upon this point some de- that life continued during the en- 
 cisions are quite perplexing. For tire period." The logical conclu- 
 example, in Reedy v. Millizen, 155 , sion is that, in the absence of con- 
 Ill. 636 (at page 638), the court travening facts or controlling pre- 
 say: "While, therefore, it is true sumptions, death occurred on the 
 that there is no presumption that last day of the seven years. There 
 death occurred at any particular Is, however, no legal presumption 
 time within the seven years, it is to this effect in any case. When 
 also true that, in the absence of death occurred is never anything 
 contravening facts or controlling more than a mere presumption of 
 presumptions, it will be presumed fact. 
 
12 PEELIMINAEY TOPICS. 
 
 § 9. Presumptions of fact.— A Presumption of Faot im d 
 mere inference drawn from proof of one or more facts. Un- 
 like a Presumption of Law, it is not binding upon the court or 
 jury. It is merely circumstantial evidence of the existence or 
 nonexistence of one or more facts. Its weight depends upon 
 the circumstances of the particular case. It is sometimes called 
 a natural presumption. This is owing to the fact that it is not 
 governed by artificial rules like a Presumption of Law, but is 
 dedueible from one or more facts by a natural process of 
 reasoning. Presumptions of Fact are very numerous. The 
 presumption of sanity belongs to this class. It is a mere in- 
 ference drawn from the fact that ordinarily people are sane. 
 It may, however, obviate the necessity of establishing sanity 
 by affirmative proof. Even in criminal cases it is sufficient 
 for this purpose in the absence of evidence to rebut it. In the 
 probate of a will, the testator's sanity must be established by 
 affirmative evidence. The fact that a certain condition or 
 state of things existed at a particular time raises a presumption 
 of fact that such condition or state of things continued to 
 exist. Thus, the fact that a certain person was living at a 
 certain time, and at a certain place, raises, in the absence of 
 any evidence to the contrary, a presumption of fact that he is 
 still living, and at the same place. A partnership, when es- 
 tablished, raises a presumption of fact that it continues to 
 exist. Proof that parties were living in adultery, raises a 
 presumption of fact that they continue to live in adultery. 
 Proof that a man followed the occupation of a gambler for 
 many years raises a presumption of fact that he is still a 
 gambler. Proof that a person was insane, raises a presumption 
 of fact that he continues insane. Proof that a letter, properly 
 addressed and stamped, was delivered to a postman, or dropped 
 into a postal box for collection and delivery, raises a presump- 
 tion of fact that it duly reached its destination. A similar 
 presumption of fact is raised when a telegram is given to the 
 proper party for transmission. In the absence of evidence to , 
 the contrary, a presumption of fact exists that, the members 
 of a partnership are equally interested in both the capital 
 and the profits of the business, and liable for losses in the same 
 proportion. When a vessel springs a leak, without any appar- 
 ent cause, within a few days after she left the dock, a presump- 
 
PEBSUMPTIONS. liJ 
 
 tion of fact is raised that she was unseaworbhy when she 
 started upon her voyage. When two or more persons perish 
 in the same common disaster, there is, at common law, no legal 
 presumption of survivorship, based upon the age or sex of the 
 parties. The civil law rule is to the contrary. At common 
 law, the party alleging survivorship must prove it. The cir- 
 cumstances may be such, however, as to raise a presumption of 
 fact. Presumptions are prospective, and not retrospective. 
 When a husband advances money to his wife, or a parent to 
 a child, the advancement is presumed to be a gift and not a 
 loan. When a person pays another a subsequent debt there 
 is a presumption raised that all prior debts to the payee, which 
 are due, have been paid. This presumption is raised when the 
 debtor gives his creditor a promissory note. A receipt for the 
 last instalment of a debt also raises a presumption that all 
 prior instalments have been paid. When a person withholds 
 evidence, which it is his duty to produce, a presumption of 
 fact arises that the evidence withheld is unfavorable to him. 
 When a person wilfully destroys documentary evidence, a pre- 
 sumption of fact arises that he did so fraudulently; and, in 
 the absence of a legal excuse for the act, he is estopped from 
 giving secondary evidence of the contents of the document. 
 When the officers of a neutral vessel destroy the ship's papers, 
 in time of war, in anticipation of a search, a strong presump- 
 tion of fact is raised of an intention to destroy incriminating 
 evidence. When a crime has been committed, the attempted 
 flight of an accused person raises a presumption of fact of his 
 guilt. When a party to an action attempts to bribe a witness 
 in the case, a presumption of fact arises that his cause is an 
 unjust one. The assumption by a person of the functions of 
 a public ofSce raises a presumption of his appointment and 
 qualification, sufficient to establish a prima facie case. When 
 a^prior act is essential to the validity of an official act, the 
 performance of the prior act is presumed, upon the perform- 
 ance of the official act. When a person purchases real estate, 
 and the deed is taken in the name of another person, other than 
 his wife or child, a presumption arises of a resulting trust in 
 favor of the purchaser. In the absence of evidence as to 
 whether a particular death was accidental or suicidal, a pre- 
 sumption exists that it was accidental. This is based upon the 
 
14 PEELIMINAEY TOPICS. 
 
 fact that people generally are anxious to live and avoid danger. 
 When a person is charged with misconduct, either in business 
 or social relations, a presumption exists against such miscon- 
 duct. When infancy is alleged as a disability, a presumption 
 always arises against it. A man of mature age is presumed 
 to possess the normal powers of virility. When an abortion is 
 performed, based upon an alleged necessity of saving the life 
 of the mother or child, a presumption exists against such ne- 
 cessity. A presumption exists that a male child, under four- 
 teen years of age, has not reached the age of puberty, and is 
 therefore incapable of committing the crime of rape. 
 
CHAPTER IV. 
 
 BURDEN OF PROOF. 
 
 §1, Double sense.— The term "Burden of Proof" is used 
 in a double sense. It has a primary meaning and also a sec- 
 ondary meaning. In its primary and true sense it means the 
 duty of establishing one's case. In its secondary sense it means 
 the duty of going forward with evidence. In the former sense 
 it never shifts. In the latter sense it may shift, during the 
 trial, repeatedly. 
 
 § 2. Upon whom it rests.— The burden of proof, in its true 
 sense, rests upon the party against whom the judgment should 
 be rendered if no evidence at all were given. The matter is 
 usually determined by an inspection of the pleadings. As a 
 general rule, it fails upon the party who substantially alleges 
 the affirmative of the issue, and this party is usually the plain- 
 tiff. In substance and effect, the allegation may be affirmative, 
 and in a sense negative. Thus, in an action for malicious 
 prosecution, want of probable cause is an essential 'element of 
 the plaintiff's case, and the burden of proving it is upon him. 
 Again, in an action by a landlord against his tenant for breach 
 of his covenant to make repairs, the failure of the tenant to 
 make such repairs is an essential element of the plaintiff's case, 
 and the burden of proving it rests upon him. In such eases, 
 less proof is usually required than in eases where the aver- 
 ments are wholly affirmative. If the subject-matter of the 
 averment is peculiarly within the knowledge of the party other 
 than the one who makes it, the burden of proof, as regards the 
 subject-matter of that averment, is upon that other party. 
 Thus, in an action against a party for selling intoxicating 
 liquors, or, practicing a profession, without a license, the bur- 
 den of proof is upon the defendant to prove that he had a 
 license. 
 
 §3. Effect of presumptions.— Presumptions do not effect 
 the burden of proof in its primary and true sense ; but, dis- 
 putable presumptions of law, which take the place of evidence 
 
 15 
 
16 PRELIMINARY TOPICS. 
 
 in establishing a prima facie case, do shift the burden of proof 
 in its secondary sense. 
 
 § 4. Amount of proof required in criminal cases.— In crim- 
 inal eases, the burden is upon the prosecution to prove the 
 defendant's guilt beyond a reasonable doubt. In civil cases too, 
 according to the English rule, when the commission of a crime 
 is in issue it must be proved beyond a reasonable doubt; but, 
 in this country, by the great weight of authority, it is sufficient 
 to prove it by a preponderance of the evidence. In Illinois, 
 however, the English rule has prevailed.^ 
 
 § 5. Insanity as a defence in criminal cases.— When insan- 
 ity is pleaded as a defence to a criminal charge, it is held, ia 
 many states, that the burden is upon the accused to prove his 
 insanity by a preponderance of the evidence. In many other 
 states, including Illinois, the burden, after the accused has of- 
 fered sufficient evidence to cast a reasonable doubt upon the 
 presumption of his sanity, is upon the prosecution to prove, 
 beyond a reasonable doubt, that the accused, at the time the 
 alleged offence was committed, was sane. The latter rule, it 
 is submitted, is logical and in accord with the better view. 
 A few courts have held that the burden is upon the defendant 
 to establish his insanity beyond a reasonable doubt. This rule, 
 it is submitted, is wholly illogical and unjust. 
 
 § 6. Insanity as a defence in will cases.— Upon the question 
 of burden of proof, when insanity of the testator is interposed 
 as a defence to the probate of his will, the decisions are in 
 hopeless conflict. Many hold that the burden is upon the pro- 
 ponent to establish by a preponderance of the evidence, not 
 only the due execution of the will, but also the sanity of the 
 testator at the time it was made. This rule obtains in New 
 York, Massachusetts, Michigan, Minnesota, Maine, and in some 
 other states. Many other decisions hold that testators, like 
 other persons, are presumed to be sane until the contrary is 
 shown, and that the burden of proof is upon the contestant. 
 This rule obtains in Pennsylvania, New Jersey, Alabama, "Wis- 
 
 1— Crandall v. Dawson, 1 Gilm., 141; Sprague v. Dodge, 48 111., 142; 
 556; McConnel v. Ins. Co., 18 111., Germanla Ins. Co. v. Klewer, 129 
 228; Harbison v. Shook, 41 111., 111., 599-612. 
 
BURDEN OP PROOF. 17 
 
 consin, Iowa, Indiana, Maryland, and in some other states. In 
 Illinois, the statute provides that, before a will can be ad- 
 mitted to proba;te, or held to be valid, affirmative proof must 
 be given of the testamentary capacity of the testator by the 
 subscribing witnesses. Under this statute, the courts hold that, 
 if, after sufficient evidence is given by the proponent to meet 
 the requirements of the statute, contradictory evidence is given 
 by the contestant, the proponent must prevail, unless the con- 
 tradictory evidence is sufficient to overcome or neutralize, not 
 only the affirmative evidence in favor of the testamentary 
 capacity of the testator, but also the presumption of his sanity. 
 
 § 7. Negligence.— Ordinarily, in an action for damages 
 caused by negligence, the burden of proof, as regards the negli- 
 gence of the defendant, is upon the plaintiff. If the defend- 
 ant sets up, in defence, contributory negligence of the plaintiff, 
 the burden of proof, upon this issue, is, by the weight of au- 
 thority, upon the defendant. This rule obtains in the federal 
 courts. In some states, including Illinois, the burden is upon 
 the plaintiff to prove not only the negligence of the defendant, 
 but also due care on his own part. 
 
 § 8. Negligence of common carriers.— In an action against 
 a common carrier for loss of goods, or damage to them, the 
 burden, after the plaintiff has proved the loss or damage, is 
 upon the defendant to show that it resulted from some cause 
 for which the carrier is not liable. Even when the loss or dam- 
 age falls within an excepted risk, the burden, according to the 
 better view, is upon the carrier to prove want of negligence on 
 its part. This rule prevails in Illinois. Many courts, how- 
 ever, in such eases, put the burden upon the plaintiff to prove 
 negligence on the part of the defendant. 
 
 In an action against a railway company, for damage caused 
 by fire communicated from its engine, the burden, after the 
 plaintiff has proved that the fire was communicated from the 
 engine, is upon the company to show that the engine was 
 properly constructed and managed. 
 
 In an action against a common carrier for personal injuries, 
 the rule, as stated in the last preceding section, is applicable, 
 except where the plaintiff, at the time his injuries were re- 
 ceived, was a passenger of defendant. In the latter case, ow- 
 
Ig PEELIMINART TOPICS. 
 
 ing to the peculiar relation of the parties, and the contract 
 to carry safely, the plaintiff makes out a prima facie case by 
 showing that he was injured while a passenger of defendant, 
 by reason of some defect or failure in the vehicle, or by reason 
 of some mismanagement. The specific defect or mismanage- 
 ment, which caused his injuries, he is not required to show. 
 The burden of explanation is upon the defendant. In the ab- 
 sence of such contract to carry safely, however, the burden is 
 upon the plaintiff to trace the cause of his injury directly to 
 the fault of the carrier. 
 
 In an action against a telegraph company, for failure to 
 transmit a message as received, the burden, after the plaintiff 
 has made a prima facie ease by showing the failure and dam- 
 age, is upon the company to prove want of negligence on its 
 part. 
 
 § 9. Negligence of bailees.— An ordinary bailee for hire is 
 not an insurer against loss. He is required to exercise only 
 ordinary care. In an action against him, by the bailor, for 
 loss of the property bailed, the burden, after the loss has been 
 explained, as by fire, theft, etc., is upon the bailor to prove 
 negligence on the part of the bailee. If, however, there is a 
 total default on the part of the bailee, in failing to account 
 for the loss, the burden is upon him to explain the non-deliv- 
 ery of the property. In an action against a bailee for injuries 
 to property returned in a damaged condition the burden is 
 upon the bailee to prove that he exercised due care. 
 
 §10. Negligence of innkeepers.— At common law, "keepers 
 of public inns are bound well and safely to keep the property 
 of their guests accompanying them at the inn."^ In an action 
 by a guest against an innkeeper for loss of his property from 
 the inn, the burden, after the plaintiff has proved his loss, is 
 upon the innkeeper to prove, not merely that the loss was not 
 caused by his negligence, or that of his servants, but also, that 
 it was due to the negligence of the guest himself, or to some 
 other cause which relieves the innkeeper from liability. This 
 rule, however, is applicable only to the case of guests at the 
 inn, and does not apply to the case of permanent boarders at 
 
 2— Johnson v. Richardson, 17 111., 302; 63 Am. Dee. 369, 371. 
 
BUEDEN OF PROOF. 19 
 
 the imi. In some states, statutes have been passed which 
 make the liability of innkeepers considerably less rigorous. 
 
 §11. Quo warranto proceedings.— In quo warranto pro- 
 ceedings, the burden is always upon the defendant to show a 
 good title to the office he holds. If he fails to do so the peo- 
 ple are entitled to a judgment of ouster. 
 
 § 12. Statute of limitations.— When the statute of limita- 
 tions is interposed as a defense to an action, the burden, ac- 
 cording to many of the earlier cases, is, upon the plaintiff to 
 prove that his action was conuneneed within the statutory 
 period. Some of the modern decisions, including those of 
 Massachusetts,* sustain this view. According to the better 
 view, however, and which is sustained by the courts of Illi- 
 nois, this plea is an affirmative defense, and the burden is 
 upon the defendant to prove it.* 
 
 § 13. Fraud. — Ordinarily, when fraud is alleged in an ac- 
 tion, the burden of proof is upon the party who alleges it; 
 but, when a cestui que trust alleges fraud against his trustee, 
 the burden is upon the trustee to prove that no undue ad- 
 vantage was taken by him of the fiduciary relation. 
 
 § 14. Exception to a statute.— When one of. the parties to 
 an action claims the benefit of an exception to a statute, such 
 as infancy, coverture, etc., the burden is upon him to prove 
 tl^^t his case falls within the exception. 
 
 § 15. Promissory notes. — When the defendant pleads want 
 of consideration to an action on a promissory note the burden 
 of proof in its true sense is upon the plaintiff. This is 
 owing to the. fact that a valuable consideration for the de- 
 fendant's promise is an essential element of the plaintiff's case. 
 The fact that a presumption exists that a valuable considera- 
 tion was paid for the promise does not change the rule, since 
 presumptions never change the burden of proof in its true 
 sense. They merely take the place of evidence. 
 
 There are Illinois decisions, however, which put the burden 
 of proof in this class of cases upon the defendant. But unless 
 
 3— Slocum T. Rllej, 145 Mass., 4— See note, 81 Am. Dec, 725. 
 370. 
 
20 PEELIMINAET TOPICS. 
 
 the term "burden of proof" in these decisions is used in its 
 secondary sense of going forward with evidence, and not in 
 its primary and true sense of establishing one's case, they are 
 erroneous. 
 
 On the other hand, when the defendant pleads payment, or 
 fraud, or any other affirmative defense, thereby admitting the 
 validity of the note and seeking to avoid it by establishing 
 an independent defense. The burden of proof in its true sense 
 rests upon him. 
 
 § 16. Statutes. — ^Both in England and in this country stat- 
 utes exist which, in some cases, modify the general rules re- 
 lating to burden of proof. Some of these statutes are appli- 
 cable to civil cases and some to criminal cases. In some cases 
 their constitutionality has been questioned, but it is well set- 
 tled that the legislature has authority to prescribe reasonable 
 rules of evidence both in civil and in criminal cases. 
 
 § 17. The right to open and close.— As a general rule, the 
 right to begin the introduction of evidence, and to open and 
 close the argument, belongs to the plaintiff. This is owing 
 to the fact that upon him usually rests the burden of proof. 
 If, however, the defendant admits the plaintiff's allegations, 
 which constitute his cause of action, and sets up affirmative 
 matter of defense in avoidance thereof, and the damages 
 claimed by the plaintiff are liquidated, the defendant is en- 
 titled to open and close. In all actions, whether ex delicto or 
 ex contractu, if the damages claimed are unliquidated, and 
 the amount not admitted, the right to open and close belongs 
 to the plaintiff. Admissions by the defendant do not give 
 him the right to open and close, unless they are so complete 
 as to establish of themselves the plaintiff's cause of action. 
 Whether an erroneous ruling by the trial court, upon the 
 question of this right, is a ground for reversal by a higher 
 court, is not well settled. In most jurisdictions, the courts 
 hold that such an erroneous ruling by the trial court so far 
 affects the merits of the case as to justify a reversal by a 
 higher court. In other jurisdictions, including Illinois, the 
 courts refuse to recognize it as a ground for a reversal by 
 a higher court, but recognize it as a proper ground for the 
 granting of a new trial by the trial court. 
 
CHAPTER V. 
 
 ADMISSIONS. 
 
 § 1. Definition. — ^Admissions are voluntary acknowledg- 
 ments of the existence or truth of certain facts, made by & 
 party either orally, in writiag, or by conduct. 
 
 § 2 Classification.— Admissions are divided into two classes : 
 (1) Express Admissions; (2) Implied Admissions. The former 
 are also called Direct Admissions, and the latter Indirect 
 Admissions. Express admissions are created by words. Im- 
 plied admissions are inferred from conduct. Admissions of 
 criminal conduct are called Confessions. These are discussed 
 in the next chapter. 
 
 §3. By whom binding admissions can be made.— Admis- 
 sions are binding when made by: (1) The real party in in- 
 terest, and who is also a party to the record; (2) One who has 
 a substantial interest in the suit, though not a party to the 
 record; (3) One who is a nominal party to the record, acting 
 in the representative capacity of trustee for the real party in 
 interest; (4) One who is identified in interest, either in blood, 
 in estate, in contract, or in law, with a party to the record. 
 
 §4. Admissions of an agent.— The admissions of an agent, 
 when made within the real or apparent scope of his employ- 
 ment, are binding upon his principal. The relation of prin- 
 cipal and agent, however, must first be established by extrinsic 
 evidence. 
 
 § 5. Admissions of a partner.— The admissions of a partner, 
 when made within the real or apparent scope of the partner- 
 ship relation, are binding upon his copartners. The partner- 
 ship relation, however, as in the case of agency, must first be 
 established by extrinsic evidence. According to the early 
 English rule, the admissions of a partner, made after the 
 decease of his copartner, as to past transactions, were binding 
 upon the representatives of the deceased copartner. The mod^ 
 
 21 
 
22 PEELIMINABT TOPICS. 
 
 em rule, however, according to the better view, is to the con- 
 trary. The admissions of a partner, since deceased, are 
 binding upon his surviving partners; and the admissions of a 
 dormant partner are binding upon his copartners. 
 
 §6. Admissions of a prior owner of real estate.— The ad- 
 missions of a prior owner of real estate, made while vested 
 with the title, are binding upon his grantee. This is owing 
 to the identity of interest between the parties to the subject- 
 matter concerning which the admissions are made. Such ad- 
 missions are not admissible, however, according to the bet- 
 ter view, to vary the tenor of a deed, or to destroy the rec- 
 ord title. The adndssions of a prior owner of land, made 
 after he parts with the title, or before he obtains it, are not 
 binding upon his grantee. Those made after he parts with 
 the title are, however, binding upon his heirs who claim 
 adversely to the grantee. They are also binding upon the 
 grantee if made in his presence and not denied by him. If 
 the grantor, by permission of the grantee, remains in posses- 
 sion of the land after parting with the title, his admissions, 
 as to the nature and hona fides of the transaction, are binding 
 upon the grantee. 
 
 §7. Admissions of a prior owner of personal property.— 
 
 The admissions of a prior owner of personal chattels, or choses 
 in action, are, as a general rule, binding upon his vendee or 
 assignee. This rule is not applicable, however, to negotiable 
 instruments in the hands of iona fide purchasers. In a few 
 jurisdictions, including New York, the rule, in other cases, 
 is very much restricted. In these few jurisdictions the courts 
 hold that a purchaser of a chattel, or a chose in action, for a 
 valuable consideration, has rights independent of the vendor, 
 and beyond his control, and therefore his admissions are not 
 binding upon his vendee; but, if the transfer of title results 
 by operation of law, as in the ease of death, bankruptcy, etc., 
 admissions of the prior owner, while holding the title, are 
 binding upon his vendee. In most jurisdictions, however, in- 
 eluding Illinois, no such distinction is made, and in both 
 classes of cases the general rule is applicable. 
 
 §8. Admissions of a joint owner, of a tenant in common, 
 and of a landlord.— The admissions of a joint owner are bind- 
 
ADMISSIONS. 23 
 
 / 
 
 ing upon the other joint owners. The joint ownership, how- 
 ever, must be real and not merely apparent. A mere com- 
 munity of interest is not sufficient. Thus, the admissions of 
 a tenant in common are not binding upon the other tenants 
 in common. The admissions of a landlord, made within the 
 scope of the relation, are binding upon his tenant. 
 
 §9. Admissions of aji executor or administrator, of a de- 
 visee or legatee, ajid of an heir.— The admissions of an execu- 
 tor, or administrator, are not binding upon his co-executor, 
 or co-administrator, respectively; nor are they binding upon 
 the heirs, devisees, or legatees. Nor are the admissions of a 
 devisee, or legatee, binding upon his co-devisees, or co-legatees, 
 respectively; nor those of an heir upon his co-heirs. 
 
 § 10. Admissions of an ancestor, of a testator, of an intes- 
 tate, and of a tenant for life.— The admissions of an ancestor 
 are binding upon his heirs; those of a testator upon his ex- 
 ecutor, or his administrator with the will annexed, and also 
 upon his devisees and legatees; and those of an intestate upon 
 his administrator. The admissions of a tenant for life, how- 
 ever, are not binding upon a subsequent tenant for life, nor 
 upon the remainder man. This is owing to the fact of want 
 of privity between them. 
 
 § 11. Admissions of a trustee, and of a cestui que trust.— 
 
 The admissions of a trustee are not binding upon his co- 
 trustees; nor, as a general rule, are they binding upon his 
 cestui que trust. If, however, the trustee is a nominal party 
 to the record, or has express or implied authority in other 
 cases to make admissions, they are binding upon the cestui que 
 trust. The mere fact of the relation, however, does not make 
 them binding. But the admissions of a cestui que trust, owing 
 to the fact that he is the real party in interest, are binding 
 upon his trustee. 
 
 § 12. Admissions of a principal debtor, of a joint obligor, 
 and of a joint tort feasor.— The admissions of a principal 
 debtor are binding upon his surety, provided they are made 
 while the relation of principal and surety exists. If, however, 
 they are made after the relation is terminated they are not 
 binding upon the surety. The admissions of a joint obligor 
 of a bond or note are binding upon his co-obligors; but the ad- 
 
24 PRELIMINARY TOPICS. 
 
 missions of a joint obligor, made after the decease of a co- 
 obligor, as to past events, are not binding upon the repre- 
 sentatives of the deceased co-obligor; nor are the admissions 
 of one surety binding upon his co-surety, nor those of one 
 indorser of a note or bond, binding upon the other indorsers. 
 The admissions of a joint tort-feasor are not, as such, binding 
 upon the other joint tort-feasors. They may, however, be 
 admissible as declarations relating to, or forming a part of, 
 the res gestae, and, upon this ground, be binding. It is upon 
 this ground that the admissions of one conspirator are binding 
 upon his co-conspirators. In such cases, the fact of the con- 
 spiracy must first be established by extrinsic evidence before 
 the admissions are admissible against the co-conspirators. 
 
 § 13. Admissioos of a husband, and of a wife.— The admis- 
 sions of a husband, or of a wife, are not, based upon the 
 marital relation, binding upon the other spouse. They may, 
 however, in either case, be binding upon the other, provided 
 the one who makes them is acting as the agent of the other, 
 and they are made within the scope of this relation. 
 
 § 14. Admissions of an attorney-at-law.— The admissions of 
 an attorney are binding upon his client, on the ground of 
 agency. To obviate the necessity of proof in a ease, he may 
 admit the truth of certain alleged facts. Thus he may admit 
 the execution of a certain instrument, or the amount due on 
 a debt. He may also, on the ground of agency, waive infor- 
 malities, consent to a non-suit, or discontinue an action. .In 
 England, he has implied authority to compromise his client's 
 claim; but, in this country, the weight of authority is to the 
 contrary. The admissions of an attorney at one trial are not, 
 as a general rule, binding upon his client at a subsequent trial. 
 If, however, they are absolute and unqualified, some courts 
 hold that they are. The safer plan is to restrict them to the 
 former trial. Admissions contained in the pleadings are ad- 
 missible in a subsequent suit, and binding, although the par- 
 ties to the two suits are different, provided the admissions are 
 relevant to the case. Admissions in an affidavit, or deposi- 
 tion, are binding in a subsequent suit, and are entitled to much 
 weight; but they are not conclusively binding. Casual and 
 informal admissions, made by an attorney o^it of court, are 
 not binding upon his client. 
 
ADMISSIONS. 25 
 
 § 15. A demurrer and a plea as admissions.— A demurrer 
 is an admission of the truth of all the facts well pleaded for 
 the sole purpose of having their legal sufficiency determined 
 by the court. A demurrer to evidence is an admission of the 
 truth of all the facts which a jury might reasonably infer 
 from the evidence in the case. A plea to a bill, or to a part 
 of it, admits the truth of all the material facts well pleaded 
 in the bill, or in the part of the bill it opposes, so far as they 
 are not denied by the plea. The admission is conclusive, pro- 
 vided the plea is allowed, or issue is taken on it by the com- 
 plainant, as he thereby admits its legal sufficiency; but if the 
 plea is overruled, the admission is not binding. 
 
 § 16. Basis and effect of admissions.— Admissions may be 
 based either upon personal knowledge, or hearsay information. 
 The source of the information is immaterial. The ground of 
 their admissibility is the adverse interest of the person who 
 makes them. Admissions, unlike estoppels, are not conclusive. 
 Extrinsic evidence i.", always admissible to contradict them. 
 The doctrine of estoppel is said to be "the doetrrae of admis- 
 sions hardened." The so-called parol evidence rule is not 
 applicable to admissions. Hence an oral admission is receiv- 
 able in evidence when the facts in issue are the contents of a 
 written instrument, or matters of < record. Oral admissions, 
 as a general rule, are received with caution, carefully scru- 
 tinized, and considered weak evidence. If, however, they are 
 deliberately made and clearly proved they may be entitled to 
 much weight. 
 
 §17. Admissions excluded.— There are two classes of ad- 
 missions that are not binding: (1) Those made under duress; 
 (2) Those made to effect a compromise. Some courts hold 
 that an offer of compromise is binding unless it is expressly 
 stated to be made without prejudice; but, by the weight of 
 authority, both in England and in this country, an offer, which 
 is plainly one of compromise, is presumed to have been made 
 without prejudice. Admissions of independent facts, made 
 during negotiations to effect a compromise, are binding, un- 
 less made for the purpose of the compromise, and it is fairly 
 to be implied that they are not to be used to the prejudice 
 of the party who makes them. 
 
CHAPTER VI. 
 
 LAW AND FACT. 
 
 § 1. The general rule.— Questions which arise in actions at 
 law are questions of law, questions of fact, and mixed ques- 
 tions of law and fact. As a general rule, questions of law 
 are decided by the court, and questions of fact by the jury. 
 Mixed questions of law and fact, under proper instructions of 
 the court, are decided by the jury. 
 
 §2. Questions of law in civil cases.— In civil cases, the rule 
 is universal, both in England and in this country, that ques- 
 tions of law are decided by the court. 
 
 § 3. Questions of law in criminal cases.— In criminal cases, 
 questions of law, according to the rule which obtains in the 
 English and in the federal courts, and in the great majority 
 of the state courts, are also decided by the court. In a few 
 states, however, including Indiana, Maryland and Louisiana, 
 owing to constitutional provisions, and Illinois and Connecti- 
 cut, owing to statutory provisions, questions of law, as well 
 as of fact, are decided by the jury. 
 
 § 4. Matters which constitute questions of law.— The term 
 "questions of law," as used in this chaptet, means questions 
 which are decided by the court, as contradistinguished from 
 questions which are decided by the jury. In reality, how- 
 ever, the term, in its broad sense, includes certain questions of 
 fact. Thus, the admissibility of testimony offered in evidence, 
 and the competency of persons to act as witnesses, are prelim- 
 inary questions of fact for the court to decide. 
 
 While it would be quite impracticable, in a work of this 
 kind, to attempt to enumerate all matters which constitute 
 questions of ' law, to mention some of the principal ones 
 will doubtless be found of service. Under this head are in- 
 cluded the following : The positive law, which includes the ' 
 constitution, the statutes, the law of nations, the law mer- 
 chant, and the common law; the construction, interpretation, 
 
 26 
 
LAW AND PACT. 27 
 
 and legal effect of judicial records and other legal documents 
 and writings; the construction, interpretation, and legal effect 
 of oral agreements when the facts are undisputed; the ma- 
 teriality of facts, as affecting rights and liabilities; the mean- 
 ing^ of words, when used in their ordinary sense; the suffi- 
 ciency of the evidence to justify allowing the jury to render a 
 verdict upon it, or, to justify allowing a verdict which has been 
 rendered to stand; the essential acts which constitute the due 
 execution of a valid will; the existence or nonexistence of want 
 of probable cause in an action for malicious prosecution; what 
 constitutes negligence; whether certain undisputed acts consti- 
 tute negligence; whether certain articles could, under any cir- 
 cumstances, constitute "necessaries"; whether a certain offer 
 amounts to an offer of compromise or not; whether a writing 
 is a sealed instrument or not; the materiality of the defendant's 
 evidence, for the giving of which he is on trial for perjury ; ■ 
 the jurisdiction of the court; the construction and effect of 
 pleadings; the rules which govern in ascertaining the amount 
 of damages in an action for negligence; the reasonableness of 
 a certain rule, act, or condition, when the facts relating to 
 it are undisputed; all questions which arise in a suit in equity; 
 all questions which arise in an action at law, whether civil or 
 criminal, when a jury is waived. 
 
 § 5. Withdrawal of the case from the jury.— Cases some- 
 times arise in which the court is justified in withdrawing them 
 from the jury. In some of them the court is entitled to exer- 
 cise a discretion in the matter, while in others it is bound to 
 withdraw them. This function is one which should be exer- 
 cised only in very clear cases. It should never be exercised 
 when the evidence, if material, is conflicting; nor, when im- 
 partial minds might honestly and reasonably draw different 
 conclusions therefrom. If the facts are undisputed or admit- 
 ted, whether such facts constitute a legal cause of action, or a 
 legal defence, is a question of law for the court to decide. To 
 justify a withdrawal of the case from the jury, on the request 
 of one of the parties, the evidence of the opposite party must 
 be assumed to be true, and all legitimate inferences therefrom 
 must be in his favor. A mere scintilla of evidence, in support 
 of any theory of the case, is not of itself sufficient to prevent 
 a withdrawal. If at the close of the plaintiff's case, there is 
 
38 PRELIMINARY TOPICS. 
 
 no evidence at all to prove a material fact essential to recov- 
 ery, the court, on the request of the defendant, is bound to 
 instruct the jury to find a verdict for the defendant. If, how- 
 ever, such request is not made until after the defendant has 
 introduced evidence which tends to prove such material fact, 
 the court may refuse to so instruct the jury. Where there is 
 any material evidence tending to prove aU the material requi- 
 sites to a recovery the trial judge is bound to submit the case 
 to the jury without regard to what at the time, he may think 
 he would do on a motion for a new trial. If the verdict rend- 
 ered is wholly unsupported by the evidence, the higher court, 
 on appeal, will reverse the judgment below, and render judg- 
 ment in accordance with the evidence. The question of with- 
 drawing the case from the jury may be raised by a motion for 
 a nonsuit, by a demurrer to the evidence, or by a request for 
 an instruction to find a verdict for a particular party. 
 
 § 6. Matters which constitute questions of fact.— Matters 
 of fact, as previously stated, are questions for the jury to de- 
 cide. Their number is legion, and mention is made in this sec- 
 tion of only a few. In all cases where the evidence is con- 
 flicting, a question of fact is raised for the jury; and even 
 when the evidence is not confl:icting, if impartial minds 
 might honestly and reasonably draw different conclusions 
 therefrom, a question of fact is presented for the jury. In- 
 ferences drawn from other facts are peculiarly within the pro- 
 vince of the jury. The credibility of witnesses; the sufficiency 
 of corroborating evidence, where such evidence is required; the 
 weight of evidence ; the existence, nature, or condition of a per- 
 son or thing; the terms of an oral contract, where the evi- 
 dence is conflicting; the age, mental or physical capacity or 
 condition, of a person; whether a person had knowledge, or 
 notice, of a certain thing; a person's motive, intent, or belief; 
 whether he entertained malice; the relations existing between 
 persons; whether certain liquor is intoxicating or not; whether 
 certain stains are bloodstains, and whether they were made 
 by human blood or not; whether certain animals were dis- 
 eased; are all questions of fact for the jury to decide. 
 
 §7. Matters which constitute mixed questions of law and 
 
 fact.— Mixed questions of law and fact always involve ques- 
 
LAW AND FACT. 29 
 
 tions of fact for the jury to decide, under proper instructions 
 by the court. A question which is purely one of fact requires 
 no instructions by the court. The distinction between these 
 two classes of questions is this : In the case of a mixed question 
 of law and fact, the subject matter of the question is within 
 the definition of some rule of law; and, for this reason, pos- 
 sesses certain attributes other than those possessed by it natur- 
 ally. In consequence of this fact, the court is called upon to 
 instruct the jury as regards the legal definition of the term. 
 On the other hand, the subject matter of pure questions of fact 
 has its natural meaning, without being governed by rules of 
 law, and therefore no occasion arises for instructions by the 
 court. For the reason stated, the following matters are mixed 
 questions of law and fact: whether a certain instrument is a 
 deadly weapon; whether a certain piece of real estate consti- 
 tutes a homestead ; whether a certain article is baggage ; whether 
 the title to a piece of real estate has been acquired by adverse 
 user; whether certain articles, under certain circumstances, are 
 "necessaries"; whether a husband has abandoned his wife; 
 whether a certain article is a fixture; whether an offer to 
 dedicate land to a city has been accepted; whether an in- 
 surance company has waived a breach of condition in a 
 certain policy; whether a principal has ratified his agent's 
 unauthorized act; whether delivery has been made of cer- 
 tain articles of freight; whether, in the use of its private 
 way by the public, a railway company has acquiesced; whether 
 the plaintiff, in crossing defendant's tracks, exercised the de- 
 gree of care imposed upon him by law; whether, in an action 
 against a common carrier, a rule or regulation of the defendant 
 company is a reasonable one; whether a certain punishment 
 inflicted by a teacher upon his pupil was reasonable; whether 
 a certain act, performed on Sunday, was one of necessity or 
 charity; whether a rawhide is a proper instrument for the 
 punishment of school children; whether a homicide was com- 
 mitted in self-defense; whether a debtor disaffirmed within a 
 reasonable time an account rendered; whether the delay by a 
 common carrier in the delivery of goods was reasonable or un- 
 reasonable; whether, in an action against a fire insurance com- 
 pany to recover the amount of loss by fire, due diligence was 
 exercised in notifying the company of the loss, where a provi- 
 
30 PRELIMINAEY TOPICS. 
 
 sion of the policy required the assured to give immediate no- 
 tice of any loss; what constitutes a reasonable time and oppor- 
 tunity for a passenger on a train to call for his baggage and 
 remove it; the seasonableness of the demand and notice to 
 charge an indorser, in an action on a promissory note ; whether, 
 in an action against a common carrier for the value of lost 
 baggage, certain tools of the plaintiff constitute proper baggage 
 for a watchmaker or jeweler. 
 
CHAPTER VII. 
 
 DEMURRERS TO EVIDENCE. 
 
 § 1. Definitions.— A Demurrer to Evidence is a declaration 
 by one of the parties to an action or suit, usually by the de- 
 fendant, that he refuses to proceed because the evidence offered 
 by the opposite party is insufficient to maintain the issue. The 
 party who makes the declaration is called the Demurrant. The 
 party against whose evidence it is made is called the Demurree. 
 
 § 2. Their origin and use.— Demurrers to evidence are of an- 
 cient origin. They have been recognized in England from the 
 earliest times, but have been practically obsolete in that coun- 
 try since near the close of the eighteenth century. In this 
 country they have always been recognized, but their use has 
 been very rare. In some states they are not allowed at all. 
 In the Western and Southern states they are still used to some 
 extent, but outside of these States they are practically un- 
 known. Their rarity is owing to the fact that the purpose they 
 serve can be adequately accomplished by other methods which 
 are not so cumbersome, dilatory, expensive and hazardous. 
 
 § 3. Their purpose and effect.- The purpose of a demurrer 
 to evidence is to withdraw from the jury the facts, and have 
 the court determine their legal sufficiency. Its effect, in addi- 
 tion to this, provided there is joinder by the opposite party, 
 is an admission, on the part of the demurrant, of all the facts 
 which the evidence tends to prove, and all inferences which the 
 jury might logically and reasonably have drawn from such 
 facts. Forced and arbitrary inferences, however, are not ad- 
 mitted. If the evidence demurred to is prima facie insuffi- 
 cient, and the burden of the issue is not upon the demurrant, 
 the demurrer should be sustained and judgment entered in 
 favor of the demurrant. If the burden of the issue is upon the 
 demurrant, the issue cannot be decided, in his favor merely on 
 the demurrer. If there is some evidence on each material point 
 of the issue, the demurrer should be overruled and judgment 
 entered in favor of the demiirree. If the evidence demurred to 
 
 31 
 
32 PRELIMINARY TOPJCS. 
 
 is such, as to warrant the trial court to set aside a verdict Id 
 favor of the demurree, on the ground that it is unsupported by 
 the evidence, the demurrer should be sustained. If the evi- 
 dence demurred to is conflicting, only that which is against the 
 demurrant is considered by the trial court. If the demurrant 
 has put in any evidence, it is deemed waived, but if the demur- 
 rer is overruled, and the demurrant puts in evidence, a higher 
 court, in reviewing the ruling, will consider all the evidence. 
 If the court errs in overruling the demurrer, and the demurree 
 introduces more evidence, and thereby establishes the issue in 
 his favor, the court's erroneous ]-uliiig is cured. Since a de- 
 murrer to evidence has nothing to do with the admissibility of 
 the evidence, all of that demurred to is conclusively deemed 
 to be competent; but demurring to the evidence will not cure 
 erroneous rulings by the trial court as to the admissibility of 
 certain parts of it. When there is a variance between the 
 pleadings and proof, it may be taken advantage of by demur- 
 ring to the evidence. In all cases where a demurrer to the 
 evidence is submitted, and the opposite party joins, the func- 
 tion of the court is to apply the law to the facts. 
 
 In a suit in equity, a demurrer to the evidence has the same 
 effect as in an action at law. In criminal cases, the same holds 
 true, where this method of procedure is allowed; but, in this 
 class of cases, demurrers to evidence are exceedingly rare. Some 
 courts, which permit their use in civil eases, refuse to do so ia 
 criminal cases. Other courts permit their use in criminal cases 
 if both parties consent; while some others hold that with such 
 consent, the matter rests in the discretion of the court. 
 
 According to the common law doctrine, upon a demurrer to 
 the evidence and joinder by the demurree, the trial ends, and 
 the jury are discharged. The demurrer is thereupon entered 
 of record to be subsequently argued and decided by the court 
 in banc, whose judgment thereon is final, subject, of course, 
 to review by a higher court. In modern practice, however, the 
 trial judge passes upon the demurrer, and if it is overruled 
 the case proceeds, and a verdict is rendered by the jury. 
 
 § 4. Joinder in demurrer.— A joinder in demurrer is always 
 essential to obtain a judgment on the demurrer. Formerly, the 
 court would not compel a joinder, but according to the later 
 practice it will if the evidence is definite and clear. If the 
 
DEMUEREES TO EVIDENOB. 33 
 
 evidence demurred to is matter of record, or other matter in 
 writing, the court will compel a joinder. If it is oral, or cir- 
 cumstantial, the court will not compel a joinder, unless the 
 demurrant admits upon the record all the facts and inferences 
 which the evidence demurred to tends to prove. This latter 
 rule also obtains if the evidence is partly oral and partly writ- 
 ten. If, before joinder, the demurrant seeks to withdraw his 
 demurrer, the matter rests in the discretion of the court. 
 
 § 5. Form and substance of the demurrer.— A demurrer to 
 evidence, according to the early rule, and also according to the 
 present rule, at least in most of the states, must be in writing. 
 In some states, including Illinois, the whole evidence is not set 
 forth in the demurrer, but merely the facts deducible from the 
 evidence. In other states, if the evidence is written, it must 
 be set forth in haec verba; and if oral, or circumstantial, not 
 only must the evidence be stated, but also the facts which such 
 evidence conduces to prove. In two states, — ^Virginia and 
 West Virginia, — all the evidence on both sides is inserted in 
 the demurrer.i 
 
 § 6. Proceedings in a higher court.— In taking a case before 
 a higher court for review, the writing, incorporating the formal 
 demurrer and the matters of fact, should be transcribed on the 
 minutes of the court. They thus become part of the record. 
 A demurrer to evidence, according to the general rule, cannot 
 be made a part of the record by a bill of exceptions. In Illi- 
 nois, however, the contrary has been held.^ Upon reviewing 
 the case, and finding ground for reversal, the higher court usu- 
 allj' reverses the judgment below and awards a venire facias de 
 novo. In some cases, however, after reversal it will enter- such 
 judgment as should have been rendered by the court below. 
 The usual grounds for reversal are, improperly refusing to 
 compel a joinder, and improperly sustaining or overruling the 
 demurrer. If the error is harmless, an erroneous refusal to 
 compel a joinder is not ground for a reversal. 
 
 §7. Analogous proceeedings.— Owing to the fact, as prev- 
 iously stated, that more desirable and efficient proceedings are 
 
 1— Old Dominion Cotton Mills, 2— Crowe v. People. 92 111., 236. 
 82 Va., 140; Nuzum v. Pittsburgh, 
 etc., Ry. Co., 30 W. Va., 228. 
 
34 PEELIMINAEY TOPICS. 
 
 .available, demurrers to evidence are comparatively very rare. 
 Among these proceedings are the following: (1) Motion to 
 nonsuit the plaintiff; (2) Motion to instruct the jury that, ad- 
 mitting plaintiff's evidence to be true, he cannot recover; (3) 
 Motion, after plaintiff has rested his ease, to exclude his evidence 
 from the jury; (4) Motion to set aside the verdict on the ground 
 that it is unsupported by evidence; (5) Submitting the case to 
 the jury on an agreed statement of facts. 
 
PART II. 
 
 LEADING PRINCIPLES AND RULES OF 
 EXCLUSION. 
 
 CHAPTER I. 
 
 FACTS EXCLUDED ALTHOUGH LOGICALLY RELEVANT. 
 
 § 1. Relevancy.— Tlie term "relevant," as defined by Steph- 
 en, "means that any two facts to which it is applied are so 
 related to each other that according to the common course of 
 events one either taken by itself or in connection with other 
 facts proves or renders probable the past, present, or future 
 existence or nonexistence of the other. "^ 
 
 Testimony, to be admissible, must be logically relevant. This 
 is the chief basis of its admissibility. Much, however, which is 
 logically relevant, is inadmissible. Some is excluded because 
 too remote, and for this reason immaterial; some because com- 
 paratively unimportant for some other reason; some because 
 too conjectural, and for this reason tends to mislead the jury; 
 and some because it tends to multiply and complicate the issue, 
 and thereby confuse the jury. That which is admissible is said 
 to be legally relevant. Facts in issue are facts which are es- 
 sentially involved in the decision of a cause; and evidence of 
 their existence or nonexistence is legally relevant. Facts not 
 in issue, but which are logically relevant to a fact in issue, and 
 which, if true, conclusively establish the existence or non-exist- 
 ence of such fact, or, of any fact which is legally relevant to 
 such fact, are themselves legally relevant. If, however, such 
 facts merely render more or less probable the existence or non- 
 existence of such fact, their admissibility, as a general rule, 
 rests in the sound discretion of the CQurt. 
 
 § 2. Subsequent acts of precaution.— In an action for dam- 
 ages, for injuries caused by the alleged negligence of a party, 
 subsequent acts of precaution by the defendant in repairing 
 
 1 — Stephen's Dig. Bv., Art. 1. 
 
 35 
 
36 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 the defeetri which caused the injuries, or, in adopting additional 
 safeguards to pre-s-ent the recurrence of injuries, are inadmis- 
 sible. I'hey may constitute indicative evidence, and justify 
 suspicion by pointing a finger, but they are too conjectural to 
 be given to the jury. They are liable to create a prejudice in 
 the minds of the juroi-s against the defendant, are calculated 
 to mislead them by distracting their minds from the real issue, 
 and have no legitimate tendency to prove any negligence on 
 the part of the defendant prior to such injuries. Such acts 
 are also inadmissible on the ground of public policy; for, to 
 admit them in evidence, would be virtually holding out an in- 
 ducement for continued negligence. Whether the defendant 
 was guilty of negligence or not, he would be apt, if a careful 
 man, as a measure of precaution against future injuries, to 
 cure the defect; and the fact that he does so has no legitimate 
 tendency to show that he had knowledge of its existence when 
 the injuries occurred. In the language of Baron Bramwell, 
 "People do not furnish evidence against themselves simply by 
 adopting a new plan in order to prevent the recurrence of an 
 accident. I think a proposition to the contrary would be bar- 
 barous. It would be, as I have often had occasion to tell juries, 
 to hold that, because the world gets wiser as it gets older, there- 
 fore it was foolish before. "^ In England, the rule is well set- 
 tled that such evidence is inadmissible. In this country, the 
 same rule quite generally obtains. In Pennsylvania, however, 
 such evidence is held admissible to show defendant's negli- 
 gence,* and in Kansas to show previous defective condition, 
 but not to show knowledge of such condition on the part of the 
 defendant.* 
 
 § 3. Similar acts of defendant which cause injuries to oth- 
 ers.— As a general rule, similar acts of a party, which cause 
 injuries to third persons, are inadmissible against him. This 
 rule is applicable both to civil and criminal cases. To a cer- 
 tain extent, such acts are logically relevant; but they are too 
 conjectural, and therefore too liable to mislead the jury, to be 
 
 2— Hart v. L. & Y. Ry. Co., 21 4— Harter v. Ry. Co., 55 Kan., 
 
 Law Times, N. S., 261, 263. 250, 257. 
 
 3— McKee v. Bidwell, 74 Pa. St., 
 218, 225. 
 
PACTS EXCLUDED ALTHOUGH LOGICALLY RELEVANT. 37 
 
 legally relevant. Then again, although the acts are similar, 
 the cireumstances surrounding them are different, and for this 
 reason the issues are multiplied and the jury the more liable to 
 be confused. "When, however, an act forms part of a series of 
 similar acts, and the question is, whether such act was inten- 
 tional, negligent or accidental, evidence of such acts is deemed 
 legally relevant. When a party is charged with the commis- 
 sion of a certain crime, the fact that he has committed other 
 crimes of a like nature is, as a general rule, inadmissible. If, 
 however, the question is as to his guilty knowledge, motive, 
 intent, or mental or physical state, at the time the crime 
 charged was committed, evidence of such other crimes is 
 deemed legally -relevant to show such fact. 
 
 §4. Injuries caused to others by the same act.— Where 
 third persons, under similar circumstances, sustain similar in- 
 juries to the plaintiff, from the same negligent act, the fact 
 of such injuries is strong circumstantial cAddence and legally 
 relevant. It is logically relevant because it tends to show that 
 the injury in question resulted from such negligent act. It 
 is legally relevant because the surrounding circumstances are 
 similar, and therefore the evidence is not too conjectural. The 
 particulars of such injuries, however, are inadmissible. This 
 is owing to the fact that such evidence would complicate the 
 issue, and thus tend to confuse the jury. 
 
 § 5. Proof of the value of land by sales of other similar 
 land in the vicinity.— When the question in issue is the value 
 of a particular piece of land, evidence as to what other similar 
 land in the vicinity sold for, near the time at which the value 
 of the land in question is to be determined, should be excluded. 
 Such sales may have depended upon a variety of cireumstances, 
 and the jury would have to know them to determine the weight 
 of such evidence. To put such collateral facts in issue would 
 complicate the ease, and thus tend to confuse the jury. The 
 decisions upon this question, however, are not harmonious. In 
 Illinois, Massachusetts, Wisconsin and New Hampshire, the 
 courts hold that such evidence is admissible. In New Jersey, 
 Pennsylvania, California and Georgia, the courts hold the con- 
 trary. The most appropriate evidence in such eases is the opin- 
 
38 LEADING PRINCIPLES AND BULBS OE EXCLUSION. 
 
 ions of persons competent to judge of such value. In some jur- 
 isdictions, however, such evidence is held inadmissible. 
 
 § 6. Methods and appliances adopted by others as a stand- 
 ard of comparison.— A negligent act consists in a failure to ex- 
 ercise due care. Due care implies the exercise of reasonable 
 diligence. What constitutes reasonable diligence depends upon 
 the circumstances of the particular case. The circumstances 
 of different cases vary. Besides, the usual practice, in cases 
 similar to the one in question, may fall short of reasonable dil- 
 igence in the eye of the law. Hence, as a general rule, the 
 methods and appliances adopted by others, in similar cases, 
 are inadmissible as a rule of conduct to govern the jury. To 
 this general rule, however, there are some exceptions. Cases 
 arise where the interests involved are so extensive and varied, 
 or the business carried on so hazardous, that an essential of due 
 care in conducting such lines of business, is the use of the 
 most approved methods and appliances. "With such methods 
 and appliances, jurors are usually unfamiliar, and therefore) 
 on the grounds of necessity and justice, such evidence, in these 
 special cases, is held admissible. 
 
CHAPTER II. 
 
 CHARACTER. 
 
 § 1. Definitions. — Character, in its exact and strict sense, is 
 the peculiar inherent quality, or aggregate of qualities, impressed 
 by nature, habit or education, by which a person or thing is dis- 
 tinguished from others. General reputation is the character 
 imputed to a person or thing by the public, in the community in 
 which he or it^ lives. In short, character is what a person or 
 thii.g really is; whereas, general reputation is what a person or 
 thing seems or is supposed to be, by the general public. 
 
 §2. Application of terms.— Although the terms character 
 and general reputation have a decided difference of meaning, in 
 the law of evidence they are often used synonymously. By a 
 peculiar rule of evidence, when character is in issue, proof of it, 
 as a general rule, is limited to evidence of general reputation. 
 Direct evidence of the character itself is excluded. The general 
 reputation is a species of circumstantial evidence from which an 
 inference is drawn as to the real character in issue. In a few 
 classes of cases, however, evidence of particular acts, and also of 
 personal opinions, is held legally relevant. 
 
 §3. The general rule.— Notwithstanding the fact that evi- 
 dence of the character of the parties to the litigation may throw 
 a strong light upon the issue, and justify a strong inferende, this 
 class of evidence is usually excluded. The chief reasons for this 
 are: (1) Danger of prejudice on the part of the witness; (2) 
 Danger of the jury giving it undue weight; and (3) Complicat- 
 ing the case by collateral issues which tend to confuse the minds 
 of the jury. To this general rule, however, there are exceptions. 
 
 § 4. The rule in criminal cases.— Evidence, by the prosecu- 
 tion, of the bad character of the accused, in the first instance, is 
 inadmissible. As a favor to the accused, however, to give him 
 every chance to rebut evidence of his guilt, he is permitted to in- 
 
 1 — See Wormsdorf v. Detroit general bad reputation of a Jiorse, 
 Ry. Co., 75 Mich., 472, where the for being unsafe, was in issne. 
 
 39 
 
40 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 troduce evidence of his good character. Originally, this favor 
 was extended only in capital cases ; but later, the privilege was 
 made applicable to all crimes. It is restricted, however, to 
 strictly criminal cases. If the accused exercises this privilege, 
 the prosecution may rebut the evidence of his good character by 
 introducing evidence of his bad character. In all cases, however, 
 the accused must first open the door by introducing evidence of 
 his good character before the prosecution can introduce evidence 
 of his bad character. Failure on the part of the accused to exer- 
 cise his privilege raises no presumption adverse to him, nor are 
 unfavorable comments on it by the prosecution allowable. 
 
 Character- evidence is circumstantial evidence, and its weight 
 depends upon the circumstances of the particular case. As a 
 general rule, it is not considered strong evidence. On the other 
 hand, it is not a mere makeweight to be given consideration only 
 in doubtful cases, but a substantial fact to aid in determining the 
 question in issue. If the evidence of good character is sufficient 
 to turn the scale and raise a reasonable doubt as to the defend- 
 ant 's guilt, it is conclusive in his favor.^ The weight of such 
 evidence does not depend upon the grade of the crime; but, in 
 determining the degree of guilt of the accused, such evidence 
 may be considered ; and some courts, including those of Illinois, 
 permit its consideration in mitigation of punishment. 
 
 2 — "There Is no case in which trial charged with an offense 
 
 the jury may not, in the exercise which is rendered improbable in 
 
 of sound judgment, give a prison- the last degree by a uniform 
 
 er the benefit of a previous good course of life wholly inconsistent 
 
 character Evidence of with any such crime. There are 
 
 good character is not only of value cases where it becomes a man's 
 in doubtful cases, and in prosecu- sole dependence, and yet may 
 tions for minor offenses, but is en- prove sufficient to outweigh evi- 
 titled to be considered when the dence of the most positive char- 
 crime charged is atrocious and acter Good character 
 
 also when the testimony tends may not only raise a doubt of guilt 
 
 very strongly to establish the which would not otherwise exist, 
 
 guilt of the accused. It will some- but it may bring conviction of in- 
 
 times of itself create a doubt nocence. In every criminal trial 
 
 when without it none would exist." it is a fact which the defendant is 
 
 Per Allen, J., in Remsen v. Peo- at liberty to put in evidence; and, 
 
 pie, 43 N. Y., 6. being in, the jury have a right to 
 
 "Good character is an important give*such weight as they think it 
 
 fact with every man, and never entitled to." Per Cooley C. J. In 
 
 more so than when he is put on People v. Garbutt, 17 Mich., 9. 
 
CHABACTEE. 41 
 
 In homicide eases, the character of the deceased, as a general 
 rule, is not in issue, and, in such cases, evidence of his general 
 reputation for having been a dangerous and violent man is ex- 
 cluded; but, when the evidence tends to show that the accused 
 committed the homicide in self-defence, under a reasonable ap- 
 prehension of danger, or, when the nature of the killing is in 
 doubt and the evidence wholly circumstantial, such evidence is 
 held admissible. 
 
 In rape cases, the character of the prosecutrix for chastity is 
 in issue on the question of her consent to the act, and evidence of 
 her general reputation for want of chastity is admissible. 
 ^ In seduction cases, one of the essentials of the crime is the 
 previous chastity of the prosecutrix, and evidence of her general 
 reputation for unehastity is always admissible. 
 
 In criminal prosecutions for assault and battery, evidence of 
 the general reputation of the prosecuting witness, for being a 
 quarrelsome and violent man, is inadmissible, except in those 
 cases where the defendant's plea is self-defense. But evidence of 
 the general reputation of the defendant, for being a peaceable 
 and law-abiding citizen, is always admissible. 
 
 § 5. The rule in civil cases.— In civil cases especially, 
 character-evidence, pertaining to the litigants, is usually ex- 
 cluded. However just the inference may be from this class of 
 evidence, as regards the merits of the case, such inferences are 
 considered to be too vague and unreliable to justify the admission 
 of such evidence. To this general rule, however, there are ex- 
 ceptions. 
 
 When, from the nature of the case, the character of a person 
 is one of the main facts in issue, evidence of such fact is admis- 
 sible. In an action for libel or slander, the injury to the plaint- 
 iff's character is the gist of the action, and evidence of his char- 
 acter is legally relevant. In an action for seduction, or criminal 
 conversation, the chastity of the woman is a main fact in issue, 
 and evidence of her general reputation for unehastity is legally 
 relevant. In an action for breach of promise of marriage, the 
 woman's chastity may be a main fact in issue, in which case evi- 
 dence of her general reputation for unehastity is legally relevant. 
 In an action for malicious prosecution, want of probable cause 
 is a main fact in issue, and evidence of the plaintiff's general 
 
42 LEADINa PRINCIPLES AND RULES OF EXCLUSION. 
 
 reputation is admissible, not only to rebut evidence of this main 
 fact, but also to mitigate the damages. 
 
 §6. Particular acts as evidence of character.— Evidence of 
 
 particular acts, to prove character, is, as a general rule, inadmis- 
 sible. Such evidence would introduce collateral issues, which 
 would prolong and complicate the case, thereby unduly increas- 
 ing the costs, and confusing the minds of the jury. Besides, 
 such evidence is too conjectural, and for this reason liable to 
 mislead the jury. In a few exceptional cases, however, this class 
 of evidence is held admissible. Thus, in an action for rape, want 
 of consent on the part of the woman is a main fact in issue ; and, 
 to rebut evidence of this fact, not only is evidence of her general 
 reputation for unchastity admissible, but also evidence of prev- 
 ious specific acts of immoral intercourse with the defendant. 
 Some courts go farther than this, and admit evidence of her 
 previous acts of immoral intercourse with men other than the de- 
 fendant. Again, in an action for seduction, or criminal conver- 
 sation, the character of the woman for chastity is in issue, and 
 some courts hold that, not only may her general reputation for 
 unchastity be put in evidence, but also previous specific acts of 
 immoral intercourse with other men. 
 
 § 7. General reputation,— As previously stated, the usual 
 method of proving character is by evidence of general reputation. 
 General reputation is a fact and not hearsay. It is an eviden- 
 tiary fact which can be testified to only by witnesses who have 
 personal knowledge of it. Particular reports and rumors, ia 
 regard to it, are not admissible. What certain other persons, or 
 classes of persons, say concerning it is hearsay, and inadmissible. 
 Evidence of general reputation as to the act charged is inadmis- 
 sible. Thus, in a larceny case, the general reputation of the ac- 
 cused that he committed the offense charged is inadmissible. On 
 the other hand, evidence of general reputation to be admissible 
 must have some reference or analogy to the trait involved. Thus, 
 in actions involving personal violence such as felonious homi- 
 cide, rape, robbery, assault and battery, evidence of the good 
 character of the accused should be restricted to his general rep- 
 utation for peace and quietude. In prosecutions for rape, se- 
 duction or criminal conversation, character - evidence of the 
 woman should be restricted to evidence pertaining to her ehas- 
 
CHABACTER. 43 
 
 tity. In perjury cases, the only trait involved is veracity, and 
 character -evidence of the accused should be restricted to his 
 general reputation for telling the truth. In sonie jurisdictions, 
 however, the courts are more liberal and allow evidence of gen- 
 eral bad character. Another restriction on this class of evi- 
 dence is, it is limited to the person's general reputation, in the 
 community in which he resides or has intercourse, within a 
 reasonable time of the act in respect to which it is material. 
 
 §8. Personal opinion of character— As a general rule, the 
 personal opinion which one entertains of the character of an- 
 other is inadmissible. Besides the danger of personal prejudice 
 on the part of the witness, such evidence is altogether too con- 
 jectural to be given to the jury. To this general rule, however, 
 there is an exception, a discussion of which is given in the next 
 succeeding section. In addition to this exception, a few courts 
 hold that, in cases involving personal violence, the disposition 
 of the accused for peace and quietude can be shown as well by 
 the personal opinion of a witness, who had opportunties for 
 forming a just estimate as to this matter, as by general reputa- 
 tion. 
 
 §9. Character of witness for veracity.— Character -evi- 
 dence of a party to the litigation, and character -evidence of a 
 witness for veracity, are so separate and distinct that they should 
 be carefully distinguished. In the former case, character is 
 either a fact in issue or an evidentiary fact to the fact in issue. 
 In the latter case it is neither, but merely a fact which comes 
 into the case in a purely collateral way. It does not pertain 
 to the truth or falsity of the fact in issue, but merely to the 
 weight of the evidence of the particular witness. 
 
 When the veracity of a witness is sought to be impeached, the 
 impeaching witness, after stating the general reputation for 
 veracity of the witness who is sought to be impeached, may be 
 asked his personal opinion. If the opinion is that the veracity 
 of the witness is bad, counter evidence may be given to sustain 
 such witness. The impeaching evidence, by the great weight of 
 authority, must be restricted to the question of veracity ; but, in 
 a few jurisdictions, the rule is more liberal, and evidence is 
 allowed of general bad character. 
 
CHAPTER III. 
 
 CONFESSIONS, 
 
 § 1. Definition.— Confessions are acknowledgments of guilt, 
 made at any time or place, by persons accused of crime. They 
 are limited to tlie criminal acts themselves, and are not appli- 
 cable to acknowledgments of facts which merely tend to estab- 
 lish guilt. The latter are only criminating admissions. 
 
 § 2. Classification.— Confessions are divided into two 
 classes: (1) Judicial Confessions; (2) Extra-judicial Confes- 
 sions. They are also divided into the two classes: (1) Volun- 
 tary Confessions; (2) Involuntary Confessions. 
 
 §3. Judicial confessions.— Judicial confessions are those 
 made in the due course of legal proceedings before the commit- 
 ting magistrate, or in court. Such confessions are sufficient in 
 themselves upon which to found a conviction, even in capital 
 cases. 
 
 § 4. Extra-judicial confessions.— Extra-judicial confessions 
 are those made elsewhere than before the committing magistrate; 
 or in court; and are not sufficient in themselves upon which to 
 found a conviction, but must be corroborated by other evidence 
 of the corpus delicti. 
 
 § 5. Voluntary confessions.— Voluntary confessions are those 
 made spontaneuosly, and not caused by any inducement of fear 
 or favor held out to the accused by a person in authority, and 
 having reference to the criminal charge. The important feature 
 of a confession which renders it admissible is the fact that it 
 was made voluntarily. 
 
 § 6. Involuntary confessions.— Involuntary confessions are 
 those induced by fear of punishment, or hope of reward, held 
 out to the accused by a person in authority, and having refer- 
 ence to the criminal charge ; or, by a threat of mob violence, or 
 the infliction of actual violence by a private person. Such con- 
 fessions are excluded, not because of any wrong done to the 
 
 44 
 
CONFESSIONS. 45 
 
 accused owing to the mode of obtaining them, but because oi 
 their unreliability owing to the inducement. 
 
 § 7. Burden of proof.— "When a confession is offered in evi- 
 dence, the burden, according to the weight of authority, is upon 
 the prosecution to prove that it is a voluntary one. Some courts, 
 however, including those of Massachusetts, put the burden upon 
 the defendant to prove the contrary. Whether it is voluntary 
 or not, is a preliminary question of fact for the court to deter- 
 mine. The weight to be given it is a question of fact for the 
 jury to decide. 
 
 § 8. Nature and requisites of the inducement.— An express 
 promise, of immunity from prosecution, or amelioration of pun- 
 ishment, made by one in authority, renders the confession in- 
 voluntary, and therefore, inadmissible. A mere admonition to 
 tell the truth, and which does not amount to a recommendation 
 to confess guilt, does not. A promise of some collateral benefit, 
 independent of the criminal charge, or an appeal to the spirit- 
 ual hopes or fears of the accused, will not render his confession 
 involuntary; nor the fact that it was induced by artifice or 
 fraud; nor the fact that the accused, at the time he made it, was 
 handcuffed, or imprisoned, or in custody illegally, or not warned 
 by the officer; nor the fact that it was made in response to a 
 question which assumed the prisoner's guilt; nor the fact that 
 the officer who had him in charge was armed; nor the fact that 
 the confession, if extra-judicial, was made under oath. Nor will 
 fear, produced by knowledge of being under suspicion, or by 
 being accused of crime, render the confession involuntary. The 
 inducement must be an external influence, and not arise from 
 within ; but it will be sufficient if only slight. A confession an- 
 tecedent to the threat or promise, or made after the threat or 
 promise has been withdrawn, is not involuntary. An induce- 
 ment to confess one crime will not render a confession of a 
 different crime involuntary. When one confession is made, in- 
 duced by a threat or a promise, subsequent confessions of the 
 same nature, though made to different persons, are presumed to 
 have been induced by the same influence; and the evidence re- 
 quired to rebut this presumption must be clear and convincing. 
 If, however, the threat or promise is made to the accused by one 
 party, and no confession is made by the accused until after- 
 
46 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 wards, and then to a different party, no such presumption arises. 
 A confession inadvertently made under a mistake of fact is in- 
 admissible. 
 
 § 9. A person in authority.— A person in authority is one 
 who has the right, owing to the relation which exists between 
 him and the accused, to make assurances of favor to the person 
 confessing, or to cause, or influence, the threatened injury. Any 
 person officially connected with the prosecution is a person in 
 authority. According to the English rule, the person injured 
 is usually named as prosecutor ; and owing to his official relation 
 to the prosecution he is a person in authority. In this countrj^, 
 many of the state courts regard the injured party as a person 
 in authority; but the federal courts do not. The prosecuting 
 attorney, the magistrate connected with the prosecution, the 
 sheriff or other officer having the custody of the accused, are 
 persons in authority; but a magistrate, or other officer not con- 
 nected with the prosecution, is not a person in authority. The 
 party who offers the inducement may be the agent of one in 
 authority. It is also sufficient, to render the confession involun- 
 tary, if the inducement is reasonably presumed by the accused 
 to have been made by one in authority. The mere relation of 
 master, mistress, or parent, to the accused, does not make the 
 former a person in authority. Some courts hold that a confes- 
 sion induced by threats is involuntary though made by one not 
 in authority. That one induced by threats of mob violence is 
 involuntary, is well settled. 
 
 §10. Confessions made under oath, at a former trial or 
 preliminary proceeding.— Confessions made under oath, at a 
 former trial, or before a grand jury, or at a coroner's inquest, 
 or at any other pi'eliminary examination, are admissible against 
 the accused at a subsequent trial, provided they were freely and 
 willingly made. Some courts hold that, when the examination 
 relates strictly to the crime, a confession made by the accused 
 under oath cannot subsequently be used against him, though 
 freely and willingly made. By the great weight of authority, 
 however, no distinction is made between a confession under 
 oath, made at such an examination, and one made at an exam- 
 ination which does not relate strictly to the crime. If the ac- 
 cused, after asserting his privilege of refusing to testify, is 
 
CONFESSIONS. 47 
 
 compelled by the court to do so, his confession is inadmissible. 
 At common law, to render a confession voluntary, made by the 
 accused at his preliminary examination, it was necessary to 
 warn him that what he said might be used against him on his 
 trial. By the statute of 11 and 12 Vict., ch. 42, a similar warn- 
 ing is necessary. In this country, statutes are in force, in some 
 of the states, to the same effect; but, apart from statutes, the 
 contrary doctrine obtains. 
 
 §11. Criminating statements of facts.— Mere criminating 
 statements of facts, not amounting to confessions of guilt, are 
 not subject to the restrictions that obtain in the case of con- 
 fessions. They are mere admissions, or declarations against in- 
 terest, and the rules which apply to admissions are applicable 
 to them. A few courts, however, hold that proof of their volun- 
 tary character is essential to their admissibility. Implied ad- 
 missions of the accused, based upon his conduct, are subject to 
 the same rules which obtain in the case of criminating state- 
 ments of facts. 
 
 § 12. Confessions made by the accused while he was asleep, 
 or intoxicated. — Confessions made by the accused while 
 intoxicated are not inadmissible on this ground, unless his con- 
 dition was such, at the time they were made, as to render him 
 incapable of understanding what he said. 
 
 § 13. The accused entitled to have the whole of the con- 
 fession introduced.— When the prosecution introduces in evi- 
 dence a confession, the accused is entitled to have the whole of 
 what he said upon the subject introduced. Favorable state- 
 ments by him are admissible as well as those unfavorable. The 
 former, however, when introduced by the accused, are open to 
 contradiction by the prosecution. Whfen a witness hears or re- 
 members only parts of a confession, such parts are admissible; 
 and when he is unable to give the exact words, he may give the 
 substance. If the confession implicates others besides the ac- 
 cused, the names of the others must be given, but the confession, 
 as such, will be binding only upon the accused. "When a con- 
 fession is introduced against the accused, explanatory evidence 
 on his part is always admissible. 
 
 § 14. The confession in writing.— A confession may be 
 
48 LEADING PEINCIPLBS AND RtTLES OF EXCLUSION. 
 
 either oral or written. It may be in the handwriting of 
 another. It is admissible in evidence if written by 
 another and signed by the accused or even acknowledged 
 by him to be true. A confession in writing is within the 
 best evidence rule, and excludes an oral confession, unless a 
 foundation is laid for its introduction by showing that, the 
 written confession is lost or destroyed, or, by otherwise properly 
 accounting for its non-production. This rule is applicable both 
 to written confessions made in pursuance of statutory provi- 
 sions, and those made in the absence of such provisions. 1 
 confession may be given in evidence by any competent witness 
 to whom it was made, or by whom it was overheard. The iden- 
 tity of the accused, as the person who made the confession, may 
 be established by showing that he was recognized by his voice. 
 
 §15. The confession, made by a person other than the 
 accused.— As a general rule, a confession is admissible in evi- 
 dence only against the party who made it. A confession by 
 one defendant is not admissible against his codefendant, though 
 the crime is joint, and all are jointly indicted and tried, unless 
 the crime was committed in pursuance of a conspiracy and the 
 confession was made during the pendency of the unlawful enter- 
 prise, and in furtherance of its objects. A confession by one 
 of the conspirators, made after the termination of the con- 
 spiracy, is admissible only against himself. A confession by a 
 third party, that he alone committed the crime charged against 
 the defendant, is not admissible in favor of the accused. Nor 
 would such a confession be admissible, either as a dying decla- 
 ration, or, as a declaration against interest by a person since 
 deceased, though made by the declarant when in extremis, with 
 all of hope of living gone, and the declarant's death occurred 
 shortly after the confession was made; except that, in the case 
 of the dying declaration, it would be admissible in favor of the 
 accused, provided he was upon trial for the homicide of the 
 declarant. The reason that such a confession is inadmissible as 
 a dying declaration, except in the ease stated, or, as a declara- 
 tion against interest by a person since deceased, is owing to 
 arbitrary limitations upon the admissibility of these two excep- 
 tions to the hearsay rule. These are discussed in chapters VIII. 
 and XIII. of this volume. A dying declaration is inadmissible 
 
CONFESSIONS. 49 
 
 unless the accused is upon trial for the homicide of the declarant. 
 A declaration against interest, by a person since deceased, is 
 inadmissible as such, unless the interest is of a pecuniary or 
 proprietary nature. The restriction in the latter case, which 
 was established by the House of Lords in 1844, is generally 
 conceded to be wrong both upon principle and policy, and wholly 
 in opposition to one's sense of justice. An acknowledgment 
 by an agent, made within the scope of his agency, is binding 
 upon his principal, both in criminal and in civil cases. When 
 several defendants are jointly tried for the same crime, a con- 
 fession by one of them, which implicates one or more of the 
 others, is admissible against the party who made it, though it 
 may result in prejudicing the jury against the others. In such 
 a ease, counsel for the other defendants should make a motion 
 that the court instruct the jury as to its proper application 
 and effect. 
 
 § 16. Weight and sufficiency of confessions.— A.s previously 
 stated, a conviction may be founded solely upon a judicial con- 
 fession, but not upon one which is extra-judicial. In the latter 
 case the confession must be corroborated. As regards the weight 
 to be given confessions, both courts and text-writers are in hope- 
 less conflict.! Much confusion has doubtless been caused by 
 failing to discriminate between the confession as a proved fact, 
 and the testimony given to establish it. Thus it is said that, 
 "an oral confession should be received and examined with cau- 
 tion, owing to the fact that such testimony is hard to be con- 
 
 1 — Foster says, "Hasty confes- missible, is regarded with great 
 
 sfons, made to persons iiaving no distrust." 1 Hagg. Cons., 304. 
 
 authority to examine, are the This same jurist, however, in a 
 
 weakest and most suspicious of all case decided a few months later, 
 
 evidence." Poster, High Treason, says, "I need not observe that con- 
 
 c. III., sec. 8. ' fesslon generally ranks high, or I 
 
 Blackstone says, "Even in cases should say, highest in the scale of 
 
 of felony at the common law, they evidence." 2 Hagg. Cons., 315. 
 
 (confessions) are the weakest and Eyre, C. B., says, a confession, 
 
 most suspicious of all testimony." freely and voluntarily made, 'is 
 
 4 BIk. Com., p. 357. deserving of the highest credit, 
 
 Sir William Scott (Lord Stow- because it is presumed to how 
 
 ell) says, "The court must remem- from the strongest sense of guilt," 
 
 her that confession is a species of 1 Leach, 263, 
 evidence which, though not inad- 
 
50 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 tradicted, and liable to be incorrectly reported and to be untrue, 
 because of the influence of hope or fear exerted upon the pris- 
 oner. "^ An oral confession, however, which has been conclu- 
 sively established, is entitled to as much weight as it would be 
 if it were in writing. The inherent quality of a confession, and 
 the ground of its admission in evidence, are the same, whether 
 the confession is oral or written. Its weight, however, if the 
 confession is oral, will depend very much upon the weight ito 
 be given to the evidence put in to establish it. As a general 
 rule, confessions, whether oral or written, which have been 
 voluntarily and deliberately made, and clearly and satisfac- 
 torily proved, are deserving of the highest credit. 
 
 § 17. Facts discovered as a result of an involuntary confes- 
 sion. — Facts discovered as a result of a confession are admis- 
 sible in evidence though the confession is involuntary. The 
 reason is, the ground for excluding such a confession, viz., its 
 unreliability, owing to the inducement offered, is not applicable 
 to such facts. Not only are such facts admissible in evidence, 
 but also the fact that they were discovered as a result of the 
 confession, thereby showing defendant's knowledge of their 
 existence, from which fact an inference of his guilt may be 
 drawn. Thus, the discovery of stoleii goods, or the disposition 
 made of the body of a murdered person, or any other material 
 fact, is admissible in evidence, though such fact results from 
 an involuntary confession; and also that such fact was discov- 
 ered as a result of the confession. 
 
 2 — Elliott on Evidence, vol. I, 454; State v. Jefferson, 77 ' Mo. 
 § 296; State v. Duffy, 57 Conn. 136; Com. v. Doughty, 139 Pa 
 625; Com. v. Reynolds, 122 Mass. St. 383. 
 
CHAPTER IV. 
 
 HEARSAY EVIDENCE. 
 
 §1, Definition.— Hearsay evidence is evidence whicli de- 
 pends solely for its truth or falsity, in the first instance, upon 
 the statement or conduct of some person other than the wit- 
 ness, and has, in and of itself, no evidentiary forced 
 
 § 2. Application of the term.— The term "hearsay evidence" 
 has a technical meaning. It is not restricted to oral statements. 
 It is also. applicable to written statements, and to conduct.^ It 
 is, however, strictly limited to testimonial assertions. On the 
 other hand, an assertion is not hearsay merely because it is made 
 by a third party. Such an assertion may constitute original 
 evidence, and, as such, be legally relevant. The fact that a 
 statement is under oath is immaterial. Such a statement may be 
 hearsay, or, it may be, of course, original evidence. 
 
 § 3. The general rule, and reasons therefor.— As a general 
 rule, hearsay evidence is inadmissible. The principal reasons for 
 
 1 — Dr. Greenleaf defines hearsay cited, Baron Farke, in his opinion, 
 
 evidence as "that kind of evidence says that, the conduct of the fam- 
 
 which does not derive its value ily or relatives of a testator, in 
 
 solely from the credit to be given taking the same precautions in his 
 
 to the witness himself, but rests absence as if he were a lunatic; 
 
 also, in part, on the veracity and his election, in his absence, to 
 
 competency of some other per- some high and responsible ofBce; 
 
 son." Greenl. on Evid. (16th ed.), the conduct of a physician, who 
 
 vol. 1, § 99. permitted a will to be executed by 
 
 Some other authors give sub- a sick testator; the conduct of a 
 stantially the same definition. It deceased captain, on a question of 
 Is submitted, however, that it Is seaworthiness, who, after examin- 
 altogether too broad. It includes ing every part of a vessel, em- 
 many classes of evidence which barked in it with his family; 
 have no concern at all with the would all be mere instances of 
 rule against hearsay. See Cham- hearsay evidence, — mere acts or 
 berlayne's Best on Evid. (8th ed.), statements not on oath, but im- 
 p. 444. plied in, or vouched by, the actual 
 
 2 — In the celebrated case of conduct of persons by whose acts 
 
 Wright V. Doe d. Tatham, 7 Adol. the litigant parties are not to be 
 
 & Ell., 313, which is so frequently bound. 
 
 51 
 
52 LEADING PRINCIPLES AND BULES OF EXCLUSION. 
 
 the rule are: (1) The original statement was not made under 
 the sanction of an oath; (2) The party against whom it was 
 made had no opportunity to cross-examine the original party 
 who made it; (3) The jury had no opportunity of observing the 
 demeanor of such party while making it. Other reasons are: 
 (4) The original statement may have been imperfectly heard by 
 the witness, or have been misunderstood, or inaccurately remem- 
 bered, by him; (5) As the danger of prosecution for perjury is 
 materially lessened, the witness may intentionally pervert it; 
 and, (6) Such evidence introduces collateral issues which un- 
 necessarily prolong the trial and increase the costs, and also tend 
 to mislead and confuse the jury. 
 
 To this general rule there are important exceptions. Some of 
 these, however, are only apparent; but, in most cases they are 
 real. The dividing line between these two classes is not always 
 clear. In the text-books and reports, much confusion exists on 
 this point.s Thus, several classes of declarations which arc 
 treated by Phillipps, Wharton and Best as real exceptions to 
 the rule against hearsay, are treated by Greenleaf as original 
 evidence. 
 
 The subject of hearsay evidence is an exceedingly important 
 one. Most of it, however, consists of exceptions to the rule 
 against such evidence. 
 
 3 — "This part of the subject pre- to first principles, without heing 
 
 sents an instructive spectacle of aware of the size and complexity 
 
 confusion, resulting from the de- of the task which is thus uncon- 
 
 sire, on the one hand, to hold to seiously entered upon." Thayer's 
 
 the just historical theory of our Prelim. Treat on Evid. (1898), p. 
 
 cases; and, on the other, to resort 523. 
 
CHAPTER V. 
 
 APPARENT EXCEPTIONS TO THE RULE AGAINST HEARSAY. 
 
 § 1. The making of the statement a principal fact in issue.— 
 
 When a principal fact in issue is the making of a statement, 
 and not its truth or falsity, evidence of such statement is 
 original evidence and not hearsay. The gist of the distinction 
 is the use of such statement other than as a testimonial asser- 
 tion. Thus, in an action for slander or libel the principal fact 
 in issue is the making of the statement, and evidence of this 
 fact is original evidence. 
 
 §2. The making of the statement drciunstantial evidence 
 of a fact in issue. — When the making of a statement tends 
 materially to prove a fact in issue, evidence of nuch fact is 
 usually treated as original circumstantial evidence and not 
 hearsay. Thus, in an action for malicious prosecution, a state- 
 ment by a third party to the defendant, which tends materially 
 to prove that the defendant had probable cause for prosecuting 
 the present plaintiff, in the former action, is original circum- 
 stantial evidence and not hearsay. 
 
 §3. General reputation.— A person's character, when ma- 
 terial, is usually established by evidence of his general reputa- 
 tion. Such evidence, in a sense, is circumstantial evidence. 
 The basis of the general reputation is hearsay, but the general 
 reputation itself is a fact, and the evidence of such fact is 
 original evidence and not hearsay. 
 
 § 4. Market values. — What are commonly known as market 
 values are capable of proof. The usual medium of such proof 
 is market reports contained in newspapers and other periodicals 
 which regularly contain records of current commercial transac- 
 tions. The basis of such reports is sales, and oifers to sell, 
 made in open markets regularly attended by buyers and sellers. 
 Such reports are regularly accepted and acted upon as trust- 
 worthy by the commercial world generally. For this reason, 
 and also because of their practical convenience, they are very 
 
 53 
 
54 LEADING PEINCIPLES AND EULBS OP EXCLUSION. 
 
 generally held legally relevant. They constitute statements of 
 third persons, and are based upon hearsay, but, in the technical 
 sense of the term, they themselves are not hearsay, but original 
 evidence. 
 
 § 5. Statements indicating intention, motive, or state of 
 
 mind.— When evidence of the statement of a person is intro- 
 duced solely to show the intention, motive, or state of mind, of 
 such person, at the time such statement was made, the state- 
 ment is regarded as a verbal act, from which such intention, 
 motive, or state of mind may be inferred, in the same way as 
 from the appearance of the person, or from his behavior gen- 
 erally. When, therefore, such intention, motive, or state of 
 mind, is material to the question in issue, evidence of such 
 statement is legally relevant. Some courts, however, including 
 those of Illinois, reject such evidence, unless the statement is 
 contemporaneous with the act done to which it relates.^ The 
 courts of Massachusetts formerly entertained the same view,^' 
 but they now hold the contrary.* Upon principle, the modern 
 Massachusetts view is correct. 
 
 1 — Chic. Ry. Co. v. Chancellor, 2 — Com. v. Felch, 132 Mass., 22. 
 165 111., 438; Siebert v. The Peo- 3— Com. v. Trefethen, 157 Mass., 
 pie. 143 111., 571. 180. 
 
CHAPTER VI. 
 
 REAL EXCEPTIONS TO THE RULE AGAINST HEARSAY. 
 
 § 1. Origin and scope.— Real exceptions to the rule against 
 hearsay constitute a large and important part of the law of 
 evidence. Some of these so-called "exceptions," however, are, 
 in fact, independent rules, whose origin antedates that of the 
 general rule against hearsay, which had its origin in the develop- 
 ment of the modern jury system. Thus, dying declarations, in 
 homicide cases, have always been admissible ; and so have certain 
 classes of documentary evidence, including ancient writings, 
 entries in public registers, shop-book entries, and entries made 
 in the regular course of business by persons since deceased. 
 
 As regards the scope of these exceptions, there exists in the 
 law much confusion. The reason for this is two-fold : (1) Some 
 courts construe the rule against hearsay liberally, and the excep- 
 tions to the rule strictly ;i while other courts do exactly the 
 opposite;^ (2) some courts, as well as some authors, treat cer- 
 tain classes of declarations as original evidence, which some 
 others treat as hearsay. Upon principle, a general rule should 
 be construed liberally, and exceptions to it strictly. The true 
 basis of much of the confusion probably consists in the opposite 
 views which exist as regards what in reality constitutes the rule 
 and what the exception. "A true analysis would probably re- 
 state the law so as to make what we call the hearsay rule the 
 exception, and make our main rule this, namely, that whatso- 
 ever is relevant is admissible."* 
 
 §2. The principal classes of real exceptions to the rule 
 against hearsay.— The principal classes of these exceptions are 
 as follows: (1) Reported testimony, and certain declarations 
 under oath; (2) Dying declarations ; (3) Declarations relating to 
 pedigree; (4) Declarations relating to matters of public or gen- 
 
 1 — Lord Blackburn, in the lead- 2 — Sir George Jessel, in Sugden 
 ing case of Sturla v. Freccia, 5 v. St. Leonards, 1 Prob. DiT. 154. 
 App- Cas. 623, 3 — Thayer's Prelim. Treatise on 
 
 ' Bvid. p. 522, 
 
 55 
 
50 LEADING PRINCIPLES AND EULES OF EXCLUSION. 
 
 eral interest; (5) Public documents; (6) Ancient documents, 
 ancient possession, and other ancient matters; (7) Declarations 
 against interest by persons since deceased; (8) Account-books of 
 the parties to the litigation; (9) Entries and declarations of 
 third parties, made in the regular course of duty or business; 
 (10) Declarations relating to the physical or mental condition 
 of the declarant; (11) Declarations relating to or forming part 
 of, the res gestw. 
 
 These various classes of exceptions are next discussed, in the 
 order given, a chapter being devoted to each class. 
 
CHAPTER VII. 
 
 REPORTED TESTIMONY, AND CERTAIN DECLARATIONS 
 UNDER OATH. 
 
 § 1. Classification.— Declarations under oath, which are 
 legally relevant, are of two classes: (1) Evidence given at a 
 former trial or proceeding; (2) Depositions made in pursuance 
 of statutory provisions for the purpose of a particular trial. 
 
 § 2. Evidence given at a former trial, or proceeding'.— This 
 
 class of evidence forms a real exception to the rule against 
 hearsay. It is well to observe, however, that two, of the three 
 chief reasons for excluding hearsay, are absent. The original 
 statement was made under oath; and, upon that occasion, the 
 adverse party had the opportunity to cross-examine the declarant. 
 This class of declarations is admissible under the following con- 
 ditions: (1) The original declarant must be dead; or, physi- 
 cally or mentally incapable; or, kept away by the adverse 
 party; or, out of the jurisdiction of the court, or his where- 
 abouts unkaown; (2) The questions in issue, in both proceed- 
 ings, must be the same; (3) The parties, in both proceed- 
 ings, must be the same; (4) The party against whom the 
 evidence is offered must have had the right and opportunity, in 
 the former of the two proceedings, to cross-examine the de- 
 clarant. 
 
 § 3. Disabilities of the original declarant.— The death of the 
 original declarant is almost universally held to be a sufficient 
 disability in all cases, both criminal and civil, to render the 
 declaration legally relevant; and the insanity of the original 
 declarant, or his loss of memory by disease or old age, is very 
 generally treated, in this connection, as the equivalent of death. 
 Absence from the jurisdiction is also held, by a majority of the 
 courts, as a sufficient disability, both in criminal and civil cases. 
 A merely temporary absence, however, is not sufficient. It must 
 be for a prolonged or uncertain time. A few courts, which 
 recognize it as a sufficient disability in civil cases, refuse to 
 recognize it as such in criminal cases, owing to their interpreta- 
 tion of the constitutional provision, which requires that the 
 
 57 
 
58 LEADING PEINCIPLES AND RULES OF EXCLUSION. 
 
 accused shall be permitted to meet the witnesses against him 
 face to face.i A few other courts refuse to recognize it in any 
 case.2 Blindness of the declarant is not, as a general rule, a 
 sufficient disability; but, in regard to some classes of evidence, 
 it may be.* Mere loss of memory, as a general rule, is not a 
 sufficient disability. The former testimony, however, may be 
 read by the witness to refresh his memory.* When testimony 
 given at a former trial is offered in evidence, on the ground 
 that the declarant is without the jurisdiction of the court, or 
 cannot be found, preliminary evidence, satisfactory to the court, 
 tending to show due diligence to obtain the personal attendance 
 of the witness, is essential. 
 
 Whether evidence, given at a former trial, by a witness who 
 has since become disqualified by reason of some inherent change 
 in his condition, such as, for example, becoming infamous, is 
 legally relevant, the courts do not agree. According to the 
 better view, however, such evidence is admissible.^ Upon prin- 
 ciple, it would seem that the admissibility of such evidence 
 should depend upon the condition of the witness when it waa 
 given, and that his subsequent conduct should affect only its 
 weight. If the subsequent disqualification results from some 
 statutory enactment, instead of some inherent change in the 
 condition of the witness himself, the former testimony is legally 
 irrelevant.^ If the witness is kept away by the connivance of 
 the adverse party, his evidence given at a former trial is admis- 
 sible. 
 
 §4. The questions in issue the same.— To render evidence 
 given at a former trial admissible, the questions in issue at 
 both trials must be the same. It is sufficient, however, if they 
 are substantially the same. In both trials the evidence must be 
 directed at, and relate to, substantially the same points. It is 
 
 1 — State V. Houser, 26 Mo., 431, 3 — Houston v. Blythe, 60 Tex., 
 
 439; Bergen V. People, 17 111., 426, 509. 
 
 65 Am. Dec. and note; Finn v. 4 — Stone v. Ins. Co., 71 Mich., 
 
 Com., 5 Rand (Va.), 701; Collins 81; Ruch v. Rock Island, 97 U. S., 
 
 V. Com., 12 Bush, (Ky.), 271; Pit- 693. 
 
 man v. State, 92 Ga., 480; People 5 — See note to Le Baron v. 
 
 V. Newman, 5 Hill, 296. Crombie et al., 14 Mass., 233. 
 
 2— Berney v. Mitchell, 34 N. Y., ?— Eaton et al. v. Alger et at., 
 
 341; Crary v. Sprague, 12 Wend., 47 N. Y., 345. 
 45. 
 
EEPOETED TESTIMONY — ^DECLAEATIONS. 59 
 
 not essential, however, that the nature of the actions be the 
 same. Thus, in the one case the action may be replevin, and 
 in the other trover. 
 
 § 5. The parties the same.— It is also a qualification to the 
 admissibility of this class of evidence that the parties to both 
 proceedings be the same. It is not essential, however, that they 
 be literally identical. It is sufficient if the parties to the second 
 trial are identified in interest with the parties to the former one, 
 either as privies in blood, in law, or in estate. Thus, an ancestor 
 and his heir are privies in blood ; a testator and his executor, or 
 an intestate and his administrator, are privies in law; and a 
 grantor and his grantee are privies in estate; and, in each of 
 these cases, the two parties come within the meaning of the 
 term same parties. But a tenant for life and the remainder- 
 man do not, since they are not privies, as the one- does not 
 derive his title from the other. The fact that the plaintiff in 
 the former trial is the defendant in the subsequent one is imma- 
 terial. 
 
 § 6. The right to cross-examine the witness at the former 
 trial.— The right to cross-examine witnesses is a fundamental 
 prerequisite to the validity of all evidence. The chief purposft 
 of the constitutional right given the accused to confront the 
 witnesses against him is to secure the opportunity to cross- 
 examine them. It follows, therefore, that evidence given at a 
 former trial is legally irrelevant if the party against whom it 
 was given was precluded from cross-examining the witness. 
 Mere failure to exercise the right is immaterial; but the right, 
 and the opportunity to exercise it, must both exist. If the right 
 to cross-examine is not exercised, the opportunity to do so must" 
 clearly appear; and, if the right is exercised, that it was on 
 behalf of the party against whom the witness testified, must 
 clearly appear. If, for any reason, the witness, after giving 
 direct evidence, is rendered incapable of being cross-examined, 
 such direct evidence, at the subsequent trial, is legally irrele- 
 vant. 
 
 It may be well to observe, in this connection, that it is the 
 necessity of an adequate and fair opportunity of cross-examina- 
 tion which constitutes the basis of the rules which require that 
 the parties to the two actions, and the questions in issue in 
 each, be substantially the same. 
 
60 LEADING PEINCIPLES AND EULES OF EXCLUSION. 
 
 § 7. Mode of proving former testimoiiy.— Any person, wlio is 
 a competent witness, and who heard the former testimony, may 
 give it in evidence. Notes of such testimony may be used, to 
 refresh the memory of the witness, and, under certain condi- 
 tions, as proof of the testimony itself. Where the purpose of 
 the notes is merely to refresh the present recollection of the 
 witness, it is immaterial by whom, or when, they were made. 
 If, however, their purpose is to prove the former testimony, it 
 must appear that they were made contemporaneously with the 
 giving of such testimony; and it is also essential that they be 
 verified, and adopted by the witness as a record of past recol- 
 lection.'^ Neglect on the part of some courts to properly ob- 
 serve this distinction has resulted in confusion. 
 
 The notes of the court stenographer may be used, of course, 
 to refresh the memory of the witness. In most jurisdictions, 
 based upon statutes or rules of court, they are admissible to 
 prove their contents. The mere notes themselves constitute a 
 hearsay report of the testimony, and, for this reason, are treated 
 in some jurisdictions as legally irrelevant.* On the other hand, 
 they are made in the course of official duty, and, under the prin- 
 ciple of this exception to the rule against hearsay, are, in most 
 jurisdictions, made admissible by statute or rule of court. When 
 such notes are properly authenticated by the stenographer, and 
 adopted as a record of past recollection, they are admissible to 
 prove their contents.^" 
 
 Notes taken by the trial judge are no part of the record, nor 
 is the act of taking them part of his official duty. As a general 
 rule, therefore, they are inadmissible to prove their contents-^^' 
 In some cases, however, where both actions are tried before the 
 same judge, such notes have been held legally relevant, on the 
 ground of necessity. ^^ 
 
 A bill of exceptions, according to the better view, is inad- 
 
 7 — Kankakee Ry. Co. v. Horan, 10 — Jackson v. The State, 81 
 
 131 111., 288; Stern v. People, 102 Wis., 127. 
 
 111., 540. ^ 11— Foster v. Shaw, 7 Serg. & 
 
 8—1 Greenleaf on Evld. (16th Rawle, 156; 1 Greenleaf on Bvid. 
 
 ed.), §§ 439a, 439b. (16th ed.), § 166. 
 
 9— Toohey v. Plummer, 69 Mich., 12— R. v. Gazard, 8 C. & P., 595; 
 
 345. 1 Greenleaf on Evid. (16th ed.), 
 
 § 166. 
 
EEPOETED TESTIMONY — ^DECLAKATIONS. 61 
 
 missible to prove testimony given at a former trial.^^ Some 
 courts, however, hold the contrary .1* 
 
 Formerly it was esential, in proving testimony given at a 
 former trial, that the witness repeat the precise words. Accord- 
 ing to the modern rule, however, the substance of the testimony 
 is sufficient; but the witness must state the substance of the 
 whole of the testimony, and not merely that of part of it. This 
 general rule is applicable to both criminal and civil cases alike. 
 In a few states, including Massachusetts and New York, the 
 substance of the language is essential. 
 
 §8. Extension of the general rule.— In some jurisdictions, 
 there is a tendency to extend the application of the rule which 
 recognizes the admissibility of testimony given at a former trial 
 to certain preliminary proceedings. The character of the ju- 
 dicial tribunal is not of vital importance. Thus, an arbitration 
 is a judicial proceeding, and the rule has been held applicable 
 to such a ease, as well as to a technical action at law. In all 
 cases, however, it is essential that the parties and the issues, in 
 the former proceeding, be the same as those in the subsequent 
 one, and a fair and adequate opportunity be afforded for 
 cross-examination . 
 
 § 9. DepositioiJS.— The taking of depositons, and their use 
 as evidence, are matters which rest largely upon statutory pro- 
 visions. As in the case of evidence given at a former trial, to 
 render them admissble, the parties, and the questions in issue, 
 must be the same, and the right and opportunity of cross-exam- 
 ination must exist. The latter, however, may, of course, be 
 waived. When depositions are to be taken on behalf of one of 
 the parties, the other party is entitled to proper notice, in order 
 that he may exercise his right to cross-examine. If the notice 
 is applicable to two or more depositions, to be taken at different 
 places at the same time, the party receiving the notice may elect 
 which one he will attend; and, if he attend one of them, only 
 that one can be used in evidence against him. If, however, he 
 fails to attend any, he thereby waives his rights at all, and all 
 the depositions are admissible against him. 
 
 13 — Kankakee Ry. Co. v. Horan, 14 — Bank v. Lacy, 1 Monroe 
 
 131 111., 288; Stern v. People, 102 (Ky,). 7; Wilson v. Noonan, 35 
 
 111., 540; 111. C. Ry. Co. v. Ashline, Wis., 343; Coughlin v. Haenssler, 
 
 171 111., 313. 50 Mo., 126. 
 
CHAPTER VIII. 
 
 DYING DECLARATIONS. 
 
 § 1, Definition.— Dying Declarations are statements of ma- 
 terial facts, relating to the cause, and attendant circumstances of 
 the declarant's own homicide, made by him while in extremis, 
 and while under the fixed belief and moral certainty that his 
 death is impending and certain to follow almost immediately. 
 
 § 2. Grounds of admissibility.— For admitting this class of 
 hearsay evidence, two reasons have been assigned; neither of 
 which, however, is wholly satisfactory. One of these is the sol- 
 emnity of the occasion upon which the declaration is made. The 
 other is the public necessity of the case. The importance of the 
 former of these two reasons has been emphasized frequently. 
 The contemplation by the declarant of his impending death is 
 deemed a guarantee of the truth of the declaration equivalent to 
 that of the sanctity of an oath. As stated by Lord Chief Baron 
 Eyre, ' ' they are declarations made in extremity, when the party 
 is at the point of death, and when every motive to falsehood is 
 silenced, and the mind is induced by the most powerful consid- 
 erations to speak the truth. A situation so awful is considered 
 by the law as creating an obligation equal to that which is im- 
 posed by a positive oath in a court of justice, "i This reason, 
 however, is an arbitrary, rather than a logical, one. There are 
 other grounds for excluding hearsay evidence besides the want 
 of the sanctity of an oath. The accused has the right to cross- 
 examiae the witnesses against him, and the jury have the right 
 to observe their demeanor while testifying. Then again, dying 
 declarations are restricted to homicide cases only. The latter of 
 the two reasons stated above, although not strictly logically ap- 
 plied, is. the better one of the two. In homicide cases it frequent- 
 ly happens that there is no eye-witness of the deed other than 
 the murderer and his victim ; and the latter is dead. ' To prevent 
 
 1— Greenleaf on Evid., vol. I., § 156; People v. Corey, 157 N. Y., 
 
 332, 347. 
 
 62 
 
DYING DECIjAEATIONS. 63 
 
 manslayers from escaping justice through lack of evidence, pub- 
 lic necessity demands that their victim's dying declarations be 
 admitted in evidence against them. If, however, there are avail- 
 able eye-witnesses of the deed, this reason for admitting dying 
 declarations ceases to exist; and, to be strictly logical, the dec- 
 larations should be excluded. In practice, however, such is not 
 the rule. 
 
 § 3. Constitutionality of tliis exception to the hearsay rule.— 
 
 On the ground that the accused is not allowed to meet the wit- 
 nesses against him face to face, the constitutionality of this ex- 
 ception to the hearsay rule has not been free from attack. It has 
 been sustained, however, so many times, that it is no longer an 
 open question. In support of its constitutionality three argu- 
 ments have been advanced. One is, that the accused is allowed 
 to meet face to face the witness who gives in evidence the dying 
 declaration, and that the declarant is not the "witness" whom 
 the accused is constitutionally entitled to meet "face to face." 
 Another is, that notwithstanding the fact that Magna Charter 
 substantially provides that witnesses against the accused shall be 
 examined in his presence, at common law dying declarations 
 have always been held admissible ; and, in view of this fact, the 
 constitutional provision, which entitles the accused to meet the 
 witnesses against him face to face, is not to be interpreted so as 
 to repudiate dying declarations. Still another argument is, that 
 since dying declarations are admissible in favor of the accused, 
 as well as against him, to exclude them might operate very much 
 against his interest ; and therefore, to hold them unconstitutional 
 might result in interpreting the constitutional provision so as to 
 deprive him of an important right. 
 
 The first of the three arguments, stated in the last paragraph, 
 is somewhat mythical, to say the least ; and it has frequently been 
 criticised. Napton, J., in his able opinon in State v. Houser, 26 
 Mo., 431 (bot. p. 437), in criticising it, says: "To say that the 
 witness who must meet the accused 'face to face' is he who re- 
 peats what the dying man has said, is a mere evasion. . . . 
 It is the dying man who is speaking through him whose evidence 
 is to have weight and efficacy sufficient, it may be, to take away 
 the prisoner's life.' The living witness is but a conduit pipe — a 
 mere organ through whom this evidence is conveyed to the court 
 
64 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 and jury. ' ' In the same opinion, in support of the second argu- 
 ment, stated above, he says: "But dying declarations, made im- 
 der certain circumstances, were admissible at common law, and 
 that common law was not repudiated by our constitution in the 
 clause referred to, but adopted and cherished. ' ' In support of 
 the third argument, stated above, Thayer, J., in State v. Saun- 
 ders, li Oregon, 300, says: "But the right to offer that character 
 of proof (dying declarations) is not restricted to the side of the 
 prosecutor ; it is equally admissible in favor of the party charged 
 with the death. The objection to it, therefore, might, if sus- 
 tained, operate very injuriously to an accused, and the clause 
 in the bill of rights, if construed as the counsel contended it 
 should be, have the effect to deprive the latter of an important 
 right." Of these three arguments the second is the strongest 
 one, and the one most generally approved.^ 
 
 § 4. EssentiaJs of admissibility.— The admissibility of dying 
 declarations depends upon the existence of the following condi- 
 tions: (1) The declarant must be dead; (2) He must have been 
 competent to make the declarations; (3) He must have actually 
 been in extremis when he made them; (4) He must have been 
 conscious at that time of his impending death; (5) The subject 
 of the inquiry must be his own homicide, and the subject of the 
 declaration must be the cause of his own homicide and its at- 
 tendant circumstances. 
 
 § 5.— Competency of the declanmt.— To be admissible in evi- 
 dence, dying declarations must have been made by persons who 
 would be competent as witnesses, if living. Thus, at common law, 
 atheists, persons who have been convicted of. infamous crimes, 
 and persons mentally incapable, are incompetent witnesses; and 
 therefore, at common law, the dying declarations of such persons 
 are inadmissible. By statute, however, in many jurisdictions, 
 atheists and convicts have been made competent witnesses; and, 
 in those jurisdictions, their dying declarations, when within the 
 other requisites indicated in the next preceding section, are ad- 
 missible. Again, the djdng declarations of very young children 
 iave been excluded on the ground that had they been living they 
 
 2— Hill V. Com., 2 Gratt. (Va.), (Mass.), 434; Jackson v. State, 81 
 •mi; Com. V. Richards, 18 Pick. Wis., 127. 
 
DYING DECLARATIONS. 65 
 
 would have been incompetent witnesses. The same principle is 
 also applicable to the dying declarations of intoxicated persons. 
 If they were so drunk as to be practically unconscious, they 
 would, if living, be incompetent witnesses; and, for this reason, 
 their dying declarations would be inadmissible. If, however, 
 they were conscious, although intoxicated, they would, if living, 
 be competent witnesses; and, therefore, their dying declarations 
 would be admissible. In the latter case, the declarants' intoxi- 
 cation might affect the weight of their declarations, but not the 
 admissibility of them. Still another illustration of the applica- 
 tion of this principle is the case of dying declarations of a hus- 
 band or wife. If the declarant would have been a competent 
 witness, if living, his or her dying declarations are admissible. 
 Thus, in an action against a husband for personal violence to his 
 wife, the wife is a competent witness; therefore, in a prosecu- 
 tion of a husband for the murder of his wife, the wife's dying 
 declarations are admissible. 
 
 §6. Declarant in extremis, and conscious thereof.— Dying 
 
 declarations to be admissible must have been made while the dec- 
 larant was actually in extremis, and also while he was conscious 
 of his impending death. That is, he must actually have been at 
 the point of death, and also have completely abandoned all hope 
 of living. Both of these conditions are essential. A mere fear, 
 on his part, that he will not recover, is insufficient. The slight- 
 est hope of recovery wiU render the declarations inadmissible. 
 Nor is it sufficient that he believed that he would never recover. 
 It is essential that he believed in his almost immediate dissolu- 
 tion. It is not essential, however, that his death occurred almost 
 immediately. He may have lived for days, or even weeks, after 
 making the declarations, and the declarations still be admissible.*' 
 The fact that he lived a considerable length of time, after mak- 
 ing the declarations, may tend to show, however, that they were 
 not made under a sense of impending death. Dying declara- 
 tions, which were made when all hope of recovery was aban- 
 doned, are not rendered inadmissible by a subsequent hope of 
 recovery; and declarations, which were made when some hope 
 
 3 — In Titus V. State, 117 Ala., 16, five months; and in both cases 
 
 the declarant lived several weeks the dying declarations were held 
 
 alter making the declaration; and admissible. 
 in State v. Crane, 120 N. C, 601, 
 
66 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 of recovery was entertained, are rendered admissible by a sub- 
 sequent ratification when all hope of recovery has been aban- 
 doned. Dying declarations are not inadmissible merely because 
 they are contradictory. The fact that they are contradictory 
 may affect their weight, but not their admissibility. 
 
 § 7. Mode of proving' declarant's consciousness of his im- 
 pending death.— The declarant's consciousness of his impend- 
 ing death must be established by affirmative evidence. This evi- 
 dence may be either direct, or circumstantial, or both. As a 
 general rule, it is both. Statements by the declarant, which tend 
 to establish the fact, are admissible, and may in themselves be 
 sufficient ; but they are not necessarily conclusive. On the other 
 hand, statements by the declarant, expressing an opinion that he 
 would recover, may be successfully overthrown by circumstantial 
 evidence, inferred from surrounding circumstances which estab- 
 lish beyond doubt that his real belief was to the contrary. This 
 belief may be inferred from the nature of the declarant's in- 
 juries, or state of illness; or from his conduct or deportment; or, 
 from statements made to him by medical or other attendants, 
 expressing an opinion that his death was inevitable, and that no 
 hope of recovery could be entertained. 
 
 § 8. Nature and scope of dying declarations.— The text- 
 books on evidence of a century ago, including McNally (1802), 
 Swift, the first American treatise (1810), and PhiUipps (1814), 
 stated that dying declarations were generally admissible in both 
 civil and criminal cases. According to the modern rule, however, 
 which is well settled, both in England and in this country, they 
 are admissible (excluding a few statutory exceptions) in homi- 
 cide cases only; and, in these, only when the declarant's own 
 homicide is the subject of inquiry, and the cause of it and the 
 attendant circumstances, the subject of the declaration. 
 
 In abortion cases, the dying declarations of the victim, at 
 common law, are inadmissible. This is owing to the fact that 
 her death is not an ingredient of the offense. By statute, how- 
 ever, in some jurisdictions, her death is made an ingredient of 
 the offense; and, in these jurisdictions, her dying declarations 
 are admissible. In a few states, including New York and Mas- 
 sachusetts, statutes have been passed which expressly provide 
 
DYING DECLARATIONS. 67 
 
 that in prosecutions for abortion, the woman's dying declara- 
 tions are admissible.* 
 
 It sometimes happens that two or more homicides result from 
 the same act ; and the question may then arise, whether the dying 
 declarations of one of the victims are admissible or not, when 
 the accused is on trial for the murder of another of the victims. 
 Upon this point the authorities are in conflict. By the weight of 
 authority they are probably excluded. Some courts, however, 
 both in England and in this country, have sustained the contrary 
 view, which, upon the whole, seems to be the better and more 
 sensible one of the two. 
 
 Dying declarations, to be admissible, must be statements of 
 facts, and not mere expressions of opinon. A few courts, how- 
 ever, when the opinion declaration is in favor of the accused, 
 relax the rule which excludes opinion dying declarations, and 
 hold them admissible.' To do this, however, is illogical. 
 
 Since the identity of the person who committed the homicide, 
 is a material circumstance pertaining to the act, the dying dec- 
 larations of the victim are admissible to prove this fact ; and, for 
 a similar reason, they are admissible to prove the identity of the 
 declarant. 
 
 Vague and indefinite dying declarations are inadmissible. Nor 
 are declarations admissible which are not in themselves complete. 
 Thus, if the defendant was prevented by any cause from adding 
 intended qualifications to his statements, his declarations are in- 
 admissible. If, however, his declarations contain all he intended 
 to say, and are not vague and indefinite, they are admissible, al- 
 though they fall short of being a complete narrative of all that 
 occurred. 
 
 It is not essential to the admissibility of dying declarations, 
 that they show, in themselves, that the declarant had given up all 
 hope of recovery. This fact may be established by extrinsic evi- 
 dence. 
 
 The admissibility of dying declarations is not restricted to 
 cases where the declarations are adverse to the accused. They 
 are equally admissible when in his favor. 
 
 4 — The New York statute was 5 — State v. Ashworth, 50 La. 
 
 passed in 1875, and the Massachu- Ann., 94; Haney v. Com. (Ky., 
 
 setts statute in 1889. See Com. v. 1883), 5 Crim. L. Mag., 47. 
 Homer, 153 Mass., 343. 
 
68 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 It has frequently been contended that, since the ground of 
 admissibility of dying declarations is public necessity, when the 
 necessity ceases to exist, the declarations should be excluded. 
 Thus, it has been contended, that when there are disinterested 
 eye-witnesses of the homicide available, the necessity for intro- 
 ducing the dying declarations disappears, and therefore the dy- 
 ing declarations should be excluded. This contention, however, 
 is not sustained by the courts. 
 
 § 9. Form of djring declarations.— The form in which dying 
 declarations are made is immaterial. They may be made orally, 
 or in writing, or merely by signs. They may be made under oath, 
 or otherwise. They rtiay be spontaneous, or made in response to 
 leading questions. They may be written by the declarant him- 
 self, and subscribed by him; or, stated orally by him, in the 
 hearing of another, who may take them down in writing, and 
 then read them to the declarant, who, in turn, may assent to 
 them by affixing his signature. 
 
 § 10. Mode of proving dying declarations.— The mode of 
 proving dying declarations depends upon the form in which they 
 were made. If made in writing, and the writing was subscribed 
 by the declarant, the writing is the best evidence, and must be 
 produced or a proper foundation laid for the introduction of 
 secondary evidence of its contents. It is immaterial who made 
 the writing, provided it was understood by the declarant and 
 subscribed by him. An oral dying declaration, taken down in 
 writing by another, but not subscribed by the declarant may bo 
 proved by parol evidence. In such a case, the writing itself is 
 inadmissible. It may be used, however, to refresh the memory ot' 
 the witness. The fact that a dying declaration was reduced to 
 writing, and subscribed by the declarant, does not preclude parpl 
 evidence of oral dying declarations which were made upon other 
 occasions. As regards the declarations reduced to writing, how- 
 ever, the writing itself is the best evidence. Oral dying declara- 
 tions may be proved by any competent vidtnesses who heard them. 
 Dying declarations by signs may be made by squeezing the hand 
 of the interrogator, or by nodding the head, etc. ; and such dec- 
 larations may be proved, of course, by parol evidence. In prov- 
 ing dying declarations, it is not essential that the witness be able 
 
DYING DBC3LAEATI0NS. 69 
 
 to give the precise words of the declarant. The substance of the 
 decJaration is sufficient. 
 
 § 11. Right to impeach or corroborate dying declarations.— 
 
 Dying declarations are open to impeachment by any evidence 
 that would have been admissible to impeach the evidence of the 
 declarant, given upon the witness stand, had he been living. 
 Thus, impeaching evidence is admissible, that the declarant's 
 general reputation for truth and veracity was bad; that he was 
 an irreligious person, and did not believe in future punishment 
 or reward ; and, that he had made statements contradictory of hU 
 dying declarations. 
 
 After the accused has introduced evidence to impeach the dy- 
 ing declarations, the state may then introduce evidence to cor- 
 roborate them. 
 
 § 12. Weight of dying declarations.— As a general rule, dying 
 declarations are of less weight than oral evidence given upon the 
 witness stand, under oath. The reasons for this are the follow- 
 ing: (1) The accused is precluded from cross-examining the 
 declarant; (2) The jury are precluded from observing the de- 
 meanor of the declarant; (3) The mental and physical condition 
 of the declarant may have been such as to militate against the 
 accuracy of the declaration; (4) The witness who testifies to the 
 declaration (if oral) may have incorrectly heard, or have inac- 
 curately remembered, the declaration; (5) This witness, for tes- 
 tifying falsely in regard to the dying declarations, is less liable 
 to prosecution for perjury, and for this reason is less likely to 
 tell the truth. The weight to be given dying declarations de- 
 pends largely upon their intrinsic probability, the candor and 
 veracity of the declarant, and the fullness and fairness with 
 which they are taken and reported. In all cases, they should 
 be considered by the jury with the greatest deliberation. The 
 modern tendency is practically universal to restrict them.^ An 
 instruction by the trial court, that dying declarations, given in 
 evidence on the part of the state, are entitled to the same degree 
 of credit as if testified to under oath on examination, is erron- 
 eous.'^ 
 
 6—10 Harvard Law Review, 518. 67; People v. Knapp, 148 N. Y., 
 7— The State v. Mathes, 90 Mo., 631. 
 571; The State v. Vansant, 80 Mo., 
 
70 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 § 13. Preliminary evidence requisite, and mode of introducing 
 
 it.— The admissibility of dying deealarations, is, in the first in- 
 stance, a preliminary question of fact for the court to determine. 
 To admit them, the preliminary evidence should be clear and 
 convincing. Whether such evidence should be given in the pres- 
 ence of the jury or not, is a question upon which the courts do 
 not agree. Some courts hold that it is a matter which rests in 
 the sound discretion of the court. Others hold that such evi- 
 dence should be given, in the first instance, in the absence of 
 the jury; and that, if it is given in the presence of the jury it 
 is error, provided that, the dying declarations are excluded. Of 
 course, if the dying declarations are admitted, the error, in giv- 
 ing the preliminary evidence in the hearing of the jury, would 
 be cured. The better view is, that, in the first instance, the pre- 
 liminary evidence should be given in the absence of the jury. 
 If the dying' declarations are held admissible, the preliminary 
 e-^adence should then be submitted to the jury, to be considered 
 by them in passing upon the credibility and weight to be given 
 the dying declarations. 
 
 § 14. Burden of proof.— When the testimony, offered by a 
 witness upon the stand, is objected to on the ground of his in- 
 competency, the burden of proof is upon the party objecting, 
 to establish the incompetency. Analogous to this general rule, 
 when the admission of dying declarations is objected to, the bur- 
 den of proof is upon the objector. 
 
 § 15. Other dedaxations of deceased persons distinguished.— 
 
 Declarations, made by a party since deceased, may be inadmis- 
 sible as dying declarations, and admissible on some other 
 ground. Thus, declarations, which are inadmissible as dying 
 declarations, may be admissible on the ground that they charac- 
 terize and explain the act done, and were made contemporan- 
 eously with it; in other words, because they form a part of the 
 res gestcB. They may also be admissible, under certain circum- 
 stances, on the ground that they were made in the presence of 
 the accused;* or, on the ground that they were against his pe- 
 
 8 — Declarations of tnird persons, in evidence where the purpose is, 
 
 made in the presence and hearing to introduce his answer to such 
 
 of another person, which tend to declarations, or, to prove a tacit 
 
 affect his interest, may be given admission of them; but this clasB 
 
PTING DECLARATIONS. 71 
 
 cuniary or proprietary interest. Dying declarations, on the 
 other hand, do not have to be part of the res gestce, nor made in 
 the presence of the accused, nor do they have to be against the 
 interest of the declarant. 
 
 of declarations should be received Law Dictionary, vol. 1, p. 705. 
 with great caution. Bouvier's 
 
CHAPTER IX. 
 
 DECLARATIONS RELATING TO PEDIGREE. 
 
 § 1. Definition.— The term "pedigree," as used in the law 
 of evidence, has a comprehensive meaning. It includes not only 
 matters of descent and relationship, vrhich are closely allied, 
 but also the facts of birth, marriage and death, and the times 
 and places of these events, either absolutely or relatively, when 
 material to prove descent or relationship. 
 
 § 2. Grounds of admissibility.— The primary ground of ad- 
 missibility of this class of evidence is, knowledge and interest 
 of the declarant, and little or no temptation, on his part, to 
 state an untruth. As stated by Lord Chancellor Eldon, "Dec- 
 larations in the family, descriptions in wills, descriptions upon 
 monuments, descriptions in bibles and registry books, all are ad- 
 mitted upon the principle that they are the natural effusions of 
 a party who must know the truth, and who speaks upon an 
 occasion when his mind stands in an even position, without 
 any temptation to exceed or fall short of the truth, "i A 
 secondary ground of admissibility is necessity of the ease, to 
 avoid a failure of justice. 
 
 § 3. Requisites of admissibility.— The requisites of admis- 
 sibility of this class of declarations are : (1) The declarant must 
 be dead; (2) The declarant must have been qualified to speak; 
 (3) The declaration must 'have been made ante litem motam; 
 and, according to the English rule, (4) The declaration must re- 
 late to some question of pedigree involved in the issue. 
 
 § 4. Death of the declarant.- Although a disability of the 
 declarant equivalent to death (insanity for example), is, in 
 several of the exceptions to the rule against hearsay, sufficient 
 upon this point to render the declarations admissible, in the 
 case of declarations relating to pedigree, the declarant, accord- 
 ing to the general rule, both in England and in this country, 
 
 1 — ^Whltelock V. Baker, 13 Ves., 514. See also Fulkerson v. Homes, 
 117 U. S., 389. 
 
 72 
 
DECLABATIONS RELATING TO PEDIGREE. 73 
 
 must be dead. A few courts, however, have recognized an 
 equivalent disability as sufficient. Thus, it has been held, that 
 the declarant's absence from the state is sufficient to meet 
 this requirement.^ As regards family reputation, it is not es- 
 sential, as a general rule, that all the members of the imme- 
 diate family be dead, to render the family reputation admis- 
 sible. If, however, the family reputation relates to matters of 
 recent occurrence, and some of the members of the family are 
 available as witnesses, evidence of such family reputation is 
 generally held inadmissible.^ 
 
 § 5. Qualifications of the declarant.— The declarant, accord- 
 ing to the modern rule, must have been related, to the person 
 concerning whom the declaration was made, either by blood or 
 marriage. If by marriage, the English rule requires that the 
 parties were husband and wife. In this country, however, the 
 rule is generally given a more liberal interpretation. The early 
 English rule, as stated by Lord Eldon, was as follows: "The 
 tradition must be from persons having such a connection with 
 the party to whom it relates that it is natural and likely from 
 their domestic habits and connections that they are speaking 
 the truth, and that they could not be mistaken. ' '* This rule, it 
 is submitted, is, upon principle, sound ; but, as heretofore stated, 
 a less liberal one obtains, both in England and in this country, 
 although some of the courts of this country sanction the rule 
 given by Lord Eldon. 
 
 Personal knowledge of the declarant of the facts of the dec- 
 laration is not essential. Declarations based upon hearsay are 
 admissible, provided ajl of the declarants were qualified to 
 speak. 
 
 The relationship of the declarant must be established by evi- 
 dence dehors the declaration. Upon this point, however, suf- 
 ficient evidence to establish a prima facie case is all that is 
 required. 
 
 When the question in issue is the existence of relationship 
 between the members of two alleged branches of a family, it 
 
 2— Campbell v. Wilson, 23 Tex., 4— Whitelock v. Baker, 13 Ves.. 
 252. 514. 
 
 3 — Harland v. Eastman, 107 111., 
 538. 
 
74 LEADING PEINCIPLES AND RULES OF EXCLUSION. 
 
 is not essential, to render declarations pertaining to such re- 
 lationship admissible, that the declarant be shown to have been 
 related to both of the alleged branches of the family. Proof of 
 his relationship to one of them is sufficient. 
 
 § 6. The declaration must have been made ante litem motam. 
 
 —A declaration relating to pedigree, like a declaration relating 
 to a matter of public or general interest, to be admissible in 
 evidence, must have been made ante litem motam. That is, 
 it must have been made before any dispute arose over the mat- 
 ter in litigation. That it was made before the commencement 
 of the suit, is not necessarily sufficient. If, however, it was 
 made with the express purpose of preventing a dispute, it is 
 admissible. The fact that the declarant was not aware of the 
 controversy is immaterial. 
 
 § 7. The necessity for a question of pedigree to be involved 
 
 in the issue.— Upon this question, the decisions are not har- 
 monious. In England, it has always been held, that one of 
 the requisites of admissibility of this class of declarations is, 
 that a question of pedigree be involved in the issue. This has 
 been interpreted to mean "a case in which the controversy be- 
 tween the parties was, whether or not a certain line of gen- 
 ealogy could be established." The English rule has been fol- 
 lowed by the federal courts, and also by the courts of several 
 of the states, including New York, New Jersey, Missouri, Con- 
 necticut and California. In a majority of the state courts, how- 
 ever, a more liberal rule has been followed. According to this 
 rule, it is not essential that the issue involve a question of 
 pedigree. Upon principle, this rule, it is submitted, is the cor- 
 rect one. The test of the admissibility of the declaration should 
 be its trustworthiness when made, and not the nature of the 
 litigation in which it happens to be offered in evidence. As 
 said by Bigelow, C. J., "Some of the authorities Seem to limit 
 the competency of this species of proof to cases where the main 
 subject of inquiry relates to pedigree, and where the incidents 
 of birth, marriage and death, and the times when these events 
 happened, are directly put in issue. But, upon principle, we 
 can see no reason for such a limitation. If this evidence is 
 admissible to prove such facts at all, it is equally so in. all 
 
DECLARATIONS RELATING TO PEDIGREE. 75 
 
 cases whenever they become legitimate subjects of judicial in- 
 quiry and investigation. ' ^^ 
 
 § 8. Declarations pertaining to illegitimacy.— Some courts 
 hold that declarations pertaining to the illegitimacy of a child, 
 by a member of the father 's family, are inadmissible.* Accord- 
 ing to other courts, however, such declarations are admis- 
 sible.'' All courts hold that declarations pertaining to the 
 illegitimacy of a child, by a member of the mother's family, 
 are admissible. ^ 
 
 § 9, Declarations pertaining to age.— A person may testify 
 to his own age. Some courts treat such evidence as original 
 evidence, while others treat it as hearsay based upon family 
 reputation. So, declarations pertaining to the age of a relative, 
 made by a party since deceased, are admissible ia evidence, 
 when a question of pedigree is involved. 
 
 § 10. Declarations by husband and wife.— Declarations of a 
 husband, pertainiag to his wife's family, and declarations of a 
 wife, pertaining to her husband 's family, are admissible. Even 
 when the declarations are made subsequently to the dissolution 
 of the marriage they are admissible, unless excluded for some 
 special reason. 
 
 § 11. Declarations relating to particular facts of time and 
 place.— As stated in § 1 of this chapter, the term "pedigree," 
 in its broad sense, includes not only matters of descent and 
 relationship, but also facts of birth, marriage and death, and 
 the times and places of these events. In the strict sense of 
 the term, however, a person's age, and the time and place of 
 his birth, marriage or death, are not, in themselves, questions 
 of pedigree. They may, however, be so connected with ques- 
 tions of pedigree as to render declarations concerning them 
 admissible in evidence. Formerly, much doubt was expressed 
 as regards the admissibility of declarations relating to place 
 of birth, marriage or death ; but, according to the modem rule, 
 
 5— North Brookfield v. Warren, 7 — Northrop v. Hale, 76 Me., 312, 
 
 16 Gray, (Mass.), 171. 49 Am. Rep., 615; Jackson v. Jack- 
 
 6 — Flora v. Anderson, 75 Fed. son, 80 Md., 176; Tyler v. Flan- 
 Rep., 217, 234; Crispin v. Doglioni, ders, 57 N. H., 618. 
 i Sw and Tr., 44. 
 
76 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 such declarations are equally admissible with those which re- 
 late to the time of either of these events.* It is essential, how- 
 ever, according to the rule which obtains in England, and in 
 some American jurisdictions, that the facts to which the dec- 
 larations pertain relate to some question of pedigree iavolved 
 in the issue. But, according to the present view, which obtains 
 in many American jurisdictions. "If this evidence is admis- 
 sible to prove such facts at all, it is equally so in all cases where 
 they become legitimate subjects of judicial inquiry and inves- 
 tigation. "9 
 
 § 12. Form of the declaration.— The form of the declaration 
 is immaterial. It may be oral, or in writing. It may, indeed, 
 consist in conduct or acts. Thus, the treatment of a son by 
 his parents may amount "to a daily assertion that the son is 
 legitimate."^" Whether the declaration was made in a formal 
 and solemn manner, or, in an informal manner, is immaterial. 
 
 § 13. Proof required of the genuineness of the declaration, 
 when made in writing.— As a general rule, the genuineness of 
 a written declaration relating to pedigree must be established 
 by affirmative evidence. This is done by showing that the 
 declaration in question was either made by some member of 
 the family, to which it relates, or, that it has been recognized 
 as genuine by the members of that family. Entries in the 
 family bible, and inscriptions on tombstones, monuments or 
 
 8 — Greenleaf on Bvid. (16th showing parentage or descent, 
 edit.), § 114 f. "Again It is ar- both of which were impertinent to 
 gued that a man's age is one of the issue between the parties." 
 the elements of his pedigree, Mr. Justice Strong (for the 
 and that, in proving pedigree, court) in Conn. Mut. L. Ins. Co. V. 
 hearsay evidence is admitted. Schwenk, 94 U. S., 593, 598. 
 The argument is fallacious. It 9 — North Brookfield v. Warren, 
 is true, the age of a person may 16 Gray, (Mass.), 17, (pauper set- 
 become material in questions of tlement) ; Cherry v. State, 68 Ala., 
 pedigree; but even then the 30, (selling liquor to a minor); 
 hearsay declarations of strangers, Collins v. Grantham", 12 Ind., 444, 
 persons not related by blood or (plea of infancy) ; Houlton v. 
 marriage, are inadmissible to Manteuffel, 51 Minn., 185, (plea of 
 prove it. Moreover, the pres- infancy) ; Fraser v. Jennison, 42 
 ent case involves no question of Mich., 206, 235, (will contest). 
 pedigree. The proof of age was 10 — Berkely Peerage Case, 4 
 not offered for - the purpose of Camp. 416. 
 
DECLAEATIONS EELATING TO PBDIGEEE. 77 
 
 coffin plates, are presumed to be known to the members of 
 the family, and to have been adopted as correct. 
 
 §14. Weight of declarations relating to pedigree.— The 
 
 weight to be given to this class of declarations will depend 
 upon the circumstances of each particular case. As a general 
 rule, such declarations are to be received with considerable 
 caution. The chief reasons for this rule are the following : (1) 
 The family pride of the declarant may have induced him to 
 make a biased statement; (2) Although a presumption exists 
 that the declarant possessed knowledge of the facts pertain- 
 ing to his own family history, it frequently happens that, as 
 regards many of such facts, he did not; (3) Prejudice of the 
 witness may cause him to give biased testimony; (4) Com- 
 paratively slight risk of punishment for testifying falsely may 
 induce an unscrupulous witness to state untruths. 
 
CHAPTER X. 
 
 DECLARATIONS RELATING TO MATTERS OF PUBLIC OR 
 GENERAL INTEREST. 
 
 § 1. Definitions.— Matters of public or general interest, in 
 this connection, do not mean those which tend to gratify curios- 
 ity, or love of amusement or information, but those in which 
 the people at large have a pecuniary interest which affects 
 their legal rights or liabilities. The term "Public Interest" has 
 a broader meaning than the term "General Interest." The 
 former means an interest which concerns all the people of the 
 State; while the latter means one which concerns only the 
 people of a community or district. 
 
 § 2. Grounds of admissibility.— The three grounds of admis- 
 sibility of this class of declarations are the following: (1) The 
 necessity of the case, owing to the fact that the legal rights and 
 liabilities affected are often of ancient and obscure origin, and 
 acted upon but seldom, in consequence of which direct evidence 
 would seldom be available; (2) Knowledge of all the members 
 of the community of the interest involved owing to its public or 
 general nature; (3) The strong presumption that such declara- 
 tions are true, owing to the fact that, had they been false, con- 
 flicting interests of other persons would naturally have resulted 
 in contradictory statements.^ 
 
 1— "The admissibility of declara- in public, what is dropped in con- 
 tions of deceased persons in such versation respecting them may be 
 cases is sanctioned because these presumed to be true ; because con- 
 rights and liabilities are gener- flicting interests would lead to 
 ally of ancient and obscure origin, contradiction from others if the 
 and may be acted upon only at statements were false; and thus a 
 distant intervals of time; because trustworthy reputation may arise 
 direct proof of their existence, from the concurrence of many 
 therefore, ought not to be required; parties unconnected with each 
 because in local matters, in which other, who are all Interested in 
 the community are interested, ail investigating the subject." Lord 
 persons living in the neighbor- Campbell, C. J., in Reg. v. Inhabi- 
 hood are likely to be conversant; tants of Bedfordshire, 4 El. and 
 because, common rights and lia- Bl., 535. 
 bilitles being naturally talked of 
 
 78 
 
DECLARATIONS — MATTERS OF PUBLIC INTEREST. 79 
 
 § 3. Requisites of admissibility.— The requisites of admissi- 
 bility are the following: (1) The declarant must be dead; (2) 
 He must have had sufficient opportunity to gain knowledge of 
 the matter of interest in question; (3) The declaration must 
 have been made ante litem motam; (4) It must be community 
 reputation, not merely individual opinion; (5) It must relate, 
 according to English rule, to matters of public or general inter- 
 est, as distinguished from those of a merely private interest. 
 
 § 4. Death of the declarant.— Upon this point, the same rule 
 obtains, as regards this class of declarations, that obtains in the 
 case of declarations relating to pedigree. The declarant, at the 
 time the declarations are oii'ered in evidence, must be dead. An 
 equivalent disability is not sufficient. It has been held, how- 
 ever, that absolute proof of the declarant's death is not essen- 
 tial, that prima facie proof is sufficient. 
 
 § 5. Opportunity for knowledge.— In the case of declarations 
 which relate to public interests, all the members of the public 
 are presumed to possess knowledge of such interests, and proof 
 of such knowledge is not required; but in the case of declara- 
 tions which relate to general interests no such presumption of 
 knowledge exists, and proof that the declarant was conversant 
 with such interests is essential. 
 
 §6. The declarations must be made ante litem motam.— 
 
 There are two exceptions to the hearsay rule in which the 
 declarations must be made ante litem motam. These two ex- 
 ceptions are, declarations relating to pedigree, and declara- 
 tions relating to public or general interests. The reason for 
 this rule is, declarations which are made post litem motam are 
 apt to be produced by interest, prejudice or passion, and in 
 consequence be biased or untrue. The lis mota in this con- 
 nection, means the origin of the controversy, and not neces- 
 sarily the commencement of the suit. It is essential, however, 
 that the controversy relate to the very point involved in the 
 litigation concerning which the declarations are sought to be 
 introduced. The fact that the declarant, at the time he made 
 the declaration, had no knowledge of the controversy, is im- 
 material. This is because evidence of such fact is apt to be 
 very difficult to produce, and also because the introduction of 
 such collateral issues is apt to confuse the minds of the jurors. 
 
80 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 § 7. The declarations must be community reputation, and not 
 merely individual opinions.— The declarations to be admissible 
 must be in effect reputation-evidence, and not merely state- 
 ments of an individual. Statements involving a community 
 reputation, and statements involving mere individual credit, 
 are widely different. The former are admissible in evidence, 
 the latter are not. The distinction between these two classes 
 of statements is clearly pointed out by Denman, L. C. J., in 
 Regina v. Bliss, 7 A. & E., 550. Testimony was offered and ob- 
 jected to that one R. now deceased, had planted a willow tree 
 in a certain spot to indicate the location of the boundary of the 
 highway. In rejecting the testimony, Lord Denman said: "He 
 does not assert that he has heard old people say what was the 
 public road ; but he plants a tree and asserts that the boundary 
 of the road is at that point. It is the mere allegation of a fact 
 by an individual. . . . That is, he knew it to be so from 
 what he himself observed, and not from reputation." 
 
 § 8. Nature of the interest involved.— -The interest involved 
 must be, according to the English rule, a public or general 
 one. In vfiry-many_easesit relates_to_the lo cation jjtbounda^es. 
 All the courts agree that reputation-evidence is admissible to 
 prove public boundaries. They also agree that such evidence 
 is admissible to prove private boundaries which are coincident 
 with public boundaries. According to the English rule, how- 
 ever, such evidence is inadmissible to prove boundaries which 
 are strictly private ; but, in this country, by the great weight of 
 authority, it is admissible. The only states which reject it to- 
 day are Maine and Massachusetts. The chief reasons why a 
 more liberal rule obtains in this country than in England are, 
 the fact that our system of survey is such that large tracts of 
 land are divided and subdivided into farms whose boundaries 
 are coincident in a measure with some common boundary ; and 
 the fact that the early settlers were very much interested in, 
 and, in consequence, fully conversant with, such matters.^ It 
 
 2 — "In this country the admissi- ous farms, the boundary of the 
 
 hility of this kind of evidence * original tract serving as a bound- 
 
 * * has been uniformly main- ary of the several farms. In oases 
 
 tained when the tract originally of this kind, the principal upon 
 
 surveyed was large, and was sub- which the evidence (reputation- 
 
 sequently subdivided into numer- evidence) is received has been re- 
 
DECLARATIONS MATTERS OF PUBLIC INTEREST. 
 
 81 
 
 is well settled, however, that reputation-evidence is inadmissible 
 to prove matters of private concern other than boundaries.^ 
 
 The interest involved, and the reputation offered in evidence, 
 must iboth be of ancient origin. That is, their origin must be 
 aStece'dent to living memory, and therefore incapable of proof 
 by original evidence.^ It is held by some courts, however, that 
 antiquity is sufficient "without enquiring as to whether the 
 parties . . . are living or dead."^ 
 
 § 9. Particular facts.— It is sometimes said that reputation- 
 evidence is inadmissible to prove particular facts. Such a 
 statement is misleading. A public boundary is a particular 
 fact, and reputation-evidence is admissible to prove it. What 
 is meant by the statement is, reputation-evidence is inadmissible 
 to prove particular occasions of the exercise of the interest or 
 right. Thus, reputation-evidence is admissible to prove the 
 
 garded as similar to that which re- 
 lates to boundaries of a manor or 
 parish." Field, C. J., in Morton v. 
 Folger, 15 Cal., 279. 
 
 "Because we have not manors, 
 shall we therefore lose the benefit 
 of the rule which considers bound- 
 ary as matter of reputation, and 
 permits hearsay evidence of its lo- 
 cality? * * * If reputation is 
 admissible to establish the bound- 
 aries of a manor because all the 
 tenants of a manor are interested 
 therein and naturally conversant 
 about the boundary, and may be 
 presumed to discourse together 
 about it, what shall we say in the 
 case of our wild lands, which were 
 covered with early adventurers 
 whose chief concern was to make 
 themselves acquainted with the 
 lines and corners of all around 
 them? * * * Every one knows 
 that such subjects were not only 
 the familiar topics of conversation, 
 but that they were the all-absorb- 
 ing topics. I will venture to con- 
 jecture that for one discussion in 
 privatt conversation about tUe 
 
 boundaries of an English manor, 
 there have been a hundred ani- 
 mated and interested debates about 
 the situation of a corner tree in 
 our western counties. I take it 
 therefore that every motive for the 
 admission of hearsay testimony as 
 to boundary in case of a manor 
 applies with equal force to its ad- 
 mission in questions of boundary 
 with us." Tucker, P., in Harriman 
 V. Brown, 8 Leigh, 708. 
 
 3 — Peck V. Clark, 142 Mass. 436, 
 440; Roe v. Strong, 107 N. T. 350. 
 
 4 — "Reputation or hearsay, taken 
 in connection with other evidence, 
 is entitled to respect in cases of 
 boundary when the lapse of time 
 is so great as to render it difficult, 
 if not impossible, to prove the 
 boundary by the existence of the 
 primitive landmarks or other evi- 
 dence than that of hearsay." Balt- 
 izell, C. J., in Dagget v. Willey, 6 
 Pla. 511. See also, Clark v. Hills, 
 67 Tex. 152; Adams v. Stanyan, 
 24 N. H. 412 (maps). 
 
 5 — Shutte V. Thompson, 15 Wa^, 
 161, 
 
82 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 location of a highway, but inadmissible to prove the use of it n« 
 such upon certain specific occasions.^ 
 
 § 10. Necessity of proof of enjoyment of the interest or 
 right.— It was formerly held that proof of acts of enjoyment, 
 within living memory, of the interest or right, was essential 
 to the admissibility of declarations concerning it. The modern 
 rule, however, is to the contrary.'^ Evidence of such acts of 
 enjoyment is admissible, of course, and its weight will depend 
 upon the circumstances of the particular case. It is also the 
 rule that the witness is not required to state from whom he 
 heard the declarations. 
 
 § 11. The declaration may deny the existence of the interest 
 or right.— The declaration which it is sought to introduce in 
 evidence is admissible though it denies the interest or right 
 claimed. Whether it affirms or denies it is immaterial.^ 
 
 § 12. Form of the declarations.— The form of the declara- 
 tions is immaterial. They may be made orally or in writing. 
 They may be contained in deeds or leases between individuals, 
 or in verdicts, judgments or decrees of court. They may also 
 be contained in historical treatises or in ancient maps. 
 
 6 — "A witness may be permitted dence could not be expected." Win- 
 to state what he has heard from ter, C. J., in Cherry v. Boyd, Litt. 
 dead persons respecting the repu- Sel. Cas. 8. 
 
 tation of the right; but not to See also, Nicholls v. Parker, 14 
 
 state facts of the exercise of it East. 331, in which case the court 
 
 which the dead persons say they held that evidence of what old per- 
 
 had seen." Peake's Evidence, 13 sons had said concerning the 
 
 (1801). boundaries of the parishes and 
 
 "Such hearsay evidence (repu- manors was admissible, but not 
 tation-evidence) is safe, because if what they had said as to par- 
 not true, it can be disproved by ticular facts or transactions con- 
 other evidence of the same kind, cerning them. 
 But even in these cases hearsay is 7 — Crease v. Barrett, 1 C. M. & 
 restricted from being evidence of R. 930; 1 Greenleaf on Bvid. 130. 
 particular facts; because in such 8 — Drinkwater v. Porter, 7 C. & 
 instances, although the evidence P. 181, 32 B. C. L. 486. 
 should be false, yet counter evi- 
 
CHAPTER XI. 
 
 PUBUC DOCUMENTS. 
 
 §1. Definitions and classifications.— The term "Docu- 
 ment" has been defined as "any substance having any mat- 
 ter expressed or described upon it by marks capable of 
 being read";^ or, "any material substance on which the 
 thoughts of men are represented by writing or any other 
 species of conventional mark or symbol ";2 or, "any solid 
 substance upon which matter has been expressed or de- 
 scribed by conventional signs with the intention of record- 
 ing or transmitting that matter ".^ Thus, a piece of paper 
 on which words are written, printed, lithographed, stamped, 
 or expressed by arbitrary signs or ciphers, is a document. 
 So is a tally, or piece of wood with notches to represent 
 figures or amounts.* 
 
 Documents are classified as follows: (1) Public Docu- 
 ments. (2) Quasi-Public Documents, and (3) Private Docu- 
 ments. 
 
 Public documents are classified with respect to their nature 
 and also with respect to their mode and means of proof. 
 As regards their nature they are (1) Official, and (2) Un- 
 official. As regards their mode and means of proof they are 
 (1) of Record, and (2) Not of Eecord. 
 
 Official public documents are those made by, or under 
 the direction of, public functionaries ia the executive, leg- 
 islative and judicial departments of government, including 
 under this general head the transactions which public of- 
 ficials arc required to enter in the books or registers in the 
 course of their public duties, and which occur within the 
 scope of their own personal knowledge and observation." 
 They include, state papers, legislative journals, judicial rec- 
 ords, official registers, official reports, official certificates and 
 
 1 — Stephen Dig. of Bvid., Art. 1. 4 — Sweet's Law Dictionary. 
 2— Best on Bvid., § 215. 5— Am. & Eng. Bnc. of Law, Vol. 
 
 3— Sweet's Law Dictionary. 9, p. 880. 
 
 83 
 
84 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 municipal records. These documents are within the excep- 
 tion to the rule against he^irsay, and are admissible in evi- 
 dence. 
 
 Unofficial public documents include newspapers, and books 
 of history, science and art. Under certain conditions such 
 documents are admissible. 
 
 Quasi-public documents include the books and records of 
 private corporations. As regards the shareholders them- 
 selves, such books and records are public documents, and 
 as between them are admissible in evidence; but with re- 
 spect to all other persons they are private documents and 
 inadmissible. 
 
 Private documents include all those which are neither 
 public nor quasi-public, and are not within the exception 
 to the rule which excludes hearsay evidence. 
 
 § 2. Grounds of admissibility.— The grounds of admissibility 
 of public documents are as follows: (1) They are made by 
 authorized and accredited persons appointed for that pur- 
 pose; (2) Their publicity renders mistakes in them readily 
 detected; (3) The party by whom they are made is a dis- 
 interested party, and therefore without any motive to falsify; 
 (4) The necessity of the case, owing to the nature of their 
 subject-matter; and (5) In many cases statutes expressly 
 provide for their admission. 
 
 § 3. Limitations. — Documents to be admissible in evidence 
 under this exception to the hearsay rule must, of course, 
 be pertinent to the issue. They must also be made by a 
 public officer, whose duty it is to make them, and they must 
 be intended for public inspection. Confidential reports made 
 to the government by public officials are not public docu- 
 ments. On the other hand, documents to be public do not 
 have to be intended for inspection by the whole world. As 
 said by Lord Blackburn in a leading English case,® "it 
 should be a public inquiry, a public document, and made by 
 a public officer. I do not think that 'public' there is to be 
 taken in the sense of meaning the whole world. I think 
 an entry in the books of a manor is public in the sense 
 
 6— Sturla et al. v. Freccla et al.; 5 App. Cas. 623. 
 
PUBLIC DOCUMENTS. g5 
 
 that it concerns all the people interested in the manor. And 
 an entry probably in a corporation book concerning a cor- 
 porate matter, or something in which all the corporation is 
 concerned, would be 'public' within that sense. But it must 
 be a public document, and it must be made by a public of- 
 ficer. I understand a public document there to mean a docu- 
 ment that is made for the purpose of the public making 
 use of it, and being able to refer to it . . . but I think 
 the very object of it must be that it should be made for 
 the purpose of being kept public, so that the persons con- 
 cerned in it may have access to it afterwards. "'^ 
 
 §4. State papers.— State papers, including ofScial procla- 
 mations and messages of the chief executive officer of the 
 state or nation,* and official papers and books published by 
 authority of Congress,* are public documents and admissible 
 in evidence to prove the facts therein recited. 
 
 §5. Legislative journals.— -Congressional and legislative 
 journals are public documents and admissible in evidence 
 to prove their contents.^" The English courts, however, ex- 
 clude particular facts contained in such documents which 
 form no part of the congressional or legislative proceed- 
 ings;" but the courts of this country admit such facts pro- 
 vided they relate to public matters.^^ 
 
 § 6. Judicial records.— The records of judicial proceedings 
 are public documents and admissible in evidence to prove 
 the facts therein recited. Such facts may include the terms 
 or effect of a judgment, the time when it went into effect, 
 or collateral facts. "Where the parties are the same, such 
 records are admissible to establish a controverted fact which 
 was in issue and which was determined by the judgment. 
 
 7— See also Evans v. Urban Dls- 10 — Spangler v. Jacoby, 14 111. 
 
 trict, 1 Ch. Dlv. 241. 207; Grob v. Cushman, 45 111. 119; 
 
 8— Rex V. Sutton, 4 M. & S. 532; Watklns v. Holman, 16 Pet. (U. 
 
 Talbot V. Seeman, 1 Cranch (U. S.) 25. 
 
 S.), 1. 11— Rex V. Gates, 10 How. St. 
 
 9— Gregg v. Forsyth, 24 How. Tr. 1079. 
 
 (U. S.) 179; Bryan v. Forsyth, 19 12— Watkins v. Holman, 16 
 
 How. (U. S.) 334. Peters (U. S.) 25, 56. 
 
86 LEADING PEINCIPLES AND KUliES OF EXCLUSION. 
 
 § 7. Official records and reports.— Official records and re- 
 ports, made by a public officer whose official duty it is to 
 make them, are public documents and admissible in evi- 
 dence. Thus, records of births, marriages and deaths, re- 
 quired by law to be kept for public reference, are public 
 documents and admissible.i^ And records which are kept 
 in the discharge of a public duty are admissible in evi- 
 dence though not required by statute to be kept. Thus, 
 in a leading case in which a record kept by one in the 
 employ of the United States Signal Service was objected 
 to because no law authorized or required such record to be 
 kept, the court say: "The record admitted in this case 
 was not a private entry or memorandum. It had been kept 
 by a person whose public duty it was to record truly the 
 facts stated in it. Sections 221 and 222 of the Revised Stat- 
 utes require meteorological observations to be taken at the 
 military stations in the interior of the continent and at 
 other points in the states and territories for giving notice of 
 the approach and force of storms'.. The Secretary of War 
 is also required to provide, in the system of observations 
 and reports in charge of the signal officer of the army, for 
 such stations, reports and signals as may be found neces- 
 sary for the benefit of agriculture and commercial interests. 
 Under these acts a system has been established, and rec- 
 ords are kept at the stations designated, of which Chicago 
 is one. Extreme accuracy in all such observations and in 
 recording them is demanded by the rules of the Signal Serv- 
 ice, and it is indispensable, in order that they may answer 
 the purposes for which they are required. They are, as we 
 have seen, of a public character, kept for public purposes, 
 and so immediately before the eyes of the community that 
 inaccuracies, if they should exist, could hardly escape ex- 
 posure. They come, therefore, within the rule which ad- 
 mits in evidence 'official registers or records kept by per- 
 sons in public office in which they are required, either by 
 statute or by the nature of their office, to write down par- 
 ticular transactions occurring in the course of their public 
 duties or under their personal observation.' To entitle them 
 
 13— Murray v. Supreme Lodge, 74 Conn. 715. 
 
PUBLIC DOCUMENTS. 87 
 
 to admission it is not necessary that a statute requires them 
 to be kept. It is sufficient that they are kept in the dis- 
 charge of a public duty. Nor need they be kept by a public 
 officer himself, if the entries are made under his direction 
 by a person authorized by him. It is hardly necessary to 
 refer to judicial decisions illustrating the rule. They are 
 numerous."^* 
 
 § 8. Official certificates. — At common law, certificates by 
 public officers are mere hearsay and inadmissible. In most 
 jurisdictions, however, statutes exist which provide that the 
 certificates of such officers are prima facie evidence of the 
 facts properly recited therein. Thus, the certificate of a 
 town clerk of the due publication of an ordinance is prima 
 facie evidence of that faet;^^ and the certificate of the Sec- 
 retary of State that a certain person has been recognized by 
 the department of state as a foreign minister is prima facie 
 evidence that he has been authorized and received as such 
 by the President.^^ 
 
 § 9. Same. Not evidence of collateral facts. — The certifi- 
 cates of such officers, however, are not evidence of facts as to 
 which they are not authorized to certify. Thus, where an of- 
 ficer is authorized to certify merely to a record his certificate 
 is inadmissible to prove collateral facts contained therein.^'' 
 Nor is such certificate admissible to prove a statement con- 
 tained therein as to the legal effect of such record.^* 
 
 § 10. Municipal records. — Municipal records, when prop- 
 erly authenticated, are admissible in evidence to prove the 
 corporate acts therein recorded. Thus, a book of city or- 
 dinances, purporting to be printed and published by au- 
 thority of the city, and signed by the mayor and attested 
 by the secretary of the city, is admissible in evidence to 
 
 14— Evanston v. Gunn, 99 U. S. 16— U. S. v. Benner, 1 Baldw. (U. 
 
 660. See also People v. Dow, 64 S.) 234. 
 
 Mich. 717; Chicago &c. Ry. Co. v. 17— Milford v. Sherman, 21 Conn. 
 
 Trayes, 17 111. App. 136; Huston 101; Daggett v. Bonewitz, 107 Ind. 
 
 V. Council Bluffs, 101 la. 33. 276. 
 
 15— Chamberlain v. Litchfield, 56 18— Enfield v. Ellington, 67 
 
 111. App. 652; Lindsay v. Chicago, Conn. 459; Billlngsley v. Hiles, 6 
 
 115 111. 120. S, Dafe, 445. 
 
88 LEADING PEINCIPLES AND RULES OP EXCLUSION. 
 
 prove its contents." And a city charter may be read as 
 evidence from a book printed and published by authority of 
 the common council.^" 
 
 §11. Unofficial public documents.— Unofficial public docu- 
 ments include newspapers, books of general literature, of 
 history, of science and art, almanacs, and mortality and tide 
 tables. 
 
 § 12. Newspapers.— Newspaper statements are usually 
 mere hearsay and generally inadmissible. They are admissi- 
 ble, however, to prove facts of notice, publication, and the 
 like; and they have been held admissible to prove current 
 prices. Governmental gazettes are also admissible to prove 
 public acts. 
 
 § 13. Books of general literature, of history, and of science 
 and art. — Books of general literature are usually inadmissible 
 in evidence ;2i but they have been allowed in argument to 
 illustrate and explain.^^ Thus, dictionaries and cyclopagdias 
 are inadmissible in evidence, but they may be referred to 
 as an aid to the memory and understanding of the eourt.^* 
 General histories, whose authenticity has been established 
 by reputation, are admissible to prove public and remote 
 facts; but not to prove private, facts, or particular usages 
 and customs not of a general public nature.^* The grounds 
 for admitting histories in evidence to prove public and re- 
 mote facts are (1) The necessity of the case, and (2) The 
 facts to be established are properly subjects of history. 
 Books of science and art are generally inadmissible. The 
 
 19 — Lindsay v. Chicago, 115 111. thors deceased or out of reach of 
 
 120. process of the court] are deemed 
 
 20 — Holly V. Bennett, 46 Minn, to be relevant when the occurrence 
 
 386; Napman v. People, 19 Mich, of any such matter is in issue or 
 
 353. is deemed to be relevant to the 
 
 21 — Morris v. Harmer, 7 Pet. (U. issue; but statements in such 
 
 S') 554. works as to private rights or cus- 
 
 22— Rex V. Hunt, 31 How. St. toms are deemed to be irrelevant." 
 
 Tr. 367. Reynolds' Stephen on Evidence 
 
 23— Nix V. Hedden; 149 U. S. 304. (3rd. edit.), art. 35. See also Mor- 
 
 24— "Statements as to matters of ris v. Harmer, 7 Pet. (U. S.) 554; 
 
 general public history made in ac- Roe v. Strong, 107 N. Y. 350. 
 credited historical books [by a,Vh 
 
PUBLIC DOCUMENTS. 89 
 
 reasons for excluding them are (1) They are mere hearsay 
 evidence of matters concerning which living witnesses are 
 available; (2) The subjects of which they treat are in an 
 unsettled condition; (3) The language used in them is tech- 
 nical, and not within the comprehension of men of common 
 experience; (4) The difficulty of determining which ones are 
 of established authority; (5) 't'hey are without the sanction 
 of an oath, and no opportunity is given to cross-examine 
 their authors.^^ In England the courts refuse to allow sci- 
 entific books to be read in argument before the jury.^* In 
 this country some courts, including those of Illinois, follow the 
 English rule,^^ and some do not.^^ In some states books 
 of science are admissible in evidence by statute.^^ 
 
 § 14. Almanacs.— Since it is universally recognized that al- 
 manacs forecast with exact certainty planetary movements, 
 and in consequence we govern our daily life by reference to 
 the computations which they contain, they are held admissi- 
 ble in evidence to prove such computations. Thus an almanac 
 is competent evidence to prove at what time the moon rose 
 on a particular night;*" or at what time the sun set on a 
 particular day;*^ or to prove that a particular date was 
 Sunday .*2 It is also to be observed that such matters are 
 facts of which courts take judicial notice. 
 
 § 15. Mortality and tide tables.— Standard mortality tables 
 have frequently been held admissible to prove the probable 
 duration of life under certain conditions, to be used as a 
 basis in estimating the damages in personal injury cases, 
 or the present value of an estate. And tide tables, showing 
 the ebb and flow of the tides, have been held admissible to 
 prove the condition of the tide at a particular time and 
 
 25— People V. Hall, 48 Mici. 482; 29— Gould v. Schermer, 101 la. 
 Ashworth . v. Kittrldge, 12 Gush. 582. 
 
 ^^^- 30— Moonshower v. State, 55 Md. 
 
 26— Reg V. Taylor, 13 Cox C. C. 11. 
 
 '^'^- 31— State V. Morris, 47 Conn., 
 
 27— Yoe V. People, 49 111. 410; 179. 
 
 Boyle V. State, 57 Wis. 472. 32— Page v. Faucet, Cro. Eliz. 
 
 28— Wade v. DeWitt, 20 Tex. 398. 227. 
 
90 LEADING PEINCIPIES AND RULES OF EXCLUSION. 
 
 place.^* Such matters are also facts of wliich courts take 
 judicial notice. 
 
 § 16. Mode of proving public documents.— The facts re- 
 cited in a public document may be proved, of course, by in- 
 troducing in evidence the document itself. It often happens, 
 however, that such a document cannot be removed without 
 considerable inconvenience, and danger of being lost or dam- 
 aged. Moreover the same document may be wanted in more 
 than one place at the same time. Its contents, however, may 
 be proved either by an exemplification or a sworn copy. 
 Acts of Congress and of the state legislatures prescribe the 
 precise mode of proving particular kinds of public docu- 
 ments.3* 
 
 33 — "[Statements of relevant which are not competent evidence 
 
 facts, contained in standard books for any purpose.]" Reynolds' Ste- 
 
 of exact science or mathematics, phen on Evidence (3rd. edit.), art. 
 
 such as the Northampton tables 35. 
 
 of mortality, almanacs or the like, 34— See Rev. Stat. U. S. §§ 905- 
 
 may be read in evidence, but not 908, and the statutes of the several 
 
 statements in works of inductive states, 
 science, such as medical books, 
 
CHAPTER XII. 
 
 ANCIENT DOCUMENTS. 
 
 §1. Definition.— The term "Ancient Document," as used in 
 the law of evidence, means a document which is at least thirty 
 years old.^ Originally, the time limit was more than this. Ac- 
 cording to some decisions it was forty years,^ and according 
 to other decisions it was sixty years.* 
 
 The term is applicable to many kinds of documents, includ- 
 iQg among others, deeds, leases, wills, bonds, licenses, powers 
 of attorney, chartularies of abbeys, stewards' books, letters, 
 receipts, certificates, pay rolls, parish registers and entries in 
 family bibles. 
 
 § 2. Mode of computing the time.— In computing the age of 
 a document the time is reckoned, as a general rule, from the 
 date of its execution to the date when it is offered in evidence. 
 It follows, therefore, that a document may be admissible in 
 evidence as an ancient document, although less than thirty 
 years old at the commencement of the suit.* In the case of 
 
 1 — ^Whitman v. Heneberry, 73 years has been thought suflScient, 
 
 • 111., 109. In this case Craig, J., yet not where it is objected to; but 
 
 says: "Deeds that are more than the usual rule is forty years." In 
 
 thirty years old are called ancient Comyns' Digest of Evidence forty 
 
 deeds, and they are admitted in ev- years is stated as the test; and in 
 
 idence without proof of execution." Isack v. Clarke, 1 Rolle, 132, this 
 
 See also Jackson v. Blanshan, 3 test is applied. 
 
 Johns (N. y.). 298, where Kent, 3 — In Jackson v. Blanshan, 3 
 
 C. J., says: "The rule requiring Johns. (N. Y.), 298, cited in note 1, 
 
 thirty years as the test of an an- Spencer, J., says: "The ancient 
 
 cient deed is an old and well-set- rule required the lapse of sixty 
 
 tied rule of evidence." years before a deed proved itself; 
 
 2 — Benson v. Olive, Bunb, 284 this rule has been narrowed to 
 
 (1730). In this case a deed thirty- thirty years." 
 
 six years old was objected to, and 4 — Renter v. Stuckart, 181 111., 
 
 the Court say: "This deed was not 529; Gardner v. Granniss, 57 Ga., 
 
 admitted to be read; for though 555; Bass v. Sevier, 58 Tex., 557. 
 sometimes thlrty-flve or even thirty 
 
 91 
 
92 LEADING PRINCIPLES AND EULES OP EXCLUSION. 
 
 wills, it has been held ia a few jurisdictions, including New 
 York and Pennsylvania, that where possession under the in- 
 urnment without other circumstances is relied upon, the age 
 of the document is computed from the date of the testator's 
 death.5 In England, however, as well as in the great majority 
 of the states, the computation is made from the date of the 
 execution of the instrument, as m the case of deeds and other 
 documents.® 
 
 § 3. The general rule. — The general rule is that an ancient 
 document proves itself. That is, it is admissible in evidence to 
 prove its contents without proving its authenticity or execu- 
 tion by calling the attesting witnesses, if any, or by proving 
 their handwriting, or otherwise. As stated by an eminent 
 author, "Where any document purporting or proved to be 
 thirty years old is produced from any custody which the judge 
 in the particular casfe considers proper, it is presumed that the 
 signature and every other part of such document which pur- 
 ports to be in the handwriting of any particular person is in 
 that person's handwriting, and, in the case of a document 
 executed or attested, that it was duly executed and attested 
 by the person by whom it purports to be executed and attested; 
 and the attestation and execution need not be proved, even if 
 the attesting witness is alive and in court. ' ' ^ 
 
 §4. Exceptions to the general rule.— The general rule, 
 stated in the next preceding section, is not applicable, (1) 
 When fraud or invalidity is apparent on the face of the docu- 
 ment; or, (2) When the document is not produced from the 
 proper custody; or, according to some decisions, (3) When 
 no corroborative evidence of the authenticity of the document 
 is produced. 
 
 § 5. Suspicious circumstances, including erasures and inter- 
 lineations.— Suspicious circumstances, relating to material 
 matters involved in an ancient document, justify the rejection 
 
 5 — Staring V. Bowen, 6 Barb. (N. says: "The rule of computing thir- 
 
 Y.), 109; Shaller v. Brand, 6 Binn. ty years from the date of a deed is 
 
 (Pa.), 439. equally applicable to a will." 
 
 6— Doe V. Wolley, 8 B. & C, 22; 7— Stephen's Digest on Bvid., 
 
 Man V. Ricketts, 7 Beav., 93. In Art. 88. 
 the former case, Lord Tenterden 
 
< ANCIENT DOCUMENTS. 93 
 
 of the instrument. Erasures or interlineations may raise a 
 presumption of fraud sufficient to rebut the presumption of 
 authenticity arising from the antiquity of the instrument. 
 Starkie says, in speaking of a deed which contains an erasure 
 or interlineation which arouses suspicion, "it is a matter oi 
 prudence and discretion to prove it in the usual way by means 
 of an attesting witness where living, or by proof of the hand- 
 writing of an attesting witness where they are all dead, in 
 order to rebut the unfavorable presumption arising from an 
 inspection of the deed;" and that, if the deed "imports fraud" 
 this ought especially to be done owing to the fact that in such 
 ease the presumption which arises from the antiquity of the 
 deed is destroyed.* Taylor says, that an instrument to be 
 admissible in evidence as an ancient document must be "free 
 from just ground of suspicion. "^ Jones says, "If there are 
 erasures or interlineations, or other facts giving rise to sus- 
 picion, the ancient document should be proved, like other 
 documents, by the subscribing witnesses, or by proof of their 
 handwriting."!^ Other writers say, that it must be "fair on 
 its face," "free from suspicion," etc., to be admissible as an 
 ancient document. It has been held, however, that an erasure 
 and substitution which do not advance the interest of the 
 obligee or increase the obligation do not affect the validity or 
 admissibility of the instrument.^i In the case of the mutila- 
 tion of an ancient deed, if the purpose of the mutilation is 
 not apparent, and enough is left to show that it is a deed exe- 
 cuted in conveyance of an estate according to articles of agree- 
 ment already in evidence, it should be admitted. The mutila- 
 tion may affect the weight of the evidence, but not its admis- 
 sibility.^2 But the fact that an instrument is an ancient docu- 
 ment will not render it admissible if it is insufficient on its 
 face.i* When an ancient document is not free from suspicion 
 its admissibility rests in the sound discretion of the court; 
 and it has been held that if the court admits it the jury are 
 bound to accept it as at least prima facie an ancient docu- 
 
 8 — 1 starkie on Evld., § 344. 12 — Trlmlestown v. Kemmis, 9 
 
 9—1 Taylor on Evid., § 87. CI. & F., 776. 
 
 10—2 Jones on Evid., § 544. 13— Fell v. Young, 63 111., 106; 
 
 11— Coulson v. Walton, 9 Pet. Meegan v. Boyle, 19 How. (U. S.), 
 
 (U. S.), 62. 149; Bogle v. Chambers, 32 Mo., 46. 
 
94 LEADING PRINCIPLES AND KULES OF EXCLUSION. 
 
 ment.^* It was formerly held that an alteration in an imma- 
 terial part of a document rendered the instrument voidji^ \)^i 
 this rule has been repudiated both in England and in this 
 country because "repugnant to justice and common sense." i^ 
 
 § 6. Production of document from proper custody.— An in- 
 strument to be admissible in evidence as an ancient document 
 must be produced from the proper custody. "Documents art 
 said to be in proper custody if they are in the place in which, 
 and under the care of the person with whom, they would nat- 
 urally be; but no custody is improper if it is proved to have 
 had a legitimate origin, or if the circumstances of the particu- 
 lar case are such as to render such an origin probable."!^ The 
 fact that a document has been carefully preserved by a party 
 interested in its subject matter raises a presumption in favor 
 of its genuineness. In submitting evidence of the custody of 
 an instrument the object in view is to afford the court reason- 
 able assurance of its authenticity.^* In proving custody, how- 
 ever, it is not essential to show that the document has been 
 kept in the best and most proper place. It is sufficient to 
 show that it has been kept in a reasonable place of deposit, in 
 view of the surrounding circumstances. As said, in a leading 
 case, upon this point, "it is when documents are found in 
 other than their proper place of deposit that the investigation 
 commences, whether it was reasonable and natural under the 
 circumstances in the particular case to expect that they should 
 have been in the place where they were 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 vari- 
 ous that are reasonable and probable, though differing in de- 
 gree, some more so, some less ; and in these cases the proposi- 
 tion to be determined is, whether the actual custody is so rea- 
 sonably accounted for that it impresses the mind with the 
 conviction that the instrument found in such custody must 
 
 14—1' Am. and Eng. Encyc. of 32, B. D. 573; United States v. 
 
 Law (1st edit), 565; Wisdom v. Spalding, 2 Mason (U. S.), 478. 
 
 Reeves, 118 Ala., 418, 18 So. Rep., 17— Stephen's Digest on Evid., 
 
 13, 19. Art. 88. 
 
 15— Pigot's Case, 11 Coke Rep. 18 — Whitman v. Heneberry, 73 
 
 27. III., 109; 1 Greenleaf on Evid. § 
 
 16— Aldons V. Cornwall, L. R. 570. 
 
ANCIENT DOCUMENTS. 
 
 95 
 
 be genuine."^® The question, whether a certain place of deposit 
 is proper custody or not, is one for the trial judge to deter- 
 mine; and his decision will not be interfered with unless 
 clearly wrong.^" 
 
 § 7. Corroborative evidence of the authenticity of the docu- 
 ment. — Whether evidence of acts of possession or enjoyment, 
 according to the terms of the instrument, is essential or not 
 to its admissibility as an ancient document, is not well settled. 
 According to the earlier English decisions such evidence was 
 not essential in the case of very ancient documents.^i The 
 ground of this rule was the fact that such evidence, in cases 
 of this nature, was usually not obtainable. According to the 
 modern English rule, corroborative evidence of possession or 
 enjoyment is not essential to the admissibility of an ancient 
 document, but without Such evidence the instrument is entitled 
 to little or no weight.^^ In this country the decisions are in 
 conflict upon this question. Some courts hold that in the ease 
 of ancient deeds proof of possession under the deeds is abso- 
 lutely 'essential to their admissibility as ancient documents,^* 
 while other courts, including those of Illinois and the federal 
 courts, hold that evidence of possession is not essential, that 
 other satisfactory corroborative evidence of authenticity is 
 sufficient.^* 
 
 § 8. Necessity of proof that the instrument is an ancient 
 document. — Before an instrument is admissible in evidence as 
 an ancient document affirmative evidence is essential to prove 
 that it is at least thirty years old. The mere fact that the 
 instrument itself purports to be ancient is not sufficient.^^ All 
 
 19 — Meath v. Winchester, 3 L. Cas., 614; Rogers v. Allen, 1 
 
 Bmg. (N. C), 183; Havens v. Sea- Campb., 311. 
 
 shore, etc., Co., 47 N. J. Bq., 365. 23— Crane v. Marshall, 16 Me., 
 
 20— Rees v. Walters, 3 M. & W., 29; Homer v. ClUey, 14 N. H., 98. 
 
 527. 24 — Whitman v. Heneberry, 73 
 
 21— Clarkson v. Woodhouse, 5 T. 111., 109. But see Smith T. Rankin, 
 
 R., 412; Doe v. Pulman, 3 Q. B. 20 111., 14. See also, Pulkersoc v. 
 
 I)., 622. Holmes, 117 U. S., 389. 
 
 22— Malcomson v. O'Dea, 10 A. 25 — Whitman v. Heneberry, 73 
 
 111., 109. 
 
96 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 that is required, however, is to produce sufficient evidence to 
 establish a prima facie case.^^ 
 
 §9. Scope of admissibility of ancient documents.— As a 
 
 general rule, ancient documents are offered in evidence to 
 prove some claim of right asserted under them, but the scope 
 of their admissibility is much broader than this. They are 
 admissible in evidence in a suit between third parties who 
 claim no interest under them, and for any proper purpose.^' 
 
 26— Winn v. Patterson, 9 Pet 127 Mass., 571, 581; FuJ^erson v. 
 ^U. S.), 663, 674. Holmes, 117 U. S., 398. 
 
 27— Deury v. Midland Ry, Co., 
 
CHAPTER XIII. 
 
 DECLARATIONS AGAINST INTEREST BY PERSONS SINCE 
 DECEASED. 
 
 § 1. Definitions.— A declaration has been defined as a state- 
 ment made by a party to a transaction, or by a party having 
 an interest in the existence of some fact in relation to such 
 transaction.^ A declaration against interest, however, is a 
 statement which may be made by a stranger to the litigation, 
 as well as by one who is a party to it, or identified in interest 
 with a party to it, and which tends to lessen or destroy some 
 pecuniary or proprietary right of the declarant, or impose upon 
 him some pecuniary liability .^ A declaration is against a pecu- 
 niary interest when it tends to diminish the pecuniary value of 
 the declarant's property or impose upon him some pecuniary 
 liability. A declaration is against a proprietary interest when 
 it tends to cast a doubt upon the declarant's right of property. 
 
 § 2. The general rule.— A declaration against the pecuniary 
 or proprietary interest of the declarant, who has since died, 
 is admissible in evidence, even in a suit between third persons 
 who are not in any way identified in interest with him, and 
 even although the declaration is not part of the res gestae, and 
 is made post litem motam, provided no probable motive to 
 falsify is apparent. 
 
 §3. Grounds of admissibility.— The grounds for admitting 
 this class of hearsay evidence are, (1) The adverse interest of 
 the declarant; (2) The necessity of the case. The former of 
 these two grounds is the principal one. A strong presumption 
 exists that declarations against the pecuniary or proprietary 
 interest of the party who makes them are true. 
 
 § 4. Essentials of admissibility.— The essentials of admissi- 
 bility of this class of evidence are, (1) The declaration must 
 
 1 — Bouvier's Law Diet. Lumber CJo., 87 Minn. 18; 
 
 2 — Halvorsen v. Moon & Kerr Humes v. O'Bryan, 74 Ala. 64. 
 
 97 
 
98 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 have been, at the time it was made, against the pecuniary or 
 proprietary interest of the declarant ; (2) The adverse interest 
 must appear; (3) The declarant must presumably have had 
 knowledge of the adverse interest when he made the declara- 
 tion; (4) The declarant must have been free from any proba- 
 ble motive to falsify the fact declared; (5) The declarant 
 must be dead. 
 
 § 5. The adverse interest of the declarant.— The adverse in- 
 terest of the declarant, as already stated, must be of a pecu- 
 niary or proprietary nature. A mere apprehension of penal 
 consequences, for example, is not sufficient.^ It must not be 
 based solely upon some contingency. It must exist at the time 
 the declaration is made and not come into existence subse- 
 quently. On the other hand, if the declaration appears to be 
 against the pecuniary or proprietary interest of the declarant 
 when made, and subsequent occurrences render it favorable 
 to him, they will not make it inadmissible.* 
 
 § 6. Declarations against interest which are also, in a meas- 
 ure, self-serving. — It sometimes happens that declarations are 
 both disserving and self-serving. In such cases it is not al- 
 ways an easy matter to determine whether the declarations 
 are admissible or not. If the disserving interest predominates 
 over the self-serving interest the declaration is admissible.'' 
 If the declaration is prima facie self-serving, or clearly shows 
 a motive to falsify, it is inadmissible.^ It does not follow, 
 however, that, because the disserving interest does not pre- 
 ponderate, the declaration is necessarily inadmissible. Thus, 
 a general account which shows a balance in the declarant's 
 favor may be admissible to show an entry in the account 
 against' his interest.'' On the" other hand, it does not follow, 
 
 3 — Mahaska County v. Ingalls, Ch. Div. 558, 562; Freeman v. 
 
 16 la. 81; Sussex Peerage Case, Brewster, 93 Qa. 648. 
 
 11 CI. & F. 85; Bird v. Hueston, 6— Libby v. Brown, 78 Me. 
 
 10 Ohio St. 418. 492; Beatty v. Clement, 12 La. 
 
 4 — Turner v. Dewan, 41 U. C. An. 82. 
 
 Q. B. 361. 7— Rowe v. Brenton, 3 Man. & 
 
 5 — Massey v. Allen,. L. R. 13 R. 133, 267; Raines v. Raines, 
 
 30 Ala. 428. 
 15 
 
DECLARATIONS AGAINST INTEREST. 99 
 
 that, because the declaration is prima facie against the declar- 
 ant's interest, it is necessarily admissible. Thus, an indorse- 
 ment, by the holder of a promissory note, of a payment of 
 interest thereon, after the Statute of limitations has begun to 
 run against the note, is, in the absence of other evidence, in- 
 admissible. When the declaration shows both a self-serving 
 and a disserving interest, and the part which shows the 
 former can be excluded without affecting the interpretation 
 of the latter, this should be done. If, however, the two in- 
 terests are so connected that to exclude the part which relates 
 to the self-serving interest renders the part which relates to 
 the disserving interest unintelligible, and the declaration 
 taken as a whole shows no intention to falsify, the whole 
 declaration is admissible. Thus, in a leading English case, 
 an entry by a man-midwife charging for his services, and 
 marked "paid," was held admissible as a whole because to 
 exclude the self-serving part (the charge for services) would 
 render the disserving part (the acknowledgment of payment) 
 unintelligible; and the entry, taken as a whole, showed no 
 intention to falsify. 
 
 §7. Competency of the declarant.— Dr. Greenleaf says, 
 "In order to render declarations against interest admissible, it 
 is not necessary that the declarant should have been com- 
 petent, if living, to testify to the facts contained in the declar- 
 ation; the evidence being admitted on the broad ground, that 
 the declaration was against the interest of the party making 
 it, in the nature of a confession, and on that account, so proba- 
 bly true as to justify its reception. For the same reason, it 
 does not seem necessary that the fact should have been stated 
 on the persona] knowledge of the declarant. "^ This state- 
 ment, it is submitted, is too broad. The decisions repeatedly 
 assert that the declarant must be a person "having peculiar 
 means of knowledge,"^ "having a competent knowledge or 
 whose duty it was to know,"^" having "a competency to 
 know it, "11 etc. Some cases hold, however, that the declara- 
 
 8—1 Greenleaf on Evid., §153 10— Short v. Lee, 2 Jac. & W. 
 
 (16th edit.). 464, 489. 
 
 9— Gleadow v. Atkins, 1 Cr. ft 11 — Doe v. Robson, 15 East 32. 
 M. 410. 
 
100 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 tion may be based upon hearsay j^^ while others hold that it 
 must be based upon personal knowledge of the declarant." 
 There are circumstances, however, where the fact, that the 
 declarant, if living, would have been incompetent to testify, 
 would not be a sufficient ground for excli^ding his declara- 
 tions. Thus, at common law, a real party in interest to the 
 suit is an incompetent witness; but this fact does not exclude 
 his declarations against interest, after he is dead. 
 
 § 8. The declarant must be dead.— With respect to some ex- 
 ceptions to the rule against hearsay, an equivalent disability, 
 such as insanity, beyond the jurisdiction of the court, etc., 
 is sufficient, upon this point, to render the declarations ad- 
 missible. But in the case of declarations against interest by 
 a person since deceased, an essential element of their admissi- 
 bility is the death of the declarant.^* 
 
 § 9. Admissible to prove collateral or independent facts.— 
 
 One of the peculiar features of this class of declarations is, 
 they are admissible to prove collateral or independent facts 
 embodied in them. Thus, in a leading English case,i^ an 
 entry made by a man-midwife, charging for his services in 
 a confinement case, and marked "paid," was held admissible 
 to prove the date of the child's birth. And in another English 
 case,!^ frequently cited, in which one of the three joint makers 
 of a note sued the other two, one as the principal debtor and 
 the other as a cosurety, the plaintiff having paid the whole 
 amount of the note, an indorsement on the note acknowledg- 
 ing a payment, and containing the words, "The £300 having 
 been originally advanced to Evan Humphreys" (the person 
 sued as the principal debtor) was held admissible to prove 
 that Evan Humphreys was the principal debtor. 
 
 12 — Crease v. Barrett, 1 Cr. M. Fitch v. Chapman, 10 Conn. 8. 
 
 & R. 919. 15— Hlgham v. Rldgway, 10 
 
 13— Bird v. Hueston, 10 Ohio East, 109. 
 
 St. 428; Arbuckle v. Templeton, 16 — Davies v. Humphreys, 6 
 
 65 Vt. 205. Mees. & W. 153. See also Jones 
 
 14 — Mahaska County v. In- v. Howard, 3 Allen (Mass.) 
 
 gall, 16 la. 81, 95; Currier v. 223; Livingston v. Amoux, 56 
 
 Gale, 14 Gray (Mass.) 504; N. Y. 507, 519. 
 
DECLAEATIONS AGAINST INTEEBS¥. 101 
 
 § 10. Admissible in a suit between strangers^.— Another 
 feature of this class of declarations is, they are admissible 
 in evidence ia a suit between strangers.!^ That is, no identity 
 of interest between the declarant and a party to the suit is 
 essential. Their admissibility is based upon the improbability 
 of their not being true, owing to the adverse interest of the 
 declarant. 
 
 §11. Declarations ^ade by an agent.— It is not essential 
 to the admissibility of this class of evidence that the declara- 
 tions were made by the party against whom they operated. 
 It is sufficient if they were made by his agent, acting within 
 the scope of his authority.^* Preliminary proof of the agency 
 relation is usually required in such cases ;i8 but where the 
 declaration was made in the course of public official employ- 
 ment proper authority is presumed. 
 
 §12. Other declarations distinguished.— Admissions are 
 
 declarations against interest, but they are admissible only 
 against the declarant and persons identified in interest with 
 him. Then, again, the fact that the declarant is alive and in 
 court does not exclude them. On the other hand, declara- 
 tions against interest by persons since deceased are admissible 
 in a suit between strangers, but the declarant must be dead. 
 Confessions are admissions of guilt. They are against the 
 interest of the person who makes them but not against his 
 pecuniary or proprietary interest. Then again, they are ad- 
 missible only against the person who makes them; and, like 
 admissions, they are not inadmissible, because the person who 
 made them is alive and in court. Declarations relating to the 
 res gestae, shop book entries, and entries made in the regular 
 course of business, must all have been made contemporane- 
 ously with the act done or recorded to be admissible; but 
 this feature is not essential to the admissibility of declara- 
 tions against interest by a person since deceased.^" The fact 
 
 17— Higham v. / Ridgway, 10 Ell. 53; 1 Greenleaf on Bvld., 
 
 East 109. §154. 
 
 18 — Doe V. Stacey, 6 Car. & 20— Scott v. Ford, 140 Mass, 
 
 P. 139; Mayor v. Warren, 5 Q. 157; Doe v. Lurford, 3 Barn. & 
 
 B. D., 551. Ad. 890. 
 
 19 — Rutzen v. Farr, 4 Adol. & 
 
102 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 that they were made subsequently may affect their weight but 
 not their admissibility. Nor will the fact that they were made 
 post litem motam exclude them.^^ In this respect they differ 
 from declarations relating to pedigree, and declarations re- 
 lating to public and general rights. 
 
 §13. Form of the declaration.— The form of the declara- 
 tion is immaterial. It may be oral or written. Written dec- 
 larations, however, are more frequently involved than oral 
 ones, but the principle is the same in both. Oral declara- 
 tions against an interest in lands have sometimes been held 
 admissible on the ground that they formed part of the res 
 gestae. ^^ The supreme court of Massachusetts formerly held 
 this view;^* but later modified it.^* If the basis of admissi- 
 bility is the fact that the declarations formed part of the res 
 gestae, those in favor of the declarant's interest would be 
 admissible as well as those against his interest. The true 
 basis of admissibility, however, is the adverse interest of the 
 declarant. 
 
 § 14. Inadmissible to prove contracts, or the execution or 
 revocation of a will.— Declarations which merely purport a 
 contract, and resulting mutual obligations, are inadmissible. 
 As said by Lord Coleridge, in speaking of an entry recording 
 an informal agreement for labor, "This was not an entry 
 against the party's interest, unless the mere making of a con- 
 tract be so, and if that were the case, the existence of a con- 
 tract would be against the interest of both parties to it."^^ 
 In such cases a presumption exists that the agreement is not 
 to the disadvantage of either party. Declarations which merely 
 purport the execution or revocation of a will are inadmissible, 
 because such acts and their consequences being wholly within 
 the control |0f the declarant are not deemed prejudicial to 
 him.^e 
 
 21 — Halvorsen v. Moon & Kerr 24 — Ware v. Brookhouse, 7 
 Lumber Co., 87 Minn. 18. Gray (Mass.) 454. 
 
 22—1 Greenleaf on Evld., §109. 26— Reg. v. Worth, 4 Q. B. D. 
 
 23— Marcy v. Stone, 8 Gush. 132, 139. 
 (Mass.) 4. 26 — Hosford v. Rowe, 41 Minn. 
 
 245. 
 
DECtAKATIONS AGAINST INTEREST. 103 
 
 § 15. Weight of this class of declaxations.— The weight to 
 be given this class of evidence depends upon the nature of the 
 declaration, the circumstances under which it was made, and 
 the reputation of the declarant for veracity. The three chief 
 reasons for excluding hearsay are all applicable to this class 
 of declarations, viz.: (1) The declaration was not made under 
 oath; (2) No opportunity exists to cross-examine the declar- 
 ant,; (3) No opportunity exists for the jury to observe the 
 demeanor of the declarant. As said in one case, "the ordinary 
 and highest tests of the fidelity, accuracy, and completeness of 
 judicial evidence are here wanting." On the other hand, the 
 adverse interest of the declarant renders it extremely improb- 
 able that the declaration is false ; and for this reason it usually 
 possesses the same probative force, and is entitled to be given 
 the same weight, as other evidence of a similar character. 
 This question, of course, is wholly for the jury. 
 
 §16. The question of admissibility.— The function of de- 
 termining whether the declaration is admissible or not, be- 
 longs, in the first instance, to the court. If the court admits 
 it, the jury may decide that it is not actually against the 
 interest of the declarant and for this reason give it no weight ; 
 or, the jury may wholly discard it because other evidence has 
 nullified its effect.^T 
 
 27— Taylor v. Wltham, L. R. 3 Ch. Div. 605. 
 
CHAPTER XIV. 
 
 ACCOUNT-BOOKS OF PARTIES TO THE UTIGATION. 
 
 §1. Definitions.— The term "account" has no very clearly 
 defined legal meaning. Bouvier defines it as "a detailed state- 
 ment of mutual demands in the nature of debt and credit be- 
 tween parties arising out of contracts or some fiduciary rela- 
 tion. ' ' 1 This definition has been approved, but it is faulty in 
 requiring that the demands be mutual. It is not essential that 
 each party has demands against the other. Abbott says: "An 
 account is a written statement of pecuniary transactions.'"' 
 Chancellor Sanford says: "An account is no more than a list 
 or catalogue of items whether of debts or credits."^ Chief 
 Justice Shaw says: "The primary idea of account, computatio, 
 whether we look to the proceedings of courts of law or equity, 
 is some matter of debt and credit, between parties. It implies 
 that one is responsible to another for moneys or other things, 
 either on the score of contract or of some fiduciary relation of a 
 public or private nature created by law or otherwise."* 
 
 § 2. Account-book entries versus entries made in the regu- 
 lar course of business.— It is important to discriminate between 
 these two classes of evidence. In a sense they are branches of 
 the same exception. They are closely related in principle, and 
 probably traceable to a common origin ; but they are not iden- 
 tical. Their requisites are not the same, and the historical de- 
 velopment of the one differs from that of the other. Moreover, 
 the use of the former antedates that ol the latter by nearly a 
 century. Both, however, antedate the rule against hearsay; 
 and are, therefore, strictly speaking, inuependent of that rule. 
 
 § 3. The early English rule. — According to the early English 
 rule, which had its origin in the latter part of the sixteenth 
 
 1 — Bouvier's Law Dictionary. 4 — Whitewell v. Willard, 1 Met. 
 
 2 — Abbott's Law Dictionary. (Mass.), 216. 
 3 — Rensselaer Glass Factory v. 
 Raid, 5 Cow. (N. Y.), 587. 
 
 104 
 
ACCOUNT-BOOKS OF PAETIES TO LITIGATION. 105 
 
 century, entries in account-books, made either by the parties 
 themselves or their clerks, and which related to the sale of 
 goods or the performance of services, were admissible in evi- 
 dence. In 1609 a statute was passed which restricted this 
 rule.^ This statute excluded account-books "in any action for 
 any money due for wares hereafter to be delivered or for work 
 hereafter to be done, ' ' except within one year after the de- 
 livery of the wares or the doing of the work. The lower courts, 
 however, continued to follow the early rule. The higher courts 
 ultimately excluded the entries after the expiration of the 
 year. In the latter part of the seventeenth century entries by 
 a clerk, since deceased, began to be admitted on the ground 
 that they were made in the regular course of business.® 
 
 § 4. The modern English rule.— For two centuries, the 
 higher courts of England excluded account-book entries after 
 the expiration of a year. The basis of this rule was the prin- 
 ciple that a man cannot make evidence for himself. In 1883 a 
 rule of court re-introduced the use of account-book entries in 
 the higher courts; and this, together with subsequent legisla- 
 tion, restored the custom which existed at common law. 
 
 § 5. The American rule.— The historical development of the 
 American rule has been widely different from that of the 
 English rule. To a considerable extent, however, the Ehglish 
 statute of 1609, or a similar one, was in force in the Colonies; 
 but account-book entries were not repudiated as in England. 
 Numerous restrictions existed as to their use, but none as to 
 the time of introducing them. .As a general rule, no distinction 
 was made between entries made by the party himself and those 
 made by his clerk.' This rule still obtains.* In most jurisdic- 
 tions it was essential that the entries be verified by a "sup- 
 pletory" oath. This rule is still followed. The whole subject, 
 however, is one which is very generally regulated by statutes, 
 and the various statutes are not harmonious. Taylor says, the 
 doctrine, that account-book entries made by a party himself 
 
 5—7 Jac. I., ch. 12. 457; Holmes v. Harden, 12 Pick., 
 
 6— Pitman v. Maddox, 1 Lord 169. 
 
 Raymond, 732; Price v. Torring- 8 — Borgess Investment Co. v. 
 
 ton, 2 Lord Raymond, 873. Vette, 142 Mo., 560; Post v. Kem- 
 
 7— Inslee v. Prall, 23 N, J. U, erson, 72 Vt., 341. 
 
106 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 are admissible in Ms favor, is not in accordance with the prin- 
 ciples of the English common law.^ Some of our courts hold 
 the same viewi* and some hold the contrary.ii 
 
 § 6. Grounds of admissibility.— The two grounds of admis- 
 sibility of account-book entries are: (1) Necessity; (2) A cir- 
 cumstantial guarantee of trustworthiness. The former of these 
 grounds has been recognized very frequently. At common 
 law, parties to the suit were incompetent witnesses. In conse- 
 quence of this fact it frequently happened that the only evi- 
 dence a party to the suit had was his account-book entries. To 
 have excluded these would have resulted in great hardship to 
 him; hence, on the ground of necessity they were held admis- 
 sible.12 Modern statutes, however, have made parties to the suit 
 competent witnesses. As a result of these statutes the ground 
 of necessity has passed away; but account-book entries are 
 still held admissible. The latter of the two grounds of admis- 
 sibility is based upon, (a) the influence of habit; (b) the 
 fact that a false entry is most likely to be detected and dis- 
 puted; and, in the case of entries by clerks, (c) the danger 
 of censure and discharge by the employer for making false 
 entries. As stated by Chief Justice Tindal, "It is easier to 
 state what is true than what is false ; the process of invention 
 implies trouble, in such a case unnecessarily incurred. ' ' i* 
 
 § 7. Requisites of admissibility.— Account-book entries to be 
 admissible must possess the following requisites: (1) The 
 
 9 — 2 Taylor's Evid. (Chamber- "It has been sanctioned as an 
 
 layne's Ed.), § 709. exception to the general rule of 
 
 10 — Inslee v. Prall, 23 N. J. L., law, as it formerly existed, that 
 
 457; Swain v. Cheney, 41 N. H., a party should not be a witness 
 
 232. in his own cause, and from sup- 
 
 11 — F. H. Hill Co. V. Somer, 55 posed necessity in order to pre- 
 
 211. App., 345; 1 Greenleaf Evid., vent a failure of justice, that he 
 
 §§ 117, 118. shall be allowed to produce the 
 
 12 — "In consideration of the record of his daily transactions, 
 
 mode of doing business in the in- to many of which, on account of 
 
 fancy of the country, when many their variety and minuteness, it 
 
 people kept their own books, it cannot be expected there will be 
 
 has been permitted from the ne- witnesses" (1882). Devens, J., in 
 
 cessity of the case to offer these Pratt v. "White, 132 Mass., 477. 
 books in evidence" (1808). Tilgh- 13— Poole v. Dicas, 1 Bing. (N. 
 
 man, C. J., in Starrett v. Bull, 1 C), 649. 
 Binn., 237. 
 
ACCOUNT-BOOKS OF PARTIES TO LITIGATION. 107 
 
 entries must be original; (2) They must have been made rea- 
 sonably contemporaneous with the acts done; (3) The party 
 who made them must, as a general rule, have had personal 
 knowledge of the facts recorded; (4) The nature of the busi- 
 ness must be such as to make the keeping of account-books 
 reasonably necessary; (5) The entries must be free from sus- 
 picion. 
 
 §8. Entries must be original.— Account-book entries to be 
 admissible in evidence must be original. The rule) however, 
 does not exclude entries subsequently made from mere memo- 
 randa. Thus, entries in a daybook or ledger, transcribed therein 
 from memoranda temporarily made on a slate, or on sheets of 
 paper, are original entries. The form of the book is immate- 
 rial, provided the entries are original. As said by Chief Justice 
 Parker, in an early Massachusetts case, ^* "It is no objection 
 to the book received in evidence in this case that it was kept 
 in the ledger form; for such is the way in which ordinary 
 mechanics, especially in the country, make their charges; hav- 
 ing a separate page for each of their customers 
 
 . The entries in this book may be considered original although 
 transcribed froin a slate; the slate containing merely memo- 
 randa, and not being intended to be permanent." On the other 
 hand, entries contained in a ledger, and which were posted 
 from a daybook or journal, are not original entries. Such en- 
 tries, however, are admissible as secondary evidence, provided 
 a proper foundation has been laid for their introduction. 
 
 §9. Entries must be contemporaneous.— The entries to be 
 admissible must be reasonably contemporaneous with the trans- 
 actions recorded. It is not essential, however, that they be 
 made at the very hour that the transactions occur. It is suf- 
 ficient if they be made within a reasonable time thereafter. 
 What constitutes a reasonable time depends upon the circum- 
 stances of the particular case. The circumstances may be 
 such as to render entries made several days after the 
 transactions occurred reasonably contemporaneous and ad- 
 missible. As said by Justice Bigelow, "The rule does not fix 
 any precise time within which they must be made. There is 
 
 14— Faxon v. Hollls, 13 Mass., 427 (1816). 
 
108 LEADING PHINCIPLES AND RULES OF EXCLUSION. 
 
 no inflexible rule requiring them to be made on the same day. 
 In this particular every case must be made to depend upon its 
 own peculiar circumstances, having regard to the situation of 
 the parties, the kind of business, the mode of conducting it, 
 and the time and manner of making the entries. Upon ques- 
 tions of this sort much must be left to the judgment and dis- 
 cretion of the judge who presides at the trial. ' ' ^° The basis 
 of the rule is assurance of accuracy. It is sufficient, there- 
 fore, if the entries are made near enough to the transactions 
 recorded to show a likelihood that they are correct. As said 
 by Justice Sergeant,. "The entrj' need not be made exactly at 
 the time of the occurrence ; it suffices if it be within a reason- 
 able time, so that it may appear to have taken place while the 
 memory of the fact was recent, or the source from which a 
 knowledge of it wag derived unimpaired. The law fixes no 
 precise instant when the entry should be made."i®. 
 
 § 10. The person who makes the entry must have personal 
 knowledge.— As a general rule, the person who makes the en- 
 try must have personal knowledge of the transactions recorded. 
 This rule, however, has qualifications. Entries made by a book- 
 keeper, of sales made by another person who reports them to 
 the bookkeeper, are admissible in evidence. In such a case, 
 however, according to the prevailing rule, the person who 
 made the sales must be called as a witness. This rule obtains 
 in the federal courts. " Some courts, however, including those 
 of Illinois, ^* hold that the entries are admissible even though 
 the party who made the sales cannot be produced. 
 
 § 11. The nature of the business.— The nature of the busi- 
 ness must be such as to make the keeping of account-books 
 reasonably necessary. Thus, the account-books of a peddler 
 have been excluded because the nature of his business is not 
 such as to necessitate the keeping of account-books.^" And a 
 schoolmaster's books have been excluded owing to the nature 
 
 15 — Barker v. Haskell, 9 Cush., 18 — Chlsholm v. Beaman Mach. 
 
 221 (1852). Co., 160 111., 101. 
 
 16— Jones v. Long, 3 Watts, 19— Thayer v. Deen, 2 Hill (S. 
 
 326. C), 677; Baldridge v. Penland, 
 
 17— Chicago Lumbering Co. v. 68 Tex., 441. 
 Hewitt, 64 Fed. Rep., 314. 
 
ACCOUNT-BOOKS OP PARTIES TO LITIGATION. 109 
 
 of his occupation. As said by Justice Coleock, "The court 
 have always kept in view the necessity of the evidence. Now 
 there are few persons in business who are furnished with as 
 many witnesses as a schoolmaster may command, and there is 
 no necessity for admitting his books to be produoed in evi- 
 dence. "^^ On the other hand, account-books of physicians, 
 attorneys and other classes of professional men, have been held 
 admissible.^i 
 
 §12. The nature of the entries.— According to the strict 
 rule which originally obtained and which is still recognized in 
 many jurisdictions, the entries must relate to goods sold or 
 services performed. Under this rule entries of cash payments, 
 or loans, are inadmissible. The reason which is usually as- 
 signed for this restriction is, that in the case of cash payments 
 or loans no necessity exists for introducing in evidence ac- 
 count-book entries. As said by Justice Potts, in rejecting a 
 series of cash entries, ' ' We must endeavor to solve the question 
 by a resort to first principles. . . . The consideration of 
 necessity introduced the rule in reference to the admission of 
 books of account. ... I hold, first, that there is not and 
 never was a necessity for making books of entry evidence of 
 the payment or the lending of money. There is no such great 
 and overruling amount of inconvenience in requiring that men 
 should take a receipt for money, when they pay it, or a note 
 or memorandum for money when they lend it, as that the safe, 
 sound principle of legal evidence should be overturned on ac- 
 count of it. It is the ordinary mode in which all careful, pru- 
 dent men transact such business. ' ' 22 On the other hand, a few 
 courts see no reason for making such a restriction. Thus, Chief 
 Justice Kirkpatrick says, "Upon principle I can see no reason 
 why a book should be lawful evidence of one item and not of 
 another; why it should be evidence of goods sold and deliv- 
 ered, and not of money paid or advanced. Why should there 
 be witnesses called or receipts taken in the one case more than 
 in the other ? If necessity be pleaded for the one, may it not 
 
 20— Pelzer v. Cranston, 2 McC, 660; Bass v. (Jobert, 113 Ga., 262. 
 
 128- 22— Inslee v. Prall's Executor, 
 
 21— Bay V. Cook, 22 N. J. L., 23 N. J. L., 463. 
 343; Codman v. Caldwell, 31 Me., 
 
110 LEADING PKINCIPLES AND RULES OP EXCLUSION. 
 
 for the other also? For they are both transactions in the com- 
 mon course of business, equally necessary and, I should think, 
 equally frequent or nearly so." ^s As a general rule, however, 
 cash books, invoice books, check-stub books, loan registers of 
 a broker, and memorandum books, are excluded. 
 
 Account-book entries of goods delivered to third persons and 
 charged to the defendant as guarantor or principal are inad- 
 missible. The reason for this rule is, no necessity exists for 
 introducing the entries since the third persons can be put upon 
 the stand to testify. 
 
 This class of testimony is also inadmissible to prove the 
 terms of a special contract. The ground for this rule is, a writ- 
 ing usually exists between the parties, hence no necessity exists 
 for introducing account-book entries. 
 
 As a general rule, account-book entries are inadmissible to 
 prove large amounts. According to the English rule the maxi- 
 mum is 40 shillings. In analogy to the English rule, the maxi- 
 mum in this country is usually $10. In a Massachusetts case, 
 an entry showing a charge of $300 for "seven gold American 
 watches" was excluded because the amount involved was too 
 large.^* 
 
 23 — Wilson v. Wilson, 1 Halst., world is too much in a whirl, 
 
 99. To the same effect is Ganahl there is too much to be done in 
 
 V Shore, 24 Ga., 24. In this case, the twenty-four hours now, to 
 
 Justice Lumpkin, in repudiating allow of the particularity and 
 
 the restriction, says: "In the na- consequent delay in the oh- 
 
 ture of things no such principle taining of receipts, etc. . . . 
 
 can he maintained. . . . The He that so affirms [the rejection 
 
 business of banking is confined of money items] is half a cen- 
 
 almost entirely to money items; tury behind the age in which 
 
 so of the books of factors and he lives; and to get up with it, he 
 
 commission merchants; so of must forget the things that are 
 
 brokers. Large pecuniary ad- behind, and press forward, for it 
 
 vances are made by commission will never stop or come back to 
 
 houses to planters, in anticipation him." Also to the same effect 
 
 of crops; the customer sends an are Taliaferro v. Ives, 51 111., 247 
 
 order for a thousand dollars; it (account books held admissible to 
 
 is forwarded and charged to the show "how he had paid the 
 
 planter's account; true, the fac- notes") ; Hancock v. Kelly, 81 
 
 tor has the written order, but the Ala., 368; Stephen v. Metzger, 95 
 
 cash advanced depends upon the Mo. App., 609; Gleason v. Kinney, 
 
 evidence of the books. What- 65 Vt., 560. 
 
 ever doctrine may have obtained 24 — Bustin v. Rogers. 11 Cush. 
 
 formerly upon this subject, the (Mass.), 346, 
 
ACCOUNT-BOOKS OF PARTIES TO LITIGATION. Ill 
 
 Nor are account-book entries of immoral transactions admis- 
 sible. The reason for this rule is that such transactions are 
 against public policy and should be discouraged. Thus, a gam- 
 bler's "Poker Book" of accounts has been excluded ;^^ and 
 also an account-book of billiard games.^^ 
 
 § 13. Entries must be free from suspicion.— The rule is well 
 settled that entries to be admissible in evidence must bear an 
 honest appearance. Material alterations or erasures raise a 
 presumption against them, and render them inadmissible un- 
 less satisfactorily explained. A mere failure to state prices, 
 however, does not have that eifect. But the insertion of im- 
 possible dates, or the peculiar method by which the books are 
 kept, may arouse suspicion and render the entries inadmis- 
 sible." 
 
 § 14. Death of entrant not essential.— It is not essential to 
 the admissibility of account-book entries that the party who 
 made them be dead. He may be living and in eourt.^^ Qn the 
 other hand, his death or insanity does not render the entries in- 
 admissible.2^ 
 
 § 15. Mode of proof.— Account-book entries to be admis- 
 sible must be authenticated. The mode of doing this varies ia 
 the different states. If the party who made them is available, 
 he should verify them.^"' This rule is applicable whether the 
 entries were made by a party to the suit or his clerk. In some 
 states it is essential to show that the books were honestly and 
 fairly kept.^^ In some jurisdictions this may be done by the 
 party who kept them,*^ -while in others it must be done by 
 
 25— Frank v. Pennie, 117 Cal., iR Ind., 171; Lunsford v. Butler, 
 
 254. 102 Ala., 403. 
 
 26— Boyd v. Ladson, 4 MoC, 76. 30— Frick v. Kabaker, 116 la., 
 
 27 — Wilson v. Wilson, 6 N. J. 494; see also note to Union Bank 
 
 L., 114; Richardson v. Emery, 23 v. Knapp, 15 Am. Dec, 181. 
 
 N. H., 220. 31— Countryman v. Bunker, 101 
 
 28— Boiling v. Fannin, 97 Ala., Mich., 218; Smith v. Smith, 163 
 
 619; Bland v. Warren, 65 N. C, N. Y., 168. 
 
 372. 32— Anchor Milling Co. v. 
 
 29— Holbrook v. Gay, 6 Gush. Walsh, 108 Mo., 277; Mathes v. 
 
 s.), 215; Slade v. Leonard, Robinson, 8 Mete. (Mass.), 269. 
 
112 LEADING PRINCIPLES AND RULES OF EXCJLUSION. 
 
 those who dealt with him.^* Secondary evidence of account- 
 book entries is admissible provided a proper foundation is laid 
 for its introduction.^* Some courts, however, have held the 
 contrary.ss Some courts hold that if the party kept a clerk, 
 who is available but is not produced, the entries are inadmis- 
 sible.^" While other courts hold the contrary.*'' 
 
 § 16. Effect of statutory enactments which make parties to 
 the suit competent witnesses.— Statutes have been passed, both 
 in England and in this country, making parties to the suit com- 
 petent witnesses. These statutes remove the necessity which 
 formerly existed for admitting in evidence account-book en- 
 tries. So the question arises, what is the effect of these statutes 
 upon this point ? While the decisions are not wholly harmoni- 
 ous, they hold quite generally that the effect is not to exclude 
 account-book entries, but to modify their use or application. 
 "Before the statutes, such entries were admissible to prove their 
 contents. They were original or primary evidence. Since the 
 statutes, they are admissible merely to corroborate the evi- 
 dence of the party to the suit. They are secondary evidence 
 to corroborate primary evidence.** Upon principle, the true 
 
 33 — Cole V. Anderson, 8 N. J. ing of the mode in which they 
 
 L., 83; Werbeskie v. McManus, 31 had been kept, and were treated 
 
 Tex., 116. as original evidence of the mat- 
 
 34 — Holmes v. Harden, 12 Pick, ters for which they were intro- 
 
 (Mass.), 169; Tucker v. Bradley, duced; but, since parties have 
 
 33 Vt., 324. been allowed to testify ooncern- 
 
 35 — Creamer v. Shannon, 17 ing all the facts for which the 
 
 Ga., 65; Higgs v. Shehee, 4 Fla., books were formerly offered, 
 
 382. their testimony in reference there- 
 
 36 — Ruggles V. Gatton, 50 111., to constitutes primary evidence 
 
 412; Smith v. Smith, 163 N. Y., of these facts, and the books of 
 
 168. account become merely secondary 
 
 37 — Bartholomew v. Farwell, 41 or supplementary evidence. The 
 
 Conn., 107; Mitchell v. Belknap, books are not excluded as incom- 
 
 23 Me., 475. petent, but will be received, either 
 
 38 — In the recent case of Bush- in corroboration of the testimony 
 
 nell V. Simpson, 119 Cal., 658 (51 of the parties as entries made 
 
 Pac. R., 1080), the Court say; at the time, or upon the princi- 
 
 "At the time when parties to an pies by which inferior evidence 
 
 action were not competent wit- Is received where the party is 
 
 nesses in their own behalf, their unable to produce evidence of a 
 
 books of account were admitted higher degree." 
 
 in evidence upon a proper show- In Nichols v. Haynes, 78 Pa. 
 
ACCOUNT-BOOKS OF PARTIES TO LITIGATION. 
 
 113 
 
 view is that, since the statutes, account-book entries are admis- 
 sible as records of past recollection. As such, they are not 
 hearsay evidence at all; and, therefore, do not constitute an 
 exception to the hearsay rule. They are adopted by the w^itness 
 as his evidence and he may be cross-examined upon them as 
 upon any other evidence.^* 
 
 St., 174, the Court say: "Ques- 
 tions In relation to books of en- 
 try as evidence, since the Act of 
 1869 (Penn. Statutes), making 
 the parties witnesses, stand upon 
 a different footing from 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 wit- 
 ness, 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 discharge, of 
 cash or goods, or whatever else 
 is in his personal knowledge, 
 might be proved by a stranger, 
 no one doubts. A clerk, for in- 
 stance, 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 act on the ^ame plane of 
 competency as the stranger stood 
 upon, and therefore may make the 
 same proof that a stranger could; 
 he may also refer to entries made 
 at the time of the transaction in 
 corroboration of his testimony." 
 
 39 — Wigmore on Evid., Vol. II., 
 § 1560. In 1 Greenleaf on Evid. 
 (16th edit.), 212, the same author 
 says: "The basis of this branch 
 of the exception, as has been 
 seen, was the sw«posed necessity 
 
 for resort to such evidence, the 
 party being unable to take the 
 stand in his > own behalf as a wit- 
 ness. It would follow, on princi- 
 ple, that since the abolition of 
 parties' incompetency this neces- 
 sity no longer exists, because the 
 party can now take the stand and 
 testify, using the books, if he 
 pleases, as a record of past recol- 
 lection. At the present day, then, 
 the true view is that the special 
 hearsay exception in favor of 
 parties' books has disappeared, 
 and that the party should use 
 them only by taking the stand 
 and adopting them only as rec- 
 ords of past recollection — a re- 
 sult preferable in practice as well 
 as principle, because the party is 
 thus subjected as he should be to 
 cross-examination on the subject 
 of the entries, and because they 
 can thus be used without the rig- 
 orous and detailed limitations 
 above described. This view, how- 
 ever, has as yet found full ac- 
 ceptance in a few courts only. It 
 must be stated that In some 
 Slates statutes have been passed, 
 apparently attempting to modify 
 the present branch of the excep- 
 tion by enlarging it to include 
 parties' books kept by a clerk; 
 but the phrasing of these statutes 
 is usually such that their precise 
 object and effect is not easy to 
 ascertain." 
 
114 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 §17. Statutory enactnlents which make account-book en- 
 tries admissible.— In most of the states statutory enactments 
 have been passed which regulate the admission in evidence of 
 account-book entries. These statutes are not harmonious, but, 
 in general, they recognize certain fundamental prinicples. As 
 stated in a prominent New York ease, "These statutes all ex- 
 pressly Becognize the admissibility and provide for the admis- 
 sion of books of account on a proper showing, to be made in 
 the manner required by the statutes themselves ; but they vary 
 somewhat in form and language, and the way in which the 
 book's admissibility is recognized, and in which the terms of 
 the statute are made applicable. Thus, in some states the 
 statutes are enacted, as independent statutes expressly for the 
 purpose of allowing the use of such evidence. While others 
 are a part of, and embraced in, the statutes prohibiting a party 
 from testifying for himself when his adversary is the personal 
 representative of a deceased person, or is otherwise incapaci- 
 tated and form an exception to that prohibitive clause — that is 
 to say, the party offering his books is competent to make the 
 proof necessary to their introduction in evidence, although his 
 adversary be incapacitated as above, and his books are then 
 competent evidence for him. But they all attain the' same re- 
 sult, and that is that if the party desiring to use his own books 
 in his own behalf accompanies the offer of the books with the 
 proof required by the statute under which the offer is made, 
 they are competent evidence for him. Such statutes of both 
 classes are to be found iu the states from which the cases in the 
 note are cited as applying the terms of the statutes to the 
 books under consideration. ' ' *" 
 
 " § 18. Functions of court and jury.— The question, whether 
 certain account-book entries are admissible in evidence, is pri- 
 marily for the court to determine. The weight to be given 
 them, if admitted, is for the jury to determine. As stated by 
 
 40— Smith V. Smith, 163 N. Y., Talbotton R'y Co. v. Gibson, 106 
 
 168, and note in 52 L. R. A., 545. Ga., 229; note to Price v. Tor- 
 
 For an interpretation of the 111. rington, Smith's Lead. Caa. 
 
 statute, see Weigle v. Brantigam, (Amer. edit.), 328; 9 Am. & Eng. 
 
 74 111. App., 285, 290. See also, Ency. Law (2d edit), 913, et seq. 
 Shaffer v. McCracWn, 90 la., 578; 
 
ACCOUNT-BOOKS OP PARTIES TO LITIGATION. 115 
 
 Justice Devens, "It is for the court to decide upon the admis- 
 sibility of the book offered, although the weight to be given to 
 it afterwards must be largely for the jury, in connection with 
 its appearance the manner in which it is kept, and the 
 other evidence in the case. It must appear to have been 
 honestly kept, and not intentionally erased or altered, and 
 to have been the record of the daily business of the 
 party, made for the purpose of establishing a charge against 
 another. Necessarily, regard is to be had to the education of 
 the party, his methods and knowledge of business etc., in de- 
 ciding this question. The decision of the court to admit the 
 book is final and conclusive, unless from its character, or from 
 that which was sought to be proved by it, it could not have 
 been admitted even if it met those tests. ' '*^ And, as stated by 
 Justice Woodward, "When a book of original entries is offered 
 in evidence, supported by the oath of the party, the court ex- 
 amines it to see if it appears, prima facie, to be what it pur- 
 ports to be. If there are erasures and interlinations, and false 
 or impossible dates, touching points that are material, or if for 
 any reason it clearly appears not to be a legal book of entries, 
 the court may reject it as incompetent (citing cases). If this 
 does not clearly appear, it is to be submitted to the jury to 
 judge of, and then it is competent for the adverse party to 
 show its general character by pointing to charges and entries 
 affecting other parties, and by calling witnesses to prove such 
 entries false and fraudulent. That this investigation may not 
 run into excessive departure from the issue on trial, the court 
 should limit it to the time, or near the time, covered by the 
 account in suit, and should suffer no more examination of col' 
 lateral eases than would bear directly on the general character 
 of the book. If a shop-book exhibit, in respect to customers 
 generally, illegal dates, as on Sunday, or impossible dates, as 31st 
 of June or 30th of February, or altered dates, or earlier dates 
 after those that are later, or any such condemning features, 
 they are evidence for the jury upon the general character of 
 the book. The jury may form some opinion from such exami- 
 nation, how far it is entitled to weight in the scales which they 
 
 41— Pratt V. White, 132 Mass., 477. 
 
116 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 are holding. Whilst they should make all due allowances for 
 mistakes, for ignorance and unskilfulness in book-keeping, and 
 for peculiarities in the plaintiff's business they should insist on 
 the general honesty and accuracy of the book, made in secret 
 by one party against the other, and now offered as a guide to 
 the conscience of the jury."*^ 
 
 42— Funk v. Ely, 45, Pa. St., 444. 
 
CHAPTER XV. 
 
 DECLARATIONS OF THIRD PERSONS MADE IN THE REGULAR 
 COURSE OF DUTY OR BUSINESS. 
 
 § 1. The general rule.— Declarations and entries made in 
 the regular course of duty or business, at or about the time 
 the fact or facts stated occurred, by third persons who are 
 unavailable as witnesses, are admissible in evidence. 
 
 §2. Origin and scope of the rule.— This rule had its origin 
 near the beginning of the eighteenth century. The case 
 usually cited as the landmark is Price v. Lord Torrington,i 
 decided in 1703. The^ rule admitting account-book entries 
 had its origin about a century earlier. 
 
 Entries made in the regular course of business have a much 
 wider scope than account-book entries. The former include 
 the latter, but the requisites of admissibility of each are not 
 identical. 
 
 §3. Other declarations distinguished.— Care should be 
 taken to avoid confusing this class of declarations and ac- 
 count-book entries, declarations relating to the res gestae and 
 declarations against interest. Account-book entries, to be ad- 
 missible as such, must be contained in the books of a party 
 to the suit; while entries made in the regular course of busi- 
 ness may be in the books of a stranger to the suit. Again, 
 the former entries must be contained in account-books; while 
 the latter may be contained in any book. Then again, in the 
 case of the former entries the entrant may be living and 
 in court; while in the case of the latter the entrant must be 
 unavailable as a witness. Declarations relating to the res 
 gestae must be contemporaneous with the acts done, and be 
 so intimately interwoven with them as to be regarded as 
 parts of them; while declarations made in the regular course 
 of business may be made within a reasonable time after the 
 
 1 — 2 Lord Raymond, 873. 
 
 117 
 
118 LEADING PBLNCIPLBS AND RULES OF EXCLUSION. 
 
 transactions occur. Declarations against interest are, of 
 course, adverse to the declarant; while declarations made in 
 the regular course of business may be in his favor. 
 
 » 
 
 § 4. Grounds of admissibility.— The grounds of admissibil- 
 ity of this class of declarations are the same as those for ad- 
 mitting account-book entries, viz.: (1) Necessity; (2) Trust- 
 worthiness. As regards the former of these two grounds, 
 it is not essential that the declarations comprise the only 
 evidence available on the subject, but it is essential that they 
 comprise the only evidence available from the declarant. 
 Hence it follows that the declarant must be unavailable as a 
 witness. In speaking of this class of evidence. Justice Story 
 says: "It is the best evidence the nature of the case admits 
 of. If the party is dead, we cannot have his personal exami- 
 nation upon oath, and the question then arises, whether there 
 shall be a total failure of justice, or secondary evidence shall 
 be admitted to prove facts where ordinary prudence cannot 
 guard us against the effects of human mortality. "^ The cir- 
 cumstantial guarantee of trustworthiness of such evidence is 
 founded upon the following facts: (a) The habit of making 
 entries regularly, calls for accuracy; (b) False entries are 
 likely to be detected and disputed; (c) Such entries usually 
 bring trouble and disgrace to the person who makes them. 
 
 § 5. Requisites of admissibility.— The requisites of admis- 
 sibility of this class of evidence are the following: (1) The 
 declarations or entries must have been made in the discharge 
 of some duty, or, in the usual course of business; (2) They 
 must have been made at the time when the transactions to 
 which they relate occurred, or within a reasonable time 
 thereafter; (3) The declarant must, as a general rule, have 
 had personal knowledge of their contents ; (4) The declarant 
 must be dead, or for some other reason unavailable as a wit- 
 ness. 
 
 § 6. The entries must be made in the discharge of a duty, 
 or in the usual course of business.— According to the English 
 rule, this class of declarations to be admissible must be made 
 
 2— NiCholls V. Webb, 8 Wheat. 3— Poole v. Dicas, 1 Bing. (N, 
 (U. S.), 326. C), 649. 
 
DECLARATIONS OF THIRD PEKSONS. 119 
 
 in the diseharg'e of some official, professional or other duty, 
 to a third party. Thus, in one case,* in which the return of 
 an officer, since deceased, contained ■ the date and place of 
 arrest, the court rejected the entry as to the place of the ar- 
 rest, saying: "It may be the duty of the sheriff's officer to 
 make a return to the sheriff that he has made the arrest; but 
 it is not a necessary part of that duty that he should state 
 the particular place of the arrest." In this country, however, 
 a more liberal rule obtains. An absolute duty to make the 
 entries is not essential. As stated by Justice Andrews (citing 
 1 Greenl. on Evid. § 115) : "It is sufficient if the entry was 
 the natural concomitant of the transaction to which it re- 
 lates and usually accompanies it."^ 
 
 §7. The entries must be contemporaneous with, the trans- 
 actions to which they relate, or made within a reasonable 
 time thereafter.— It is usually stated that this class of entries 
 to be admissible must be contemporaneous with the trans- 
 actions to which they relate. Upon this point, however, the 
 same degree of strictness is not required as in the ease of 
 declarations relating to the res gestae. There is no definite 
 and fixed rule as regards the time which may elapse between 
 the transactions and the entries. Each case is governed by 
 its own circumstances. It may be customary to jot down 
 memoranda of the transactions when they occur and sub- 
 sequently make entries of them in the regular course of busi- 
 ness. It has been held, however, that such memoranda must 
 be made in the usual routine of business, and not as a merely 
 private affair.^ 
 
 §8. As a g'eneral rule, the entrant must have personal 
 knowledg'e of the transactions.— This requirement is applica- 
 ble both to account-book entries and entries made in the regu- 
 lar course of business. The rule, however, has important 
 qualifications ; but, upon this point the decisions are not har- 
 monious. Upon principle, absolute personal knowledge of 
 the entrant is not essential. If the want of such knowledge 
 
 4 — Chambers v. Bemasconi, 6 — Peck v. Valentine, 94 N. 
 
 1 C. & J., 451. Y., 569; Mayor v. Second Ave. 
 
 5— Fisher v. Mayor, 67 N. Y., Ry. Co., 102 N. Y., 572. 
 78. 77. 
 
120 LEADING PRINCIPLES AND RULES OP E2CCLUSI0N. 
 
 be adequately supplied by a third party it should suffice. 
 Thus, suppose a clerk reports sales to the bookkeeper who 
 makes entries of them. The fact that the bookkeeper has 
 no personal knowledge of the sales should not render the 
 entries inadmissible. Verification of the sales by the clerk, 
 and of the entries by the bookkeeper (in the case of account- 
 book entries), should render the entries admissible. And since 
 the entries are made in the regular course of business, the 
 death of either, or both, of these parties, should not render 
 the entries inadmissible. As stated by Professor Wigmore, in 
 his recent exhaustive treatise on Evidence, "where an entry 
 is made by one person in the regular course of business, record- 
 ing an oral or written report, made to Mm by one or more other 
 persons in the regular course of business, of a transaction lying 
 in the personal knowledge of the latter, there is no objection to 
 receiving that entry under the present Exception, provided the 
 practical inconvenience of producing on the stand the numerous 
 persons thus concerned would in the particular case outweigh 
 the probable utility of doing so." But, as heretofore stated, the 
 decisions upon this point are not harmonious. Some follow the 
 conclusion reached by Professor "Wigmore, and admit such en- 
 tries without requiring that the original party having personal 
 knowledge of the transactions be produced or accounted for. 
 This rule obtains in Illinois.'' Some hold that the entries are 
 admissible provided the original party is dead, or otherwise 
 unavailable as a witness, and the entries are verified.* While a 
 few courts refuse to admit such entries when the original 
 party is not produced although he is shown to be unavailable.^ 
 § 9. The entrant must be dead, or, at least, unavailable as 
 a witness.— According to the English rule the entrant must 
 be dead. In this country, however, the rule is more liberal. 
 Insanity, or even absence from the state, is held to be suffi- 
 cient. As stated by Chief Justice Shaw: "The ground is the 
 impossibility of obtaining the testimony, and the cause of 
 
 7— Chisholm v. Machine Co., 9 — Kent v. Garvin, 1 Gray 
 160 111., 101; Donovan v. Ry. (Mass.), 150; Chicago Lumber- 
 Co., 158 Mass., 450. Ine Co. v. Hewitt, 64 Fed. Rep., 
 
 8— Meyer v. Brown, 130 Mich., 314. 
 449; Stanley v. Wilkerson, 6? 
 Ark., 556. 
 
DECLARATIONS OF THIRD PERSONS. 121 
 
 such impossibility seems immaterial, "i" Physical incapacity 
 has been held insufficient;" but, upon principle, it should 
 suffice. 
 
 §10. Partnership entries.— Since partnership books are 
 usually kept in the regular course of business they are admis- 
 sible as such, as a general rule, for and against each partner 
 as between themselves ;i2 and in favor of third persons 
 against the firm.i* This rule is applicable to special or dor- 
 mant partners, as well as ostensible partners, provided they 
 have access to the books.^* It is not applicable if they do 
 not. As a general rule, entries in partnership books are in- 
 admissible to prove or disprove the partnership relation.i^ 
 "Whether the partnership books are kept by the partners 
 themselves, or by their bookkeeper, is immaterial.^* 
 
 §11. Application of entries made in the regular course of 
 
 business.— Such entries are admissible not only to prove their 
 contents, but also to corroborate or impeach other evidence.!^ 
 And, when acquiesced in by another party, they are binding 
 against him in a suit between him and a third party. In 
 such a case they are treated as admissions or estoppels.^ ^ In 
 England, oral declarations made in the regular course of 
 business are held admissible ;!" but in this country they are 
 not.20 
 
 10 — North Ba?ik v. Atbot, is note on this subject in 52 L. R. 
 
 Pick., 471. A., 834, et seq. 
 
 11 — Taylor v. Ry. Co., 80 la., 16 — New Haven, etc. Co. v. 
 
 435. Goodwin, 42 Conn., 230. 
 
 12— Glover v. Hembree, 82 17 — Monroe v. Snow, 131 111., 
 
 Ala., 324; ToplifE v. Jackson, 12 126; People v. Kemp, 76 Mich., 
 
 Gray (Mass.), 565. 410. 
 
 13 — Grant v. Masterton, 55 18 — Lowenthal v. McCormick, 
 
 Mich., 161; Daniels v. Fowler, 101 III., 143; Chateaugay, etc., 
 
 123 N. C, 35; Calder v. Credit- Co. v. Blake, 144 U. S., 476. But 
 
 ors, 47 La. Awn., 346. see City of Chicago v. McKech- 
 
 14— Bank of B. N. A. v. Dela- ney, 205 111., 372. 
 
 field, 152 N. Y., 624; Robins v. 19 — Regina v. Buckley, 13 Cox 
 
 Wards, 111 Mass., 244. C. C, 293; Sussex Peerage Case, 
 
 15— Abbott V. Pearson, 130 11 CI. & P., 85, 113. 
 
 Mass., 191; Rosenbaum v. How- 20 — Framingham Mfg. Co. v. 
 
 ard, 6& Minn., 1. See valuable Barnard, 2 Pick. (Mass.), 532. 
 
122 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 § 12. Mode of proof.— The mode of proof of this class of 
 evidence differs in the various jurisdictions. This is largely 
 owing to the fact that in some jurisdictions the rule govern- 
 ing the admissibility of such evidence is stricter than in 
 other jurisdictions. If, as in England, the death of the 
 declarant is essential to the admissibility of the declaration, 
 the handwriting of the declarant must be shown.^i If the 
 death of the declarant is not essential, he must be called as 
 a witness, or his deposition taken, according to some deei- 
 sions.22 In other jurisdictions the rule is more liberal. If 
 called as a witness, or his deposition taken, the evidence 
 should state that the entries were made in the regular course 
 of business, at the time they purport to have been made, and 
 that they are correct.^* 
 
 21— Chafeee & Co. t. U. S., 18 Wall. (U. S.), 516. See also 
 
 Wall. (U. S.), 516; Heiskell v. note to 15 Am. Dec, 193. 
 
 Rollins, 82 Md., 14. 23— Shove v. Wiley, 18 Pick. 
 
 22— Pratt v. White, 132 Mass., (Mass.), 558; Moots v. State, 21 
 
 477; ChafEee & Co. v. U. S., 18 Ohio St., 653. 
 
CHAPTER XVI. 
 
 DECLARATIONS BEARING UPON THE PHYSICAL OR MENTAL 
 CONDITION OF THE DECLARANT. OR UPON HIS INTENTION. 
 
 § 1. The gfeneral rule.— When a person's physical or men- 
 tal condition, or intention, is relevant and material to the fact 
 or facts in issue, declarations by him alleging the existence of 
 such condition or intention, and made contemporaneously with 
 it, are admissible in evidence. 
 
 § 2. Grounds of admissibility.— The two grounds of admis- 
 sibility of this class of hearsay evidence are the following, 
 viz.: (1) Necessity; (2) Trustworthiness. The necessity prin- 
 ciple, however, is not based upon inability to produce the 
 declarant as a witness, owing to his death, insanity, absence, 
 or the like. Nor is it based upon mere inconvenience. But, 
 as stated by Professor Wigmore, "It rests on the consideration 
 that, though the person's testimony on the stand may still be 
 both actually and conveniently practicable, yet the probability 
 of there receiving from him testimony which shall be in value 
 equal or superior to certain hearsay statements is small; thus, 
 while there is hardly a necessity in the strict sense, there is at 
 least a desirability of resorting also to the hearsay state- 
 ments."^ Justice Holmes says, "Such declarations, made 
 with no apparent motive for misstatement, may be better evi- 
 dence of the maker's state of mind at the time than the sub- 
 sequent testimony of the same persons. "^ Chief Justice Red- 
 field says, "The present state of health or feeling is always 
 allowed to be proved in this way, since it is the only mode in 
 which it can be shown."* Justice Gray says, "A man's state 
 of mind or feeling can only be manifested to others by coun- 
 tenance, attitude, or gesture, or by sounds or words, spoken 
 or written."* Justice Swayne says, "Wherever the bodily or 
 
 1— Wigmore on Evid., VoL III., 3— State v. Howard, 32 Vt 380, 
 
 §1714. 404. 
 
 2 — Elmer v. Fessenden, 151 4 — Mutual Life Ins. Co. v. Hill- 
 Mass. 359. ' mon, 145 U. S. 285. 
 
 123 
 
124 LEADING PBINCIPLES AND RULES OF EXCLUSION. 
 
 mental feelings of an individual are material to be proved, the 
 usual expressions of such feelings are original and competent 
 evidence. These expressions are the natural reflexes of what 
 it might be impossible to show by other testimony. "^ Lord 
 Justice Mellish says, "Wherever it is material to prove the 
 state of a person's mind, or what was passing in it, and what 
 were his intentions, there you may prove what he said, be- 
 cause that is the only means by which you can find out what 
 his intentions are. ' ' ^ Chief Justice Ruffin says, ' ' The ground 
 of receiving those declarations is that they are reasonable and 
 natural evidence of the true situation and feelings of the per- 
 son for the time being." ^ Justice Campbell says, they "are 
 admitted from necessity. ... It would be impossible in 
 most cases to know of the existence or extent or character of 
 pain without them."^ Justice Denis says, "It is one of the 
 natural concomitants of illness and of physical injuries for 
 the sick or injured person to complain of pain and distress. 
 . . . I think such evidence is admissible from the necessity 
 of the case. ' ' » Upon the whole, therefore, it may be said that 
 a fair necessity exists for admitting in evidence such declara- 
 tions made out of court and under proper circumstantial guar- 
 antees of trustworthiness. 
 
 § 3. Requisites of admissibility.— The requisites of admissi- 
 bility of declarations bearing upon pain or suffering are the 
 following, viz.: (1) The declarations must relate to internal 
 conditions and not to external circumstances which produced 
 them; (2) They must be the natural and spontaneous expres- 
 sions of the pain or suffering; (3) They must be contempo- 
 raneous with the pain or suffering. 
 
 § 4. The declarations must relate to internal conditions.— 
 
 The declarations to be admissible under this exception must 
 relate to the pain or suffering itself, and not to the circum- 
 stances which produced it. Thus, a declaration by a person 
 
 5— Ins. Co. v. Mosley, 8 Wall 8 — Grand Rapids & I. Ry. Co. v. 
 
 (U. S.) 397. Huntley, 38 Mich. 543. 
 
 6— Snyden v. Lord St. Leonards, 9— Caldwell v. Murphy, 11 N. Y. 
 
 L. R. 1 P. D. 154. 419. 
 
 7 — Lush V. McDaniel, 13 Ired. 
 487. 
 
DECLARATIONS — CONDITION OR INTENTION. 125 
 
 that he has a severe pain in his head caused by falling down 
 stairs is inadmissible as to the cause of the pain. As stated 
 by Justice Lawrence, "to permit a party to prove what he 
 himself stated to his physician, not in regard to the character 
 and manifestations of his malady, but in reference to its spe- 
 cific cause, when that is one of the issues before the jury, 
 would be carrying an acknowledged departure from the ordi- 
 nary rules of evidence, having its origin in necessity, to a 
 most dangerous extent." i" 
 
 §5. They must be the spontaneous and natural expres- 
 sions of the pain or suffering.— The declarations must be made 
 under such circumstances as will render them free from sus- 
 picion of deception and fraud. The mere fact that they are 
 made post litem motam does not render them inadmissible, but 
 if made for the purpose of furnishing evidence they should be 
 excluded. As stated! by Justice Campbell, "We cannot think 
 it safe to receive such statements, which are made for the 
 very purpose of getting up testimony, and not under ordinary 
 circumstances. . . . (They) were therefore made under a 
 strong temptation to feign suffering if dishonest, and a hardly 
 less strong tendency if honest to imagine or exaggerate it. 
 The purpose of the examination removed the ordinary safe- 
 guards which furnish the only reason for receiving declara- 
 tions which bear in a party's own favor. ... It is not 
 necessary to consider whether there may not be properly re- 
 ceived in some cases the natural and usual expressions of pain 
 made under circumstances free from suspicion, even post 
 litem motam. The case must at least be a very plain one 
 which will permit this.''^^ And, as stated by Justice Law- 
 rence, "he (the witness) may state what his patient said, in 
 describing his bodily condition, if said under circumstances 
 which free it from all suspicion of being spoken with refer- 
 ence to future litigation." 12 
 
 § 6. They must be contemporaneous with the pain or suf- 
 fering.— As a general rule, this class of declarations to be 
 
 10 — 111. Cent. Ry. Co. v. Sutton, 11— Grand Rapids & I. Ry. Co. 
 42 111. 438, 440; State of Ver- v. Huntley, 38 Mich. 543. 
 mont V. Davidson, 30 Vt. 377. 12—111. Cent. Ry. Co. v. Sutton, 
 
 42 111. 438, 440. 
 
126 IJIADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 admissible must be contemporaneous with the pain or suffer- 
 ing. This requirement is not based upon the principle of 
 necessity, but upon the principle of trustworthiness. As 
 stated by Chief Justice Ruffin, ' ' The ground of receiving those 
 declarations is that they are reasonable and natural evidence 
 of the true situation and feelings of the person for the time 
 being. But in reference to past periods they have no such 
 claim to confidence, as they are manifestly, to that purpose, 
 but the narrative of one not on oath.''^^ In,' a few jurisdic- 
 tions, however, including Massachusetts, declarations relating 
 to past pain or suffering, when made to a physician, are held 
 admissible. As stated by Justice Endicott, "While a witness 
 not an expert can testify only to such exclamations and eom- 
 plaints as indicate present existing pain and suffering, a phy- 
 sician may testify to a statement or narrative given by his 
 patient in relation to his condition, symptoms, sensations, and 
 feelings, both past and present, "i* 
 
 § 7. To whom the declarations may be made.— According 
 to the general rule, both in England and in this country, dec- 
 larations relating to an existing pain or suffering may be made 
 to anyone and be admissible. In New York, however, and ia 
 a few other jurisdictions, the courts hold that declarations to 
 be admissible must be made to a physician. This rule, it is 
 submitted, is wholly inconsistent both upon principle and 
 authority. It has no application, however, to involuntary ex- 
 clamations. Spontaneous manifestations of distress are to be 
 carefully distinguished from mere descriptive statements of 
 pain or suffering. The former are always admissible. In Illi- 
 nois, the latter are admissible only when made at the time of 
 the injury, so as to be part of the res gestae, or to a physician 
 during treatment.!^ Declarations made by one physician to 
 another physician, concerning the pain and suffering of 
 another party, or the state of his injuries, are inadmissible 
 unless made in the presence of the injured party .^® And state- 
 
 13— Lush v. McDanlel, 13 Ired. Shaw, 203 111. 39; West Chicago 
 
 487. St. Ry. Co. v. Kennelly, 170 111. 
 
 14 — Roosa V. Loan Co., 132 Mass. 508. 
 
 439. 16 — ^Village of Ponca v. Craw- 
 
 15— Lake St. Elev. Ry. Co. v. ford, 18 Neb. 551. 
 
DECLARATIONS — CONDITION OR INTENTION. 127 
 
 ments, made by a physician to the injured party concerning 
 his injuries, cannot be testified to by the latter party.*'' 
 
 § 8. Effect of statutes which permit parties tO' the suit to 
 testify.— A few courts hold that the effect of statutes which 
 permit parties to the suit to testify is to render declarations 
 descriptive of pain or suffering inadmissible; at least when 
 not made to an attending physician.'* But according to the 
 better view they do not.'^ Upon this point, Justice Elliott, in 
 commenting upon the leading New York case which holds the 
 contrary, and which is cited in foot-note 18, says, "It is con- 
 ceded by the court that the rule was that such declarations 
 were competent until the enactment of the statute permitting 
 parties to be witnesses, but it is asserted that the rule was 
 abrogated by that statute. It seems to us that if the law once 
 was that such declarations were admissible, it was not in the 
 power of the court to annul it. "ttat could only be done by 
 legislation. Where a statute is enacted changing the com- 
 mon law rule, it is to be strictly interpreted and is not tO' be 
 extended by construction. It is an ancient and well known 
 rule that statutes 'in derogation of the common law must be 
 strictly construed. It would be a plain violation of this rule 
 to hold that a statute changing the one rule of law changed 
 another and independent one. The change in the rule does 
 not dissipate the reason, for latent injuries can only be fully 
 known by declarations made at the time the injured person is 
 suffering. But, however this may be, the rule is an estab- 
 lished one, and as courts cannot legislate, they have no right 
 to abrogate it. Judicial legislation is an evil to be avoided. 
 The change in the law worked by the statute does not deprive 
 a party of any competent evidence. The statute adds to his 
 rights ; it subtracts nothing from them. Although the statute 
 makes a party a competent witness, it does not abridge his 
 rights by taking from him evidence competent under the rule 
 of the common law. We cannot agree, we say, in leaving this 
 
 17 — ^Armstrong v. Town of Ack- 19— Northern Pac. Ry. Co. v. 
 
 ley, 71 la. 76. Uelin, 158 U. S. 271; Keyes v. City 
 
 18 — Roche V. Brooklyn City & of Cedar Falls, 107 la. 520; Bagley 
 
 Ry. Co., 105 N. Y. 294. v. Mason, 69 Vt. 175. 
 
]28 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 point, that a party is to be deprived of legitimate evidence' 
 because the statute permits him to testify. ' ' ^o 
 
 § 9. Declarations bearing upooi the mental condition of the 
 declaxant.— Declarations bearing upon the present existing 
 mental condition of the declarant, if naturally made and free 
 from suspicion, are admissible in evidence. Such mental con- 
 dition may comprise motive, design, intent, feeling, etc. A 
 motive for doing a certain act, or a plan or intent to do it, is 
 relevant to prove that it was probably done in pursuance of 
 such motive, plan or intent; and such motive, plan or intent 
 may be shown by contemporaneous declarations which mani- 
 fest such a state of mind, if free from suspicion. As stated 
 by Chief Justice Field, "The fundamental proposition is that 
 an intention in the mind of a person can only be shown by 
 some external manifestation, which must be some look or 
 appearance of the face or body, or some act or speech; ard 
 that proof of either or all of these for the sole purpose of 
 showing state of mind or intention of the person is proof of a 
 fact from which the state of mind or intention may be 
 inferred. ' ' ^^ 
 
 § 10. Misapplication of the res gestae principle.— It is well 
 to observe that some courts, in determining the admissibility 
 of this class of declarations, erroneously invoke the res gestae 
 doctrine.23 They hold that an essential of admissibility is 
 that the declarations accompany and characterize some act or 
 conduct which is relevant in the litigation. This view is un- 
 sound. Whether the declarations do or do not accompany and 
 characterize some act or conduct which is relevant in the liti- 
 gation is wholly immaterial. It is sufficient to render them 
 admissible if they characterize an existing mental conditioji 
 
 20 — Board of Com., etc., v. Leg- rick, 49 Ohio St. 25; Siebert v. 
 
 gett, 115 Ind. 544, 547. People, 143 III. 585; Com. v. Felch, 
 
 21— Rlggs V. Powell, 142 111. 453; 132 Mass. 22 (overruled in Com. 
 
 Siebert V. People, 143 111. 571, 585; v. Trefethen, 157 Mass. 185); 
 
 Chicago, etc., Ry. Co. v. Chancellor, State v. Wood, 53 N. H. 484, 494; 
 
 165 111. 438; Inness v. Boston, etc., McBride v. Com., 95 Va. 818; R. v. 
 
 Ry. Co., 168 Mass. 433. Wainwright, 13 Cox C. C. 171; 
 
 22 — Com. V. Trefethen, 157 Mass. Chicago, etc., Ry. Co. v. Chancel- 
 
 185. lor, 165 III. 438. 
 
 23— Lake Shore Ry. Co. v. Her- 
 
DECLARATIONS — CONDITION OB INTENTION. 129 
 
 which is relevant in the litigation. In commenting upon this 
 point Professor Wigmore very wisely says, "It would be well 
 if the invocation of the res gestae doctrine in this connection 
 could be wholly abandoned. "2* In a murder case, in which 
 evidence of the murdered person's declarations as to having 
 an engagement to meet the defendant was admitted as a 
 "verbal act," Chief Justice Start says, "It was not admissible, 
 in my opinion, on the ground that it tended to 'characterize 
 her subsequent acts and her departure! on the fatal ride soon 
 after she made the statement, '—that is, that it was a part of 
 the res gestae, — for the reason that her statement neither 
 accompanied nor characterized any act relevant to the issue. 
 But it was relevant to the issue to show that she did meet 
 the defendant, and evidence of her declarations of an inten- 
 tion and purpose to meet him was admissible as original evi- 
 dence to prove that she did in fact intend to meet him. To 
 sustain it on the ground that the statement of the deceased 
 was a part of the res gestae is, in my judgment, to assign a 
 wrong reason for a correct conclusion, which may lead to com- 
 plications in future cases. "^^ This view is sound. 
 
 § 11. Declarations of affection, emotion, malice, prejudice, 
 
 etc.— Mental conditions of affection, emotion, malice, preju- 
 dice, etc., are usually manifested by conduct. This fact, how- 
 ever, does not exclude direct statements concerning them. To 
 be admissible, however, such statements must relate to an ex- 
 isting condition of the mind. That is, they must be contem- 
 poraneous with the condition. In actions for criminal conver- 
 sation, alienation of affections, divorce, wife-murder, etc., 
 declarations are admissible to show the declarant's state of 
 affections. They must be made, however, under such circum- 
 stances that no motive to deceive is apparent. Thus, letters 
 by a wife to her husband before the time of her alleged elope- 
 ment and adultery, are admissible to show the state of her 
 affections for him at that time.^® And declarations by a wife 
 before she left home, alleging bad treatment of her by her 
 husband, are admissible to show that she was not enticed 
 
 24 — Wigmore on Evid., Vol. III., '26 — Wright v. Tatham, 5 CI. & 
 
 §1726. F. 683. 
 25— State v. Hayward, 62 Minn. 
 
 474. 
 
130 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 away.2^ When a person is accused of doing a malicious act, 
 his malice may be shown by prior declarations.^* And, upon 
 principle, prior statements by him sh(f)wing the opposite of 
 malice should be held admissible in his favor. Some courts, 
 however, exclude them on the ground that to. admit them 
 would be "to allow a party to make evidence for himself. "^9 
 
 § 12. Testamentary declarations.— Stephens says, "The dec- 
 larations of a deceased testator as to his testamentary inten- 
 tions, and as to the contents of his will, are deemed to be rele- 
 vant when his will has been lost, and when there is a question 
 as to what were its contents ; and when the question is whether 
 an existing will is genuine, or was improperly obtained; and 
 when the question is whether any, and which of more existing 
 documents than one constitutes his will. In all these cases it 
 is immaterial whether the declarations were made before or 
 after the making or loss of the will. ' ' 3" 
 
 § 13. Ante-testamentary declarations.— Ante-testamentary 
 declarations of intention to make, or not to make, a will of a 
 certain tenor, are always admissible to show that the act speci- 
 fied was or was not subsequently performed. This is merely 
 the application of the general principle, heretofore discussed, 
 to a specific case. The declarant's intention, either to make or 
 not to make a will of a certain tenor, is relevant to the litiga- 
 tion; and contemporaneous declarations which manifest this 
 intention are admissible to show it. As stated by Lord Justice 
 Mellish, "The declarations of the testator as to. what he in- 
 tended to put in his will, made either contemporaneously with 
 or prior to the execution of his will, are obviously evidence 
 which may corroborate the other testimony as to what is con- 
 tained in the will, . . . because it is more probable that 
 the testator has than that he has not made a particular devise 
 or a particular bequest when he has told a person previously 
 that he intended to make it, inasmuch as it shows that he had 
 
 27 — Gilchrist v. Bale, 8 Watts -was on trial for murder; and a 
 
 356. statement by him, shortly before 
 
 28 — Ransome v. McCurley, 140 the homicide, that he "would not 
 
 111. 626, 31 N. E. 119; Com. v. hurt a hair of his (deceased's) 
 
 Holmes, 157 Mass. 233, 32 N. E. 6. head," was excluded. 
 
 29— Newcomb v. State, 37 Miss. 30— Stephen's Digest of Evid., 
 
 383, 398. In this case the accused Art. 39. 
 
DECLARATIONS — CONDITION OK INTENTION. 131 
 
 it in his mind to make such a will at the time he made the 
 declaration. " 31 
 
 § 14. Post-testajnentary declara,tio(ns. — Post-testamentary 
 declarations as to the execution, revocation, or contents of a 
 will are assertions of external facts, and, as such, inadmissible. 
 As stated by Lord Justice Mellish, "A declaration after he 
 (the testator) has made his will, of what the contents of the 
 will are, is not a statement of anything which is passing in his 
 mind at the time ; it is simply a statement of a fact within his 
 knowledge, and therefore you cannot admit it unless you can 
 bring it within some of the exceptions to the general rule that 
 hearsay evidence is not admissible to prove a fact which is 
 stated in the declaration. It does not come withia any of the 
 rules which have been hitherto established, and I doubt 
 whether it is advisable to establish new exceptions. " ^^ Lord 
 Chief Campbell says, "Declarations of the testator after the 
 time when a controverted will is supposed to have been exe- 
 cuted would not be admissible to prove that it had been duly 
 signed and attested as the law requires. "^^ And Justice 
 Wilde says, "But where those declarations are vouched to 
 prove . . . the fact that he had declared and embodied 
 those intentions in a certain will, they have no other title to 
 confidence than the statements of any other person who had 
 seen the will and could speak to its contents. In this aspect 
 they become mere hearsay. ' ' ^^ 
 
 31— Sugden v. St. Leonards, L. Wash. C. C. 262, and makes the 
 R. 1 P. D. 154, 249; Wilton v. surprising statement that it ac- 
 Humphreys, 176 Mass. 253; Gor- cords with the weight of author- 
 don V. Burris, 141 Mo. 602; Hope's ity. It is submitted, however. 
 Appeal, 48 Mich. 520; Gardner v. that the opinion is unsound on 
 Gardner, 177 Pa. St. 218. Contra: both points. 
 
 Throckmorton v. Holt, 180 U. S. 32— Sugden v. St. Leonards, L. 
 
 552. In this case Justices Harlan, R. 1 P. & D. 154 (a minority opin- 
 
 White and McKenna dissent. The ion on this point), 
 
 majority opinion excludes ante- 33 — Doe v. Palmer, 16 Q. B. D. 
 
 testamentary declarations of in- 747. 
 
 tentlon and states that "there is 34— Quick v. Quick, 3 Sw. & Tr. 
 
 no good ground for the dlstinc- 442 (rejecting post-testamentary 
 
 tion" between ante-testamentary declarations of the testator when 
 
 declarations and post-testamentary offered to prove the contents of his 
 
 ones. In support of this view it will), 
 cites only Stevens v. Vancleve, 4 
 
132 LEADING PraNCIPLES AND RULES OF EXCLUSION. 
 
 §15. Other theories relating to post-testamentary declara- 
 tions.— There are two theories under which post-testamentary 
 declarations have been held admissible. One of these embodies 
 a double process of inferences. Firsts an inference as to the 
 declarant's belief or consciousness that he did or did not do 
 the act is drawn from his declarations. Secondly an iaference 
 as to his having done or not having done the act is drawn from 
 his belief or consciousness that he did or did not do it. The 
 former inference is an application of the general principle that 
 direct assertions are admissible, when free from suspicion, to 
 show an existing condition of the declarant's miad. Their 
 weight will depend upon the circumstances of the case. The 
 latter inference is a strong presumption of fact. For, assum- 
 ing that the declarant is sane,. and that he entertains the belief 
 that he did or did not do a specific act, there is a strong proba- 
 bility that what he believes is true. '^ 
 
 The other theory invokes a special exception to the hearsay 
 rule. Under this theory the declarations are held admissible 
 owing to a strong trustworthiness growing out of the peculiar 
 circumstances of this class of cases. As said by Chief Justice 
 Cockburn, "If the exception to the general rule of law which 
 excludes hearsay evidence is admitted, on account of the ex- 
 ceptional position of a testator, for one purpose, why should it 
 not be for another, where there is an equal degree of knowl; 
 edge, and an equal absence of motive to speak untruly f^^ 
 And, as said by Jessel, M. R., in the same case, "The court 
 should be anxious, not narrowly to restrict the rules of evi- 
 dence, which were made for the purpose of furthering truth 
 and justice, but guided by those great principles which have 
 guided other tribunals in other countries in admitting this kind 
 of evidence generally, to admit it at all events in the special 
 case which we have under consideration." 
 
 § 16. Purposes for which testamentary declarations are 
 held admissible.— The chief purposes for which testamentary 
 declarations are held admissible are the following, viz.: To 
 show, (1) Mental capacity or incapacity of the testator; (2) 
 Undue influence ; (3) EYaud; (4) Duress; (5) The contents of 
 a lost will; (6) Intention to make a will of a certain tenor; 
 
 35— Snyden v. St. Leonards, L. R. 1 P. & D. 154. 
 
DECLARATIONS — CONDITION OR INTENTION. 133 
 
 (7) That the declarant has or has not made a will of a certain'"' 
 tenor; (8) That the declarant has not made a will, or that a 
 particular will is or is not in existence, or is or is not genuine ; 
 (9) That a particular will has or has not been revoked. 
 
 § 17. The dedsions not harmonious.— As regards the admis- 
 sibility of certain classes of testamentary declarations, the 
 courts agree; while as regards the admissibility of certain 
 other classes they do not. All courts agree that both ante- 
 testamentaiy and post-testainentary declarations of the 
 testator are admissible when the issue is his men- 
 tal capacity to make a will, provided they are not 
 too remote. Most courts hold the same view when the 
 issue is undue influence ; and some when the issue is fraud or 
 duress; but in the latter cases most courts exclude them. 
 When the issue is the contents of a lost will, ante-testamentary 
 declarations are quite generally held admissible; but post-tes- 
 tamentary declarations are held inadmissible by many courts. 
 On the other hand, many courts, under the former of the two 
 theories discussed in § 15, hold the latter declarations admis- 
 sible, but usually restrict them to the purpose of corroborating 
 other evidence. This rule obtains in England,^® and also in 
 Ulinois.^^ A few courts hold such declarations admissible 
 under the theory of a special exception to the hearsay rule, dis- 
 cussed in § 15. Declarations of intention to make or not to 
 make a will are generally held admissible. Declarations that 
 the declarant has or has not made a will, or that a particular 
 will is or is not in existence, or is not genuine, or that a particu- 
 lar will has or has not been revoked, are admitted by some 
 courts and excluded by others. The remarks previously made 
 in regard to the admissibility of post-testamentary declara- 
 tions as to the contents of a lost will are also applicable to 
 these declarations. 
 
 36— Sugden v. St. Leonards, L. 37— In re Page, 118 111. 576. 
 R. 1 P. & D. 154. 
 
CHAPTER XVII. 
 
 DECLARATIONS RELATING TO THE RES GESTAE. 
 
 § 1. Definitions — Ees gestae — Transaction. — The literal 
 meaning of the term "res gestae" is things done. In the law 
 of evidence it means acts and declarations which are connected 
 with, or form part of the transaction in controversy, and which 
 characterize and explain it. 
 
 The term "transaction," as defined by Stephen, means "a 
 group of facts so connected together as to be referred to by a 
 single legal name, as a crime, a contract, a wrong, or any other 
 subject of inquiry which may be in issue. "^ 
 
 §2. Origin of the term "res gestae."— Originally, the term 
 was used in the singular form, "res gesta." It was first used 
 in Home Tooke 's trial for high treason, in 1794.2 It made its 
 second appearance seven years later in a seduction case decid- 
 ed by Lord Kenyon.* In 1805 the plural form, "res gestae," 
 was freely used by counsel in the leading case of Aveson v. 
 Kinnaird.* In 1808 it made its first appearance in the decisions 
 of this country.^ Two years later it made its appearance in the 
 earliest American treatise on the law of evidence.® In 1814 
 Phillipps' excellent treatise on evidence was published, and in 
 it the author says, "Hearsay is often admitted in evidence as 
 part of the res gestae."'' In the fourth edition, however, pub- 
 lished in 1819, the term "res gesta" is omitted, and the term 
 "transaction" is substituted. This substitution also appears in 
 the next three editions, but in the eighth edition the former 
 term is again used. In the works on evidence by Starkie, 
 
 1 — Stephen's Digest of Evid., 6 — Swift's "Digest of the Law of 
 
 Art 3. Evidence In Civil and Criminal 
 
 2—25 Howell's State Trials, 440. Cases." 
 
 3— Hoare v. Allen, 3 Esp., 276. 7— Phillipps on EVid., Vol. I. p. 
 
 4—6 East, 188. 202. 
 
 5 — Bartlett v. Delprat, 4 Mass., 
 702. 
 
 134 
 
DECLARATIONS RELATING TO THE RES GESTAE. 135 
 
 Greenleaf, Taylor and Wharton the term, in the plural form, is 
 freely used. 
 
 § 3. Scope of the term "res gestae."— The scope of the term 
 "res gestae" is exceedingly vague and indefinite. Chief Jus- 
 tice Beasley says, "I think I may safely say that there are few 
 problems in the law of evidence more unsolved than what 
 things are embraced in those occurrences that are designated 
 in the law as the .res gestae."^ Chief Justice Bleckley says, 
 "The difficulty of formulating a description of the res gestae 
 which will serve for all cases seems insurmountable. To make 
 the attempt is something like trying to execute a portrait which 
 shall enable the possessor to recognize every member of a nu- 
 merous family."' Professor Wigmore says, "There has been 
 such a confounding of ideas, and such a profuse and indiscrim- 
 inate use of the shibboleth res gestae, that it is perhaps im- 
 possible to disintangle the real basis of principle involved."^" 
 Professor Thayer says, "We have seen that the singular form 
 of phrase soon began to give place to the plural ; this made it 
 considerably more convenient ; whatever multiplied its ambigu- 
 ity, multiplied its capacity ; it was a larger ' catch-all. ' To be 
 sure, this was a dangerous way of finding relief, and judges, 
 text-writers, and students have found themselves sa^ly embar- 
 rassed by the growing and intolerable vagueness of the expres- 
 sion."" 
 
 § 4. The verbal act doctrine and its misapplication.— Much 
 
 confusion exists in the decisions owing to the fact that the 
 verbal act doctrine has been frequently misapplied. Many de- 
 cisions are confusing because they fail to discriminate between 
 this doctrine and the doctrine of spontaneous declaration. 
 Verbal acts are not hearsay at all ; and therefore, asi to them, 
 the rule against hearsay has no application. They are admis- 
 sible in evidence, but not because they fall within any excep- 
 tion to the hearsay rule. They are original evidence, and con- 
 stitute either, (1) A part of the issue; (2) A verbal part of an 
 
 8— Hunter v. State, 40 N. J. L., 10— Wigmore on Evid., Vol. III., 
 536. § 1745. 
 
 9 — Cox V. State, 64 Ga., 374, 410. 11 — American Law Review, XV. 
 
 5, 81. 
 
136 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 axit material to the issue; or, (3) Oircumstantial evidence of an 
 existing condition. They form part of the res gestae, and are 
 precisely contemporaneous with the 'principal fact or condition. 
 The rule against hearsay is applicable only to testimonial as- 
 sertions ; i. e., assertions offered for the special purpose of 
 evidencing the truth of the matter asserted therein. This prin- 
 ciple is fundamental. Verbal acts are not offered in evidence 
 for this special purpose, and therefore are not testimonial asser- 
 tions. As stated by Justice Eastman, ' ' It does not follow that, 
 because the words in question are those of a third person, they 
 are necessarily hearsay. On the contrary, it happens in many 
 cases that the very fact in controversy is whether such things 
 were spoken, and not whether they are true. ' '^^ And as said 
 by Chief Justice Doster, "The rule is general that, where a 
 substantive litigated fact is the speech of a person, one who 
 heard the utterance is admitted to testify to it, and the testi- 
 mony so received is not hearsay."^' 
 
 § 5. Verbal acts which constitute part of the issue.— Verbal 
 acts which constitute part of the issue are original evidence 
 and not hearsay. Some illustrations of this class of evidence are 
 the following: (1) "Where the issue is, whether a certain alleged 
 contract was made or not. Statements by the parties to it, 
 whether oral or written, which constitute the making of it, are 
 admissible as original evidence; (2) Where the issue is, 
 whether a slander or libel was committed or not, the oral or 
 written statement constituting the alleged slander or libel, is 
 admissible as original evidence; (3) Where the issue is, whether 
 the defendant received notice or not, in order to determine the 
 question of his liability the statement constituting the no- 
 tice is admissible as original evidence ; (4) Where the issue is, 
 whether the defendant, in an action for malicious prosecution, 
 entertained malice or not, statements made to him by third 
 persons, and which if believed by him would tend to show that 
 he did not, are admissible as original evidence. In none of the 
 foregoing illustrations are the declarations used as testimonial 
 evidence, and therefore, as to them the rule against hearsay 
 has no application. 
 
 12— state V. Wentworth, 37 N. 13— State Bank v. Hutchinson, 
 H., 217. 62 Kan.. '9. 
 
DECLARATIONS RELATING TO THE EES GESTAE. 137 
 
 § 6. Declarations which constitute a verbal part of an act 
 material in the case.— Declarations which constitute a verbal 
 part of an act material in the case are also original evidence. 
 In no sense are they used testimonially; i. e., as statements to 
 prove the truth of a fact asserted therein ; and therefore, as to 
 them, the rule against hearsay has no application. As stated by 
 Justice Fletcher, "If a declaration has its force by itself, as an 
 abstract statement, detached from any particular fact in ques- 
 tion, depending for its effect on the credit of the person making 
 it, it is not admissible in evidence. . . . But when the act of 
 a party may be given in evidence, his declarations made at the 
 time, and calculated to elucidate and. explain the character and 
 quality of the act, and so connected with it as to constitute 
 one transaction, and so as to derive credit from the act itself, 
 are admissible in evidence. . . Such a declaration derives credit 
 and importance as forming a part of the transaction it- 
 self."^* And as stated by Justice Clifford, "Declarations 
 of a party to a transaction, though he was not under 
 oath, if they were made at the time any act was done which is 
 material as evidence in any issue before the court, and if they 
 were made to explain the act, or to unfold its nature and qual- 
 ity, and were of a character to have that effect, are treated, in 
 the law of evidence, as verbal acts, and, as such, are not hear- 
 say, but may be introduced, with the principal act which they 
 accompany and to which they relate, as original evidence, be- 
 cause they are regarded as a part of the principal act, and 
 their introduction in evidence is deemed necessary to define 
 that act and unfold its true nature and quality. ""-^ 
 
 Some illustrations of the foregoing principle are the follow- 
 ing: (1) Declarations made by a party who is in possession of 
 property, where the declarations tend to show ownership in 
 him, or otherwise; (2) Declarations made by an accused person 
 found in possession of stolen goods; (3) Declarations made by 
 an alleged bankrupt ; (4) Declarations made by a testator af- 
 fecting a revocation of his will; (5) Declarations as to domicil. 
 
 § 7. Requisites of admissibility of declarations which consti- 
 tute a verbal part of an act. — The requisites of admissibility of 
 
 14 — ^Lund V. Tyngsborough, 9 15 — Insurance Co. v. Mosley, 8 
 Cush., 42. Wall., 411. 
 
138 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 declarations which constitute a verbal part of an act are the 
 following, viz. : (1) The declarations must be contemporaneous 
 with the act; (2) They must limit, characterize or explain it, 
 but merely as an aid in giving it legal significance; (3) The 
 act must be independently material to the issue; (4) The act 
 must be equivocal. 
 
 § 8. The declarations must be coutemporaueous with the 
 
 act.— Declarations which constitute a verbal part of an act 
 must be strictly and precisely contemporaneous with it. As 
 stated frequently, "they must accompany the act." As re- 
 gards spontaneous declarations, discussed infra^^ the rule is 
 more liberal. Care should be exercised in discriminating be- 
 tween these two classes of declarations. The former are origi- 
 nal evidence, while the latter form a true exception to the rule 
 against hearsay. Illustrations of the former, of which there 
 are many, are declarations accompanying the payment or re- 
 ceipt of money, or the possession of land, or the delivery of a 
 chattel. 
 
 § 9. The declarations must limit, characterize or explain the 
 
 act.— This class of declarations must limit, explain or charac- 
 terize the act, but unless they aid in giving it legal significance 
 they should be excluded. As stated by Professor Wigmore, 
 they must "give definite significance to the equivocal or in- 
 definite conduct, by adding a missing part. They must be such 
 as do merely this, and not more.''^^ Some courts, however, 
 apply this rule rather loosely. 
 
 § 10. The act must be independently material to the 
 issue. — The act which is characterized by the declarations must 
 be independently material and probable under the issues. This 
 rule is applicable to verbal acts, but not to spontaneous dec- 
 larations. Some courts, however, erroneously apply it to the 
 latter.18 
 
 § 11. The act must be equivocal. — It is also essential to the 
 admissibility of verbal acts that the act which they characterize 
 be equivocal. If this act be definite and complete, no occasion 
 
 16— Page 144, § 18 et seq. 18— Gresham v. Manning, Irish 
 
 17— Wigmore on Evid., Vol. III., Rep. 1 C. L. 125. See also Wlg- 
 § 1775. more on EJvid., Vol. III., f 1753. 
 
DECLARATIONS RELATING TO THE RES GESTAE. 139 
 
 would arise for using the declarations, and therefore they 
 should be excluded. As stated by Chief Justice Holmes, in a 
 murder case, "The act of taking out the bullets needed no 
 explanation; it is not the law that any and all conversation 
 which happens to be going on at the time of an act can be 
 proved if the act can be proved, "i^ This principle, however, 
 is frequently misapplied by the courts. It is applicable to 
 verbal acts, but not to spontaneous declarations. As to the 
 former, however, it is frequently ignored, and in its application 
 many courts fail to discriminate between the two classes of 
 declarations. 
 
 § 12. Declarations made by a party in possession of prop- 
 erty. — Declarations made by a party in possession of property, 
 where the declarations tend to show ownership in him or other- 
 wise, are admissible as original evidence. They characterize and 
 elucidate the nature of the act of possession, and are, in no 
 sense, testimonial evidence. It follows, therefore, that, as to 
 them, the rule against hearsay has no application. As stated by 
 Justice Storrs, "The possession of personal property is, unex- 
 plained, prima facie evidence of ownership in the possessor; 
 but, as it is consistent with ownership in another, it is not con- 
 clusive ; and whether the person in possession is the owner, de- 
 pends, not upon the mere fact that he is in possession of it, but 
 upon the nature and character of that possession. These are 
 properly evinced by his conduct with regard to it; and the 
 nature of that conduct can only be understood by the declara- 
 tions accompanying it. Declarations in such cases are not, as 
 claimed by the plaintiff, obnoxious to the objection which or- 
 dinarily applies to hearsay testimony. They are not received 
 as declarations of third persons, to prove the truth of what 
 is asserted ; but as being of themselves acts or things done by 
 them, and which explain or characterize the acts which they 
 accompany, and show their true character. "2" 
 
 § 13. Declarations made by an accused person found in pos- 
 session of stolen property. — The declarations of an accused 
 person found in possession of stolen goods are not hearsay but 
 
 19 — Com. V. Chance, 174 Mass. 20 — Avery v. demons, 18 Conn., 
 245, 250. 306, 309. 
 
140 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 original evidence. The eases hold, however, that such declara- 
 tions, to be admissible as verbal acts, must be made either 
 before, at the time of, or within a short time after, the dis- 
 covery or arrest.21 A few eases hold that such declarations, 
 when in favor of the accused, are inadmissible owing to "the 
 general rule that one shall not be permitted to make evidence 
 for himself."^* But the better view, and the great weight of 
 authority, are to the contrary. Justice Sheldon says, "We 
 regard it as the well settled rule, that what explanations' a 
 person makes while in the possession of stolen property, at 
 the time of finding it in his possession, is admissible in evi- 
 dence, as explanatory of the character of his possession. ' '^s 
 
 §14. Declarations made by an alleged bankrupt.— Profes- 
 sor Wigmore says, "Perhaps the earliest, and in England the 
 chief field, for the application of the Verbal Act doctrine has 
 been the declarations of a debtor in connection with an alleged 
 act of bankruptcy. "Whether or not such conduct as departure 
 from the jurisdiction, refusal to appear when a creditor calls 
 to demand payment, or the like, amounts to an attempt to 
 evade creditors and thus to an act justifying the judicial pro- 
 nouncement of bankruptcy, depends for its total significance 
 more or less on all the circumstances of the debtor's behavior. 
 His declarations, therefore, at the time of this other conduct 
 may go to define the general nature of the conduct, and thus 
 become verbal parts of the act."^* Mr. Christian says, "What 
 a bankrupt declares at the time of committing an act of bank- 
 ruptcy is always receivable in evidence, when proved by an- 
 other person. . . But these declarations have been greatly, 
 I conceive, misunderstood or misrepresented. They must ac- 
 
 21 — Reg. V. Evans, 2 Cox C. C, the time of finding it In his pos- 
 
 270; Comfort v. People, 54 111. 40S session, is admissible in evidence 
 
 (In this case declarations of the as explanatory of the character of 
 
 accused, made when pledging an- his possession."), 
 
 other's watch, are held admissi- 22 — State v. Wisdom, 8 Port 
 
 ble to show whether or not he was (Ala.) 511^ 513, 517. 
 
 exercising ownership at the time) ; 23 — Bennett v. The People, 96 
 
 Bennett v. People, 96 111., 602, 607 111. 602, 607. 
 
 (In this case the court say, "what 24 — Wigmore on Evid., Vol. III., 
 
 explanation a person makes while § 1783. 
 in possession of stolen property, at 
 
DBCLAEATIONS RELATING TO THE EES GESTAE. 141 
 
 company the act; for where words and actions are contempo- 
 raneous, they constitute one transaction, they are together one 
 res gestae, and the words are evidence of the reason of the act 
 or the intention of the actor. ' '2*" 
 
 § 15. Declarations made by a testator affecting a revoca- 
 tion of his will.— Declarations of a testator afEecting a revoca- 
 tion of his will are verbal acts and admissible as original evi- 
 dence. Justice Wilde says, "All acts by which a testator may 
 physically destroy or mutilate a testamentary instrument are 
 in their nature equivocal. They may be the result of accident, 
 or, if intentional, of various intentions. It is therefore neces- 
 sary, in each case to study the act done by the light of the cir- 
 cumstances in which it occurred, and the declarations of the 
 testator with which it may have been accompanied; for unless 
 it be done animo revocandi it is no revocation. "^^ Justice 
 Allen says, "Such declarations were admissible for the pur- 
 pose of showing the intent with which the act was done. The 
 act itself was consistent with an intention to revive or not to 
 revive the earlier will. Whether it had the one effect or the 
 other depended upon what was in the mind of the testatrix. "^^ 
 
 § 16. Declarations as to donjicil. — When a person is in the 
 act of moving from one place to another, declarations by him 
 which accompany and characterize the act are admissible as 
 verbal acts. But declarations made by him prior to his re- 
 moval, and indicating an intention to move, are not admissible 
 under this doctrine. ^^ The reason is they do not form part of 
 the act. In many cases, however, courts have erroneously 
 held such declarations admissible under the verbal act doctrine. 
 Originally, and in a long line of decisions, the Massachusetts 
 courts took this view ; but the tendency of the modem decisions 
 is to hold them admissible under the doctrine of intention. 
 The latter is the true view. In a comparatively recent case, 
 Justice Knowlton says, "Declarations of a person accompany- 
 ing a change of his abiding-place have always been held com- 
 
 24a — Christian on Banliruptcy 26 — Pickens v. Davis, 134 Mass. 
 (1812) Vol. I., 379, 380. 257. 
 
 25— Powell V. Powell, L. R. 1 P. 
 & D. 212. 
 
142 LEADING PEINCIPLES AND RULES OP EXCLUSION. 
 
 petent to explain the change as a part of the res gestae; but 
 declarations in such cases are often admissible on a broader 
 ground than as a part of the act of removing from one place 
 to another. The intention of the person is competent to be 
 proved as an independent fact, and anything which tends to 
 show his intention in making tl^e change may be shown, if it 
 is free from objection in other particulars. . . Declarations 
 which indicate the state of mind of the declarant naturally 
 have a legitimate tendency to show the intention. "^^ In a 
 Massachusetts ease decided half a century earlier. Justice 
 "Wilde says, "They were made in the ordinary course of busi- 
 ness, and in relation to the defendant's removal; and they were 
 made to the owner of the house in which he was at that time 
 residing. This giving notice of his intended removal is to-be 
 considered an act which he might prove in any case in which 
 it became material; and, if so, all that he said explanatory of 
 his intention in relation to his removal, seemsi to us to be ad- 
 missible in evidence."^" Justice Wilde's conclusion is correct, 
 but the ground upon which he bases it is erroneous. 
 
 § 17. Declarations which constitute circumstantial evidence 
 of an escisting condition.— Declarations which indirectly evi- 
 dence a condition are not within the ban of the rule against 
 hearsay. When declarations are used inferentially they are 
 not used testimonially ; and it is only when they are used testi- 
 monially that the rule against hearsay has any application. As 
 stated by Justice Miller, "Where the question is whether a 
 party has acted prudently, wisely, or in good faith, the infor- 
 mation on which he acted, whether true or false, is original 
 and material evidence, and not hearsay."^" And as stated by 
 Justice Colt, ' ' The previous declarations of the testator, offered 
 to prove the mental facts involved (competency to make a 
 will), are competent. Intention, purpose, mental peculiarity 
 and condition, are mainly ascertainable through the medium 
 
 27 — See Wigmore on Evid., Vol. listing a residence after removing, 
 
 III., § 1774. were held admissible). 
 
 28— Viles V. Waltham, 157 Mass., 29— KUburn v. Bennett, 3 Mete. 
 
 542. (In this case a notice to as- 199. 
 
 sessors before removing, and con- 30 — Friend v. Hamill, 34 Md. 
 
 versations with reference to estab- 298, 308. 
 
DECLARATIONS RELATING TO THE RES GESTAE. 143 
 
 afforded by the power of language. Statements and declara- 
 tions, when the state of mind is the fact to be shown, are there- 
 fore received as mental acts or conduct. The truth or falsity 
 of the statement is of no consequence. As a narration, it is not 
 received as evidence of the fact stated. It isi only to be used 
 as showing what manner of man he is who makes it. ' '^^ When 
 the declarations are used inferentially, they are admissible to 
 show the condition of mind of either the declarant or of an- 
 other person. Illustrations of the former are the cases cited 
 in foot-notes *" and ^^. An illustration of the latter is the 
 following: A calls B a liar, and B knocks A down. A sues B 
 for assault and battery. The statement made by A to B is ad- 
 missible to show inferentially the state of B's mind caused by 
 the provocation. It would not be admissible, however, testi- 
 monially, i. e., to show the truth of the fact asserted. As stated 
 by Lord Chief Baron Abinger, " If a man called another a liar, 
 and was knocked down, the plaintiff would not be allowed to 
 prove, on the trial of the assault, that the defendant was really 
 and in point of fact a liar, because evidence of provocation is 
 admitted for the purpose of showing that the feelings of the 
 party were excited, and a man is not stung the less by a libel 
 because it happens to be true."^^ The condition of mind, to 
 which the declarations relate, may consist in motive, belief, 
 knowledge, good faith, frenzy, sanity, etc.. Verbal utterances 
 are admissible to show inferentially that a person other than 
 the declarant had knowledge or belief as to the vicious nature 
 of an animal ; or the dangerous condition of a certain place or 
 machine; or the falsity of certain representations;. or the vio- 
 lent disposition of the deceased, in a murder case. In a rape 
 case, failure on the part of the victim to make complaint raises 
 a presumption in favor of the accused. This presumption may 
 be rebutted by showing proper motives for keeping silent ; and 
 these motives may be shown inferentially by statements made 
 to the victim by the accused. "When a person destroys a writ- 
 ten instrument he may still show its contents by secondary evi- 
 dence, provided the destruction of the instrument was done in 
 good faith. To show good faith, verbal utterances by another, 
 
 31— Shailer v Bumstead, 99 32 — Fraser v. Berkeley, 7 C. & 
 Mass. 112. P., 625. 
 
144 LEADING PRINCIPLES AND EULES OF EXCLUSION. 
 
 which produced it, would be admissible. In. none of the fore- 
 going cases are the declarations used testimonially. 
 
 § 18. Spontaneous declarations.— Spontaneous declarations, 
 made immediately after the occurrence to which they relate, 
 constitute a real exception to the rule against hearsay. They 
 differ essentially from verbal acts in that they are used testi- 
 monially. Some eases speak of this class of declarations as 
 spontaneous exclamations.'^ Professor Wigmore uses this term, 
 as he says, in default of a better one.'* As previously stated in 
 this chapter (§4), much confusion exists in the eases owing to 
 the fact that many courts fail to discriminate between spon- 
 taneous declarations and verbal acts. A careful observance of 
 this discrimination by courts and text-writers, would do much 
 towards dispelling this confusion. Professor "Wigmore, in his 
 recent scholarly work on Evidence, has done much towards 
 elucidating and emphasizing this important discrimination. 
 
 § 19. Grounds of admissibility.— The chief ground of admis- 
 sibility of this class of declarations is the circumstantial guar- 
 antee of trustworthiness. This guarantee is based upon the 
 fact that the declarations are the spontaneous, instinctive and 
 natural utterances of the declarant, "generated by an excited 
 feeling which extends without a break-down from the moment 
 of the event which they illustrate. ' "^ At the time the utter- 
 ances are made the reflective faculties are dormant, so that the 
 exclamations are genuine and sincere. They constitute instinct- 
 ive expressions of the mind resulting from nervous excitement 
 produced by some external manifestations. If the declarant 
 has had time to deliberate, and frame his statements in his own 
 interest, they are not spontaneous declarations, but narratives 
 of past occurrences, and therefore inadmissible. 
 
 A minor ground of admissibility is the principle of necessity. 
 This principle is applicable more or less to all the exceptions 
 to the rule' against hearsay. It is applicable to the exception 
 under consideration only so far as a resort to spontaneous dec- 
 larations for unbiased evidence is necessary. Such extrajudi- 
 
 33 — Lauder v. The People, 104 34 — ^Wigmore on Evid. Vol. III., 
 111. 256; Dismukes v. State, 83 foot-note 1, page 2247. 
 Ala., 239. 35 — Justice Smith, In Carr v. 
 
 State, 43 Ark. 104. 
 
DBCLAEA^^IONS RELATING TO THE RES GESTAE. 145 
 
 cial assertions may be entitled to greater credence than is likely 
 to be obtained from, the declarant as a witness. It is to be ob- 
 served in this connection that the unavailability of the declar- 
 ant as a witness, in this class of declarations, is immaterial. 
 
 § 20. Not essential that the declarations be strictly contem- 
 poraneous.— It is often stated that this class of declarations 
 must be contemporaneous with the event to which they I'elate. 
 This statement is misleading to say the least. It certainly is 
 not essential that they be precisely contemporaneous. In re- 
 gard to verbal acts, however, it is. Failure to properly dis- 
 criminate between these two classes of declarations is probably 
 thei cause of the loose and misleading statements in regard to 
 the former. Such declarations are admissible though subse- 
 quent to the occurrence to which they relate, provided they 
 are near enough to be the result of the exciting cause Joad not 
 the result of reflection and deliberation. 
 
 A marked example of the misapplication of this principle is 
 the celebrated case of Regina v. Beddingfield.^' In this case 
 the accused was charged with murder. The deceased, a min- 
 ute or two after the accused entered her room, came suddenly 
 out of the house with her throat cut, and on meeting a woman 
 in the yard said something, pointing backward towards the 
 house. In a few minutes she was dead. Chief Justice Cock- 
 burn rejected what she said, on the ground that "it was not 
 part of anything done, or something said while something 
 was being done, but something said after something done. It 
 was not as if, while being in the room, and while the act was 
 being done, she had said something which was heard." The 
 Chief Justice wholly failed in this case to discriminate between 
 verbal acts and spontaneous declarations. As heretofore 
 stated, verbal acts must be precisely contemporaneous; but 
 verbal acts are original evidence. Spontaneous declarations, 
 however, do not have to be precisely contemporaneous. It is 
 sufficient to render them admissible if they are near enough 
 to be free from reflection and] deliberation. 
 
 Two other marked examples of the misapplication of this 
 principle are the frequently cited cases of Com. v. M'Pike^' 
 
 36—14 Cox Cr. Ca. 341. 37—3 Cush. (Mass.) 184. 
 
 20 
 
146 LEADING PRINCIPLES AND KULES OF EXCLUSION. 
 
 and Com. v. Haekett.''^ In both of these cases the defendants 
 were convicted of manslaughter and alleged exceptions. In 
 the former case, Justice Dewey, in admitting subsequent dec- 
 larations of the deceased, says, ' ' The period of time, at which 
 these acts and declarations took place, was so recent after 
 receiving the injury, as to justify the admission of the evi- 
 dence as a part of the res gestae." If the declarations were 
 part of the res gestae they were verbal acts, and admissible as 
 such, as original evidence. They were not verbal acts, how- 
 ever, since they did not accompany the main transaction. 
 Hence, if they were admissible at all, they were admissible as 
 spontaneous declarations, and not "as a part of the res ges- 
 tae." In the latter of the two cases cited, Chief Justice Big- 
 elow falls into precisely the same error. The declaration in 
 question was made by the deceased shortly after the infliction 
 of the alleged mortal blows. In speaking of this declaration 
 Chief Justice Bigelow says, "But it was an exclamation or 
 statement, contemporaneous with the main transaction, form- 
 ing a natural and material part of it, and competent as being 
 original evidence in the nature of res gestae." Since the 
 statement was made after the blows were struck, it was not 
 a verbal act and original evidence, but merely hearsay; and 
 if admissible at all, it was admissible as a spontaneous declara- 
 tion, which constitutes a real exception to the rule against 
 hearsay. 
 
 § 21. A confusing and misleading statement by Professor 
 Greenleaf.— In speaking of declarations relating to the res 
 gestae, Professor Greenleaf says, "There are other declarations 
 which are admitted as original evidence, being distinguished 
 from' hearsay by their connection with the principal fact un- 
 der investigation. The affairs of men consist of a complication 
 of circumstances so intimately interwoven as to be hardly 
 separable from each other. Each owes its birth to some pre- 
 ceding circumstance, and in its turn becomes the prolific par- 
 ent of others; and each, dui;ing its existence, has its insepar- 
 able attributes and its kindred facts, materially affecting its 
 character, and essential to be known in order to a right un- 
 derstanding of its nature. These surrounding circumstances, 
 
 38—2 Allen (Maas.) 136. 
 
DECLARATIONS RELATING TO THE RES GESTAE. 147 
 
 constituting parts of the res gestae, may always be shown to 
 the jury along with the principal fact, and their admissibility 
 is determined by the judge according to the degree of their 
 relation to that fact, and in the exercise of his sound discre- 
 tion it being extremely difficult, if not impossible, to bring 
 this class of eases within the limits of a more particular 
 description. ' '^^ 
 
 The foregoing statement, it is submitted, is both confusing 
 and misleading. It is confusing in that it wholly fails to make 
 any discrimination whatever between verbal acts and spon- 
 taneous declarations. It is misleading in that it treats spon- 
 taneous declarations as original evidence. As stated by Pro- 
 fessor Wigmore, "This passage, and the structure of deci- 
 sions resting on it, have no basis of principle. They commit 
 the fallacy of confusing the details of an occurrence with 
 human assertions about those details."*" 
 
 § 22. Declarations of agents. — Much confusion is found in 
 the cases owing to the fact that the admissibility of declara- 
 tions made by agents is frequently made to depend upon the 
 rfits gestae doctrine; when, as a matter of fact, this doctrine 
 is usually not involved at all. The doctrine usually involved 
 is the doctrine of admissions. And whether the agency rela- 
 tion existed or not is not a question in evidence, but a question 
 in substantive law. Declarations of agents, made within the 
 scope of the agency relation, are binding upon their princi- 
 pals; and whether such declarations form a part of the oc- 
 currence to which they relate or not is immaterial. Similar 
 observations are applicable to declarations made by co-con- 
 spirators.*^ 
 
 39 — Greenleaf on Evid. Vol. I. merely whether it may be used as 
 
 i 108. evidence against him, but whether 
 
 40 — ^Wigmore on Evid. Vol. III., it shall b« so used as having been 
 
 § 1757, p. 2267. brought home to him, and whether 
 
 41 — Professor Thayer says, upon he shall be chargeable with it as 
 
 this point, "The term res gestae is if it were his own. When the in- 
 
 freely used in another class of quiry is whether the utterance of 
 
 cases where the specific question an agent, or a co-conspirator, is 
 
 is whether a party to the suit shall receivable against a party, and it is 
 
 be affected with responsibility for said, in the case of the agent, that 
 
 the declaration of another; not it must have been made in and 
 
148 
 
 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 §23. Declarations in rape cases. — The fact that the prose- 
 cutrix, within a reasonable time after the commission of an 
 act of rape, made complaint against the accused, has always 
 been held admissible. The origin of this rule was the ancient 
 hue-and-cry doctrine. As stated by Bracton, "When there- 
 fore a virgin has been deflowered and overpowered, against 
 the peace of the lord the king, forthwith and while the act is 
 fresh she ought to repair with hue and cry to the neighboring 
 vills and there display to honest men the injury done to her, 
 the blood and her dress stained with blood, and the tearing 
 of her dress. "*^ 
 
 § 24. Three theories of admissibility.— There are three the- 
 ories under which this class of declarations is held admissible, 
 viz.: (1) To explain a self-contradiction; (2) To corroborate 
 other evidence given by the prosecutrix; (3) As a spontane- 
 ous declaration. 
 
 §25. The first theory.— Under this theory the declarations 
 must be offered to sustain the prosecutrix when in some man- 
 
 about the business on which the 
 agent was employed; and while ac- 
 tually engaged in that, business; 
 and, of a co-conspirator, " that he 
 must have made his declaration 
 while engaged in the common en- 
 terprise and regarding that, — in 
 such cases it is common to express 
 this idea by saying that the dec- 
 laration must be made as a part of 
 the res gestae; and if it is not so 
 made it is deemed to be res inter 
 alios gesta. Now it is obvious on 
 a little reflection, that to settle this 
 question adversely to the admis- 
 sibility of that which is offered in 
 evidence, is really to settle a ques- 
 tion in the law of agency or In the 
 law regulating conspiracy, — a ques- 
 tion in substantive law. . . Ob- 
 serve, then, that the rule which 
 says that a man shall be charge- 
 able with the acts and declarations 
 of his agent or fellow-conspirator 
 is not a rule of evidence; and 
 When in stating and applying this 
 
 rule it is said that the agent's dec- 
 laration must have been made in 
 and about his principal's business, 
 while actually engaged In it, and 
 as a part of the res gestae; or 
 again, when it is said of a 
 conspirator's declaration, offered 
 against his fellow-conspirator, that 
 it must have been made while he 
 was actually engaged in the com- 
 mon enterprise, about the affairs 
 of it, and as a part of the res 
 gestae; the Latin phrase adds 
 nothing; it is used as a compact 
 expression for the business, as re- 
 gards which the law for 'certain 
 purposes identifies the two conspir- 
 ators or the principal and agent 
 In such cases, evidently, the decla- 
 ration may be about a past fact as 
 well as a present one, so long as 
 it comes up to the above-named re- 
 quirements." American Law Re- 
 view XV., 80. 
 42— H. de Bracton f., 147 (1258). 
 
DECLARATIONS RELATING TO THE RES GESTAE. 149 
 
 ner impeached; and furthermore, the eTidence must be lim- 
 ited to the mere fact that complaint was made. It is not es- 
 sential, however, that the prosecutrix be directly impeached. 
 She may be impeached inferentially. Thus, assuming that she 
 testifies that the accused committed the act, a presumption of 
 fact arises that, if her story is true, naturally she made com- 
 plaint to some relative or friend soon after the commission 
 of so violent an act. Failure to show that she made complaint 
 would ordinarily raise a presumption of fact which would 
 tend to impeach her. And, to rebut this natural presumption 
 that would arise from silence on this point, the fact that she 
 made complaint may always be shown. As stated by Justice 
 Daggett, "If a female testifies that such an outrage has been 
 committed on her person, an inquiry is at once suggested why 
 it was not communicated to her friends. To satisfy such in- 
 quiry it is reasonable that she should be heard in her declara- 
 tion that she did so complain."" And as stated in a recent 
 case by Justice Bartch, ' ' The natural instinct of a female thus 
 outraged and injured prompts her to disclose the occurrence, 
 at the earliest opportunity, to the relative or friend who nat- 
 urally has the deepest interest in her welfare ; and the absence 
 of such disclosure tends to discredit her as a; witness, and may 
 raise an inference against the truth of the charge. To avoid 
 such discredit and inference, it is competent for the prosecu- 
 tion to anticipate any claim as to effects, and show by affirma- 
 tive proof of the victim and of her relative or friend to whom 
 she narrated the circumstances of the outrage, that complaint 
 was made recently after its commission."** Under this the- 
 ory, however, the details of the declarations are not admis- 
 sible. To admit them would be to admit hearsay evidence 
 without any justification. 
 
 §26. The second theory.— This theory involves the prin- 
 ciple which is applied by piany courts in admitting in evi- 
 dence subsequent declarations of a testator where the issue 
 is the contents of his lost will. Such declarations are held ad- ' 
 missible merely as corroborative evidence. In a rape case, 
 the complaint made by the prosecutrix is admissible to cor- 
 
 43— State v. De Wolf, 8 Conn., 99. 44— State v. Neal, 21 Utah, 151, 
 
 60 Pac. Rep., 510. 
 
150 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 roborate her testimony given on tlie stand. As some courts 
 put it, "to verify" or "to test her recollection." Under this 
 theory, as well as under the first one, it is essential to the 
 admissibility of this class of evidence that the prosecutrix has 
 testified in the ease; and furthremore, that her testimony has 
 been, inferentially at least, impeached. The evidence, how- 
 ever, is not, as under the first theory, restricted to the mere 
 fact that complaint v?as made. The details of the complaint 
 are also admissible. This is owing to the fact that the pur- 
 pose of introducing the declarations is to show that she told 
 the same story previously as she now tells upon the stand. 
 
 § 27. The third theory. — This theory constitutes a real ex- 
 ception to the rule against hearsay. The declarations are 
 hearsay, but they are held admissible because made, under the 
 influence of mental excitement, and so near to the time of the 
 act as to preclude premeditation. As stated by Justice Eob- 
 inson, "Moreover, w© think the declaration was admissible as 
 a part of the res gestae. It was made but a few moments 
 after the alleged ravishment had been accomplished, and 
 while declarant was under the influence of the mental excite- 
 ment which it produced. It was made within such time after 
 the act to which it referred and under such circumstances as 
 to preclude the element of premeditation."*^ Under this the- 
 ory it is not essential to the admissibility of the declarations 
 that the prosecutrix testify, or that she be in any manner im- 
 peached. Moreover, the details of the complaint, as well as 
 the fact that complaint was made, are admissible. As stated 
 by Chief Justice Park, "Her natural impulses prompt her to 
 tell all the details of the transaction. Why, on the same prin- 
 ciple, ought not her statement of the details to be evi- 
 dence?"" 
 
 §28. Much conflict in the decisions.— The English doc- 
 trine. — There is much' conflict in the decisions on the question 
 whether the details of the declaration are admissible or not. 
 According to the earlier English cases they were held inad- 
 missible. The modem English cases, however, hold the con- 
 
 45— McMurrin & Rigley, 80 la., 46— State v. Kinney, 44 Conn., 
 325. 156. 
 
DECLARATIONS EELATIN6 TO THE EES GESTAE. 151 
 
 trary. Baron Parke, in a case decided in 1839, says, "The 
 sense of the thing certainly is that the jury should in the first 
 instance know the nature of the complaint made by the prose- 
 cutrix and all that she then said. But, for reasons which I 
 never could understand, the usage has obtained that the pros- 
 ecutrix's counsel should only inquire generally whether a 
 complaint was made by thet prosecutrix of the prisoner's con- 
 duct towards her, leaving the counsel of the latter to bring 
 before the jury the particulars of that complaint by cross- 
 examination." " Justice Hawkins, speaking for the English 
 Court for Crown Cases Eeserved, after full consideration by 
 the court, in ai ease decided in 1896, says, "In the result, our 
 judgment is that the whole statement of a woman containing 
 her alleged complaint should, so far as it relates to the charge 
 against the accused, be submitted to the jury as a part of the 
 case for, the prosecution."** This is the modern English view. 
 In this case, the court hold that such declarations are not ad- 
 mitted as a part of the res gestae, or as evidence of the truth 
 of the things asserted, or solely for the purpose of disprov- 
 ing consent, but for the more general purpose of confirming 
 the testimony of the ravished woman. 
 
 §29. The American doctrine. — ^In this country the cases 
 are in hopeless conflict. Many cases hold that only the fact 
 that the complaint was made is admissible.*' This view is 
 the weight of authority. Others hold that the full details of 
 the complaint are admissible.^" Some cases which hold the 
 latter view base the admissibility of the details of the com- 
 plaint on "the doctrine of res gestae, while others base it on 
 the doctrine of corroboration. 
 
 § 30. The true doctrine. — The ground of admissibility of 
 the details of the complaint depends upon the time, relatively 
 speaking, when it was made. If contemporaneous with the 
 
 47— Reglna v. Walker, 2 Moo. & State v. Ivins, 36 N. J. L., 233; 
 
 Rob., 212. People v. Mayes, 66 Cal., 597; Peo- 
 
 48 — Regina v. Lillyman, 2 Q. B. pie v. Duncan, 104 Mich., 460. 
 
 D., 167. 50 — State v. Kinney, 44 Conn., 
 
 49— Baccia v. People, 41 N. Y., 153; State v. Meyers, 46 Neb., 152; 
 
 265; Barnett v. State, 83 Ala., 40; Burt t. State, 23 Ohio St., 394. 
 Poison V. State, 137 Ind., 519, 523; 
 
152 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 transaction, it is a verbal act, and its details are admissible 
 as original evidence. If not contemporaneous with the trans- 
 action, but so near to it as to constitute a spontaneous dec- 
 laration, its details are hearsay, but admissible under the 
 exception of spontaneous declarations. If it constitutes a nar- 
 rative of a past transaction, the res gestae doctrine has, of 
 course, no application ; and if the details are admissible at all, 
 the ground of their admissibility must be the doctrine of cor- 
 roboration. If the prosecutrix has not testified in the case, 
 this doctrine has no application; and therefore, neither the 
 fact of the complaint nor its details are admissible. If, how- 
 ever, the prosecutrix has testified against the accused, and the 
 purpose of 'introducing in evidence the details of the com- 
 plaint is to corroborate her testimony, and not to prove the 
 truth of the fact asserted in the complaint, it seems that, 
 upon principle, the details of the complaint, as well as the fact 
 that she made it, should be held admissible. But, as hereto- 
 fore stated, according to the weight of authority in this coun- 
 try the details of the complaint are excluded. 
 
 § 31. Declarations of bystanders. — Declarations of bystand- 
 ers, when so connected with the main fact as- to characterize 
 and form a part of it, are admissible under the res gestae 
 doctrine. It is not essential, under this doctrine, that they 
 be made by one of the actors. As stated by Chief Baron Pol- 
 lock, "Courts, so far as they can, are disposed to receive in 
 evidence whatever can throw any light on the matter in issue 
 and advance the search after truth. No doubt, for that rea- 
 son, in the case of an exclamation by any one in a crowd, when 
 an accident occurs, and the conduct of a particular person is 
 in question, it may be asked whether some one did not call 
 out 'shame!'; for it is part of the reis gestae."^^ Nor is it 
 essential that the declarations be made in the presence of the 
 injured party. Thus, in a personal injury case against a rail- 
 way company, the conduct of passengers, on the happening 
 of an accident, though not in the presence of the paity injured, 
 is admissible to show how the apparent danger impressed 
 others. As stated by Chief Justice Scates, "The conduct and 
 
 51— Milne v. Leisler, 7 H. & N., 786, 796. 
 
DECLAEATIONS RELATING TO THE RES GESTAE. 153 
 
 exclamations of passengers in the cars were not improperly 
 admitted, as tending to show how the circumstances of ap- 
 parent danger impressed every one, and, to some degree, ex- 
 plain defendamt's conduct, and vindicate it from rashness and 
 imprudence from undue alarm.' It is impossible for a witness 
 to convey such scenes to the mind, and their effect and in- 
 fluence upon it. Such general conduct, with the exclamations 
 involuntarily thrown out by appearances of imminent peril, 
 may be regarded as a part of the res gestae for this purpose. ' '^^ 
 
 § 32. The rule in criminal cases.— The rule in criminal cases, 
 as regards the admissibility of declarations relating to or form- 
 ing part of the res gestae, is, generally speaking, the same as 
 the rule in civil cases. It is to be observed, however, that pre- 
 liminary matters which constitute preparation for the crime, 
 and even subsequent acts and declarations to the main or prin- 
 cipal act proper, but which, in a sense, form part of the con- 
 tinuous transaction, may be so intimately connected and inter- 
 woven with the principal act as to constitute part of the res 
 gestae. But declarations which are merely narratives of past 
 transactions are, of course, pure hearsay and inadmissible. 
 Thus, in a recent murder case, declarations, both by the ac^ 
 cused and by the deceased, made several minutes after the 
 shooting occurred, and while the deceased was lying helpless 
 on the ground where he fell, were rejected because they did 
 not constitute part of the res gestae.^^ In another murder 
 case,^* also recently decided, declarations by the accused, made 
 to an officer five or six minutes after the homicide was commit- 
 ted, and after the accused had run some distance from the 
 scene of the murder, were rejected on the same ground. Some 
 courts, however, apply a more liberal rule in such cases and 
 admit such declarations, especially when made at the place 
 where the main event occurs.^' If the declarations are so 
 closely connected with the main fact as to constitute in a sub- 
 stantial sense a part of it they are admissible as part of the 
 
 52— Galena & C. U. Ry. Co., 16 54— Sullivan v. State, 101 Ga., 
 
 111., 558, 568. 800. 
 
 53 — Williams v. State, 130 Ala., 55 — Galveston &c. Ry. Co. v. Da- 
 
 107. vis, 27 Tex. Civ. App., 279. 
 
154 LEADING PRINCIPLES AND EULES OF EXCLUSION. 
 
 res gestae?^ And if they are sufficiently near to constitute 
 spontaneous declarations, and not narratives of past occur- 
 rences, they are admissible as a real exception to the rule 
 against hearsay. Previous threats and altercations may also 
 be so connected with the main act as to constitute part of the 
 res gestae.^'' 
 
 § 33. Tlie tendency of some courts to rela^ this exception 
 to the hearsay rule.— Some courts favor relaxing this excep- 
 tion to the hearsay rule. Moreover, they assert that this is the 
 tendency of recent decisions. As stated by Justice Swayne, 
 in a celebrated case, ' ' The tendency of recent adjudications is 
 to extend rather than to narrow the scope of the doctrine."'* 
 Other courts hold exactly the contrary. As stated by Chief 
 Justice Bigelow, in another important case, "It is very true 
 that the rule which renders res gestae competent, has been 
 often loosely administered by courts of justice, so as to admit 
 evidence of a dangerous and doubtful character, and that the 
 tendency of recent decisions has been to restrict within the 
 most narrow limits this species of testimony (citing Lund v. 
 Tyngsborough, 9 Cush. 36). "s* In another celebrated case. 
 Justice Earl, in commenting upon Chief Justice Bigelow 's 
 view, speaks approvingly of it. In another ease the court say, 
 "To make declarations on this ground admissible, they must 
 not have been mere narratives of past occurrences, but must 
 have been made at the time of the act done which they are 
 supposed to characterize, and have been well calculated to un- 
 fold the nature and quality of the acts they were intended to 
 explain; and to so harmonize with them as to constitute a 
 single transaction. "°" Upon principle, the latter view is cor- 
 rect; and is undoubtedly supported by the weight of author- 
 ity. The principle is . fundamental that a general rule which 
 has exceptions is to be construed liberally, while the e:^cep- 
 tions to it are to be construed strictly. 
 
 56— Keyesv. State, 122 Ind., 527; Ellis, 101 N. C, 765; Wood T. 
 
 Greenfield v. People, 85 N. Y., 75; State, 92 Ind., 269. 
 
 Kirby v. Com., 77 Va., 681; State 58— Ins. Co. v. Mosley, 8 "Wall. 
 
 V. Euzebe, 42 La. Ann., 727. (U. S.), 397. 
 
 57— State v. Galnor, 84 la., 209; 59— Com. v. Hackett, 2 Allen 
 
 Boyle V. State, 97 Ind., 322; Jor- (Mass.), 136, 140. 
 
 dan v. State, 81 Ala., 20; State v. 60— Rockwell v. Taylor, 41 Conn., 
 
 55. 
 
CHAPTER XVIII. 
 
 OPINION EVIDENCE. 
 
 §1. Definition.— Opinion evidence is the statement by a 
 witness of an inference, as to the existence or non-existence of 
 a fact or facts in issue, and based either upon personal knowl- 
 edge, or facts assumed to be true. 
 
 § 2. Origin.— The practice of admitting opinion evidence is 
 of ancient origin. Instances are recorded in the Tear Books 
 where the opinions of witnesses, versed in the arts and sciences, 
 were allowed. As early as 1353, skillful surgeons were sum- 
 moned from London to inform the court whether a certain 
 wound was mayhem or not. In 1532, the celebrated criminal 
 code of Emperor Charles the Fifth required the opinion of 
 medical experts to be taken in all eases where death was sup- 
 posed to have been caused by violent means. For a very con- 
 siderable period the purpose of opinion evidence was to inform 
 and aid the court; and it is probable that such continued to be 
 its purpose for a long time after witnesses were regularly 
 allowed to testify before the jury. 
 
 §3. Opinions and facts distinguished.— Psychologically 
 
 speaking, all statements by witnesses are expressions of opin- 
 ions. They differ in remoteness from the immediate impres- 
 sions received, but all are conclusions drawn from perceptions 
 received through the senses. Legally speaking, however, state- 
 ments by witnesses are of two classes: (1) Facts; (2) Opin- 
 ions. The dividing line between these two classes is generally 
 clear and well defined, but there are exceptions to this rule. 
 Spontaneous conclusions, as to conditions or appearances, drawn 
 from perceptions resulting from a variety of circumstances 
 which cannot be palpably described by the witness to the jury 
 so as to enable that body to draw intelligent conclusions from 
 them, are usually regarded, from the legal standpoint, as mat- 
 
 155 
 
156 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 ters of fact and not of opinion.^ Such conclusions may be 
 stated by non-expert witnesses. As a general rule, however, 
 the facts upon which the conclusions are based must first be 
 stated; and such facts must always be founded upon personal 
 knowledge. Thus, a non-expert witness may state his conclu- 
 sions as to, — the age of a certain person; the condition of his 
 health; his identity; his sanity; his reputation; whether he 
 appeared intoxicated, glad, angry, nervous, excited, grief- 
 stricken, etc.; the value, weight, size, sufficiency, color, etc., of 
 a certain thing; the safety of a certain place or condition of 
 things; the disposition of a certain animal; the character of 
 certain sounds, and the direction from which they seemed to 
 come; the speed of a certain train or horse; and whether a 
 certain thing would tend to frighten horses. In a substantial 
 sense, this class of evidence is evidence of facts and not of 
 opinions. In no sense is it expert evidence, and care should be 
 taken to avoid confusing the two classes. Eeal opinion evi- 
 dence may be given onlyiby an expert. 
 
 § 4. Escpert testimony as to certain facts.— Expert opinion 
 evidence, and expert testimony as to certain facts, are often 
 used interchangeably. They are not, however, synonymous 
 terms. The former comprises the real exception to the rule 
 which excludes opinion evidence. The latter is not opinion 
 evidence at all, but merely evidence of facts by specially quali- 
 fied witnesses. Evidence by an expert in the unwritten law 
 of a foreign country, as to what that unwritten law is, is not 
 expert opinion evidence, but expert evidence as to a certaia 
 
 1 — "The truth is, the statement embodying, more or less, the im- 
 
 of a non-professional witness as to pressions or judgment of the wit- 
 
 the sanity or insanity of an indi- ness. But, in a substantial sense, 
 
 vidual,\ whose appearance, manner, and for every purpose essential to 
 
 habits, and conduct came under a safe conclusion, the mental con- 
 
 his personal observation, is not dltion of an individual, as sane or 
 
 the expression of mere opinion, insane, is a fact, and the ex- 
 
 In form, it is opinion, because It pressed opinion of one who has 
 
 expresses an inference or conclu- had adequate opportunities to ob- 
 
 sion based upon observation of the serve his conduct and appearance 
 
 appearance, manner, and motions is but the statement of a fact." 
 
 of another person, of which a cor- Per Justice Harlan, Con. etc. Life 
 
 rect idea cannot well be communi- Ins. Co. v. Lathrop, 111 U. S., 612, 
 
 cated in words to others, without at p. 620. 
 
OPINION EVIDENCE. 
 
 157 
 
 fact. Evidence by a medical expert, as to the physiology of 
 the human body, or, as to the functions of certain of its organs, 
 and evidence by an expert, as to the meaning of certain terms 
 peculiar to a certain trade or business, belong to the same class. 
 
 §5. Expert opinion evidence.— Expert opinion evidence is 
 the statement by a witness, specially qualified to testify, of an 
 opinion based upon facts either assumed or proved, concerning 
 a matter involving scientific or technical knowledge not pos- 
 sessed by an ordinary witness. As indicated by the definition, 
 to render such evidence admissible the witness must be specially 
 qualified to give it, and the question involved must be one 
 which requires special knowledge. If the jury are equally 
 capable with the witness of forming an opinion from the facts 
 stated, such evidence is inadmissible. 
 
 § 6. Basis of expert opinion evidence.— Expert opinion evi- 
 dence may be based upon a hypothetical question, or personal 
 knowledge, or partly upon the one and partly upon the other. 
 As a general rule, it is based upon a hypothetical question. li 
 may not, as a general rule, be based upon hearsay, though the 
 witness believes such hearsay to be true. An exception to this 
 rule, founded upon necessity, is the case of an opinion by a 
 physician, based, in part, upon the statements of his patient, 
 describing his symptoms and physical condition, and the causes 
 which have led to the disease or injury under which he appears 
 to be suffering. It may not be based upon the inferences and 
 conclusions of other witnesses ; nor partly upon facts and partly 
 upon the opinions of other experts. In all cases, it must be 
 based upon personal knowledge, or, upon facts assumed to be 
 true; and such personal knowledge and assumed facts must be 
 pertinent to the issue. It may not, as a general rule, be based 
 upon all the evidence in the case. This is because the jury 
 would not know how much weight the expert witness would 
 give to the various parts of the evidence, and hence his opinion 
 would be valueless. An expert opinion may, however, in the 
 discretion of the court, be based upon the evidence of one or 
 more witnesses, provided that such evidence is not contradic- 
 tory, or too complicated or obscure, and assumed to be true. 
 
 When an expert opinion is based upon personal knowledge, 
 
158 LEADING PRINCIPLES AND RULES OP EXCIjUSION. 
 
 the facts upon which it is based must first be stated. The 
 reasons for this rule are,— (1) To enable the court to determiae 
 whether the facts, upon which the opinion is based, are rele- 
 vant; (2) To enable the correctness of the opinion to be tested 
 by the opinions of other experts based upon the same facts. 
 When, however, the opinion is based upon the observation and 
 experience of the witness in similar cases to the one in issue, 
 he may not be asked, upon his direct examination, to state the 
 facts upon which his opinion is based. The reasons for this 
 exception to the rule are, — (1) To avoid introducing side issues, 
 and thereby confusing the jury; (2) To prevent the trial of 
 the cause from becoming unduly prolonged, and the costs from 
 becoming unnecessarily burdensome. Several experts might 
 give opinions based upon different sets of similar circumstances 
 to those in issue, and if all these different sets of circumstances 
 were allowed to be given in evidence, and controverted by the 
 adverse party in each case, the issues would be so complicated 
 that the minds of the jurors would be in a state of chaos. 
 
 § 7. An expert witness.— An expert witness is one who is 
 skilled in some art, science, trade, profession, or other human 
 activity, and possesses peculiar knowledge concerning it.^ This 
 peculiar knowledge may be the result of study, or of experience. 
 It is not essential that his attainments, in the particular sub- 
 ject to which his opinion relates, are of the highest order, nor 
 that he is engaged at the time in the particular activity which 
 it concerns. His competency to testify as an expert is a pre- 
 liminary question for the court ; and the weight to be given his 
 opinion, a question of fact for the jury. One expert may testify 
 to the qualifications of another expert, provided his testimony 
 is based upon personal knowledge ; but the qualifications of the 
 witness as an expert must be impeached before the opinions of 
 other experts, in favor of his qualifications, are admissible. The 
 
 2 — The terms art and science,' ture; and the term 'science' in- 
 
 as used in the definition of an ex- eludes all human knowledge 
 
 pert witness, are interpreted in which has been generalized, and 
 
 the broad sense. As said by Da- systematized, and has obtained 
 
 vis, J.: "Art, in its legal significa- method, relations and forms of 
 
 tion, embraces every operation of law." Atchison Ry. Co. v. U. S., 
 
 human Intelligence whereby some- 15 Court of Claims, 140. 
 thing is produced outside of na- 
 
OPlNIOrJ EVIDENCE. 
 
 159 
 
 evidence of an expert may be impeached by showing that, upon 
 a prior occasion, he expressed a contrary opinion; and also by 
 showing that his qualifications as an expert are weak and im- 
 perfect. If the witness is found by the court to be competent 
 as an expert, the impeaching evidence must be directed to the 
 jury with the view of affecting the weight of his evidence. An 
 expert witness, who gives opinion evidence, may always be 
 asked the reasons for such opinion. 
 
 § 8. The hypothetical question.— A hypothetical question is 
 one which assumes the truth of certain allegations contained in 
 it. Its data must be within the scope of the evidence in the 
 ease, except when given in cross-examination for the purpose of 
 testing the skill and accuracy of the expert witness. If there 
 is any evidence tending to prove the facts assumed, the question 
 should be allowed. If, however, the facts assumed are clearly 
 an exaggeration of the facts in evidence the question should be 
 excluded. A hypothetical question is not objectionable merely 
 because it is long.^ It may, however, be objectionable because 
 
 3 — The following hypothetical 
 question, propounded by counsel 
 for the defendant in the celebrated 
 Guiteau trial, was allowed: "As- 
 suming it to be a fact that there 
 was a strong hereditary taint of 
 insanity in the blood of the pris- 
 oner at the bar; also that at 
 about the age of thirty-flve years 
 his own mind was so much de- 
 ranged that he was a fit subject to 
 be sent to an insane asylum; also 
 that at different times after that 
 date, during the next succeeding 
 five years, he manifested such de- 
 cided symptoms of insanity, with- 
 out simulation, that many differ- 
 ent persons conversing with him, 
 and observing his conduct, be- 
 lieved him to be insane; also that 
 in or about the month of June, 
 1881, at or about the expiration of 
 said term of five years, he became 
 demented by the idea that he was 
 inspired of God to remove by- 
 
 death the President of the United 
 States; also that he acted on what 
 he believed to be such inspiration, 
 and as he believed to be in ac- 
 cordance with the Divine will in 
 the preparation for, and in the ac- 
 complishment of, such a purpose; 
 also that he committed the act of 
 shooting the President under what 
 he believed to be a Divine com- 
 mand which he was not at liberty 
 to disobey, and which belief made 
 out a conviction which controlled 
 his conscience and overpowered 
 his will as to that act, so that he 
 could not resist the mental pres- 
 sure upon him; also that immedi- 
 ately after the shooting he ap- 
 peared calm and as if relieved by 
 the performance of a great duty; 
 also that there was no other ad- 
 equate motive for the act than the 
 conviction that he was executing 
 the Divine will for the good of his 
 country — assuming all of these 
 
160 LEADING PRINCIPLES AND EULES OF EXCLUSION. 
 
 it includes allegations that should be excluded, or because i1 
 excludes allegations that should be included. It may also be 
 objectionable because too complicated, and for this reason tend 
 to confuse and mislead the jury. It is not objectionable merely 
 because it is not based upon all the facts brought out in the 
 evidence. If, however, it unduly emphasizes certain favorable 
 ones, it should be modified or excluded. An improper ruling 
 by the court, in overruling an objection to a hypothetical ques- 
 tion because it contains data not brought out in the evidence, 
 may be cured by additional evidence brought out in the cross- 
 examination. To entitle a party, on appeal, to the benefit of an 
 improper ruling by the court, where the improper ruling is not 
 subsequently cured, the ground of his objection must be specifi- 
 cally stated. A hypothetical question, whose data include the 
 conclusions and inferences of other witnesses, is objectionable. 
 Such a question must assume facts and not opinions. A hypo- 
 thetical question, whose purpose is to elicit from the expert an 
 answer to a question of law, is also objectionable. 
 
 § 9. Compensation of expert witnesses.— Whether an expert 
 witness may refuse to give opinion evidence without extra com- 
 pensation is a question upon which the courts do not agree. 
 In some states, including Illinois, an expert, called solely as 
 such, and knowing nothing of the facts of the case, may be 
 required to testify without extra compensation. In other states 
 the contrary has been held, on the ground that the special 
 knowledge of the expert is in the nature of property. In 
 England, extra compensation is allowed. The federal courts 
 seem to favor the English rule. Writers on medical juris- 
 prudence strongly favor the English rule.* In several of the 
 states the matter is regulated by statute. Most of the statutes 
 
 propositions to be true, state insane delusion is never the result 
 ■whether, in your opinion, the pris- of reasoning or reflection. Insan- 
 oner was sane or insane at the ity is a disease of the mind rend- 
 time of shooting President Gar- erlng the person incapable of en- 
 field?" tertaining a criminal intent. 
 
 Guiteau's delusion was an er- 4 — "It is evident that the skill 
 roneous conclusion from disputa- and professional experience of a 
 ble facts, and held no defense. Ir- man are so far his individual cap- 
 rational opinions in regard to Ital and property that he cannot 
 questions of politics, law, or relig- be compelled to bestow it gratui- 
 lon, are not insane delusions. An tously upon any party. Neither 
 
OPINION EVIDENCE. 161 
 
 provide for the payment of extra compensation. In Indiana, 
 the statute provides the contrary ;» but, before the statute was 
 passed, the supreme court of that state decided that a physi- 
 cian could not be compelled to give expert opinion evidence 
 without extra compensation, and that a refusal to do so was not 
 a contempt.® All the courts agree that an expert cannot be 
 compelled to make a preliminary or post mortem examination 
 without special compensation, nor be compelled to attend 
 throughout the whole trial for the purpose of listening to the 
 testimony. 
 
 § 10. Number of expert witnesses allowable.— The number 
 of expert witnesses which may be called upon to testify in a 
 case is a matter which rests in the sound discretion of the 
 court. Each case depends upon its own peculiar circumstances. 
 As a general rule, three to five constitute a reasonable number. 
 
 ^§11. By whom expert witnesses are chosen and paid.— In 
 
 England, and in this country, the parties to the suit select 
 their own expert witnesses and pay them for their services. In 
 some countries, including France and Germany, they are not 
 permitted to do so. In France, expert witnesses are selected 
 by the court; and in Germany they must be specially author- 
 ized by the government to give expert evidence. In some states, 
 including Massachusetts, there are statutes which provide for 
 the payment, out of the public treasury, of special compensa- 
 tion to experts employed by the state in criminal cases. Under 
 these statutes it has been held that, in the interests of justice, 
 experts may be summoned for the defence, by the consent of 
 the prosecuting attorney, and special compensation paid to 
 
 the public, any more than a prl- him in chief is under obligation 
 
 vate person, have a right to extort to remunerate him, since he has 
 
 services from him, in the line of to that extent employed him pro- 
 
 nis profession, without adequate fessionally; and the expert, at the 
 
 compensation. On the witness outset, may decline giving his 
 
 stand, precisely as in his office, his opinion until the party calling him 
 
 opinion may be given or withheld either pays him or agrees to pay 
 
 at pleasure; for a skilled witness him for it." Ordonaux's Jurispru- 
 
 cannot be compelled to give an dence of Medicine, § 114. 
 opinion, nor committed for con- 5 — Indiana Rev. St. (1881), p. 
 
 tempt if he refuse to do so. Who- 94, § 504. 
 ever calls for an opinion from 6 — Buchanan v. State, 69 Ind., 1. 
 
162 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 them out of the public treasury^ In many of the states, irre- 
 spective of statutes, it has been the practice, in criminal cases, 
 to summon experts to testify on behalf of the prosecution, and 
 to pay them a reasonable amount for their services out of the 
 public treasury. When one of the parties to a suit summons an 
 expert who testifies on his behalf, and the costs of the suit fall 
 upon the adverse party, such party will not be required to pay 
 the extra compensation for the services of the expert. 
 
 Experts, who are called to give opinion evidence, are per- 
 mitted to remain in the court room during the examination of 
 ordinary witnesses; but the rule, both in England and in this 
 country, requires that they withdraw and come in for examina- 
 tion one at a time. 
 
 § 12. Proof of handwriting by non-experts.— A non-expert 
 witness is competent to testify to the genuineness of a person's 
 handwriting, provided, (1) He has ever seen him write, even 
 only once; or, (2) Has received a letter from him in reply to 
 one sent; or, (3) Has seen a signature which the person has 
 acknowledged as his; or, (4) Has had the person's letters pass 
 through his hands in the ordinary course of business, or has 
 become familiar with his handwriting in the performance of 
 official duties. The knowledge of the non-expert, however, must 
 be acquired under circumstances which will not tend to bias his 
 mind. If it has been acquired after the genuineness of the 
 handwriting in issue has been disputed, and with the view of 
 testifying upon this point in the case, the testimony is inad- 
 missible. 
 
 § 13. Proof of handwriting by experts. — An expert in hand- 
 writing is one "who has really acquired actual skill and sci- 
 entific knowledge upon the subject." Some courts interpret 
 the term more liberally than others. It includes tellers and 
 cashiers in banks, brokers, notaries, book-keepers, writing mas- 
 ters, clerks in post offices, etc. . An expert may give opinion 
 evidence as to the genuineness of handwriting; whether it is a 
 simulated hand or not ; as to which of two writings which cross 
 each other was written first; and, as to the question of priority 
 in the case of alterations or interlineations. In the case of 
 
 7— Attorney - General Petitioner, 104 Mass., 537. 
 
OPINION EVIDENCE. 163 
 
 ancient documents, some courts allow experts to state their opin- 
 ion as to the probable periods at which they were written, but 
 the weight of authority is to the contrary. 
 
 § 14. Proof of handwriting by comparison.— There are two 
 ways of proving handwriting by comparison. One is by com- 
 paring the disputed writing with an exemplar formed in the 
 mind of the witness, and based upon personal knowledge. The 
 other is by comparing the disputed writing with another one 
 admitted or proved to be genuine. A comparison by the former 
 method may be made by a non-expert. A comparison by the 
 latter method may be made only by an expert, and by the court 
 or jury. At the English conunon law, however, a comparison 
 by an expert, by juxtaposition, was not allowable except in the 
 ease of ancient documents ; but it has always been allowable in 
 the ecclesiastical courts. In 1854, Parliament extended the 
 rule, in civil cases, to the common law courts; and in 1865, to 
 criminal cases. A comparison by the court or jury has always 
 been allowable. In this country, the courts, as regards allow- 
 ing a comparison by experts, are not at all in harmony. In 
 most of the states, a comparison by an expert is allowable, pro- 
 vided the writing which is admitted, or proved to be genuine, is 
 relevant to the issue for some other purpose. In a minority of 
 the states such evidence is allowable irrespective of such provi- 
 sion. In a few states, including Illinois, Pennsylvania and 
 Maryland, a comparison of handwriting by experts, by juxtapo- 
 sition, is not allowable at all. In several of the states, statutes 
 have been passed expressly providing for the admission of such 
 evidence. In most of the states a comparison may be made by 
 the jury; but in Tennessee and Kentucky this has been dis- 
 allowed. 
 
 § 15. Comparison of a disputed handwriting with copies.— 
 
 Photographic copies of handwriting, and letter-press copies, are 
 secondary evidence, and may not be used in any case for the 
 purpose of comparison, unless a proper foundation has first 
 been laid by properly accounting for the absence of the orig- 
 inal. Even then, they are very generally considered by the 
 courts as unsafe guides, and for this reason are usually ex- 
 cluded. In a few exceptional cases, however, they have been 
 allowed.^ 
 8 — Marcy v. Barnes, 16 Gray, 160. 
 
PART III. 
 
 REAL EVIDENCE. 
 
 CHAPTER I, 
 
 INSPECTION AND VIEW BY COURT AND JURY. 
 
 § 1. Olassification and definitions— early view.— The earlier 
 writers divide real evidence into the following two classes: 
 (1) Immediate real evidence ; (2) Reported real evidence. Bou- 
 vier defines real evidence as "Evidence of which any object 
 belonging to the class of things is the source, persons also be- 
 ing included in respect of such properties as belong to them in 
 common with things." He also adds, "This sort of evidence 
 
 may be either immediate or reported. ' '^ Best, who also 
 
 uses the term in this broad sense, defines these two divisions 
 as follows: "Immediate real evidence is where the thing 
 which is the course of the evidence is present to the senses of 
 the tribunal "2 "Reported real evidence is where the thing 
 wthich is the source of the evidence is not present to the 
 senses of the tribunal, but the existence of it is conveyed to 
 them through the medium of witnesses or documents."* Best's 
 classification and definitions are quoted with approval by the 
 Supreme Court of Illinois.* 
 
 § 2. Modern use of the term— definition.— As generally un- 
 derstood and used today, the term "real evidence" has a more 
 restricted meaning than formerly. As used now, it is practically 
 synonymous with the term "immediate real evidence" as used 
 in earlier times. The term "reported real evidence" is con- 
 
 1 — Bouvier's Law Diet., p. 827. 3—1 Best on Evid., sec. 198. 
 
 2 — 1 Best on Evid. (Morgan's 4 — Springer v. City of Chicago, 
 ed.), sec. 197. 135 111. 552. 
 
 165 
 
166 BEAL EVIDENCE. 
 
 fusing and misleading, and it would be ■w'ell if it were to drop 
 out of use altogether. There are three modes by which tribu- 
 nals may acquire knowledge upon which to base their decisions. 
 These modes are: (1) Testimonial evidence; (2) Circumstan- 
 tial evidence; and (3) Real evidence. Real evidence, as un- 
 derstood to-day, and as previously defined iu this volume 
 (page 2), is "Evidence acquired directly by the court or jury 
 themselves, through the medium of their own senses, by an 
 inspection of the subject-matter itself." Professor "Wigmore 
 designates this class of evidence "Autoptic Prof erence. "^ 
 This is certainly a novel appellation to say the least. Some 
 writers, including Chief Baron Gilbert, call it "Self -evi- 
 dence. ' '8 
 
 § 3. The general rule.— Real evidence which is relevant to 
 the fact or facts in issue is admissible unless there exists some 
 good reason for excluding it. Grcnerally speaking, however, 
 its admissibility rests largely in the discretion of the trial 
 court; and courts of review are slow to iaterfere on this 
 point; but where the evidence is irrelevant, and tends to 
 prejudice the adverse party, its admissibility may result in a 
 reversal. 
 
 §4. Origin and development of the nile.— The rule which 
 allovs^s real evidence to be admitted is of ancient origin. Pro- 
 fessor Thayer says, "Nothing is older or commoner in the ad- 
 ministration of law, in all countries, than the submission to 
 the senses of the tribunal itself, whether the judge or jury, of 
 objects which furnish evidence. The viewing of the land by 
 the jury, in real actions, of a wound by the judge, where may- 
 hem was alleged, and of the person of one alleged to be an 
 infant, in order to fix his age, the inspection and comparison 
 of seals, the examination of writings, to determine whether 
 they are 'blemished,' the inspection of the implements with 
 which a crime was committed, or of a person alleged, in a 
 bastardy proceeding, to be the child of another, are a few il- 
 lustrations of what may he found abundantly in our own 
 legal records and text-books fon seven centuries past. . . . 
 
 5 — Wigmore on Evid., .Vol. II., 6 — ^Wigmore on Evid., Vol. II, 
 p. 1344. p. 1346. 
 
INSPECTION AND VIEW BY COURT AND JURY. 167 
 
 Many of the things which were formerly submitted to the in- 
 spection of the judges only, have now passed over to the jury. 
 , . . When the jury draw inferences from what is pre- 
 sented to their sensesi out of court, and even in court, it hfis 
 been thought that the judge cannot grant a new trial on the 
 grounds above named, because he cannot know all the evi- 
 dence. But the courts, in general, have not found any insuper- 
 able difficulty in such cases. "^ 
 
 § 5. Application of the rule in civil cases.— Real evidence is 
 admissible in both civil and criminal cases. Among the earli- 
 est examples of its recognition in civil cases are, the view of 
 realty;^ inspection of a widow who professes to be pregnant 
 where such a condition is essential to her right to inherit; in- 
 spection of a person who alleges infancy as a defence ; inspec- 
 tion to determine identity; inspection of torn clothing or an 
 injured part of the body ia an action for negligence f inspec- 
 tion of the .child in a bastardy case to determine paternity.^" 
 
 § 6. Application of the rule in, criminal cases.— Among the 
 many examples to be found ia the books of the use of real evi- 
 dence in criminal cases are, burglars' tools ;^^ stolen prop- 
 erty ;i2 surgical instruments for performing abortion ;i* 
 weapons of various kinds ;i* bloody and torn clothing j^^ mu- 
 tilated members of the deceased;' bones of the deceased ;i^ in- 
 jured members of the complaining witness; inspection of vic- 
 tim in a rape case to determine whether she was under the age 
 of consent or not.^^ 
 
 7— Thayer's Cases on Evld. (2nd 12 — Glndrat v. People, 138 III., 
 
 ed.), p. 720. 103. 
 
 8 — Springer v. City of Chicago, 13 — Com. v. Brown, 121 Mass., 69. 
 
 135 111., 552; H. de Bracton fol. 315 14— Sibery v. Smith, 133 Ind., 
 
 (1258). 677; Com. v. Brown, 121 Mass. 69; 
 
 9— Tudor Iron Works v. Weber, Spies v. People, 122 111., 236. 
 
 129 111., 535. 15— Story v. State, 99 Ind., 413; 
 
 10 — Scott V. Donovan, 153 Mass. People v. Fernandez, 35 N. Y., 49; 
 
 378; Kelly v. State, 133 Ala. 195. Painter v. People, 147 111., 444. 
 
 11— State V. Bllwood, 17 R. I., 16— Turner v. State, 89 Tenn., 
 
 763; Foster v. People, 63 N. Y., 547, 564. 
 
 619. 17— Com. V. Hollis, 170 Mass., 
 
 433; Jones v. State, 106 Ga., 365. 
 
168 REAL EVIDENCE. 
 
 § 7. Photographs, maps and models.— Photographs, maps 
 and models are frequently used as real evidence. As a gen- 
 eral rule, photographs are secondary evidence; but in some 
 eases they are primary evidence. Preliminary evidence of 
 their correctness is essential to their admissibility. They are 
 admissible to show the appearance of a person, thing or place; 
 to identify a person, thing or place ; or to identify a document 
 or record. Thus, they are admissible to show the appearance 
 of a person after an assault ;i* to show the appearance of a 
 railroad wreck after a collision ;i^ to show the scene of a mur- 
 dev,^" or of an accident ;2i to identify a scarred corpse.^^ "v^iiat 
 are known as Eoentgen or X-ray photographs have been held 
 admissible,^* and so have stereoscopic views.^* The mere fact 
 that a photograph is an enlarged one does not render it inad- 
 missible.2' Photographs are admissible to prove handwriting, as 
 a general rule, but the cases upon this point are in conflict.^'' 
 By the weight of authority, however, photographs are inadmis- 
 sible as standards of comparison to prove handwriting.^^ 
 
 Maps and models have frequently been admitted as real evi- 
 dence.^* Two things are essential to their admissibility: (1) 
 They must be authenticated; and, (2) That which they represent 
 must be relevant to the case. Maps to be admissible need not be 
 official ;2* but if unofficial, the witness must possess personal 
 
 18— Franklin v. State, 69 Ga., 189 111., 569; United States v. Or- 
 
 36, 42. tiz, 176 U. S. 422. Contra, White 
 
 19 — Boch v. Iowa Cent. Ry. Co., Sewing Mach. Co. v. Gordon, 124 
 
 112 la., 241; Kan. City, etc., Ry. Ind., 495. 
 
 Co. v. Smith, 90 Ala., 25. 26 — Maclean v. Scrlpps, 52 
 
 20 — Com. v. Chance, 174 Mass., Mich., 214; 15 Am. & Bng. Enc. of 
 
 245 ; People v. Pustolka, 149 N. Law, 274. See also note in 75 Am. 
 
 Y., 570. St Rep., 476. 
 
 21 — Carey v. Hubbardson, 172 27 — Greer v. Missouri, etc., Ry. 
 
 Mass., 106; Baustlan v. Young, 152 Co., 134 Mo., 85; Tome v. Parkers^ 
 
 Mo., 317. burg, etc., Co., 39 Md., 36. 
 
 22— Udderzook v. Com., 76 Pa. 28— -Penn. Coal Co. v. Kelly, 156 
 
 St., 340. 111., 9; Donohue v. Whitney, 133 N. 
 
 23— Mauch v. Hartford, 112 Wis., Y., 178; Weld v. Brooks, 152 Mass., 
 
 40; Haynes Murder Trial, 56 Alb. 297; Whitehead v. Ragan, 106 Mo., 
 
 Law Journal, 309. 231. 
 
 24— German Theo. School v. Du- 29— Justen v. Scharf, 175 111., 
 
 buque, 64 la., 736. 45. 
 
 25 — Howard v. 111. Trust Bank. 
 
INSPECTION AND VIEW BY COUET AND JURY. 169 
 
 knowledge of the places represented by them.^o Diagrams, 
 charts, plans and sketches are governed by the same rules.^i 
 
 §8. Mechanical contrivajices. Inventions.— Mechanical con- 
 trivances have also been frequently admitted as real evidence. 
 Such contrivances, however, may be of such a nature as to make 
 their use as such impracticable. Their admissibility in doubtful 
 cases rests in the discretion of the court. Sometimes mechanical 
 contrivances are introduced in evidence and put in operation 
 before the tribunal. In suits for infringements of patents the 
 patented articles are frequently introduced as real evidence. 
 Where the article is too bulky to introduce in evidence, the 
 court may order the master in chancery to make an examination 
 and report. 
 
 § 9. View by jury. Discretion of court.— From the earliest 
 times to the present, a view by the jury, in the discretion of 
 the court, has always been allowable. It is applicable to all 
 kinds of property, both real and personal, where a view is essen- 
 tial to the proper understanding of it. It is equally allowable in 
 both civil and criminal cases. Statutes regulate it in practically 
 all jurisdictions, but it existed in its entirety at the English 
 common law. Justice Craig says, "If the parties had the right 
 upon the trial to prove by oral testimony the condition of 
 the property at the time of the trial, . . . upon what prin- 
 ciple can it be said the court could not allow the jury in person 
 to view the premises and thus ascertain the condition thereof for 
 themselves? ... If a plat or photograph of the premises 
 would be proper evidence, why not allow the jury to look at 
 the property itself, instead of a picture of the same? There 
 may be cases where a trial court should not grant a view of 
 premises where it would be expensive, or cause delay, or where 
 a view would serve no useful purpose ; but this affords no reason 
 for a ruling that the power to order a view does not exist or 
 should not be exercised in any case. . . . If at common law, 
 independent of any English statute, the Court had the power 
 to order a view by the Jury (as we think it plain the Court had 
 
 30— People v. Johnson, 140 N. Y., 31— Clapp v. Norton, 106 Mass., 
 350; Com. v. Swltzer, 134 Pa. St., 33; People v. Johnson, 140 N. Y., 
 S88. 350. 
 
170 KEALi EVIDENCE. 
 
 such power), as we have adopted the common law in this State, 
 our Courts have the same power. "^^ 
 
 It is to be observed, however, that a view by the jury which 
 has not been authorized by the court will be of no avail. Knowl- 
 edge based upon such a view may not be used. Justice Mit- 
 chell says, "The theory of jury trials is that all information 
 about the case must be furnished to the jury in open court, 
 where the judge can separate the legal from the illegal evi- 
 dence, and where the parties can explain or rebut ; but if jurors 
 were permitted to investigate out of court, there would be great 
 danger of their getting an erroneous or one-sided view of the 
 case, which the party prejudiced thereby would have no oppor- 
 tunity to correct or explain. "^^ Formerly, it was the custom 
 for the jury to obtain a view before the trial, and even before 
 the final selection of the jury; but the practice now is for the 
 jury to obtain it after the panel is complete, and after the trial 
 begins.^* 
 
 § 10. The objection raised to a view.— Some courts repudiate 
 the doctrine of allowing the jury to obtain a view on the ground 
 that such evidence cannot be put into the record in the case 
 of an appeal. As said by Justice Downey, "It is urged . . . 
 that in no case where the jury has had a view of the place in 
 which any material fact occurred . . . can the evidence be 
 got into the record, as it would be impossible to put into the 
 bill of exceptions the impressions made upon the minds of the 
 jury by such view ; and that in this way all benefit of appeal 
 to this Court, so far as any question is concerned which de- 
 pends upon all the evidence being in the record, would be 
 wholly cut off.""^ According to the great weight of authority, 
 however, a view by the jury is allowable, in the discretion of 
 the court. Unfortunately, some of these courts sustain it upon 
 an erroneous ground. This erroneous ground is, that a view 
 by the jury is not to obtain evidence but, as Justice Cole says, 
 "to enable the jury, by the view of the premises or place, to 
 better understand and comprehend the testimony of the wit- 
 
 32 — Springer v. City of Chicago, field, in Rules for Views, 1 Burr., 
 
 135 111., 553, 561. 252. 
 
 33 — Aldrich v. Wetmore, 52 35— Jeffersonville M. & I. Ry. 
 
 Minn., 164, 172. Co. v. Bowen, 40 Ind., 548. 
 
 34 — Lord Chief Justice Mans- 
 
INSPECTION AND VIEW BY COTJET AND JUBT. 171 
 
 nesses respecting the same, and thereby the more intelligently 
 to apply the testimony to the issues on trial before them, and 
 not to make them silent witnesses in the case."'" The true 
 doctrine, however, is, that the knowledge obtained by the 
 juryjn taking a view is to be used by them as evidence in the 
 case, and not merely to enable them "the more intelligently 
 to apply the testimony to the issues on trial before them." 
 As stated by Justice Lyon, "The object of a view is tO' ac- 
 quaint the jury with the physical situation, conditions, and 
 surroimdings of the thing seen. What they see they know 
 absolutely. "^^ And as said by Justice Henshaw, "If, for 
 example, it were material to determine whether a hole in the 
 panel of a door was or was not caused by a bullet, it would be 
 permissible to remove the panel, to bring it into the court room, 
 offer and have it received in evidence, and submit it to the in- 
 spection of the jury. It would not for a moment be doubted, 
 if this procedure were adopted, but that the physical object was 
 evidence in the case. If, instead of so doing, the Court should 
 direct that the place where the material fact occurred should be 
 viewed by the jury, and the jury should be conducted to the 
 spot, and the panel of the door pointed out to them, would it 
 be any the less the reception of evidence because obtained in 
 this way? Certainly not."^® It does not follow, however, that, 
 because knowledge obtained by the jury upon taking a view is 
 evidence which cannot be entered in the bill of exceptions, such 
 evidence must be rejected. The demeanor and appearance of a 
 witness cannot be put in the record, but this fact does not pre- 
 vent an appeal being taken. Moreover, it should be borne in 
 mind that courts of appeal do not weigh the evidence. 
 
 § 11. The objection of undue prejudice.— The introduction 
 of real evidence sometimes has a tendency to produce prejudice 
 against the defendant in the minds of the jury. This prejudice 
 may arise in either a civil or criminal case.^® Upon this ground, 
 objection to the admissibility of real evidence has frequently 
 
 36— Close V. Samm, 27 la., 508; 38— People v. Milner, 122 Cal., 
 
 Wright v. (Carpenter, 49 Cal., 607, 171. 
 
 609. 39 — Gflntry v. McGinnls, 3 Daaa 
 
 37— Washburn v. Ry. Co., 59 (Ky.), 382, 386. 
 Wis., 364, 368; City of Springfield 
 V. Dalbey, 139 111., 34. 
 
172 REAL EVIDENCE. 
 
 been made. The mere fact, however, that the introduction of 
 real evidence in the case may tend to prejudice the jury against 
 the defendant is not a sufficient ground for excluding it.*" 
 
 There are two classes of cases where this objection is frequent- 
 ly made. One is where the defendant is charged with crime, 
 and the other where damages are sought against him in a civil 
 case for personal injuries. The contention is made that the ex- 
 hibition before the jury, of ghastly wounds, bloody clothes, dan- 
 gerous weapons, etc., tends to unduly excite their pity for the 
 unfortunate victim, and correspondingly unduly excite their 
 prejudice against the defendant. As said by Justice Coleman, 
 "Human feelings are easily excited by the description of great 
 bodily injuries or ghastly wounds or the exhibition of objects 
 which appeal to the senses. Sympathy or indignation, once 
 aroused in the average juror, readily becomes enlisted, to the 
 prejudice of the person accused as the author of the injury, "^i 
 In civil cases this danger is of greater frequency than in crim- 
 inal eases; especially where the defendant is a corporation or 
 a capitalist. It is to be observed, however, that real evidence 
 is the most natural and the most efficient of all evidence; and 
 furthermore, that in the great majority of cases where objection 
 is made to it the apprehension is for the most part groundless. 
 Upon the whole, therefore, courts very generally overrule the 
 objection.*^ 
 
 § 12. The objection of indecency or other impropriety.— 
 
 The mere fact that the exhibition savors of indecency will not 
 necessarily justify its prohibition. As said by Professor Wig- 
 more, "When justice and the discovery of truth are at stake, 
 
 40— Warlick v. White, 76 N. C, 535, 539 (plaintiff's torn clothing 
 
 175, 179. exhibited) ; Lanark v. Dougherty, 
 
 41— Louisville, etc., Ry. Co. v. 153 111., 163, 165 (plaintiffs in- 
 
 Pearson, 97 Ala., 211, 219. jured limb examined by physician 
 
 42 — Spies V. People, 122 111., 236; in jury's presence) ; People v. 
 
 Painter v. People, 147 111., 444, Sutherland, 104 Mich., 468 
 
 465; Keating v. People, 160 111., (wounds exhibited); Chicago, 
 
 480; Henry v. People, 198 111., 162; etc., Ry. Co. v. Clausen, 173 111., 
 
 C. C, etc., Ry. Co. v. Patton, 203 100 (rupture exhibited) ; McGuft v. 
 
 111., 376; Turner v. State, 89 Tenn., State, 88 Ala., 147 (rape case; in- 
 
 547, 564 (murder case; deceased's spection of the prosecutrix al- 
 
 ribs and vertebra exhibited); Tu- lowed), 
 dor Iron Works v. Weber, 129 111., 
 
INSPECTION AND VIEW BY COUET AND JURY. ITS 
 
 the ordinary canons of modesty and delicacy of feeling cannot 
 be allowed to impose a prohibition upon necessary measures. If 
 such matters were not unshrinkingly discussed and probed, many 
 kinds of crime would remain impunished. Nevertheless, need- 
 less offence to feelings of delicacy, especially by public exhibi- 
 tions before idle spectators having no responsibility for the 
 course of justice, may well be avoided."** The tendency of the 
 courts is to allow such evidence, provided a reasonable necessity 
 exists for it, but to require the inspection to occur in the sole 
 presence of the tribunal and the parties concerned. 
 
 Eepulsive exhibitions are prohibited by the courts unless a 
 reasonable necessity exists for them. Thus, an offer to exhibit 
 before the jury a section of a human body, cut from a woman 
 about the size and age of the plaintiff, for the purpose of show- 
 ing the character of rib and breast-bone formation, was rejected 
 on the ground that the proffered exhibit was "of doubtful utility 
 and offensive in its nature. ' '** In another case, in order to show 
 the effect of strychnia upon dogs, an offer was made to bring 
 dogs intO) the court-yard and kill them by strychnia before the 
 jury, but the court rejected the offer.*^ Courts also frown 
 upon offers to have the jurors sample alleged intoxicating 
 liquor to determine its intoxicating nature.*® They have gone 
 to the extent of refusing to allow the jurors to examine and 
 smell bottles of whisky.*'^ On the other hand, jurors have been 
 allowed to taste cider to determine whether it was "hard" or 
 not.*8 
 
 § 13. Valuntary exhibition of the person in personal injury 
 cases.— For the purpose of showing the extent and character 
 of the plaintiff's injuries, an exhibition of them before the 
 jury, in personal injury eases, is quite common.** As previous- 
 ly stated (§ 10), such evidence does not deprive the defendant 
 
 43— Wigmore on Evld., Vol. II., 47 — State v. Coggins, 10 Kan. 
 
 § 1159. App., 455. 
 
 44— Knowles v. Crampton, 55 48 — People v. Kinney, 124 Mich., 
 
 Conn., 336, 341. 486. 
 
 45 — Regina v. Palmer, Annual 49 — Tudor Iron Works v. Weber, 
 
 Register, 1856, pp. 422, 473, 475. 129 111., 535; Keith v. New Hamp- 
 
 46 — Com. V. Brelsford, 161 Mass., shire, etc., Co., 140 Mass., 175, 180; 
 
 61, 63. Longworthy v. Green, 95 Mich., 93, 
 
174 beaij evidence. 
 
 of any material right on appeal, and it is very material in 
 personal injury eases in showing the extent and character of 
 the injuries received. 
 
 § 14. Compulsory examination of the person in civil cases.— 
 
 "Whether or not courts have authority to compel the exhibition 
 of an injured part of the body to the jury in a civil case 
 is a question upon which the decisions are in conflict. The 
 Supreme Court of the United States has repudiated such au- 
 thority. Justice Gray says, "No right is held more sacred, or 
 is more carefully guarded, by the common law, than the right 
 of every individual to the possession and control of his own 
 person, free from all restraint or interference of others, un- 
 less by clear and unquestionable authority of law. . . . The in- 
 violability of the person ia as much invaded by a compulsory 
 stripping and exposure as by a blow. To compel anyone, and 
 especially a woman, to lay bare the body, or to submit it to 
 the touch of a stranger, without lawful authority, is an in- 
 dignity, an assault and a trespass; and no order or process 
 commanding such an exposure or submission was ever known 
 to the common law in the administration of justice between 
 individuals, except in a very small number of cases, based 
 upon special reasons, and upon ancient practice, coming down 
 from ruder ages, now mostly obsolete in England, and never, 
 so far as we are aware, introduced into this country, "^o This 
 decision, however, is not in harmony with the prevailing doc- 
 trine. By the great weight of authority a compulsory exam- 
 ination of the person is allowable. For a time the courts of 
 several states, including Illinois, followed the rule laid down 
 by Justice Gray; but most of these courts, including the Su- 
 preme Court of Indiana, have repudiated that rule. A recent 
 decision by this court holds that the cases establish the fol- 
 lowing propositions : 
 
 "That trial courts have the power to order the medical ex- 
 amination by experts of the injured parts of a plaintiff who 
 is seeking to recover damages therefor; that a defendant has 
 no absolute right to demand the enforcement of such order, but 
 
 50 — Union Pacific Ry. Co. v. in this case, see Wigmore on 
 Botsford, 141 U. S. 250. For a Evid., Vol. III., § 2220, pp. 3019, 
 scathing criticism of the decision 3020, 3021. 
 
INSPECTION AND VIEW BY COURT AND JURY. 175 
 
 the motion therefor is addressed to the sound discretion of the 
 court; that the exercise of such discretion is reviewable on 
 appeal, and correctible in cases of abuse ; that the examination 
 should be applied for and made before entering upon the trial, 
 and should be ordered and conducted under the direction of 
 the court, whenever it fairly appears that the ends of justice 
 require a more certain ascertainment of important facts which 
 can only be disclosed, or fully elucidated by such an examina- 
 tion and such an examination may be made without danger to 
 the plaintiff's life or health, or the infliction of serious pain; 
 that the refusal of the motion, when the circumstances appear- 
 ing in the record present a reasonably clear case for the exam- 
 ination under the rules stated is such an abuse of discretion in 
 the trial court as will operate to reverse a judgment for the 
 plaintiff; that such an order may be enforced, not by punish- 
 ment as for a contempt, but by delaying or dismissing the pro- 
 ceeding. ' '^^ 
 
 § 15. When application for an order for a compulsory ex- 
 amination should be made.— When, in a personal injury ease, 
 the defendant desires that a physical examination of the plaintiff 
 be made, his application to the court for an order should be 
 made in due time. What constitutes due time depends in a 
 measure upon the circumstances of the particular case. As a 
 general rule, the application should be made a reasonable time 
 before the beginning of the trial.*^ When not so made the 
 court may deny the application. Even the day before the trial 
 has been held too late.^^ On the other hand, such an applica- 
 tion has been granted when made after the trial had begun.^* 
 The safest rule is to make it in ample time. The question is 
 one which rests largely in the discretion of the court. 
 
 § 16. Mode of examination.— In some cases statutes provide 
 the manner of conducting such examinations. When they do 
 not, the court should specify in its order how, and where, the 
 
 51 — City of South Bend v. Tur- 57 Kan., 480; Chadron v. Glover, 
 
 ner, 156 Ind., 418, 428, 60 N. B. R. 43 Neb., 737. 
 
 271, 54 L. R. A. 396, 83 Am. St. 53— Kinney v. Springfield, 35 
 
 Rep., 200. Mo. App., 97. 
 
 52— Aspy V. Botkins, 160 Ind., 54— Schroeder v. Chicago, etc., 
 
 170; So. Kan. Ry. Co. v. Michaels, Ry. Oq., 47 Iowa, 381. 
 23 
 
176 REAL, EVIDENCE. 
 
 examination is to be made.^'* Unnecessary exposure of the 
 person or inconvenience should be avoided.^^ It is customary 
 to require that the examination be made in the presence of 
 one or more experts named or appointed by the court.^^ In 
 case an examination would endanger the plaintiff's life or 
 health, the application should be denied.^^ It is customary 
 for the court to allow each party to have one or more repre- 
 sentatives present.^^ If the examination savors strongly of 
 indecency or repulsiveness, it should be made in the presence 
 of only those parties immediately concerned.^" 
 
 §17. Mode of enforcing the order.— As a general rule, 
 courts do not enforce this sort of an order by inflicting pun- 
 ishment as for a contempt f^ but they enforce it indirectly by 
 dismissing the plaintiff's action or by refusing to permit him 
 to testify in the case. It has been held, however, that, ia a 
 proper case, he may be punished as for contempt.^^ 
 
 § 18. Compulsory examination of the person of the accused 
 in a criminal case.— In England, it is well settled that the ac- 
 cused in a criminal case may not be compelled to submit to an 
 examination of his person.^^ The reason foi* this rule is, he 
 has the right to refuse to furnish incriminating evidence 
 against himself. The English rule has been very generally 
 followed in this country.^*' It has been held, however, that 
 where the question of the defendant's identity is raised he 
 may be compelled to exhibit his arm to the jury in order to 
 
 determine whether* it bears certain marks as testified to by a 
 witness.^5 
 
 55 — McGovern v. Hope, 63 N. J. 61— City of South Bend v. Tur- 
 
 L., 76. ner, 156 Ind., 418, 428. 
 
 56 — Aspy V. Botklns, 160 Ind., 62— Sohroeder v. Ry. Co., 47 la., 
 
 170. 375, 376 (a leading case against 
 
 57 — Mo. Pac. Ry. Co. v. Johnson, the doctrine that plaintiff may as- 
 
 72 Tex., 95; Richmond, etc., Ry. sert the privilege of refusing to 
 
 Co. V. Childress, 82 Ga., 719. allow an inspection). 
 
 58 — O'Brien v. La Crosse, 99 63 — Agnew v. Johson, 13 Cox 
 
 Wis., 421; Strudgeon v. Sand Crim. Cas., 625. 
 
 Beach, 107 Mich., 496. 64— People v. McCoy, 45 How. 
 
 59— McGovern v. Hope, 63 N. J. Pr. (N. Y.), 216; State v. Gar- 
 
 L., 76. rett, 71 N. C, 87; Blackwell v. 
 
 60 — Hale's Pleas of the Crown, State (Ga.), 3 Crim. L. Mag., 393. 
 
 I., 635. 65— State v. Ah Chuey, 14 Nev., 
 
 79, 33 Am. Rep., 530. 
 
INSPECTION AND VIEW BY COURT AND JUKY. 177 
 
 § 19. Examination of the person of the prosecuting witness. 
 —In a rape case, the defendant may not insist as a matter of 
 right that the prosecuting witness submit to an examination of 
 her person by medical experts. If in any case such an exam- 
 ination is compellable, it is a matter which rests in the court's 
 discretion.88 On the other hand, in a criminal prosecution for 
 an assault, the prosecuting witness may be compelled to exhibit 
 his injuries to the jury, at the instance of the accused.®'^ 
 
 §20., Compulsory eKamination of the person where impo- 
 tency is alleg^ed as the ground for a divorce.— In proceedings 
 for a divorce on the ground of impotency it is well settled, 
 both in England and in this country, that the court may compel 
 an examination of the party whose impotence is alleged.^^ This 
 party usually is, of course, the defendant. If the exigencies of 
 the case require it, however, the court has the power to order 
 an examination of the person of the party instituting the suit. 
 If the court has good reason for believing that the party who 
 makes the application for the order is acting in bad faith, the 
 application will be denied.^^ Bishop says, "In proper cases, 
 to aid the proofs of impotence, the Court appoints professional 
 persons to examine the private parts of the parties and report 
 to it whether or not the woman presents indications of her 
 having had connection with man. It requires them to submit 
 to such examination. The examiners are under oath, and are 
 quasi officers of the tribunal for that purpose. This is termed 
 inspection of the person. The parts concerned in this contro- 
 versy being always and properly concealed from public obser- 
 vation, if there was no method by which inspection could be 
 compelled, justice would in many instances fail. Therefore, 
 in England, Scotland, France and probably every other coun- 
 try where this impediment to marriage is acknowledged, the 
 Courts have required the parties. When necessary, to submit 
 their persons to such an examination. . . . The necessity 
 for this proceeding is in our States precisely the same as in 
 England whence our laws are derived. Consequently it is 
 
 66— McGuff v. state, 88 Ala., 147, 68— Countess of Essex's Case, 2 
 16 Am. St. Rep., 25. How. St. Tr. 785, 803; Anon., 89 
 
 67— King V. State, 100 Ala., 85. Ala., 291. 
 
 69— Anon., 35 Ala., 226, 228. 
 
178 EEAL EVIDENCE. 
 
 adapted to our situation and circumstances; and, within the 
 established rules, it should be deemed a part of our unwritten 
 law. . . The result is that it is acknowledged in every State 
 from which we have decisions, except Ohio, and it may well be 
 deemed to be American doctrine."^" 
 
 §21. Weight to which real evidence is entitled.— Of the 
 
 three modes by which tribunals may acquire knowledge upon 
 which to base their decisions, viz., (1) testimonial evidence, 
 (2') circumstantial evidence, and (3) real evidence, the last of 
 these three is the most natural and the most efticient of them 
 all. As said by Chief Justice Robertson, in a case in which he 
 had permitted the jury to inspect the defendant to determine 
 if she was a white woman, ' ' The counsel denies that a personal 
 inspection by the jurors on the trial is proper or allowable 
 evidence. . . To a rational man of perfect organization 
 the best and highest proof of which any fact is susceptible is 
 lihe evidence of his own senses. This is the ultimate test of 
 truth, and is therefore the first principle in the philosophy 
 of evidence. . . Hence, autopsy, or the evidence of one's 
 own senses, furnishes the strongest probability and indeed the 
 only perfect and indubitable certainty of the existence of any 
 sensible fact."^i Justice Rodman says, "On general princi- 
 ples it would seem that, when the question is whether a certain 
 object is black or white, the best evidence of the color would 
 be the exhibition of the object to the jury."''^ Some courts 
 assert that what is usually called ''real evidence" is not evi- 
 dence at all. That it is analogous to admissions, in that it 
 takes the place of evidence and saves the party who offers it 
 the trouble of introducing evidence. But be this as it may, the 
 fact remains that "the best and highest proof of which any 
 fact is susceptible" is knowledge of the jurors acquired 
 through their own senses. It follows, therefore, that, what is 
 called real evidence, and for all practical purposes is real evi- 
 dence, is entitled to the greatest weight. 
 
 70 — Bishop on Marriage and Di- 72— Warlick v. White, 76 N. C 
 
 vorce, 6th ed.. Vol. II., §§ 590, 591. 175, 179. 
 
 71 — Gentry v. McGinnis, 3 Dana 
 (Ky.), 382, 386. 
 
CHAPTER II. 
 
 EVIDENCE OF EXPERIMENTS. 
 
 1. Definition.— The term "Experiment" is defined as "the 
 operation of subjecting objects to certain conditions and ob- 
 serving the result, in order to test some principle or supposi- 
 tion, or to discover something new.""^ 
 
 §2. The rule.— Since the object of all evidence is to ascer- 
 tain the truth as regards the fact or facts in issue, evidence of 
 experiments is admissible, provided its tendency is to elucidate 
 such fact or facts and thereby enlighten the minds of the jurors 
 so as to enable them to act more intelligently in reaching a 
 verdict. 
 
 §3. Discretion of the court.— The admissibility of experi- 
 mental evidence is a preliminary question of fact for the court 
 to determine. Each case, o£ course, depends upon its own cir- 
 cumstances. The trial court's ruling as to the admissibility of 
 the evidence will not be interfered with by the court of review 
 unless an abuse of its discretion is clearly apparent. It fol- 
 lows, therefore, that, in many cases, a ruling by the trial court 
 either way will be sustained. If the object in making the ex- 
 periment is not apparent to the court of review a presump- 
 tion obtains that it was legitimate and proper. If the object 
 in view is to establish or disprove merely an immaterial or 
 irrelevant fact the evidence should be excluded.^ If the object 
 is to sustain a fact already established by other evidence a 
 ruling either way by the trial court will not be considered 
 erroneous.* 
 
 §4. Experiments out of court by jurors.— Information 
 gained by jurors through making experiments out of court 
 
 1 — Century Dictionary, "Experi- 3 — Osborne v. Detroit, 32 Fed. 
 
 ment" Rep., 36; Stockwell v. Chicago, 
 
 2— Libby v. Scherman, 146 111., etc., Ry. Co., 43 la., 470. 
 540. 
 
 179 
 
180 EEAL EVIDENCE. 
 
 should not be considered by them in determining their verdict, 
 unless the experiments were made under the supervision of 
 the court, and under substantially similar conditions to those 
 which surrounded the transaetionv in question.* 
 
 § 5. Experiments out of court by witnesses.~The admissi- 
 bility of evidence of experiments made by witnesses out of 
 court is a matter which rests largely in the sound discretion of 
 the trial court. If the conditions surrounding the experiments 
 were not substantially similar to those surrounding the trans- 
 action in question, the evidence, as a general rule, should be 
 excluded. If, however, the evidence tends to enlighten rather 
 than to confuse the jury it should, under proper restrictions, be 
 admitted.^ Evidence of experiments made out of court ' is 
 usually given in connection with the testimony of experts;^ 
 but this is not essential to its admissibility. 
 
 § 6. Experiments which unduly delay the progress of the 
 trial. — As heretofore stated, the performance of experiments 
 in the presence of the jury is a matter which rests ia the sound 
 discretion of the court. Where, however, the performance of 
 an experiment will unduly delay the progress of the trial it 
 should be prohibited. Thus, in a criminal case where the time 
 it would take a candle to burn to a given length was a ma- 
 terial fact in showing defendant's guilt, evidence of experi- 
 ments to ascertain this was held admissible. But the ruling of 
 the trial court, in refusing to suspend the trial in order that 
 the defendant might try the experiment in the presence of the 
 jury, was sustained.^ 
 
 § 7. Evidence of experiments admissible to explain or sup- 
 port opinion evidence.— It has been held that an expert who 
 has given opinion evidence may not state in his examiaation in 
 chief the details of experiments upon which his opinion is 
 based; that evidence of such details must be restricted to his 
 cross-examination.^ The general rule, however, as well as the 
 
 4— Yates v. People, 38 111., 531; Chicago, etc., Ry. Co., 90 la., 106. 
 Harrington v. Worcester, etc., St. 6 — Sullivan v. Com., 93 Pa. St., 
 
 Ry. Co., 157 Mass., 579; State v. 285; Eidt v. Cutler, 127 Mass., 522. 
 Sanders, 68 Mo. 202. 7 — People v. Levine, 85 Cal., 39. 
 
 5 — Alabama, etc., Ry. Co. v. 8 — Ingledew v. Northern Ry Co., 
 
 Burgess, 114 Ala., 587; Burg v. 7 Gray (Mass.), 91. 
 
EVIDENCE OF EXPERIMENTS 181 
 
 better view, is to the contrary* Evidence of the details of 
 such experiments may establish conclusively the correctness 
 of the opinion ; but, if such evidence is to be restricted to the 
 expert's cross-examination, it may often fail to reach the jury 
 at all. As said by the court in one case, "If the reasons on 
 which the intelligent opinion of an expert is founded can only 
 be furnished to the jury by cross-examination, this case makes 
 it evident that as wise a counselor as the plaintiff's would 
 never give aid and comfort to his adversary by such a cross- 
 examination, "i" 
 
 § 8. Evidence of experiments also admissible to explain or 
 support non-expert evidence.— Real opinion evidence may only 
 be given by an expert. But, as heretofore stated (pp. 155, 
 156), "Spontaneous conclusions, as to conditions or appear- 
 ances, drawn from perceptions resulting from a variety of cir- 
 cumstances which cannot be palpably described by the witness 
 to the jury so as to enable that body to draw intelligent con- 
 clusions from them, are usually regarded, from the legal stand- 
 point, as matter of fact and not of opinion."" "And, not only 
 may such matter of fact be given in evidence by a non-expert 
 witness, but also experiments upon which it is based. Thus, 
 where the accused was charged with killing a horse by mali- 
 ciously putting poison within its reach, evidence that the prose- 
 cuting witness and the owner of the horse, neither of whom 
 was an expert, immediately upon the death of the horse, re- 
 moved a portion of the contents of the horses 's stomach and 
 gave it to a hen which died in a few minutes from the effects, 
 was held admissible. In this case the court say, ' ' A nonexpert, 
 shown to be familiar with evidentiary facts, may, when the 
 expression of an opinion is not involved, ordinarily state the 
 result of his observations with reference to such facts. An or- 
 dinary nonprofessional witness in possession of his faculties, 
 who takes a section from the stomach of a horse and feeds it 
 to a hen, which dies in ten minutes after eating the same, may 
 
 9— Hawkins v. Fall River, 119 Androscoggin Water Power Co., 78 
 Mass., 94. Me., 274. 
 
 10— Lewiston Steam Mill Co. v. 11 — Conn., etc.. Life Ins. Co. v. 
 
 Lathrop, 111 U. S., 612. 
 
182 REAL EVIDENCE. 
 
 testify to such facts, when material, for the same are as ob- 
 servable to him as to a professional witness. "^^ 
 
 § 9. Evidence of experiments admissible to show that under 
 certain conditions a certain result would, or would not, fol- 
 low.— Where it is material to prove that under certain condi- 
 tions a certain result was produced, evidence of experiments 
 is admissible to prove such fact. Thus, in a case in which the 
 plaintiff sued for damages for causing the death of his intestate 
 by reason of having his foot caught between the rails of a 
 split switch of defendant's tracks, evidence of experiments, 
 made by a person by placing his foot between the rails, to- 
 gether with evidence as to the manner in which his foot was 
 held, was admitted.^* And where it is alleged that a certain 
 result is the necessary and natural consequence of certain con- 
 ditions or circumstances for which a party is sought to be held 
 liable, he may show by evidence of experiments, performed 
 ■ under similar conditions, that it is not. Thus, in an action 
 against a railway company for damages sustained by reason 
 of the death of a person caused by being struck by defend- 
 ant's train, it is competent for the defendant to show by one 
 of its engineers an experiment made subsequently to the acci- 
 dent,' for the purpose of showing that the train which caused 
 the death could not have been stopped after the person killed 
 could have been seen on the track, provided the test was 
 made at the same place, and under practically similar condi- 
 tions. The fact that the experiment was ex parte, and such 
 as could be made by only one of the parties, does not concern 
 the question of admissibility of the evidence, but it may con- 
 cern its weight.i* But, where the circumstances and surround- 
 ings of an experiment are very different from those which 
 existed at the time of the accident, evidence of the experiment 
 is inadmissible. Thus, in a personal injury ease against a rail- 
 way company it was held prejudicial error for the trial court to 
 admit in evidence the testimony of persons, who placed an in- 
 animate object upon defendant's track, as to the distance at 
 
 12 — State V. Isaacson, 8 S. Dak., 14— Byers v. Railroad, 94 Tenn., 
 69. 345. 
 
 13 — Brooke v. Chicago, etc., Ry. 
 Ck)., 81 la., 504, 
 
EVIDENCE OF EXPERIMENTS. 183 
 
 which it could be seen and its character distinguished, where 
 the circumstances and surroundings were very different from 
 those which existed at the time of the accident.^' 
 
 §10. Admissibilty of evidence of experiments made with 
 bloodhounds.— Asi regards the admissibility of evidence of ex- 
 periments made with bloodhounds, as to trailing an accused 
 person, the decisions are not harmonious. Some courts reject 
 such evidence on the ground of uncertainty. Thus, in a very 
 recent case,i^ Chief Justice Sullivan says, "That the conclu- 
 sions of the bloodhound are generally too unreliable to be ac- 
 cepted as evidence in either civil or criminal cases is, we be- 
 lieve, the teaching of that common knowledge and ordinary 
 experience which we may rightfully bring to the examination 
 of this subject. . . It is unsafe evidence, and both reason 
 and instinct condemn it. ' ' On the other hand, in a very recent 
 case,!^ Justice Cockrell says, "Testimony was admitted, over 
 the defendant's objection, as to the action of two dogs in fol- 
 lowing the supposed trail of the burglar from the scene of the 
 crime. . . The adjudged cases on this point are few, but 
 uniform in admitting such evidence under proper conditions." 
 In another recent case,i^ the court hold, in substance, "that 
 evidence as to the trailing with a bloodhound of one accused 
 of crime is admissible to connect him therewith only when it is 
 shown by someone having personal knowledge of the fact that 
 the dog is of pure breed, and of a stock characterized by acute- 
 ness of scent and power of discrimination ; that he is possessed 
 of these qualities, and has been trained or tested in their exer- 
 cise in the tracking of human beings ; that such dog was laid on 
 the trail, whether visible or not, concerning which testimony 
 has been admitted, at a point where the circumstances tend 
 clearly to show that the guilty party had been, or upon a track 
 which such circumstances indicate to have been made by him." ' 
 Upon the whole, it may be said that testimony as to the action 
 of bloodhounds in following the trail of a supposed criminal 
 
 15— C. & A. Ry. Co. v. Logue, 47 17— Davis v. State (Fla.), 35 
 
 111. App., 292. See also Yates v. So. R. 76. 
 
 I'eople, 32 N. Y., 511. 18— Pedigo v. Com., 103 Ky., 41, 
 
 16— Brott V. State (Neb.), 97 N. 82 Am. St. Rep., 566. 
 W. R., 593. 
 
184 SEAL EVIDENCE. 
 
 from a scene of a crime is generally held admissible, provided 
 that such preliminary proof be given of the quality and train- 
 ing of the dogs as to show that reliance may reasonably be 
 placed upon their accuracy in following the trail of a human 
 beiQg.i® But evidence that bloodhounds of the same breed 
 and trained by the same man as those used to track the ac- 
 cused in a criminal case, after being put upon the track of a 
 human being left the trail to follow the trail of a sheep, is 
 inadmissible. As said by Justice McClellan, "The court prop- 
 erly excluded from the jury the proposed evidence as to two 
 bloodhounds of the same breed as those employed to track the 
 supposed criminal in this case, and trained by the same man, 
 being put upon the trail of a human being, and leaving it to 
 trail a sheep which they overhauled and killed. The test by 
 comparison was not sufficiently certain to determine the re- 
 liabilty of the dogs employed here by reference to the qualities 
 of the other dogs."2o 
 
 IP— Davis V. State (Fla.), 35 So. 20— Simpson v. State (Ala.), 20 
 R., 76. So. R., 572. 
 
PART IV. 
 
 WRITINGS. 
 
 CHAPTER I. 
 
 PROOF OF AUTHORSHIP. 
 
 §1. Dual chaxacter of writings.— Writings possess a dual 
 character. They may be considered as mere physical objects, 
 or as expressions of ideas. In the former sense they consti- 
 tute real evidence, like weapons, burglars' tools, bloody or 
 torn clothing, etc. In this sense, however, they have no eviden- 
 tiary force except as mere pieces of paper. A material fact in 
 issue may be the mere existence of a certain writing, in which 
 case its introduction in evidence would, of course, constitute 
 proof of that fact. In the law of evidence, however, writings 
 are used almost exclusively in the sense of expressions of ideas, 
 and in this sense many interesting and important questions 
 arise with respect to their use. 
 
 §2. Classification of written evidence. — ^Written evidence is 
 divided into the following three general classes: (1) Private 
 writings; (2) Public writings; and (3) Quasi-public writings. 
 
 Private writings are subdivided into the following classes: 
 
 (1) Attested writings; and (2) Unattested writings. The modes 
 of proof of authorship of these two subdivisions are governed 
 by different rules. 
 
 Public writings, with respect to their character, are subdi- 
 vided into the following two classes: (1) Judicial; and (2) 
 Non-judicial. With respect to their mode of proof, they are 
 subdivided into the following two classes: (1) Of record; and 
 
 (2) Not of record. 
 
 Judicial writings are subdivided into the following three 
 classes: (1) Judgments, decrees and verdicts; (2) Depositions, 
 examinations and inquisitions ; and (3) Warrants, writs, plead- 
 ings, etc. 
 
 185 
 
186 WRITINGS. 
 
 §3. Definitions — ^Attestation— Authentication — ESemplifl- 
 cation. — The term "attest" means to affirm to be true or genu- 
 ine. The term "attestation" means the act of witnessing a 
 document at the request of the maker, and ^bseribing it as a 
 witness. Some writers apply these terms to authenticated cop- 
 ies of judicial records; while others say they are used in con- 
 nection with the execution of instruments, and are to be dis- 
 tinguished from authentication and exemplification of records 
 and documents. The term "authentication" is defined by 
 Bouvier as "a proper or legal attestation." The term "exem- 
 plification," which applies strictly to matters of record, is de- 
 fined by the same author as "a perfect copy of a record or 
 office-book lawfully kept, so far as it relates to the matter in 
 question." It has also been defined as "an official transcript 
 of a document from public records made in form to be used as 
 evidence, and authenticated as a true copy." An exemplifica- 
 tion is always under either the seal of the state or the seal of 
 the particular court. 
 
 §4. Attested writings — The common law rule. — At the 
 common law, the rule is strict that in proving the execution of 
 an attested document it is essential, before using other evi- 
 dence, to call at least one of the subscribing witnesses, if avail- 
 able; and if not available to prove the handwriting of at least 
 one of them, if feasible. The rule is applicable to all kinds of 
 documents, sealed or unsealed; and the fact that- attesting 
 witnesses are not essential to the validity of certain documents 
 is immaterial. Some courts, however, seem to limit the appli- 
 cation of the rule to documents required by law to be attested. 
 Thus, Chief Justice Shaw says, "It being an instrument not 
 requiring attestation to give it legal effect as an instrument, it 
 would be sufficient to prove the fact of execution by any com- 
 petent evidence."^ The rule is also applicable to documents 
 which have been burnt or cancelled; and the fact that the 
 subscribing witnesses are blind is immaterial. Nor is the mere 
 fact of inconvenience a sufficient reason for dispensing with 
 the rule. As said by Lord Chief Justice Ellenborough, "The 
 rule is universal that you must first call the subscribing wit- 
 ness ; and it is not to be varied in each particular case by try- 
 
 1— Amherst Bank v. Root, 2 Mete. (Mass.) 522, 533. 
 
PROOF OF AUTHORSHIP. 187 
 
 ing whether in its application it may not be productive of 
 some inconvenience. "2 
 
 §5. Origin of the rule. — The rule that attesting witnesses 
 must be called, if available, is of very ancient origin. It ex- 
 isted as far back as the old Germanic procedure. Professor 
 Thayer says, "Such persons (attesting witnesses) belonged to 
 that very ancient class of transaction or business witnesses, 
 running far back into the old Germanic law, who were once 
 the only sort of witnesses that could be compelled to come be- 
 fore the court. ' '* 
 
 § 6. Reasons for the rule. — Two reasons have been given 
 for the existence of this rule, neither of which, however, is sat- 
 isfactory. The one most favored is, that the parties to the 
 document had agreed that proof of its execution should be 
 made by the attesting witness. As said by Chief Baron Pol- 
 lock, ' ' The attesting witness must be called to prove the execu- 
 tion of a deed for this reason, that by an imperative rule of 
 law the parties are supposed to have agreed inter se that the 
 deed shall not be given in evidence without his being called to 
 depose to the circumstances attending its execution. ' '* And as 
 said by Justice Gresswell, "It is not on the ground that his is 
 the best evidence . . . but because he is the witness 
 agreed upon between the parties. "^ This reason, however, is 
 weak, and it has been very severely criticised. Thus, Justice 
 Spencer says, "The notion that the persons who attest an in- 
 strument are agreed upon to be the only witnesses to prove it, 
 is not comportable to the truth of transactions of this kind, 
 and, to speak with all possible delicacy, is an absurdity."* 
 And Justice Burket says, ' ' This supposed mutual agreement is 
 a pure fiction, and rarely, if ever, exists in fact. If in any case, 
 it has a real existence, and can be shown, it may perhaps be 
 enforced; but the mere fiction is entitled to no weight and to 
 no respect."^ The other reason assigned for the rule is, that 
 the adverse party is entitled to the benefit of cross-examining 
 
 2— R. V. Harringworth, 4 M. & S. 5 — Gerapjilo v. Wieler, 10 C. B. 
 
 350. 690, 696. 
 
 3 — Thayer's Prelim. Treatise on 6 — Hall v. Phelps, 2 John. (N. 
 
 Evld., 502. Y.) 451. 
 
 4 — Whyman v. Garth, 8 Bxch. 7— Garrett v. Hanshue, 53 Ohio 
 
 803. St., 482. 
 
188 WEITINGS. 
 
 the attesting witness. As said by Lord Ctief Justice Alvan- 
 ley. "The rule was founded on the principle that there should 
 be an investigation from the subscribing witness of what took 
 place at the time of the execution of the instrument. "^ And 
 as said by Justice Le Blanc, "A fact may be known to the 
 subscribing witness not within the knowledge or recollection of 
 the obligee, and he is entitled to avail himself of all the knowl- 
 edge of the subscribing witness relative to the transaction."' 
 This reason, however, is also weak, and it, too, has been fre- 
 quently crticised, the chief criticism being that, in practice, the 
 attesting witness in the majority of instances knows nothing 
 of the transaction. 
 
 § 7. Statutory restrictions of the rule. — In England, and in 
 many of the states of this country, statutes have been passed 
 which materially modify the common law rule. The English 
 statute, which was passed in 1854, restricts the rule to 'docu- 
 ments required by law to be attested.^" In this country similar 
 legislation exists in many of the states, including Illinois, Mich- 
 igan, New York, Pennsylvania, Alabama, Rhode Island and 
 Massachusetts. The Massachusetts statute reads as follows: 
 "It shall be competent to prove the signature to any attested 
 instrument or writing, except a will, in the same manner as if 
 such instrument were not attested."^* 
 
 §8. Meaning of the term "Attesting Witness." — An at- 
 testing witness is a person who, by request of the maker of the 
 instrument, or with his consent, signs it for the purpose of man- 
 ifesting knowledge on his part that it has been executed by the 
 alleged maker. The mere fact that a person's name is on the 
 instrument, other than the maker, does not make him an at- 
 testing witness. Thus, when the signature of an oflScer is es- 
 sential to the validity of an instrument the officer is not an at- 
 testing witness.12 And a person who saw the instrument exe- 
 cuted, and signed it at a subsequent time, is not an attesting 
 
 8 — Manners v. Postan, 4 Esp. strument to the validity of whieh 
 
 241. attestation is not requisite; and 
 
 9 — Call V. Dunning, 4 East 54. such instrument may be proved by 
 
 10 — 17 and 18 Vict. chap. 125, admission, or otherwise, as if there 
 
 §26. This act provides as follows: had been no attesting witness 
 
 "It shall not be necessary to prove thereto." 
 
 by the attesting witness any in- 11 — Statutes of 1897, chap. 387. 
 
PROOF OF AUTHOESHIP. 189 
 
 witness.^' Nor is an incompetent person,** or a fictitious per- 
 son,*^ whose name is signed to the instrument, an attesting 
 witness. 
 
 §9. Extrajudicial admissions by the adverse party. — ^Upon 
 principle, a written extrajudicial admission by the adverse 
 party, acknowledging the execution of a document, should be 
 sufficient to dispense with the rule which requires that an at- 
 testing witness be caUed. On the other hand, a disputed oral 
 admission should not have this effect. The decisions upon this 
 question, however, are not harmonious. In England, both 
 classes of admissions have been held sufficient to dispense with 
 the rule.*® In this country, according to the general rule, 
 neither class is sufficient for that purpose ;*'' but some decisions 
 hold the contrary.* 8 
 
 §10. Effect when the attesting witness denies the execu- 
 tion of the document. — ^It does not follow that because the at- 
 testing witness must be called, the person who calls him is con- 
 cluded by his testimony. Hence, if the attesting witness de- 
 nies the execution of the document, or fails to recollect any- 
 thing about it, the person who calls him is then at liberty to 
 prove the execution by any other competent testimony. As 
 said by Justice Denio, "Whether their (the witnesses') denial 
 of what they had attested proceeds from perversity or want of 
 recollection, the testament may in either case be supported. "*9 
 
 § 11. The rule when the attested document is acknowledged 
 undra: a statute. — "Whenever a statute authorizes the acknowl- 
 edging of an instrument, providing at the same time that such 
 instrument shall be admissible in evidence on proof of its ac- 
 knowledgment, then if the conditions required by the statute 
 as prerequisites of the acknowledging appear from the record 
 to have been observed, it is not necessary to call the attesting 
 
 12 — Bailey v. Bldwell, 13 M. £ 16— Dillon v. Crawley, 12 Mod. 
 
 W. 73; Lavretta v. Holcomb, 98 500. 
 
 Ala. 503, 510. 17— Jones v. Henry, 84 N. C. 320. 
 
 13 — Henry v. Bishop, 2 Wend. 18— Hall v. Phelps, 2 John, (N. 
 
 IN. Y.) 575, 577. Y.) 451. 
 
 14 — Packard v. Dunsmore, 11 19 — Tarrant v. Ware, 25 N. Y. 
 
 Cush. 283, 285. 425, 426. 
 
 15 — Burrows v. Lock, 10 Ves. Jr. 
 470. 474. 
 
190 WRITINGS. 
 
 witnesses, but sueh instniment may be put in evidence after 
 the acknowledgment required by the statutes, either by force of 
 the statutes or at common law, by proving the execution. ' '20 
 
 §12. Excuses for not calling attesting witnesses. — The 
 chief causes of unavailability of attesting witnesses are the fol- 
 lowing: (1) Death; (2) Insanity; (3) Absence from the state ; 
 (4) Whereabouts unknown; (5) Physical incapacity or illness; 
 (6) Attesting witnesses unknown. 
 
 The death of an attesting witness is universally recognized as 
 a sufficient excuse for not calling him.^i So is insanity .^^ Ab- 
 sence from the state,^^ whereabouts unknown,^* physical inca- 
 pacity or illness,^^ and the fact that the attesting witness is 
 unknown,^^ are usually held sufficient excuses for not calling 
 him. The fact that the attesting witness is unknown may arise 
 where the document is lost, or the name of the attesting wit- 
 ness is illegible. In the case of a lost instrument, if the name 
 of the attesting witness is knoTvn, and he is available, he must 
 be called.2^ As a general rule, blindness will not excuse call- 
 ing the witness. The reasons assigned for this rule are, "the 
 circumstances attending the execution might be proved by 
 him";^^ and, "He might from his recollection give most im- 
 portant evidence respecting it."^^ Some cases, however, hold 
 
 20 — Stephen's Digest of Bvid., sary to admit secondary evidence 
 
 Art. 69. in the case of witnesses being 
 
 21 — Stebhins v. Duncan, 108 U. abroad; the dispensation was next 
 
 S. 32. extended to the case of witnesses 
 
 22 — Neely v. Neely, 17 Pa. St. who were not to be found. 
 
 227; Currie v. Child, 3 Camp. 283. 25— Jackson v. Root, 18 John. 
 
 23— Valentine v. Piper, 22 Pick. (N. Y.) 60, 80. 
 
 (Mass.) 85, 90; Jones v. Roberts, 26— Pelton v. Pitman, 14 Ga. 530, 
 
 65 Me. 273. 535 ; Raynor v. Norton, 31 Mich. 
 
 24 — Hartford Life Ins. Co. v. 210, 213; Hathaway v. Spooner, 9 
 
 Gray, 80 111. 28; Crosby v. Percy. Pick. (Mass.) 23, 25. 
 
 1 Taunt. 364, 366. In the latter 27— Smith v. Brannan, 13 Cal. 
 
 case Chief Justice Mansfield says: 107, 115. 
 
 "The law has been much relaxed 28 — Baron Parke In Pedler v. 
 
 in this particular within the pe- Paige, 1 Mos. & Rob. 258. 
 
 riod of my practice; the Increased 29 — Lord Chief Baron Abinger 
 
 commerce of the country, and the in Crank v. Frith, 1 Mos. & Rob 
 
 number of persons who every year 262. 
 go out of it, first rendered it neces- 
 
PEOOP OF AUTHORSHIP. 191 
 
 that such an infirmity is a sufficient excuse for not calling 
 him.30 
 
 § 13. The rule when the attesting witness is unavailable. — 
 
 When the attesting witness is unavailable, the rule at common 
 law is, that before Ihe maker can testify to his signature the 
 handwriting of the attesting witness must be proved, if feasible 
 to do so. The two reasons assigned for this rule are the fol- 
 lowing: (1) The greater risk a person incurs in forging the 
 signatures of both witnesses and party than of the party alone ; 
 and (2) The witnesses who subscribe at the time of the execu- 
 tion are agreed upon by the parties to be the only witnesses to 
 prove it. The rule itself, and the two reasons assigned for it, 
 are all unsatisfactory; and all of them have frequently been 
 the subjects of adverse criticism. In this country the rule has 
 often been considered as possessing only a technical and tradi- 
 tional significance. Justice Lumpkin, in commenting upon it, 
 and refusing to be governed by it, says, "A technical and arti- 
 ficial rule had prevailed over our right reason. ' '^^ And Justice 
 Trumbull says, "Why proof of the handwriting of a subscrib- 
 ing witness should be better evidence of the execution of an 
 instrument than that of the obligor is not very apparent^ and 
 the attempts to give a reason have not in my judgment been 
 very satisfactory. "^^ jjg also adds, "As a general rule, there- 
 fore, whenever the subscribing witnesses to an instrument are 
 beyond the jurisdiction of the court, its execution may be 
 proved by proof of the handwriting of the grantor or obligor. 
 This rule does not, of course, apply to instruments which the 
 law requires to be attested by witnesses. In such cases exi- 
 dence of the handwriting of both party and witness would be 
 requisite." In this country many courts follow this rule. 
 
 If proof of the handwriting of the attesting witness is un- 
 obtainable, the signature of the maker may be proved without 
 it, except where attestation is required by law. In the latter 
 case the attestation is an element in the validity of the instru- 
 ment, and must be proved or the party upon whom the burden 
 
 30— Wood V. Deury, 1 Lord Ray- 31— Watt v. Kilburn, 6 Ga. 356, 
 mond 734; Baker v. Blount, 2 358. 
 
 Hayw. 404. 32— Newsom v. Luster, 13 111. 
 
 175. 
 
192 WRITINGS. 
 
 of proof rests fails.** Instances where proof of the signature 
 of the attesting witness may be dispensed with because such 
 proof is not obtainable are the following: (1) Where the at- 
 testing witness subscribes by mark; (2) Where the instrument 
 is lost, or the signature is illegible; (3) Where after diligent 
 search, testimony to the identity of the handwriting cannot be 
 produced. The last of these instances is the most common one. 
 The first has been recognized by only a few courts. 
 
 Some courts hold that when both parties to the instrument 
 are in court and waive the right to insist on calling the attest- 
 ing witness, the execution of the instrument may be proved by 
 the party sought to be charged without calling the attesting 
 witness or proving his signature.** This rule is sensible and 
 should be followed by all courts. The reason for the rule which 
 requires the subscribing witness to be called to prove the execu- 
 tion of a written contract is to protect the interest of the party 
 sought to be charged ; and this party is a competent witness to 
 prove its execution without producing the attesting witness. 
 To deny the parties to such contract the right to admit its exe- 
 cution is entirely captious.*^ In this country at the present 
 time this view obtains generally. 
 
 § 14. Ancient documents.— The subject of ancient docu- 
 ments is discussed in Chapter XII., of Part II., of this volume. 
 As stated in § 3 of that chapter, an ancient document (one at 
 least thirty years old) is admissible in e^adenee to prove its con- 
 tents without proving its authenticity or execution by calling 
 the attesting witnesses, if any, or by proving their handwriting 
 or otherwise. 
 
 § 15. The common law rule not applicable in this country 
 to collateral writings. — In this country it is generally held that 
 the rule which requires attesting witnesses to be called is not 
 applicable to writings which are incidentally or collaterally in 
 issue. As stated by Justice Gilchrist, "when the existence of 
 the writing is of no consequence or significance but as a part 
 of the res gestae which a stranger seeks to prove and to char- 
 acterize with reference to his own rights, then the reason of the 
 
 33— Cram v. Ingalls, 18 N. H. 34— Porsythe v. Hardin, 62 111. 
 613, 616. 206. 
 
 35 — Case cited In note 34. 
 
PEOOF OF AUTHORSHIP. 193 
 
 rule entirely fails and the rule itself has no application. "^^ 
 The reason assigned for the limitation is, that to require a par- 
 ty in such a ease to call the subscribing witnesses would be 
 taking him by surprise. As stated by Justice Brackenridge, "I 
 would then restrain the rule to a case where the execution of 
 a writing is directly in issue, unless notice shall have been giv- 
 en that it was material to have this proof. . . . Coming in 
 collaterally, it would be taking a party by surprise to render 
 it necessary to produce the subscribing witness."*'' 
 
 In England, however, this limitation to the common law rule 
 has never been recognized. 
 
 § 16. Authentication of a jud^fment, or other judicial rec- 
 ord. — There are two general ways of proving a judgment : (1)' 
 By producing the judgment itself; and (2) By producing a 
 copy of it. The former method is applicable when the action 
 in which it is sought to be introduced is before the same court 
 which rendered it. Copies of a judicial record are divided into 
 the following three classes: (1) Exemplifications; (2) Copies 
 made by authorized officers; and (3) Sworn copies. Exemplifi- 
 cations are subdivided into the following two classes: (1) 
 Those under the great seal; and (2) Those under the seal of 
 the particular court. 
 
 §17. Same — ^Provision of United States Constitution — Act 
 of Congress. — ^Article IV., Section 1, of the Constitution of the 
 United States, provides that, "Pull faith and credit shall be 
 given in each state to the public acts, records, and judicial 
 proceedings of every other state. And the Congress may, by 
 general laws, prescribe the manner in which such acts, records, 
 and proceedings shall be proved, and the effect thereof." In 
 pursuance of this provision, Congress, in 1790, enacted that, 
 "The records and judicial proceedings of the courts of any 
 state or territory, or of any such country, shall be proved or ad- 
 mitted in any other court within the United States by the at- 
 testation of the clerk and the seal of the court annexed, if 
 there be a seal, together with a certificate of the judge, chief 
 justice or presiding magistrate, that the said attestation is in 
 due form. And the said records and judicial proceedings so 
 
 36— Rand v. Dodge, 17 N. H. 37— Heckert v. Haine, 6 Binn. 
 343, 357. 16, 20. 
 
 13 
 
194 WRITINGS. 
 
 authenticated, shall have such faith and credit given to them 
 in every court within the United States as they have by law or 
 usage in the courts of the state from which they are taken. "^^ 
 
 § 18. Effect of the act of Congress. — This act of Congress is 
 applicable to the judicial records and proceedings of both 
 courts of law and courts of chancery. 2* It is not, however, ex- 
 clusive.** The several states may enact laws which provide 
 for a different and less strict mode of authenticating judicial 
 records; but such laws must not impose any additional require- 
 ments to those provided by the act of Congress.*^ The act 
 does not exclude any competent proof known to the common 
 law.*2 
 
 As a general rule, it is not applicable to the records of a 
 justice of the peace. As said by Chief Justice Parker, "Cer- 
 tainly, we think, the judicial proceedings referred to in the 
 constitution were supposed by the Congress, which passed the 
 act providing the manner of authenticating records, to have 
 related to the proceedings of courts of general jurisdiction, and 
 not those which are merely of municipal authority. "^^ In 
 some states, however, including Connecticut and Vermont, jus- 
 tices of the peace are required by law to keep records of their 
 proceedings ; and where this rule obtains such records are held 
 to be within the meaning of the act. 
 
 According to the great weight of authority the act is not ap- 
 plicable to the records and proceedings of the various federal 
 courts.** The contrary, however, has been held.*^ The test 
 is, whether the relation existing between the various federal 
 courts is domestic or foreign. The view which obtains gener- 
 ally is, that it is domestic; and for this reason it is generally 
 
 38— U. S. Rev. Stat. §905; Destz 43— Warren v. Plagg, 19 Mass. 
 
 Fed. Proc. §425. 448, 449. 
 
 39 — Patrick v. Gibbs, 17 Tex. 44 — Kingman v. Cowles, 103 Mass. 
 
 275. 283; McGregor v. Hampton, 70 Mo. 
 
 40— People V. Miller, 195 111. 621. App. 98; Morgan v. New York Nat'l. 
 
 41 — Garden City, etc. Co. v. Mil- etc., Assoc, 73 Conn. 652; O'Hara 
 
 ler, 157 HI. 225. v. Mobile, etc., Ry. Co. 40 U. S. C. 
 
 42— Otto V. Trump, 115 Pa. St. C. of App. 471. 
 
 425. 45— Adams v. Lisher, 3 Blacks. 
 
 (Ind.) 241. 
 
PROOF OF AUTHOBSHIP. 195 
 
 held that the act has no application to the records of the federal 
 courts. 
 
 Nor is the act applicable to the records of state courts where 
 such records are sought to be proved in other state courts 
 within the same territorial jurisdiction. The reason for this 
 rule is the same as that assigned for the rule applicable to the 
 records of the federal courts, viz. : the relation existing among 
 these courts is domestic and not foreign. 
 
 § 19. Mode of attestation under act of Congress. — The mode 
 of attestation of judicial records, provided by the act of Con- 
 gress, embodies the following steps: (1) The maiing of a cer- 
 tificate of the record by the clerk of the court ; (2) Armexhxg to 
 this certificate the seal of the court; (3) The making of a cer- 
 tificate by the judge, to the effect that the certificate of the 
 record is executed in due form, and annexing the judge's cer- 
 tificate to that of the clerk. The clerk's authority is derived 
 wholly from the act of Congress, and not at all from any state 
 law. The test of the sufficiency of the judge's certificate is 
 the law of the state from which the record is taken. If the 
 court comprise more than one judge the certificate must be 
 made by the presiding judge, and this fact must appear in the 
 certificate. It is not essential, however, that the judge's iden- 
 tity or official capacity be certified to. Nor is it essential, in 
 the case of documents presumed by the law to be matters of 
 record, that the judge certify to the identity of the clerk, or the 
 seal of the court. His function is to certify that the attesta- 
 tion is in due form. His certificate must show this fact; also 
 that when the certificate was executed he was judge, chief jus- 
 tice, or presiding magistrate of the court; and that the county 
 from -which the records are certified is within his jurisdiction. 
 Some courts hold that it should show the official character of 
 the clerk of the court and his ability to act.*^ It has also been 
 held that the clerk attesting must be the officer himself and not 
 an under-elerk.*^ The seal of the court must be annexed to 
 the certificate of the clerk, and not to the certificate of the 
 judge. It is the certificate of the judge, however, which gives 
 
 46— English v. Smith, 26 Ind. 445; Gavit v. Snowhill, 26 N. J. L. 
 
 76. 
 
196 WRITINGS. 
 
 validity to the transcript of the record and establishes the va- 
 lidity of the form adopted by thp clerk. 
 
 §20. Mode of attestation in some states. — In some states 
 the mode of attestation provided by statute does not require 
 certification by the judge. The attestation of the clerk, with 
 the seal of the court annexed, is sufficient.*^ And in some 
 states, the certificate of the judge, v^hether or not he is the 
 chief justice of presiding magistrate, is suffieient.*^ 
 
 §21. Mode of attestation at common law — Foreign judg- 
 ments.— At the common law the following three modes of at- 
 testation of foreign judgments obtain: (1) By exemplifica- 
 tion; (2) By the certificate of an officer authorized by law; and 
 (3) By a sworn copy: Any one of these modes is allowable, 
 notwithstanding the act of Congress.*' 
 
 By the first of these three methods the transcript of the rec- 
 ord is authenticated by the seal of the particular court. 
 
 Where the law intrusts a particular officer with the making 
 of copies of judicial records, and such copies are certified to 
 by the officer, they are admissible in evidence without further 
 proof. In nearly all the states statutes provide for the making 
 of records by authorized officers. 
 
 A record may always be shown by a sworn copy. It is es- 
 sential, however, to show that the original, at the time the copy 
 was made, was taken from the proper custody. This fact is 
 not presumed, nor can it be shown by the transcript of the 
 record. It must always be shown by extrinsic evidence. By 
 this mode a judicial record may be shovm by any competent 
 witness. 
 
 § 22. Mode of proving federal court records. — As stated in 
 § 17 of this chapter, by the great weight of authority the act of 
 Congress is not applicable to the records and proceedings of 
 the various federal courts, owing to the fact that the relation 
 existing among these courts is domestic and not foreign. It 
 follows, therefore, that the mode of proving in one federal 
 court the judicial records and proceedings of another, is the 
 mode which is applicable to the records of domestic courts. 
 
 47— Frost V. Holland, 75 Me. 108. 524; Karr v. Jackson 28 Mo. 316; 
 48— Simons v. Crook, 29 la. 324. Title Guarantee, etc., Co. v. Tren- 
 49 — Capling v. Herman, 17 Mich, ton, 56 N. J. Eq. 441. 
 
PEOOF OF AUTHORSHIP. 197 
 
 This mode comprises a transcript of the record duly certified 
 to by the clerk of the particular court, and the seal of the 
 court annexed, to the clerk's certificate. 
 
 §23. Mode of proving state court records.— The act of 
 Congress, as heretofore stated, is not applicable to the records 
 of state courts where it is sought to prove them in other state 
 courts within the same territorial jurisdiction. In such a case 
 the mode of proof is less complicated than that provided by 
 the act of Congress. All that is required is the certificate of 
 the clerk of the court, with the seal of the court annexed 
 thereto, getting forth the fact that it is a full, true and com- 
 plete copy of the record which is in his custody by authority of 
 law. A record exemplified under the seal of the court is said 
 to prove itself.^" The reason is, that any court is presumed to 
 know and recognize the seal of any other court within the state. 
 
 § 24. Mode of proving the records of justice of the peace 
 courts. — ^As a general rule, the act of Congress, as heretofore 
 stated, is not applicable to justice of the peace records, for the 
 reason that such courts are usually courts not of record. But, 
 in the few states in which justices of the peace are required by 
 law to keep records, including Connecticut and Vermont, the 
 act of Congress is applicable, and the fact that the justice of 
 the peace had no clerk and kept the records himself, and had 
 no seal, does not render the act of Congress inapplicable. As 
 said in one case, "In those states where justices of the peace 
 hold courts of record, where they are the sole judges and have 
 no other persons to be their clerks, they are the presiding mag- 
 istrates and clerks of their own courts, and may certify their 
 records in a manner conformable to the act of Congress. After 
 attestation of the record, a justice of the peace may certify that 
 he is the presiding magistrate and clerk of the court, that 
 there is no seal, and that the attestation is in due form, and 
 then subscribe it as justice of the peace. This would be a 
 literal compliance with the act, and the copy of the record so 
 certified would be admissible in evidence, "^i In some states, 
 however, including Illinois, it has been held that the records 
 of justices of the peace of one state cannot be authenticated 
 
 50 — Names v. Names, 48 Neb. 51 — Blssell v. Edwards, 5 Day, 
 710; Adams v. Way, 33 Conn. 419. 363. 
 
198 WEITINQS. 
 
 under the act of Congress in another state.'^ The rule ohtains 
 generally that the judicial proceedings of a justice of the peace 
 of a foreign state are admissible in evidence in another state 
 when such proceedings are exemplified under the seal of the 
 state, or attested by the certificate of an officer authorized by 
 law, or by a sworn copy by any competent witness. In many 
 of the states special statutes provide for the admissibility of 
 certified copies of such records by authorized ofiBcers. In a 
 few states, however, including Illinois, no such statutes exist. 
 The proceedings of a justice of the peace court may be proved 
 by producing the book containing such proceedings; and, 
 where no such book is kept, by showing the certificate of the 
 justice of the peace authenticating them. 
 
 §25. Mode of proving quasi-judicial records. — Quasi-judi- 
 cial records "are the results of inquiries made under public 
 authority concerning matters of public or general interest, 
 though the affairs to which they relate are private. They are 
 generally the conclusions of juries, coroners, commissioners or 
 other officers under oath, and often, though not necessarily, 
 based on evidence taken under oath." They include verdicts 
 of coroners' juries, and findings of commissioners relating to 
 insanity inquests. They may be proved by producing the 
 original records, or by a properly certified copy. 
 
 § 26. Mode of proving unattested writings. — The authorship 
 of unattested documents may be established by the testimony 
 of the writers themselves, or by that of others who saw the 
 documents executed, or by proof of the handwriting. The last 
 of these three modes is less satisfactory than either of the other 
 two. The handwriting may be proved either by the testimony 
 of witnesses who are familiar with it, or by comparison. As 
 stated by Taylor,. "When writings are produced, and it be- 
 comes necessary to show by whom they were written or signed, 
 the simplest mode of proof is to call the writer himself, or 
 some person who actually saw the paper or signature written. 
 When evidence such as this cannot be procured, as must often 
 be the case, recourse may be had, either to the testimony of 
 witnesses, who are acquainted with the handwriting, or to a 
 
 52— Trader v. McKee, 2 111. 558; Buntain v. Baily, 27 111. 409. 
 
PROOF OF AUTHORSHIP. 199 
 
 comparison of the document in dispute with any writing proved 
 to the satisfaction of the judge to be genuine. These last 
 modes of proof, indeed, may in all cases be given in the first 
 instance, since the law recognizes no distinction between them 
 and the ocular proof just mentioned ; but as they are obviously 
 of a less satisfactory character than direct testimony, any un- 
 necessary reliance on them is calculated to raise suspicion that 
 the party is actuated by some improper motive in withholding 
 evidence of a more exclusive nature. "^3- 
 
 § 27. Public records^ — Their mode of proof. — Official public 
 records, or duly certified copies thereof, are admissible in evi- 
 dence when material to the issue. It is often said that a record 
 proves itself. It does not follow, however, that proof of its 
 authenticity is not essential. It is a fundamental rule that a 
 document to be admissible must be shown by extrinsic evidence 
 to be what it purports to be. It is not essential to the admis- 
 sibility of a public record that a statute require it to be kept. 
 It is sufficient that it be kept in the discharge of a public 
 duty.^* Nor is it essential that it be kept by the public of- 
 ficer himself. It is sufficient if it be kept under his direc- 
 tion.^''' As a general rule, public records are not conclu- 
 sive as to their contents, but they are sufficient to establish 
 their prima facie facts.^" As regards public statutes, however, 
 some courts hold that their recitals are conclusive ;58 -^yhile 
 others hold the contrary. All courts, however, hold that such 
 recitals are at least presumed to be true until the contrary be 
 shown.s^ 
 
 § 28. Same — State statutes — ^Act of Confess.— State courts 
 are bound to take judicial notice of the recitals of their public 
 
 53—2 Taylor on Evid. (9th ed.) 57— Lane v. Harris, 16 Ga. 217; 
 
 sec. 1862. Brodnax v. Groom, 64 N. C. 244. 
 
 54— Taylor on Evid. §1429; 1 58— Kinkead v. United States, 
 
 Greenleaf on Evid. §483. 150. U.S. 483; Priewe v. Wisconsin 
 
 55— Gait. V. Galloway, 4 Pet. (U. State Land Co., 103 Wis. 537; Mer- 
 
 S.) 332; Gurney v. House, 9 Gray sey Docks v. Cameron, 11 H. of L. 
 
 (Mass.) 404; Evanston v. Gunn, Cas. 519. 
 
 99 U. S. 660. 59— Thornton v. Lane, 11 Ga. 
 
 56— Sandy White v. United 521. 
 States, 164 U. S. 104; Evanston v. 
 Gunn, 99 U, S. 660. 
 
200 WRITINGS. 
 
 statutes. It is not essential, therefore, to plead or prove such 
 recitals. Private statutes, however, must be pleaded and 
 proved. The latter may be proved by an authorized edition 
 of the state statutes, or by a copy under the seal of the state. 
 As a general rule, a printed statute book is not conclusive; 
 but it is sufficient when duly authorized to establish prima 
 facie its contents. Stronger proof is to be found in the jour- 
 nals or enrolled laws;®" and the latter of these control the 
 former.^i 
 
 In pursuance of an act of Congress, state statutes may be 
 proved by copies thereof attested by the seal of the state ; and 
 such copies are conclusive in the courts of any state of the 
 Union. Under this act the only formality essential is the seal 
 It, in itself, is sufficient to raise the presumption that the party 
 who annexed it had authority so to do, and that he had custody 
 of the original.®^ This mode of proof, however, -is not exclu- 
 sive.®^ The laws of another state, including the common law, 
 may be proved by expert witnesses, or by an authorized edi- 
 tion of such laws.®* 
 
 §29. Same— Executive documents — State papers.— It is a 
 fundamental rule of evidence, applicable to all public docu- 
 ments, that where the originals are admissible, properly au- 
 thenticated copies are also admissible. Based upon this rule, 
 executive documents, authenticated by the signature of the 
 secretary, and under the seal of the department, are admis- 
 sible. And the volumes known as the American State Papers, 
 published by authority of the Senate under the revision of the 
 Secretary of the Senate, are admissible without further proof. 
 As said by Justice Catron, of the Supreme Court of the United 
 States, "These State Papers were published by order of Con- 
 gress, and selected and edited by the Secretary of the Senate 
 and Clerk of the House. They contain copies of legislative and 
 
 60 — Spangler v. Jacoby, 14 111. 62 — Spangler v. Jacoby, 14 111. 
 
 297; Happel v. Brethauer, 70 111. 297; Happel v. Brethauer, 70 111. 
 
 166. 166. 
 
 61 — Simpson v. Union Stock 63 — Title Guarantee, etc., Co. v. 
 
 Yards Co., 110 Fed. Rep. 799; Trenton Pot Co., 56 N. J. Bq. 441. 
 
 Ritchie v. Richards, 14 Utah 345, 64— Greason v. Davis, 9 la. 219; 
 
 47 Pac. Rep. 678, and numerous Young v. Bank of Alexandria, 4 
 
 authorities there cited. Cranch (U. S.) 388. 
 
PROOF OF AUTHORSHIP. 201 
 
 executive documents, and are as valid evidence as the originals 
 are from which they are copied."®^ And as said by Justice 
 Gray, "Acts of Congress, and proclamations issued by the 
 Secretary of State in accordance therewith, are the appropriate 
 evidence of the action of the national government (Taylor on 
 Evid., 5th ed., § 1473; 1 Greenl. on Evid. § 491). And the vol- 
 ume of public documents, printed by authority of the Senate 
 of the United States, containing letters to and from various 
 officers of the state, communicated by the President of the 
 United States to the Senate, was as competent evidence as the 
 original documents themselves. "^^ 
 
 §30. Same — ^Municipal records. — The recitals in municipal 
 records may be proved by the original records, or by a duly 
 certified copy.^'^ Thus, an ordinance may be proved by a cer- 
 tified copy thereof, and such a copy is prima facie evidence 
 that all essential steps were taken to render it valid.^^ And, 
 as a general rule, an ordinance may be proved by introducing 
 a printed book of the ordinances published by proper au- 
 thority.''* 
 
 §31. Same — Post office records.— Records kept by a post- 
 master, in pursuance of authority vested in him by the Post 
 Office Department, are admissible in evidence.^" 
 
 §32. Same — School records — Prison records. — School com- 
 missioners' records are admissible, when duly authenticated, to 
 prove their official acts.''^ And entries made by the warden of 
 a penitentiary, or by a jailor, in the performance of his official 
 duty, are also admissible, when duly authenticated.'^^ 
 
 § 33. Same— Tax records. — The books of county treasurers, 
 assessors and collectors, are official documents, and as such ad- 
 
 65— Bryan v. Forsythe, 60 U. S. Ry. Co., 175 Mo. 161; People v. 
 
 334, 338. Murray, 57 Mich. 396. 
 
 66 — Whiton v. Albany and Nar. 70 — Miller v. Boykln, 70 Ala. 469; 
 
 Ins. Go's., 109 Mass. 24, 30. Merriam v. Mitchell, 13 Me. 439. 
 
 67— Lindsay v. City of Chicago, 71 — Monaghan v. School Dist., 
 
 115 111. 120. 38 Wis. 101; Hendrick v. Hughes, 
 
 68— McChesney v. City of Chi- 15 Wall. (U. S.) 123. 
 
 cago, 159 11. 223. 72— Sandy White v. United 
 
 69— Campbell v. St. Louis, etc., States, 164 U. S. 100. 
 
202 WEITINGS. 
 
 missible in evidence to prove their contents. They are not con- 
 clusive, but sufficient to establish a prima facie caseJ^ 
 
 § 34. Same — ^Weather reports. — ^Weather reports, kept by a 
 person in discharge of a public duty, are admissible in evidence. 
 It is not essential that a statute require them to be kept, nor 
 need they be kept by a public officer himself. It is sufficient if 
 the entries are made under his direction by a person authorized 
 by him.'?* 
 
 73 — Gage v. Davis, 122 111. 520; 660; De Armond v. Neasmith, 32 
 
 Anthony v. Mercantile, etc., Assoc., Mich. 231; Huston v. Council 
 
 162 Mass 60. Bluffs, 101 la. 33; Moore v. Gans, 
 
 74 — Evanston v. Gunn, 99 U. S. etc., Co., 113 Mo. 98. 
 
CHAPTER II. 
 
 ALTERATION OF WRITINGS. 
 
 § 1. Definitions and classifications. — The term "alteration" 
 lias both a technical and a colloquial meaning. It is usually 
 defined as an act done upon an instrument by which its mean- 
 ing or language is changed. In its technical sense, as used in 
 the law of evidence, the act must be done without the consent 
 of the other party to the instrument. In its colloquial sense, 
 the act is done by agreement of the parties, and the effect is 
 to create a new agreement^ which supersedes the original one. 
 When the act is done by a third party without authority it is 
 called spoliation. The alteration or spoliation may consist of 
 an interlineation, an erasure, a cancellation or an addition. 
 Alterations are either material or immaterial. A material 
 alteration is one which changes the legal effect of the instru- 
 ment.^ An immaterial alteration is one which does not.^ An 
 alteration which does not affect in any manner the rights or 
 interests, duties or obligations, of either of the parties to the 
 instrument, is immaterial.^ 
 
 §2. Effect of alterations. Early rule. Modern rule. — ^In 
 determining the effect of an alteration in an instrument, it is 
 essential to take into account the following considerations: 
 (1) The materiality of the alteration; (2) By whose authority 
 it was made; (3) The intention with which it was made; and 
 (4) The time, relatively speaking, when it was made. 
 
 According to the early English rule, even an immaterial 
 alteration, if made by the obligee, invalidated the instrument. 
 As said in an early and leading case upon the subject, "if the 
 obligee himself alters the deed in any of said ways, although 
 not material, yet the deed is void. ' ' * And according to this 
 rule a material alteration though made by a stranger had the 
 
 1 — Wheelock v. Freeman, 13 3 — Arnold v. Jones, 2 R. I., 345. 
 
 Pick. (Mass.), 168. 4— Pigofs Case, 11 Coke, 26. 
 
 2 — Smith V. Crooker, 5 Mass., 
 538. 
 
 203 
 
204 WRITINGS. 
 
 same effect. This early rule, however, has been wholly and 
 unanimously repudiated in this country, and considerably re- 
 laxed in England. Justice Story in condemning it says, "a 
 doctrine so repugnant to common sense and justice, which in- 
 flicts on an innocent party all the losses occasioned by mis- 
 take, by accident, by the wrongful acts of third persons, or by 
 the providence of Heaven, ought to have the unequivocal sup- 
 port of unbroken authority before a court of law is bound to 
 surrender its judgment to what deserves no better name than 
 a technical quibble. ' ' ° Lord Coke went so far as to say that 
 the deed was invalidated even where the alteration was made 
 before the deed was executed ; * but this view probably was 
 never sustained by any court. 
 
 According to the modern rule, an alteration, to invalidate 
 the instrument, must possess the following requisites: (1) It 
 must be material; (2) It must be made intentionally; (3) It 
 must be made by the grantee or promisee; (4) It must be 
 made without the consent of the grantor or promisor; and 
 (5) It must be made after the execution of the instrument.' 
 The fact that the alteration is favorable to the grantor or 
 promisor is immaterial.' Moreover, to avoid the instrument 
 a fraudulent intent in making the alteration is not essential.' 
 The reason that an alteration by the grantor or promisor does 
 not avoid the instrument is, a person is not allowed to take 
 advantage of his own wrong.'" It has been held, however, 
 that a material alteration of a deed by the grantor after execu- 
 tion and delivery avoids the covenants contained therein in 
 his favor.'' 
 
 §3. Reasons for the rule. — The two reasons which are 
 
 usually assigned for the existence of the rule are the follow- 
 s—United States V. Spalding, 2 90 Ala., 553; Hewins v. Cargill, 67 
 
 Mason (U. S.), 478. Me., 554. 
 
 6 — Coke upon Littleton, 225 b. 9 — Booth v. Powers, 56 N. Y., 22; 
 
 7 — Aldous V. Cornwell, L. R. 3 Harsh v. Klepper, 28 Ohio St., 204. 
 
 Q. B. D., 573; Hord v. Taubman, 79 10 — Martin v. Tradesmen's Ins. 
 
 Mo., 101; Greenfield Savings Bank Co., 101 N. Y., 498. 
 
 V. Stowell, 123 Mass., 206; Osborne 11— Wallace v. Harmstad, 44 Pa, 
 
 V. Van Houten, 45 Mich., 444. St., 492. 
 
 8 — Montgomery v. Crossthwait, 
 
ALTERATION OF WRITINGS. 
 
 205 
 
 ing: (1) A material alteration of an instrument destroys its 
 identity, and therefore no recovery can be had upon it; and (2) 
 To countenance tampering with written instruments is against 
 public policy.^^ As said by Justice Swayne, "To prevent and 
 punish such tampering, the law does not permit the plaintiff 
 to fall back upon the contract as it was originally. In pur- 
 suance of a stern but wise policy, it annuls the instrument as 
 to the party sought to be wronged. ' ' ^^ And as said by Justice 
 White, "The policy of the rule is to preserve the integrity of 
 legal instruments by taking away the temptation of tampering 
 with them."" 
 
 § 4. Applica,tion of the rule. — Originally, the rule was ap- 
 plied to sealed instruments only; but later it was extended 
 and made to apply to written instruments generally. Thus it 
 has been held to apply to bills of lading ; ^^ powers of attor- 
 ney .le recognizances ;i'^ contracts of guaranty;'^ charter 
 parties ; ^* leases ; ^" insurance policies ; ^^ promissory notes ; ^^ 
 
 12— Lee v. Butler, 167 Mass., 
 426; Mersman v. Werges, 112 U. S., 
 139. 
 
 13— Wood V. Steele, 6 Wall. (U. 
 S.), 80. 
 
 14 — Wallace and Park v. Jewell, 
 21 Ohio St., 163. See also Klngan 
 V. Silvers, 13 Ind. App., 80, 37 N. 
 E. R., 413. In the latter case the 
 court say: "A written instrument 
 in the hands of an adverse party 
 is easily susceptible of alteration 
 to the injury of the maker. Many 
 written contracts are negotiable 
 and perform important functions 
 in commercial transactions. It is 
 of the highest importance to the 
 commercial world that they be 
 preserved in their original state or 
 condition. Public policy demands 
 this for the prevention of frauds, 
 and of loss to innocent persons. 
 The most effectual means of pre- 
 serving the integrity of such in- 
 struments is the rule that a mate- 
 rial alteration destroys the instru- 
 
 ment. So that no recovery can be 
 had upon it, either in its original 
 or its altered condition. 
 The object of the rule is to enjoin 
 the highest care upon the holder, 
 and to punish him with loss for 
 his negligent and fraudulent con- 
 duct" 
 
 15 — ^Lehman v. Central R. etc. 
 Co., 12 Fed Rep., 595. 
 
 16— Burwell v. Orr, 84 111., 465. 
 
 17 — Grant v. State, 8 Tex. App., 
 432. 
 
 18 — Davidson v. Cooper, 11 M. £ 
 W., 778; Osborn v. Van Houten, 45 
 Mich., 444. 
 
 19 — Pew V. Laughlln, 3 Fed. 
 Rep., 39. 
 
 20 — Burgwin v. Bishop, 91 Pa. 
 St., 336. 
 
 21 — Martin v. Tradesmen's Ins. 
 Co., 101 N. Y., 498. 
 
 22— Gillett V. Sweat, 6 111.. 489; 
 C. A. Nat. Bank v. Burns, 12a 
 Mass., 596; Miller v. Finley, 26 
 
206 WKITINQS. 
 
 bills of exchange ; ^^ checks ; ^^ chattel mortgages ; "^ and all 
 classes of simple contracts.^^ As said by Justice Haile, ' ' There 
 is no substantial reason why this rule should not be applied to 
 notes and to all other written contracts as well as to deeds; 
 for all such instruments are the evidence of the contracts be- 
 tween the parties, and whatever alteration, therefore, changes 
 the legal effect of the instrument makes it another and not 
 the same contract, and it should no longer in law bind the 
 party, because it is not the contract by which he agreed to be 
 bound. ' ' '^ The rule is also applicable to written assignments 
 of contracts,^^ and instruments of a merely evidentiary char- 
 acter, such as receipts and bills of sale.^° 
 
 § 5. Same. Bona fide purchasers of negotiable instruments. 
 — A material alteration of a negotiable promissory note, by 
 the payee or transferee, without the consent of the maker or 
 transferor, avoids the note as against the maker, or any in- 
 dorser prior to the one who makes the alteration, even as to 
 a bona fide indorser for value and without notice.^* But the 
 bona fide indorsee may still look to any indorser subsequent 
 to the party who makes the alteration.'^ The same principle 
 is applicable to a negotiable bill of exchange. Thus, where the 
 payee of a bill of exchange makes a material alteration in it 
 after acceptance it vitiates the instrument even in the hands 
 of a bona fide indorsee for value.*^ It has been held, however, 
 that in such a case the remedy of the holder is confined to a 
 
 Mich., 249; Barnett v. Nolte, 55 27— Arnold v. Jones, 2 R. I., 345. 
 
 Mo. App., 184; Fitch v. Ellis, 5 El. 28— Minert v. Emerick, 6 Wis., 
 
 & Bl., 28. 469. 
 
 23 — Pountaine v. Gunter, 31 Ala., 29 — Babb v. Clemson, 10 Sarg. & 
 
 258; Anderson v. Langdale, 3 B. & R. (Pa.), 419; 13 Am. Dec, 684. 
 
 Ad., 660. 30— Burwell v. Orr, 84 111., 465; 
 
 24 — Crawford v. West Side Bank, Bank v. Clark, 51 la., 264; Capital 
 
 100 N. Y., 50; Belknap v. National Bank v. Armstrong, 62 Mo., 59; 
 
 Bank of North America, 100 Mass., Greenfield Savings Bank v. Sto- 
 
 376; Vance v. Lowther, 1 Exch well, 123 Mass., 198. 
 
 Div., 176. 31 — Washington Savings Bank v. 
 
 25 — Hollingsworth v. Holbrook. Ecky., 51 Mo., 272. 
 
 80 la., 151. ■ 32— Master v. Miller, 4 T. R., 
 
 26 — Boston v. Benson, 12 Cush., 320. 
 (Mass.), 61. 
 
ALTERATION OF WKITINGS. 207 
 
 recovery on the consideration of the bill as between himself 
 and the party from whom he receives it.^^ 
 
 § 6. Same. Certified checks. — A material alteration by the 
 drawer, of a cheek which has been certified to by the bank, 
 avoids it in the hands of the drawee or assignee, and the 
 bank is relieved from liability on it. ^* 
 
 § 7. Same. Innocent assignee of a mortgagee. — ^A material 
 alteration by a mortgagee, without the consent of the mort- 
 gagor, after its execution and delivery, avoids the instrument 
 even in the hands of an innocent assignee, and prevents a fore- 
 closure by him.^^ 
 
 §8. Filling blanks.— The effect of filling in blanks in an 
 instrument after its execution and delivery, by the grantee or 
 promisee, or by the agent of the grantor or promisor, depends 
 upon the circumstances of the particular case. As a general 
 rule, where such blanks are evidently meant to be filled in he 
 has implied authority to do so; and the performance of this 
 act by him does not invalidate the instrument. As regards all 
 simple contracts, this rule is universal; but as regards sealed 
 instruments the decisions are in hopeless conflict. In regard 
 to the latter, some courts hold, that parol authority to fill in 
 the blanks is sufficient ; while others hold that authority u^der 
 seal is essential. In an early English case,'" Lord Mansfield 
 held that parol authority was sufficient ; but Baron Parke over- 
 ruled that decision,^^ and his view is the established doctrine 
 which now obtains in England.'^ In this country some courts 
 have followed the modern English rule,'" and some have re- 
 
 33 — Burchfield v. Moore, 3 El. & tice Wilson in 1 Aust., 228 (33 
 
 Bl., 683. In this case Chief Jus- Geo. III.) 
 
 tice Campbell says, in substance 37 — Hibblewhite v. M'Morine, 6 
 
 that a similar remedy is available M. & W., 200. 
 
 against any indorser subsequent to 38 — Enthoven v. Hoyle, 9 Bng. L. 
 
 the party who makes the altera- & Eq., 434. See also Bishop on 
 
 tion. Contracts, section 1168. 
 
 34— Abrams v. Union Nat. Bank, 39 — People v. Organ, 27 111., 27; 
 
 31 La. Ann., 61. Chase v. Palmer, 29 111., 306 (but 
 
 35 — Coles V. Yorks, 28 Minn., see Dounell Mfg. Go. v. Jones, 49 
 
 464. Ill App., 327, case of a bond); 
 
 36 — Texira v. Evans, not re-i Burns v. Lynde, 6 Allen (Mass.), 
 
 ported, but referred to by Jus- 305; Barden v. Southerland, 7 N. 
 
208 WRITINGS. 
 
 pudiated it.*" The latter courts hold that the rule which 
 requires authority under seal to execute a sealed instrument is 
 confined in its application to the making of a sealed instrument 
 by one person for another, and that it is not applicable to the 
 mere completion of an imperfect sealed instrument. As said 
 by Justice Kent, "When the instrument is a sealed instrument, 
 when signed by the party, the filling in of the blanks after- 
 wards by another is not, strictly speaking, the execution of a 
 sealed instrument. That has already been done by the party 
 himself. The third party does not make it a specialty by his 
 act. It was one before. The filling up merely perfects an im- 
 perfect sealed deed or bond. ' ' *^ Some courts, which sustain 
 this view, say that sealed instruments, in which blanks are 
 filled in pursuance of parol authority expressly given, are 
 valid. Upon principle, however, an implied authority is 
 equally effectual; and the courts generally so hold.*^ It is 
 essential, however, that such an implication be fairly and 
 legally inferable from all the circumstances of the particular 
 case.*' Thus, it has been held, that the holder of a promissory 
 note containing a blank space for the date has implied 
 authority to fill in the date;** that the holder of such an in- 
 strument containing a blank space for the amount has implied 
 authority to fill in the true amount.*'* If, however, the holder 
 fiU in an amount different from the true one, it invalidates the 
 instrument, except in the hands of a bona fide indorsee.*^ 
 Where a note contains a blank space for time, or place of pay- 
 ment, the holder has implied authority to fill in such space 
 
 C, 528; Ingram v. Little, 14 Ga., 29 Am. Rep., 470; State v. Young, 
 
 173, 58 Am. Dec, 549. supra. 
 
 40— Berwick v. Huntress, 53 44 — Gill v. Hopkins, 19 111. App., 
 
 Me., 89, 87 Am. Dec, 535; Swartz 74; Weyerhauser v. Dun, 100 N. Y., 
 
 V. Ballou, 47 la., 188; Deury v. 150; Bechtel's Estate, 133 Pa. St., 
 
 Foster, 2 Wall. (U. S.), 24; 367. 
 
 Bridgeport Bank v. New York, etc., 45 — Eichelberger v. Old Nat. 
 
 Ry. Co., 30 Conn., 274. Bank, 103 Ind., 401. 
 
 41 — South Berwick v. Huntress, 46 — Green v. Sneed, 101 Ala., 
 
 53 Me., 89, 87 Am. Dec, 535. 205. 
 
 42 — South Berwick, supra; State 
 V. Young, 23 Minn., 551. 
 
 43— Swartz V. Ballou, 47 la., 188, 
 
ALTERATION OF WBITIN6S. 209 
 
 with the proper time,*^ or place.*^ And where a blank space 
 is left for the name of the payee it may be filled in by any 
 proper holder with his own name.*® And the holder of a nego- 
 tiable instrument indorsed in blank may insert the name of an 
 indorsee.^** Where the maker of a deed authorizes his agent 
 by parol to fill in blanks and deliver the deed to the grantee, 
 and the agent fills in the blanks without the knowledge of the 
 grantee, the maker is estopped from denying that the instru- 
 ment as delivered is his deed. This rule obtains even in those 
 states which deny the sufficiency of parol authority to fill 
 blanks in sealed instruments.^^ 
 
 §9. Ratification of alterations. — ^A material alteration if 
 legally authorized is binding upon the consenting parties ; and 
 an act which is susceptible of authorization may also be ratified. 
 It follows, therefore, that a material alteration which has been 
 ratified will be biadtag upon the parties; and the courts hold 
 that a new consideration to support the ratification is not es- 
 sential.^2 In the case of sealed instruments, those courts which 
 sustain the sufficiency of parol authority to fill blanks, sustain 
 the sufficiency of parol authority to ratify such acts;^^ while 
 those that deny the former also deny the latter.^* In the ease 
 of simple contracts, including negotiable instruments, a ratifi- 
 cation by parol is sufficient.^^ 
 
 § 10. Alterations in wills. — The effect of alterations in wills 
 depends upon the following consideratiens : (1) The manner 
 in which they are made; (2) The intent which accompanies 
 the making of them; (3) The party who makes them; and (4) 
 The time at which they are made. Alterations by codicil, by 
 mutilation or obliteration, made by the testator with intent to 
 revoke the instrument, will, if properly done, have that effect. 
 
 47 — Johns V. Harrison, 20 Ind., 11; Phelps v. Sullivan, 140 Mass., 
 
 324. 36. 
 
 48— Canon v. Grf'gsby, 116 111., 62— .Montgomery v. Cross; 
 
 151; Redllch v. Doll, 54 N. Y., thwait, 90 Ala., 553. 
 
 234. 53 — State v. Young, 23 Minn., 
 
 49— Dunham v. Clogg, 30 Md., 551. 
 
 284. 54 — Saus v. People, 8 111., 327; 
 
 50 — Croskey v. Skinner, 44 Kilkelly v. Martin, 34 Wis., 525. 
 
 111., 321. 55— Stewart v. Port Huron 
 
 51— McNab V. Young, 81 lU., First Nat. Bank, 40 Mich., 348. 
 14 
 
210 WKITINGS. 
 
 Under the English statute of frauds, obliterating or cancelling 
 one or more clauses of a will by the testator, with intent to 
 revoke the same, had that effect, provided the act did not re- 
 sult in creating a new legacy or devise, or in enlarging an ex- 
 isting one.56 Under the English Wills Act (1 Vict. Chap. 26), 
 however, a subsequent formal re-execution of the will is essen- 
 tial to have that effect.^'' Similar statutes have been passed in 
 New York^* and in some other states. Alterations made by a 
 stranger are ineffectual provided the original can be proved.^* 
 Alterations by a legatee or devisee in a bequest or devise, 
 avoids his interest in the bequest or devise, but not that of any 
 other legatee or devise.^" It does not, however, avoid other 
 bequests or devises in the will to him. Mere additions to the 
 will by the testator, after the execution of the will, are void, 
 unless he formally re-execute the will.®^ Where void altera^ 
 tions are made, and the original is not decipherable, the al- 
 tered part is read in blank.®^ Alterations which are made after 
 the execution of the will are void, unless the will is formally 
 re-executed, and where the latter is not done the will should 
 be probated as originally made.^^ 
 
 § 11. Alterations made accidentally or by mistake. — ^Alter- 
 ations made accidentally or by mistake do not invalidate the 
 instrument, or affect in any way the rights and liabilities of the 
 parties to it.** As stated in 2 Cyc. 146, "whenever it is clear 
 that an instrument once perfect has become multilated or de- 
 faced by accident or the effect of time, such multilation or ef- 
 facement operates nothing against its validity." 
 
 § 12. Alterations made to correct mistakes of expression. 
 — Upon the question as to the effect of an alteration made with 
 the view of correcting a mistake of expression and makiag the 
 instrument conform to the intention of the parties, the decis- 
 
 56 — Bschbach v. Collins, 61 Md., 60— Doane v. Hadlock, supra. 
 
 478. 61 — Stevens v. Stevens, 6 Dem. 
 
 57— In re Goods of "Wilkinson, (N. Y.) 262. 
 
 6 Probate Div., 100. 62 — Townley v. Watson 3 
 
 58— Lovell V. Quitman, 88 N. Cent, 761. 
 
 Y., 377. 63— Stevens v. Stevens, supra. 
 
 59— Camp v. Shaw, 52 111. App., 64— Milbery v. Storer, 75 Me., 
 
 241; Doane v. Hadlock, 42 Me., 69, 46 Am. Rep., 361; Newton v. 
 
 72. Bramlett, 55 111. App., 661, 663. 
 
ALTERATION OF WRITINGS. 211 
 
 ions are in hopeless conflict. Many cases hold that such an 
 alteration is proper and does not invalidate the instrument, on 
 the ground that the holder has implied authority to make it. 
 This view obtains in Eligland, and in New York, Massachu- 
 setts, Michigan, Alabama, Connecticut, Georgia, Indiana, Miss- 
 issippi, Arkansas, California, Wyoming and Utah."' On the 
 other hand, many courts hold the contrary, on the ground that 
 to allow tampering with a written instrument is dangerous. 
 This view obtains in Illinois, Iowa, Ohio, Pennsylvania, Ten- 
 nessee, Virginia, Missouri, Nebraska and Maine.'^" 
 
 §13. Material alterations versus immaterial alterations. — 
 
 As previously stated in this chapter (§1), a material altera- 
 tion is one which changes the legal effect of the instrument; 
 and an immaterial alteration is one which does not. As stated 
 in one case,^'' the former "is one which causes the paper to 
 speak a language different in legal effect from that which it 
 originally spoke." Thus, adding Avords of negotiability to a 
 non-negotiable note;^^ changing a name in the body of the in- 
 strument, or changing a signature ;®8 changing the time, man- 
 ner or place of payment;''* changing the date of the 
 instrument ; '^ affixing a seal to a promissory note or other 
 simple contract; ''2 adding the signature of an attesting wit- 
 ness ; ^* erasing a clause restricing negotiability ; ^* substitut- 
 es—Booth V. Powers, 56 N. Y., 45 Wis., 373; Needles v. Shaffer, 
 22; Osborn v. Hall, 160 Ind., 153; 60 la., 65; Bckert v. Louis, 84 Ind., 
 Nichols V. Johnson, 10 Conn., 192; 99. 
 
 Produce Exchange, etc. Co., v. 69— Abbott t. Abbott, 189 111., 
 Breberbach, 176 Mass., 577; Han- 488; Mason v. Bradley, 11 M. & 
 son V. Crawley, 41 Ga., 303; Sill W., 590; Houck v. Graham, 106 
 V. Reese, 47 Cal., 294; Johnson v. Ind., 195. 
 
 Johnson, 66 Mich., 525. 70 — Wyman v. Yeomans, 84 111., 
 
 66— Ryan v. First Nat. Bank, 403; Winter v. Pool, 100 Ala., 
 148 111., 349; Chamberlain v. 503. 
 
 White, 79 111., 549; Newman v. 71 — Johnson v. Johnson, 66 
 King, 54 Ohio St., 273; Taylor v. Mich., 525; Wood v. Steele, 6 Wall. 
 Taylor, 80 Tenn., 714; Dobyns v. (U. S.) 80; Miller v. Gilleland, 
 Rawley, 76 Va., 537; Miller v. Gil- 19 Pa. St., 119. See also notes 
 leland, 19 Pa. St., 119; Murray v. in 10 Am. Dec, 268, 71 Am. Dec, 
 Graham, 29 la., 520. 724 and 17 Am. Rep., 101. 
 
 67 — Mahoiwe Bank v. Douglass, 72 — Rawson v. Davidson, 49 
 31 Conn., 170, 181. Mich., 607. 
 
 C8— Union Nat. Bank v. Roberts, 73 — Homer v. Wallis, H Mass., 
 
212 WRITINGS. 
 
 ing the words "or bearer" for the words "or order"; ^^ eras- 
 ing the signature of an attesting witness ; ^^ removing the seal 
 from a specialty ; '''' altering the descriptive part of a contract 
 or deed so as to change the identity of the subject-matter ;^8 
 changing the consideration ;''8 adding the words "more or 
 less " to a stated quantity ; ** obliterating a restrictive indorse- 
 ment ; *i are material alterations. "While on the other hand, 
 tracing with ink words written in pencil, or retracing faded 
 words ;^- correcting a person's initials or Christian name 
 whereby his identity is not changed ; ** erasing a scroll and 
 substituting a seal;®* changing the word "we" to "I" in the 
 clause "we hereby guarantee," in an instrument signed by 
 only one person ; ^^ changing serial numbers in notes or 
 bonds ; *^ are immaterial alterations. 
 
 § 14. Presumptions and burden of proof. — ^As regards these 
 two topics, the decisions, with reference to the subject of al- 
 terations in writings, are in hopeles^ conflict. Thayer says, 
 "As regards the proof of alterations in documents the cases 
 are full of confusion. Fragments of substantive law embrace 
 the rules of evidence relating to this subject; and it is further 
 intolerably perplexed by a quantity of jargon about presump- 
 tions and the burden of proof which often conceals the lack of 
 
 309; Fisher v. King, 153 Pa. St., Gardiner v. Harback, 21 111., 129, 
 
 3; Brockett v. Mountfort, 11 Me., and Mayers v. Dunlap, 39 111., 
 
 115. Contra, Fuller v. Green, 64 App., 618. 
 
 Wis., 159, 54 Am. Rep., 600. 80 — Sherwood v. Merritt, 83 
 
 74 — State v. Stratton, 27 la.. Wis., 233. 
 
 420; Cochran v. Neheker, 48 Ind., 81 — Mechanics' Bank v. Valley 
 
 459. Packing Co., 70 Mo., 643. 
 
 75 — Belknap v. Nat. Bank of 82— Reed v. Roark, 14 Tex., 329, 
 
 N. A., 100 Mass., 376; Needles v. 65 Am. Dec, 127. 
 
 Shaffer, 60 la., 65. 83— Carr v. Welch, 46 111., 88; 
 
 76-— Sharpe v. Bagwell, 1 Dev. Hanrick v. Patrick, 119 U. S., 
 
 Eq. (N. C.) 115. 156. 
 
 77 — Evans v. Williamson, 79 84 — Keen v. Monroe, 75 Va., 
 
 N C, 86; Piercey v. Piercey, 5 424. 
 
 W. Va., 199. 85— Kline v. Raymond, 70 Ind., 
 
 78— Montag v. Linn, 23 111., 551; 271. 
 
 Sherwood v. Merritt, 83 Wis., 233. 86 — Suffel v. Bank, 9 Q. B. D., 
 
 79— Knill V. Williams, 10 East 555; Com: v. Emigrant, etc., Bank, 
 
 431; Benjamin v. McConnell, 9 111., 98 Mass., 12; State v. Cobb, 64 
 
 536, 46 Am. Dec, 474. But see Ala., 127. 
 
ALTERATION OF WRITINGS. 213 
 
 any clear apprehension of the subject on the part of those 
 who use it, and often disguises the true character of sound 
 decisions. "^^ Stephen says, "Alterations and interlineations 
 appearing on the face of a deed are, in the absence of all evi- 
 dence relating to them, presumed to have been made before 
 the deed was completed. Alterations and interlineations ap- 
 pearing on the face of a will are, ia the absence of all evidence 
 relating to them, presumed to have been made after the execu- 
 tion of the will. There is no presumption as to the time when 
 alterations and -interlineations appearing on the face of writ- 
 iQgs, not under seal, were made, except that it is presumed that 
 they were so made that the making would not constitute an 
 offense."*^ Reynolds, in his modification of Stephen's state- 
 ment, with the view of making it conform to the American 
 rule, says, "Alterations and interlineations appearing on the 
 face of a document will, generally speaking, be presumed to 
 have been made contemporaneously with the execution of the 
 instrument, but if any ground of suspicion is apparent upon 
 the face of the instrument, the law presumes nothing, but leaves 
 the question of the time when it was done, as well as that of 
 the person by whom, and the intent with which the alteration 
 was made, as matter of fact to be ultimately found by the jury 
 upon proofs to be adduced by the party offering the instru- 
 ment in evidence. "^^ Taylor says, "It was formerly a pre- 
 sumption of law, that an interlineation, if nothing appeared 
 to the contrary, had been made contemporaneously with the 
 execution of the instrument; and this presumption still pre- 
 vails in the case of a deed, because a deed cannot be altered 
 after its execution without fraud or wrong, and fraud or 
 wrong is never assumed without some proof. Indeed, it may 
 be laid down as a general rule, that wherever it is an offense 
 to alter a document after it has been completed, the law pre- 
 sumes, prima facie, that any alteration apparent on it was 
 made at such a time and under such circumstances as not to 
 constitute an offense. With respect, however, to a bill of ex- 
 
 87 — Thayer's Preliminary Treat- 89 — Reynolds' Stephen on Evi- 
 
 ise on Evidence, p. 527. dence, Art. 89. 
 
 88— Stephen's Digest of Bvi- i 
 dence, Art 89. 
 
214 -WEITINQS. 
 
 change, or a promissory note, the law presumes nothing, but 
 leaves the jury to decide, first, by inspecting the instrument 
 itself, whether any alteration has been made; and when, on 
 considering the extrinsic circumstances, such alteration, if any, 
 was made. These last questions cannot be solved by the jury 
 on the mere inspection of the writing, for juries must decide, 
 not on conjecture, but on proof."®" 
 
 Where an alleged alteration is not apparent on the face of 
 the instrument, the courts hold, very generally, that the bur- 
 den of showing that an alteration was made is upon the party 
 alleging it.^i Where, however, the alteration is apparent upon 
 the face of the instrument the decisions are very conflicting. 
 Generally speaking, there seem to be six, more or less distinct, 
 views. These six views are as follows: (1) A presumption 
 exists that the alteration was made contemporaneously with, 
 ov before, the execution of the instrument; (2) A presumption 
 exists that it was made after the execution of the instrument; 
 (3) No presumption exists in any case as to the time when it 
 was made; (4) No presumption exists as to the time when it 
 was made if no suspicious circumstances are apparent on the 
 face of the instrument, but where there are suspicious circum- 
 stances connected with it there is a presumption that it was 
 made after the execution of the instrument; (5) As a general 
 rule, it is presumed to have been made contemporaneously with 
 the execution of the instrument, but if any ground of suspicion 
 is apparent upon the face of the instrument the law presumes 
 nothing; (6) The presumption, if any, which arises, depends 
 upon the character of the instrument.®^ The first of these 
 views is based largely on the presumption of innocence, and is 
 recognized in numerous decisions.®* The second view is sup- 
 ported by comparatively few decisions, and it has been severe- 
 ly criticised.®* It still obtains, however, in a few jurisdic- 
 
 90 — 3 Taylor on Evidence, sec. 93 — Hunt v. Gray, 35 N. J. L., 
 
 1819. 27; Hagan v. Merchants' Ins. Co., 
 
 91— Glover v. Gentry, 104 111., 81 la., 321, 25 Am. St. Rep., 493; 
 
 222; Sturm v. Boker, 150 U. S., Lewis v. Watson, 98 Ala., 479, 39 
 
 312; Montgomery v. Crossthwait, Am. St. Rep., 82; Brand v. John- 
 
 90 Ala., 553; 24 Am. St. Rep., 832; rowe, 60 Mich, 210. 
 
 McClintock v. State Bank, 52 Neb., 94 — ^Wilson v. Hayes, 40 Minn., 
 
 130, 171 N. W. Rep., 987. 531. 
 
 92—86 Am. St. Rep., note. 
 
ALTEEATION OF WRITINGS. 
 
 215 
 
 tions,^^ and seems to be confined for the most part to nego- 
 tiable instruments.^" The third view is supported by many 
 decisions,®^ and is characterized by at least one recent author^^ 
 as the better view. The fourth view is supported by decisions 
 of several leading eourts.^^ The fifth view, according to 
 Reynolds, as quoted above, is the American rule.i While the 
 sixth view is supported by Stephen and Taylor, as quoted 
 above, and also by Greenleaf,^ as well as by many decisions.^ 
 
 §15. Parol evidence. Admissions. — Where its purpose is 
 to show an unauthorized or fraudulent alteration of a written 
 instrument, oral evidence is admissible notwithstanding the 
 Pai:ol Evidence Rule.* Such evidence is admissible to show 
 when, by whom, and under what circumstances, an alteration 
 was made.'' And oral admissions are receivable in evidence to 
 prove an unauthorized or fraudulent alteration." 
 
 § 16. Expert opinion evidence.— Expert opinion evidence is 
 admissible to show, among other things, whether or not the 
 instrument in issue has been altered;^ when the alteration, if 
 
 95 — Gettysburg Nat. Bank v. 
 Chisolm, 169 Pa. St., 565, 32 Atl. 
 Rep., 730; Humphreys v. Guillow, 
 13 N. H., 385, 38 Am. Dec, 499. 
 
 96— Beama v. Russell, 20 V. F., 
 205, 49 Am. Dec, 775. 
 
 97— Merritt v. Boyden, 191 111., 
 136, 60 N. E., 907; Ward v. 
 Cheney, 117 Ala., 238, 22 So. Rep., 
 996; Simpson v. Davis, 119 Mass., 
 269, 20 Am. Rep., 324; Wilson, v. 
 Haynes, 40 Minn., 531, 42 N. W. 
 R., 467, 12 Am. St. Rep., 754, 4 
 L. R. A., 196; Martin v. Tuttle, 
 80 Me., 207, 14 Atl. Rep., 207. 
 
 98—2 Elliott on Bvid.. § 1505. 
 
 99— Smith v. United States, 69 
 U. S., 219; Powell v. Banks, 146 
 Mo., 620; Alabama, etc.. Land Co. 
 V. Thompson, 104 Ala. 570, 53 Am. 
 St. Rep., 80; Collins v. Ball, 82 
 Tex., 259, 27 Am. St Rep., 877; 
 
 Bradley v. Dells Lumber Co., 105 
 Wis., 245. 
 
 1 — Reynolds' Stephen on Evi- 
 dence, Art. 89. 
 
 2— Greenleaf on Evidence, § 
 564. 
 
 3— Bailey v. Taylor, 11 Conn., 
 531, 541; Boothby v. Stanley, 34 
 Me., 515, 516. See also Simpson v. 
 Davis, 119 Mass., 269, 270. 
 
 4 — Johnson v. Pollock, 58 111., 
 181; Sweet v. Naupin,<65 Mo., 65; 
 
 5 — Smith V. Jayoe, 172 Mass., 
 538; Hunter v. Parsons, 22 Mich., 
 96. 
 
 6 — Winters v. Moweer, 163 Pa. 
 St., 239; Booth v. Powers, 56 N. 
 Y., 22. 
 
 7— Vinton v. Peck, 14 Mich., 
 287; Nelson v. JohnBon, 18 Ind., 
 329. 
 
216 
 
 WEITINGS. 
 
 any exists, was made;* and whether or not the alleged alterjtr 
 tions are in the same hand-writing as the rest of the instru- 
 ment.* 
 
 § 17. Province of court and jury.— It is the province of the 
 court to determine whether or not an alteration is material j^" 
 and the province of the jury to determine whether or not an 
 alteration was made/^ whether or not consent was given 12 
 and by whom the alteration was made.i* 
 
 8 — Rass V. Sebastian, 160 111., 
 602; Dubois v. Baker, 30 N. Y., 
 355. 
 
 9— Eisfield v. Dill, 71 la., 442; 
 Glover v. Gentry, 104 Ala., 222. 
 
 10— Milliken v. Marlin, 66 111., 
 13; Deum v. Deum, 133 Mass., 
 566. 
 
 11 — Schwarz v. Herrenkind, 26 
 111., 208; Hunt v. Gray, 35 N. J. 
 L., 175, 11 Am., Dec. 546. 
 
 12— De Long v. Soucie, 45 111., 
 App., 234; Benedict v. Miner, 58 
 111., 19; White v. Hass, 32 Ala., 
 430, 70 Am. Dec, 548. 
 
 13— Millikin v. Marlin, 66 III, 
 13; Wilson v. Hayes, 40 Minn., 
 531, 42 N. W. Rep., 467; Martin v. 
 Kline, 157 Pa. St, 473, 27 Atl. 
 Rep. 753. 
 
CHAPTER III. 
 
 PROOF OF CONTENTS. THE BEST EVIDENCE RULE. 
 
 § 1, The rule. — ^Unless a legally su&cient reason is shown 
 for not doing so, proof of the contents of a document must be 
 made by producing the document itself. This is known as 
 the Best Evidence Rule. 
 
 §2. A more comprehensive statement of the rule by 
 Stephen. — The rule as stated by Stephen is as follows: "When 
 any judgment of any court, or any other judicial or ofScial 
 proceeding, or any contract or grant, or any other disposition 
 of property has been reduced to the form of a document or 
 series of documents, no evidence may be given of such judg- 
 ment or proceeding, or of the terms of such contract, grant 
 .or other disposition of property except the document itself, 
 or secondary evidence of its contents in cases in which sec- 
 ondary evidence is admissible under the provisions herein- 
 before contained."* 
 
 §3. Origin and development of the rtile. -The rule is of 
 ancient origin. Originally, however, it had a much broader 
 meaning than at present. According to the early view, it 
 meant not only that the best evidence obtainable must be pro- 
 duced, but also that the best evidence of which the nature of 
 the case would permit was admissible. Moreover, it was ap- 
 plicable to all classes of evidence and not confined to docu- 
 ments. On the other hand, according to the modern view, it 
 means that the best evidence attainable must be produced un- 
 less a legally sufficient reason is shown for the introduction 
 of secondary evidence. Moreover, according to this view, the 
 rule is applicable only to documents. It is not, however, con- 
 fined to documents which relate to matters required by law to 
 be in writing, but is applicable to all classes of documenta 
 
 I — Stephen's Digest of Evidence, art. 90. 
 
 217 
 
218 WRITINGS. 
 
 The development of the rule was very peculiar. As stated by 
 Thayer, "During the latter part of the seventeenth century 
 and the whole of the eighteenth, while rules of evidence were 
 forming, the judges and text writers were in the habit of lay- 
 ing down two principles, namely: (1) that one must bring the 
 best evidence that he can, and (2) that, if he does this, it is 
 enough. These principles were the beginnings ia the endeavor 
 to give consistency to the system of evidence before juries. 
 They were never literally enforced; they were principles, and 
 not exact rules; but for a long time they afforded a valuable 
 test. As rules of evidence and exceptions to the rules became 
 more definite, the field for the application of the general prin- 
 ciple of the "best evidence" was narrower. But it was often 
 resorted to in a manner which was very misleading. This is 
 still occasionally done, as when we are told in McKinnon v. 
 Bliss, 21 N. T. 218, that "it is a universal rule, founded in 
 necessity, that the best evidence of which the nature of the 
 case admits is always receivable" . . . Always the chief exam- 
 ple of the "best evidence" principle was the rule about prov- 
 ing the contents of a writing. But the origin of this rule 
 about writings was older than the "best evidence" principle, 
 and that principle may well have been a generalization from 
 this rule, which appears to be traceable to the doctrine of pro- 
 fert. That doctrine required the actual production of the in- 
 strument which was set up in pleading. In like manner it 
 was said, in dealing with a jury that a jury could not specifi- 
 cally find the contents of a deed unless it had been exhibited 
 to them in evidence. And afterwards when the jury came to 
 hear testimony from witnesses it was said that witnesses could 
 not undertake to speak to the contents of a deed without the 
 production of the deed itself. "^ 
 
 §4. Secondary evidence. Its meaning and scope. — Sec- 
 ondary evidence, as heretofore defined (page 1, § 3), is evi- 
 dence which is admissible when the primary evidence is not 
 obtainable, and which, owing to this fact, is the best evidence 
 which can be adduced. It may be oral evidence of the con- 
 tents of a document, or a copy of such contents. According to 
 Stephen, it comprises the following four divisions: (1) Ex- 
 
 2 — Thayer's Cases on Bvld. (1st edition), p. 726, note. 
 
PROOF OF CONTENTS. 219 
 
 amined copies, exemplifications, office copies, and certified cop- 
 ies ; (2) Other copies made from the original and proved to be 
 correct; (3) Counterparts of documents as against the parties 
 who did not execute them; (4) Oral accounts of the contents 
 of a document given by some person who has himself seen it. 
 § 5. When secondary eyideoce is admissible. — Before second- 
 ary evidence becomes admissible, a proper foundation must be 
 laid for its introduction by showing that a good and sufficient 
 reason exists for not producing the original document. In the 
 following cases secondary evidence is admissible: (1) When 
 the original is lost and a reasonable but unsuccessful search 
 has been made for it.* (2) When the original is in the hands 
 of the adverse party and he fails to produce it, after receiving 
 reasonable notice to do so.* When the original is beyond the 
 jurisdiction of the court ;^ (4) When the nature of the original 
 is such as to render it practically immovable.^ (5) When the 
 original is in the hands of a stranger who is not legally bound 
 to produce, and who, after being served with a subpoena d^ices 
 tecum, or after being sworn and admitting that the original is 
 in court, refuses to produce it;'^ (6) When the original consists 
 of numerous documents which cannot be examined conveni- 
 ently in court, and the general result of all of them is the fact 
 sought to be proved, and that fact is ascertainable by calcula- 
 tion, and the witness who testifies to it is skilled in the exami- 
 nation of such documents;* (7) When the evidence offered is 
 collateral to the fact in issue ;3 (8) When the original is a pub- 
 lic document ;!" and (9) When the original has been recorded 
 according to law, and a copy of the same, duly authenticated 
 by the proper officer, is made admissible in evidence by 
 statute.i^ 
 
 3— Riggs V. Taylor, 9 Wheat 8— Burton v. Drlggs, 20 Wall. 
 
 (U. S.) 483, 486. (U. S.) 125, 136. 
 
 4 — Turner v. Yates, 16 How. 9 — Coonrod v. Madden, 126 Ind. 
 
 (U. S.) 14, 26. 197. 
 
 5 — Burton v. Driggs, 20 Wall. 10 — Whitehouse v. Beckford, 9 
 
 (U. S.) 125, 134. Foster, 471, 480; 1 Greenleaf on 
 
 6— N. BrooMeld v. Warren, 16 Evid. §§ 91, 508. 
 
 Gray, 171, 174. 11 — Patterson v. Winn, 5 Pet. 
 
 7— Brandt v. Klein, 17 Johns. (U. S.) 233, 241. 
 (N. Y.) 335. 
 
220 WEITINQS. 
 
 § 6. Degrees of secondary evidence. — Upon this question 
 both text writers and decisions are at variance. According to 
 the English rule there are no degrees of secondary evidenee.'^ 
 Phillipps says, "In secondary evidence there are no degrees, 
 no precedence in point of admissibility. "^^ Starkie says, 
 "With reference to the question of admissibility there are no 
 degrees of secondary evidence, but where it is admissible at all, 
 even parol evidence may be received, notwithstanding an at- 
 tested copy or other better secondary evidence is in exist- 
 ence, "i* To the same effect are Best,^' Taylor^^ and the ear- 
 lier editions of Greenleaf. Elliott says, "The rule established, 
 and clearly deducible from the majority of American authori- 
 ties, however, as to secondary evidence is the same in effect as 
 the rule between primary and secondary evidence; that is, 
 that when secondary evidence is properly admissible, it must 
 be the best that in the nature of the case can be produced, or 
 the best kind of that character of evidence which appears to 
 be in the power of the party to produce. "^^ The English rule, 
 which recognizes no degrees of secondary evidence, obtains in 
 a few American jurisdictions, including Massachusetts^' and 
 Indiana ;i® but in most of the American jurisdictions,^" includ- 
 ing Illinois,2i the contrary rule obtains. This latter rule also 
 obtains in the federal courts.^^ The Supreme Court of the 
 United States say, "The principle established by this court as 
 to secondary evidence ... is, that it must be the best the 
 party has in his power to produce. "^^ In Nebraska the rule 
 
 12— Doe V. Ross, 7 M. & W. 20 — Phillips v. U. S. Benev. 
 
 102; Rex v. Hunt, 3 B & AM. 506. Soc, 125 Mich. 186; Georgia Pac. 
 
 13—2 Phillips on Evid. (10th Ry. Co. v. Propst, 90 Ala. 1; C. 
 
 Eng. ed.) p. 568. C. C. & St. L. Ry. Co. v. NewUn, 
 
 14— Starkie on Evid. (8th 74 111. App. 638, 647. 
 
 Amer. ed.) p. 544. 21 — Mariner v. Saunders, 10 
 
 15 — 2 Best on Evid. (1st Amer. 111. 113; 111. Land, etc., Co. v. 
 
 ed.) § 483. Bonner, 75 111. 315; Protection 
 
 16— Taylor on Evid. § 495. Life Ins. Co. v. Dill, 91 111. 174. 
 
 17 — 2 Elliott on Evid., p. 515. 22 — Renner v. Bank of Colum- 
 
 18— Smith V. Brown, 151 Mass. bia, 9 Wheat (U. S.) 581. 
 
 338; Com. v. Smith, 151 Mass. 23 — Cornett v. Williams, 20 
 
 491. Wall. (U. S.) 226. 
 
 19 — Carpenter v. Dame, 10 Ind. 
 126. 
 
PROOF OP CONTENTS. 221 
 
 is, "When the primary is not obtainable a party may resort 
 to any evidence otherwise competent; and his choice of one 
 class of secondary evidence instead of another goes to the 
 weight of the evidence and not to its admissibility. ' '^^ This is 
 ia harmony with the English rule. 
 
 § 7. Same. Burden of proof. — In those jurisdictions which 
 recognize degrees of secondary evidence a presumption arises 
 that such evidence when offered is the best of its kind obtain- 
 able; and the burden of showing the contrary rests upon the 
 party who objects to it. As aptly stated by Justice Creighton, 
 "Where satisfactory proof is made of loss or inability to pro- 
 duce an instrument which the law does not make provision for 
 recording and copying, and the evidence fails to disclose the 
 existence of any copy or other evidence better than parol 
 known to the offering party and within his power to produce, 
 and there is nothing appearing to indicate a copy, or fraud or 
 deception, then the presumption arises that there is no copy or 
 other evidence better than parol within the power of the party 
 to produce, a prima facie case is made for the admission 
 of parol testimony of the contents of the instrument, and such 
 testimony will be admitted, unless the objecting party will 
 produce the better evidence or show that it does exist and was 
 known to and might have been produced by the offering 
 party. "25 
 
 § 8. Proof of search in the case of lost documents. — ^Proof 
 that a document is lost will not in itself justify admitting sec- 
 ondary evidence of its contents. Such proof is essential, but 
 it must be followed by proof of a bona fide and diligent search 
 for the original. The degree of diligence required depends 
 upon the circumstances of the particular case.^^ It is not suf- 
 ficient for a witness to state in general terms that he made a 
 bona fide and diligent search. He must also state the details.^'^ 
 In some states, however, including Illinois, it is provided by 
 
 24— Rawllngs v. Y. M. C. A., 27 — Booth v. Cook, 20 111. 129; 
 
 48 Neb. 216. Shepherd v. Pratt, 16 Kan. 209; 
 
 25 — C. C. C. & St. L. Ry. Co. v. Smith v. Coker, 110 Ga. 650, 36 
 
 Newlin, 74 111. App. 638, 647. S. E. R. 105. 
 
 26 — Davis v. Teachout, 126 
 Mich. 135, 85 N. W. R. 475. 
 
222 WRITINGS. 
 
 statute that a certain affidavit stating the facts in regard to 
 the loss of a document will justify the introduction of a certi- 
 fied copy of a record of it.^* But an affidavit which merely 
 shows that certain deeds are not, and have not been, in the 
 possession, custody or control of the affiant, that affiant has 
 made inquiry of the grantees but has not received any of the 
 deeds, and that he does not believe such deeds have been lost 
 or destroyed or disposed of for the purpose of introducing 
 copies of them, is not sufficient to justify admitting secondary 
 evidence of their contents.^^ The rule, in regard to proof of 
 search, which was laid down by Justice Caton in an early 
 Illinois ease,^" and which has been followed in this state since, 
 is as follows: "When from the ownership, nature or objects 
 of a paper it has properly a particular place of deposit, or 
 where from the evidence it is shown to have been in a particu- 
 lar place or in particular hands, then that place must be 
 searched by the witness, proving the loss, or the person pro- 
 duced into whose hands it has been traced. The extent of the 
 search to be made in such place or by such person must de- 
 pend, in a great degree, upon circumstances. Ordinarily, it 
 is not sufficient that the paper is not found in its usual place 
 of deposit, but all the papers in the office or place should be 
 examined. But this need not always be done when from the 
 extent of the archives or office it would be impracticable, and 
 the order in which it is kept a more limited examination is 
 equally satisfactory. In all cases the search must be made in 
 the utmost good faith, and should be as' thorough and vigilant 
 as, if the paper were not found, its benefits would be lost. On the 
 whole, the court must be satisfied that the paper is destroyed 
 or cannot be found. It is true the party need not search every 
 possible place where it might be found, for then the search 
 might be interminable; but he must search every place where 
 
 28 — ^Newsom v. Luster, 13 111. Crow, 19 111. 626; Hanson v. Arm- 
 
 175; Bowman v. Wettlg, 39 111. strong, 22 111. 445; Dickinson v. 
 
 416; Foot V. Silliman, 77 Tex. Breeden, 25 111. 186; Pardee v. 
 
 268, 13 S. W. R. 1032. Lindley, 31 111. 184; Huls v. Kim- 
 
 29— Scott V. Bassett, 186 111. 98. ball, 52 111. 394; Chicago, etc. Ry. 
 
 30 — Mariner v. Saunders, 10 Co. v. Ingersoll, 65 111. 404; Scott 
 
 111. (5 Gilm.) 113. See also, Doyle v. Bassett, 174 111. 390. 
 V. Wiley, 15 111. 576; Rankin v. 
 
PROOF OF CONTENTS. 223 
 
 there is a reasonable probability that it may be found. Nor 
 must he produce every man upon the stand into whose hands 
 rumor alone may have traced it, for if the inquiry is only sug- 
 gested by hearsay, it may be answered by hearsay. If, on the 
 other hand, legal testimony shows it to have been in a particu- 
 lar place, or if the natural and legitimate presumption is that 
 it is in certain hands, then it must be proved by legal evidence 
 that it is not there. ' ' When the proof offered to lay the founda- 
 tion for secondary evidence is by oral testimony instead of by 
 affidavit, the opposing counsel may test the statements of the 
 witness by cross-examining him; and a refusal by the trial 
 court to permit such a cross-examination may be prejudicial 
 error.31 
 
 § 9. Same. Destruction of original by proponent. — The ad- 
 missibility of secondary evidence of the contents of a document 
 which has been destroyed by the proponent depends upon the 
 circumstances of the particular case. The object of the "Best 
 Evidence Rule" is to prevent fraud. If the destruction was 
 with fraudulent intent such evidence is inadmissible. If the 
 act was voluntary and deliberate a presumption arises that it 
 was fraudulent; and the burden is upon the proponent to over- 
 come it. Failure on his part renders the presumption conclu- 
 sive. The controlling element, therefore, is the motive with 
 which the act was done. As said by Justice Field, "The object 
 of the rule of law which requires the production of the best 
 evidence of which the facts sought to be established are sus- 
 ceptible is the prevention of fraud; for if a party is in posses- 
 sion of this evidence and withholds it, and seeks to substitute 
 inferior evidence in its place, the presumption naturally arises 
 that the better evidence is withheld for fraudulent purposes 
 which its production would expose and defeat. When it ap- 
 pears that this better evidence has been voluntarily and delib- 
 erately destroyed, the same presumption arises, and unless 
 met and overcome by a full explanation of the circumstances, 
 it becomes conclusive of a fraudulent design, and all second- 
 ary or inferior evidence is rejected. If, however, the destruc- 
 tion was made upon an erroneous impression of its effect, un- 
 
 31— Scott V. Bassett, 174 111. 390. 
 
224 WRITINGS. 
 
 der circumstances free from suspicion of intended fraud, the 
 secondary evidence is admissible. The cause or motive of the 
 destruction is, then, the controlling fact which must determine 
 the admissibilty of this evidence in such cases. "^^ And as 
 said by Justice Todd, "It will be admitted that where a writ- 
 ing has been voluntarily destroyed with an intent to produce a 
 wrong or injury to the opposite party, or for fraudulent pur- 
 poses, or to create an excuse for its non-production, in such 
 cases the secondary proof ought not to be received. But in 
 cases where the destruction or loss, although voluntary, hap- 
 pens through mistake or accident, the party cannot be charged 
 with default. "33 
 
 § 10. Same. Notice or demand to produce the original.— 
 
 When a document, whose contents are sought to be shown by 
 secondary evidence, is in the hands of the adverse party or 
 under his control, a reasonable notice or demand to produce 
 the original is usually essential. To this general rule, how- 
 ever, there are exceptions. 
 
 § 11. Same. Erroneous reasons for the rule. The true 
 reason. — For the rule which requires that a reasonable notice 
 or demand be given to produce the original document, various 
 reasons have been assigned. Some of these reasons, however, 
 are quite fantastic. Thus, Lord Chief Justice Ellenborough 
 says, ' ' The reason of giving notice . . . was to check a person 
 from giving in evidence what was a false copy. "3* Justice 
 Le Blanc says, "We see the good sense of the rule which re- 
 quires previous notice to be given . . . that he may not be 
 taken by surprise."*^ And Chief Justice Merrick says, "The 
 reason of the rule is that possibly the instrument, when pro- 
 duced, will be less favorable to the plaintiff than the parol 
 proof which they may obtain, "^s All of the foregoing rea- 
 sons, however, are erroneous. Greenleaf says, "the object of 
 the notice is not only to procure the paper, but to give the 
 
 32— Bagley v. McMickle, 9 Cal. 35— How v. Hall, 14 East 274, 
 
 430, 446. 276. 
 
 33 — Riggs V. Taylor, 9 Wheat 36 — Williams v. Benton, 12 La. 
 
 (U. S.) 483, 487. Ann. 91. 
 
 34 — Sturtees v. Hubbard, 4 
 Esp. 203. 
 
PEOOP OP CONTENTS. 225 
 
 party an opportunity to provide the proper testimony to sup- 
 port or impeach it."*'' The latter part of this reason is also 
 erroneous. It has been repudiated in England,^* and is not 
 recognized in this country.^* 
 
 The true reason for the rule may be stated as follows : Since 
 to render secondary evidence admissible, the party seeking to 
 introduce it must show that he has made every reasonable 
 effort to procure the original, if he has kno:wledge that the 
 original is in the hands of the adverse party, or under his con- 
 trol, and omits to notify him to produce it, he falls short of 
 making the effort required. Justice Porter says, "The ele- 
 mentary principle, which requires that the best evidence the 
 nature of the case permits of shall be produced, . . . refuses 
 to a party permission to give secondary evidence of a written 
 document on the ground of its being in possession of his ad- 
 versary, until he has shown that by giving notice to that adver- 
 sary to produce it, he has used every exertion in his power 
 that the best evidence might be had. ' '*" Chief Justice Tilgh- 
 man says, "Notice must be served on him or his attorney to 
 produce it, because otherwise it cannot appear that the prose- 
 cutor might not have had the original if he had chosen to call 
 for it.*^ And Baron Parke, in assigning the true reason for 
 the rule, says, that it is "merely to exclude the argument that 
 the party has not taken all reasonable means to procure the 
 original ; which he must do before he can be permitted to make 
 use of secondary evidence. "*2 
 
 § 12. What constitutes reasonable notice. — What constitutes 
 reasonable notice depends upon the circumstances of the par- 
 ticular ease. It is a question which rests largely in the sound 
 discretion of the court. When it is required to be served before 
 the trial, it should be in writing. Justice Caton says, "A party 
 is not bound to pay any attention to a verbal notice to produce 
 
 37—1 Greenleaf on Bvid. § Mich. 142; Blckley v. Bank, 39 
 
 563d. S C. 281. 
 
 38— Dwyer v. Collins, 7 Exch. 40— Abat v. Rion, 9 Mart. La. 
 
 639. 465, 467. 
 
 39 — Ferguson v. Miles, 8 111. 41 — Com. v. Messinger, 1 Blnn. 
 
 358, 364; Hanselman v. Doyle, 90 273, 274. 
 
 42 — Dwyer v. Collins supra. 
 
 I 15 
 
226 WBITINQS. 
 
 a paper on the trial of a cause, where notice is required to be 
 served before trial. The notice should be in writing, that the 
 party may know with certainty and precision what paper is 
 wanted; and he shall not be compelled to rely on his memory 
 alone for its identity. 
 
 "Whether the written notice was served in time was a mat- 
 ter of sound discretion with the court, as such a question must 
 always depend on the peculiar circumstances of each case. 
 Where it appears to the court that the party has the desired 
 paper, notice given on the trial would be sufficient; but when 
 this does not appear, the notice should be served a reasonable 
 time before the trial at which it is wanted; unless, indeed, the 
 paper wanted be one which the party must have known would 
 be indispensable to his adversary and that he could not sus- 
 tain his action, or make good his defence, without it ; in which 
 case it is unnecessary to give any further notice; but the 
 party must take notice himself that the paper will be wanted 
 on the trial, and bring it with him accordingly. "*3 if the 
 document is at hand at the trial, and in the hands of the ad- 
 verse party, an immediate demand is sufficient. The reason 
 for this rule is well stated by Baron Parke.** 
 
 43 — Cummings v. McKlnney, 4 doubt a notice at the trial, though 
 
 Scam. (111.) 58. See also Warner the document be in court, is too 
 
 V. Campbell, 26 111. 282; C. C. C. late. But if it be merely to en- 
 
 & St. L. Ry. Co. V. Newlin, 74 111. able the party to have the docu- 
 
 App. 638, 645; Lawrence v. Clark, ment in court, to produce it if 
 
 14 M. & W. 250, 253. he likes, and if he does not, to 
 
 44 — Dwyer v. Collins supra, enable the opponent to give parol 
 In this case Baron Parke says: evidence, — if it be merely to ex- 
 "The next question is whether, elude the argument that the op- 
 the bill being admitted to be in ponent has not taken all reason- 
 court, parol evidence was admls- able means to procure the origi- 
 slble on its non-production, or nal (which he must de before he 
 whether a previous notice to pro- can be permitted to make use of 
 duce was necessary. On princi- secondary evidence), then the de- 
 ple, the answer must depend up- mand of production at the trial 
 
 on the reason why notice to pro- is sufficient We think the 
 
 duce is required. If it be to give plaintiff's alleged principle is not 
 
 his opponent notice that such a the true one on which notice to 
 
 document will be used by a party produce Is required, but that it is 
 
 to the cause, so that he may be merely to give a sufficient oppor- 
 
 enabled to prepare evidence to tunlty to the opposite party to 
 
 explain or confirm it, then no produce it and thereby secure If 
 
PROOF OP CONTENTS. 227 
 
 § 13. When notice to produce is not essential. — Cases arise 
 where notice to produce is not essential. Thus, no notice is 
 essential in the following cases: (1) "When the document is 
 lost or destroyed; (2) When the one to be produced and the 
 one to be proved are duplicate originals; (3) When the docu- 
 ment to be proved is itself a notice; and (4) When from the 
 nature of the action the defendant has notice that the plaintiff 
 intends to charge him with possession of the document. 
 
 The rule requiring that notice be given the adverse party 
 to produce the original document, before secondary evidence of 
 its contents is admissible, is founded upon the assumption that 
 such original is in his pdssession. If, therefore, it is shown that 
 the document is lost or destroyed, notice to produce would be 
 of no avail, and for this reason is not essential.*'' When docu- 
 ments are made in duplicate, each is regarded as an original, 
 and notice to produce is not necessary because the adverse 
 party can contradict the duplicate, in ease they vary, by pro- 
 ducing the other.*^ And when documents are made in coun- 
 terpart each is regarded as an original.*^ When the document 
 to be proved is itself a notice, no further notice, as a general 
 rule, is essential. Thus, a landlord's notice to quit, or a notice 
 of the dishonor of a bill of exchange or promissory note, is 
 sufScient notice in itself. It is sometimes said that "a notice 
 to produce a notice is not necessary." In most cases this 
 statement is applicable;*^ but cases arise where a notice to 
 
 he pleases the best evidence of Gregor v. Wait, 10 Gray, 72, 73, 
 
 the contents; and a request to 75. 
 
 produce Immediately is quite Buf- 45 — Den v. M'Allister, 7 N. J. 
 
 flcient for that purpose, if it be L. 46, 55. 
 
 In court. . . It would be some 46 — Cleveland Ry. Co. v. Per' 
 
 scandal to the administration of kins, 17 Mich. 296; HoUenbeck 
 
 the law if the plaintiff's objec- r. Stanberry, 38 la. 325; Doe v. 
 
 tion had prevailed." Somerton, 7 Q. B. D. 58. 
 
 And Justice Mills says: "The 47 — Gardner v. Bberhart, 82 
 
 design of the notice is that the 111. 316; Doe v. Palmer, 3 Q. B. 
 
 party may be apprized of the ne- D. 622. 
 
 cessity of bringing it in. If it 48 — Brown v. Booth, 66 111. 
 
 is already there, demand of its 419 (notice to surety) ; Williams 
 
 production is sufficient notice." v. Ins. Co. 68 111. 387, 390 (notice 
 
 2 J. J. Marsh. 587, 592. See also, of assessment) ; Palkner v. Beers, 
 
 Ferguson V. Miles, 8 111. 358; Bell 2 Doug. (Mich.) 117, 119 (notice 
 
 v. Ry. Co., 64 la. 321, 322; Mc- to quit); Barr v. Armstrong, 56 
 
228 
 
 WRITINGS. 
 
 produce a notice is essential.*^ Some decisions expressly say 
 that notice is not required in the case of any written notice;^" 
 but this statement is too broad. When the nature of the action 
 is such as to give the defendant notice that the plaintiff in- 
 tends to charge him with possession of the document no fur- 
 ther notice to produce it is essential. As stated by Justice Le 
 Blanc, "Where the nature of the action gives the defendant 
 notice that the plaintiff means to charge him with the posses- 
 sion of such an instrument, there can be no necessity for giving 
 him any other notice. "^^ This exception to the rule is appli- 
 cable to criminal cases as well as civil.^^ It is essential, how- 
 ever, that the accused be charged in the pleadings with the 
 possession of the document.^* In larceny and forgery cases, 
 especially the former, the exception is peculiarly applicable,^* 
 but it has been applied in other criminal cases.^^ A good deal, 
 however, depends upon the nature of the charge.^^ 
 
 Mo. 577, 586 (notice not to sell 
 on credit to wife) ; Loranger v. 
 Jardlne, 56 Micli. 518 (notice by 
 wife not to sell liquor to hus- 
 band). 
 
 49— R. & B. Ry. Co. v. Thrall. 
 35 Vt. 536, 547 (Notice of assess- 
 ment In this case the court say, 
 "There are many cases where 
 notices given during the progress 
 of a cause — notices to produce 
 papers and notices to quit — have 
 been allowed to be proved by 
 copies and in some instances by 
 parol evidence, without proof of 
 aotlce to produce the originals;" 
 but the rule is otherwise as re- 
 gards "notices essential to the 
 cause of action") ; Frank v. Long- 
 street, 44 Ga. 178; Langdon v. 
 Hulls, 5 Esp. 156. 
 
 50 — Barr v. Armstrong, 56 Mo. 
 577, 586. See also. Morrow v. 
 Com. 48 Pa. St., 305, 308; Brown 
 V. Booth, 66 111. 419. 
 
 51— How V. Hall, 14 East, 274, 
 277 (trover for a bond. In this 
 
 case Lord Chief Justice Ellenbor- 
 ough says, "Is not the very na- 
 ture of the action notice to the 
 defendant to be prepared for the 
 proof to be offered?"); Rose v. 
 Lewis, 10 Mich. 483, 484 (trover 
 for a note). 
 
 52— McGinnis v. State, 24 Ind. 
 500 (larceny of treasury-note); 
 R. V. Haworth, 4 C. & P. 254, 256 
 (forgery of deed); People v. 
 Sweatland, 77 Mich. 53. 
 
 53— R. V. Blworthy, 10 Cox Cr. 
 Ca. 579, 582 (perjury case). In 
 this case Justice Llttledale says, 
 "The exception to the rule is 
 when the other party is by the 
 proceeding itself charged with 
 the possession of the document" 
 
 54 — See cases cited in foot-note 
 52. 
 
 55 — State v. Mayberry, 48 Me. 
 218, 239 (conspiracy by false pre- 
 tenses to obtain a promissory 
 note). 
 
 56— Wigmore on Bvid. Vol. II. 
 § 1205. 
 
PROOF OF CONTENTS. 
 
 229 
 
 § 14. Consequences of refusal to produce. — When the docu- 
 ment is in the possession of the adverse party, and, after a 
 reasonable demand has been made, he refuses to produce it at 
 the trial, the consequences are as follows: (1) The party who 
 makes the demand may introduce secondary evidence of the 
 contents of the document; (2) The adverse party is estopped 
 from introducing the document to contradict the secondary 
 evidence; (3) The jury may draw inferences unfavorable to 
 him from his refusal to produce the document ; and (4) Under 
 statutes allowing discovery and inspection, judgment by de- 
 fault, in some eases, may be entered against him; while in 
 other cases he is expressly prohibited from introduciag the 
 document at the trial. 
 
 The application of the doctrine of estoppel, in a case of this 
 kind, is regarded as the infliction of a penalty on the adverse 
 party for resorting to unfair tactics. Chief Justice Gray says, 
 "A party who has suppressed a written document, and refused 
 to produce it upon notice, and so compelled the adverse party 
 to resort to secondary evidence thereof, is not afterwards en- 
 titled to offer proof of its contents. "^^ And in criticizing the 
 rule, Chief Justice Campbell says, "It is not a rule calculated 
 to further the eliciting of truth; it is simply an attempt to 
 punish one party by allowing his adversary to recover what 
 does not belong to him or to defend unjustly against a proper 
 claim. "58 Baron Alderson says, "You must either produce a 
 document when it is called for or never. "^^ That the jury 
 may well draw inferences from a suppression of the document, 
 unfavorable to the party so withholding it, is quite palpable. 
 For a collection of statutes which entitle a party to discovery 
 and inspection, and which provide the penalties stated in (4) 
 above, see Wigmore on Evidence, § 1858. 
 
 § 15. The document in the hands of a third party. — ^When 
 the document is in the hands of a third party, whether notice 
 to produce is essential or not depends upon the circumstances 
 of the particular case. If the document is "privileged," notice 
 
 57' — Gage v. (Campbell, 131 v. Schulenberg, 48 Wis. 577, 580. 
 Mass. 566. 59— Doe v. Cockell, 6 C. & P, 
 
 58— Moulton v. Mason, 21 Mich. 525, 528. 
 363, 370. See also, Tewksbury 
 
230 WRITINGS. 
 
 to produce it is not essential to the introduction of secondary- 
 evidence of its contents. As stated by Chief Baron Pollock, 
 "If in point of law you cannot compel a party who has the 
 custody of a document to produce it, there is the same reason 
 for admitting other evidence of its contents as if its produc- 
 tion were physically impossible.""* If the third party is hos- 
 tile and fraudulently suppresses the document, notice to pro- 
 duce it is not essential. As said in a Pennsylvania case, "where 
 it (the document) has been in the hands of a third person, 
 who, in collusion with the adverse party or with a view of 
 screening him, has put it out of the way" secondary evidence 
 is admissible.*! As a general rule, however, when the docu- 
 ment is in the hands of a third party notice to produce is es- 
 sential to the introduction of secondary evidence of its con- 
 tents. Some courts hold that in such cases a subpoena duces 
 tecum is essential.*^ ^ fg-^ courts hold the contrary."^ The 
 better view seems to be that it depends upon the circumstances 
 of the particular ease, and also that it is a matter which rests 
 to some extent in the sound discretion of the court. 
 
 Some courts hold that the mere fact that the third party 
 who has possession of the document is without the jurisdiction 
 of the court does not excuse notice to produce.®* Many courts, 
 however, comprising probably the weight of authority, hold 
 the contrary view.**' 
 
 § 16. Application of the Best Evidence Rule to chattels, and 
 inscriptions on chattels. — Originally, as heretofore stated (§3), 
 the Best Evidence Rule was applied to all classes of evidence. 
 
 60 — Sayer v. Glossop, 2 Exch. 62 — Dickerson v. Talbot, 14 B. 
 
 409, 410. See also, State v. Dur- Monroe (Ky.) 60, 63; Wliltford 
 
 ham, 121 N. C. 546, 28 S. B. R. v. Tutin, 10 Blng. 395. 
 
 26 (document In hands of ■wife 63 — U. S. v. Reyburn, 6 Pet 
 
 who claimed privilege, held pro- 352, 365. 
 
 duction excused). ' 64 — Waite v. High, 96 la. 742, 
 
 61— Gray v. Pentland, 2 Sarg. 65 N. W. R. 397; Phillips v. U. S. 
 
 & R. (Penn.) 23, 31. See also, Bent Soc'y, 120 Mich. 142, 79 N. 
 
 Blevins v. Pope, 7 Ala. 371, 375 W. R. 1; Boyle v. Wiseman, 10 
 
 (trover for promissory note Exch. 647 (document was in 
 
 which maker had received from hands of a party in France), 
 
 defendant and by collusion 65 — Mitchell v. Jacobs, 17 111. 
 
 failed to produce, held production 235 (lease sent to Cal., produc- 
 
 excused). tion excused). 
 
PROOF OP CONTENTS. 231 
 
 Thus, Lord Kenyon, in 1797, applied it to a bushel-measure ;®* 
 and as late as 1835 it was applied to a dog.®'' In each of these 
 cases the court rejected oral evidence descriptive of the chat- 
 tel, and insisted that the chattel itself must be produced in 
 court. According to the modern view, however, the applica- 
 tion of the rule is limited to writings. Whether it is appli- 
 cable or not to inscriptions on chattels, is a matter upon which 
 the courts do not agree. Upon principle, it should apply to 
 such inscriptions as well as to other writings, unless owing to 
 inherent difficulties an exception to the rule should be made. 
 Thus, if the chattel containing the inscriptions can be pro- 
 duced in court with as little difficulty as a sheet of paper con- 
 taining a written contract, upon principle the rule should apply 
 to the former case as well as to the latter. On the other hand, 
 if it be impracticable to produce the chattel, this fact should 
 excuse its nonproduction! Again, the application of the rule 
 should not depend upon the number of words or abbreviations 
 contained in the writing, nor upon their character or purpose. 
 Some decisions, however, hold that when the purpose of the 
 inscription is merely to identify the chattel the rule has no 
 application; while others hold that when the inscription is 
 intended as a public manifestation of sentiment or feeling it 
 partakes of the character of a speech rather than of a writing, 
 and for this reason the rule has no application. Thus, in a 
 robbery ease in which oral evidence of an inscription on a tag 
 which had been detached from a valise was objected to, Chief 
 Justice Chapman says, "In the present ease, the tag referred 
 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."** 
 And in a criminal conspiracy and sedition case, in which oral 
 evidence of inscriptions on flags was objected to, Chief Justice 
 Abbott says, "With respect to the last point, the reception of 
 the evidence as to the inscriptions on the flags or banners, I 
 
 66 — Chenie v. Watson, Peake 68 — Com. v. Morrell, 99 Mass. 
 
 Add. Cas. 123. 542 (1868). 
 
 67— Lewis v. Hartley, 7 C. & P. 
 405. 
 
232 WRITINGS. 
 
 think it was not necessary either to produce the flags or to 
 give notice to the defendants to produce them. . . . Inscrip- 
 tions used on such occasions are the public expression of the 
 sentiments of those who bear and adopt them, and have rather 
 the character of speeches than of writings. If we were to hold 
 that words inscribed on a banner so exhibited could not be 
 proved without the production of the banner, I know not upon 
 what reason a witness should be allowed to mention the color 
 of the banner, or even to say that he saw a banner displayed, 
 for the banner itself may be said to be the best possible evi- 
 dence of its existence and its color. "^^ It is to be observed, 
 however, that to remember the mere existence or color of a 
 thing is a much simpler matter than to remember the exact 
 words of an inscription. Moreover, slight inaccuracies with 
 respect to the words of an inscription may effect very mate- 
 rially its legal significance. Justice Maule, after quoting Chief 
 Justice Abbott's statement given above, says, "I confess 
 that it is not very satisfactory to me, for the circumstances 
 of its being a public expression of feeling is no reason why 
 the best proof should not be given. The reason why the writ- 
 ings are to be produced is because that is so much better a 
 way of proving it than having it from the memory of anyone 
 else."'''' As previously stated, the courts, upon this question, 
 do not agree. In the following cases the rule has been ap- 
 plied: to the inscription on a ring;^i to the inscription on the 
 wrapper of a butter-package ;'2 to the plan of a house;'' to 
 forged paper-money;''* to the inscription on a cofSn plate ;'^ 
 and to the direction on a parcel.''® In the following cases it 
 has been held not to apply: to shipping-marks on barrel- 
 heads;'''' to a superscription on an envelope;''* to labels of 
 
 69— King V. Hunt, 3 B. & Aid. 73— Bryant v. Stilwell, 24 Pa. 
 
 566 (1820). St. 314, 317 (1855). 
 
 70_Reg. V. Hinley, 1 Cox Cr. 74— State v. Blodgett, 1 Root 
 
 Cas. 13 (1843). In this case the ^^^ (1793). 
 
 rule was applied to the address 
 
 75— Reg. V. Edge. Wills, Circ. 
 Evid., 5th Am. ed. 212. 
 on a hamper. 76-Burrell y. North, 2 C. 4 
 
 71— Reg. V. Farr, 4 P. & F. 336 g 680, 682 (1847). 
 (1864). 77— U. S. V. De Graff, 14 Blatch. 
 
 72— "Write v. State, 88 Md. 436, 381, 385 (1878). 
 41 Atl. Rep. 495 (1898). 78— U. S. v. Bahcock, 3 Dillon 
 
PROOF OF CONTENTS. 233 
 
 "rye whiskey" on jugs;'^* and to an inscription on boxes of 
 a passenger killed on a railroad.^" 
 
 §17. Same. Professor Wigmore's view. — Professor "Wig- 
 more says, "It is impossible to say that any settled doctrine 
 has found favor respecting the application of the rule to ma- 
 terial objects, not paper, bearing inscriptions in words. There 
 are inherent difficulties. It is impracticable to base any dis- 
 tinction upon the material bearing the inscription ; for a notice- 
 board or a tombstone may deserve the application of the rule 
 as well as a sheet of note-paper. Nor is it practicable to dis- 
 tinguish according to the number of words ; for each number is 
 but one higher than the preceding, and a broker's note of ten 
 words or a baggage-check of a few initials may need inspec- 
 tion as much as a lengthy lease for ninety-nine years. Nor 
 can the purpose of the words be material; for the memoran- 
 dum-tick made for private verification may become as im- 
 portant as the deed intended for public registration. No Court 
 seems to have attempted, and certainly no Court has achieved, 
 a satisfactory test for the distinction drawn. There are prece- 
 dents requiring and precedents not requiring production, — 
 precedents often entirely irreconcilable if one were seeking 
 an inflexible rule. But there is no reason for making such a 
 rule; the rational and practical solution is to allow the trial 
 Court in discretion to require production of an inscribed chat- 
 tel wherever it seems highly desirable in order to ascertain 
 accurately a material fact."^i 
 
 §18. Rule limited to the terms of the document. — The ap- 
 plication of the Best Evidence Rule is confined to the terms of 
 the document. Other facts concerning the document may be 
 shown by extrinsic evidence. In applying this principle, how- 
 
 571, 574 (1876). But the rule has hardly he contended that the 
 
 heen held applicable to a post house would have to be produced, 
 
 mark on an envelope. See Rex nor can it be said' that the law 
 
 V. Johnson, 7 East 65, 66. converts the court-room into a re- 
 
 79 — Com. v. Blood, 11 Gray 74, ceptaole for wagons, boxes, tomb- 
 
 77 (1858). stones, and the like, on which 
 
 80 — Kansas Pac. Ry. Co. v. Mil- one's name may be written." 
 
 ler, 2 Colo. 442, 451, 462. In this 81— Wigmore on Evid. Vol. II., 
 
 case the court say, "if a sign were i 1182. 
 painted on a house, it would 
 
234 WEITINGS. 
 
 ever, the courts are at variance. Thus, some courts hold that, 
 to prove the following facts, production of the documents is 
 not essential: ownership of property ;*2 transfer of land;'* 
 transfer of personalty,^* tenancy;^^ paymentf^ sale of a 
 note;''^ conversion of a document;^* delivery or publication of 
 a notice;*^ and performance of services in printing and pub- 
 lishing advertisements in a newspaper.*" While other courts, 
 aa regards some of these facts, as indicated in the foot-notes, 
 hold the contrary. In the case of Lamb v. Moberly, cited in 
 foot-note*'', Justice Mills says, "We cannot agree . . . that 
 the production of the note was necessary. It could only be held 
 necessary by not attending to the distinction between proving 
 the existence and contents of a note and the sale of a note. 
 Of the former, the note is the better evidence ; but of the latter 
 the note furnishes no evidence. . . . The existence of a note is 
 as certainly perceived by the senses or acknowledged in con- 
 versation as that of any other article of commerce; and it 
 might as well be urged that before the acknowledgments of 
 a sale of any other article could be given in evidence the article 
 itself must be produced in court ia order that the Court might 
 see that it really existed, as that a note thus sold should be 
 produced." 
 
 82 — street v. Nelson, 67 Ala. 86 — Chambers v. Hunt, 22 N. 
 
 504; contra: Kirkpatrlck v. J. L. 552; Davidson v. Peck, 4 
 
 Clark, 132 111. 342; Westfield Mo. 438; Cramer v. Shrimer, 18 
 
 Cigar Co. V. Ins. Co., 169 Mass. Md. 140. 
 
 382. 87— Lamb v. Moberly, 3 T. B. 
 
 83 — Showman v. Lee, 86 Mich. Monroe (Ky.) 179. 
 
 556; contra: Primrose v. Brown- 88 — Bucher v. Jarratt, 3 B. & 
 
 Ing, 56 Ga. 369. B. 143 (leading case). 
 
 84— Sirrlne v. Briggs, 31 Mich. 89— Lingle v. Chicago, 172 111. 
 
 443; contra: Price v. Wolfer 170. 
 
 (Or.) 52 Pac. Rep. 759. 90 — Enloe v. Hall, 1 Humph. 
 
 85 — Taylor v. Peck, 21 Grat (Tenn.) 303, 310. 
 (Va.) 11; contra: Gilbert v. Ken- 
 nedy, 22 Mich. 6, 18. 
 
CHAPTER IV. 
 
 THE PAROL EVIDENCE RULE. 
 
 § L Hie rule. — Parol evidence is inadmissible to vary, add 
 to, take from, or contradict, the terms of a document, or to 
 modify its legal import. 
 
 §2. Origin and meaning of the term 'parol.' — The term 
 'parol' is of French origin. Its literal meaning is word, or 
 speech. In this sense it is synonymous with the term 'oral.' 
 In practice, however, it also has a conventional meaning. As 
 applied to contracts, it means not under seal. In other words, 
 a parol contract is a simple contract, as distinguished from a 
 contract under seal. It may be in writing, or merely oral. If 
 a contract under seal be subsequently modified by oral agree- 
 ment of the parties it will become thereby wholly parol.^ At 
 common law, it is not essential to allege in the pleadings that 
 a parol contract is in writing, though by law it is required to 
 be. This is owing to the fa,et that the import of a parol con- 
 tract is, that it is made by the mere agreement of the parties 
 and not by an instrument under seal. The fact that it is in 
 writing is a matter of evidence. 
 
 The term 'parol,' as used in the law of pleadings, has also 
 a conventional meaning. The pleadings themselves are called 
 the parol; and in some cases the term is used to denote the 
 entire pleadings in the cause. ^ 
 
 In the law of evidence, the term is also used in a conven- 
 tional sense. As used in the phrase, 'Parol Evidence Eule,' 
 it is synonymous with the term 'verbal,' as distinguished from 
 the term 'oral.'^ These two terms, however, are often incor- 
 rectly used interchangeably. They are not, however, synony- 
 
 1— Munroe v. Perkins, 26 Mass. 56 Am. St Rep. 659, and the 
 
 298. scholarly article in 6 Harvard 
 
 2—3 Black. Com. 300. Law Review 325, by the late Pro- 
 
 3 — Bouvler's Law Diet. 576. feasor Thayer. 
 See also the excellent note in 
 
 235 
 
236 WBITINGS. 
 
 mous. The former means "relating to words," and is appli- 
 cable to both written and oral words ; whereas the latter means 
 "spoken," as distinguished from "written," and is applicable 
 to sentences as well as words. Professor Wigmore, in discus- 
 sing the use of the term 'parol,' says: "The matter excluded 
 by the rule is not inherently or even most commonly anything 
 that can be properly termed 'parol.' That word (in spite of 
 its numerous other derived applications) signifies and implies 
 essentially the idea 'oral,' i. e. matter of speech, as contrasted 
 with matter of writing. Now, so far as the phrase 'parol evi- 
 dence rule' conveys the impression that what is excluded is 
 excluded because it is oral — because somebody spoke or acted 
 other than in writing, or is now offering to testify orally — , 
 that impression is radically incorrect. When the prohibition 
 of the rule is applicable, what is excluded may equally be writ- 
 ten as oral, — may be letters and telegrams as well as conver- 
 sations; and where the prohibition is applicable on the facts 
 to certain written material, nevertheless for the very same 
 transaction certain oral material may not be prohibited. So 
 that the term 'parol' not only affords no necessary clue to 
 the material excluded, but is even positively misleading. It 
 must be understood to be employed in a purely unnatural and 
 conventional sense."* 
 
 §3. Origin and development of the 'Pajol Evidence Rule.' 
 — Originally, the rule was applied only to sealed instruments. 
 At that time it was not regarded as a rule of evidence, but 
 rather as a matter of 'averment.' The objectionable feature 
 was not the proving of the extrinsic matter, but rather the 
 making it an issue for the purpose of impugning the document. 
 In 1771 the English Court of Common Pleas extended the rule 
 to written contracts not under seal. Such contracts were re- 
 garded as parol contracts; but the court declared that "no 
 parol evidence . is admissible to disannul and substantially 
 to vary a written agreement. "^ 
 
 § 4. Misapplication of the rule. — Since the Court of Com- 
 mon Pleas, in 1771, extended the Parol Evidence Rule to writ- 
 ten contracts not under seal, many courts have treated it as a 
 
 4— Wigmore on Evld., Vol. IV., 5— Meies v. Ansell, 3 Wlls. 
 page 3369. Com. Pleas 275. 
 
THE PABOL EVIDENCE EULE. 237 
 
 rule of evidence. The term, hov^ever, is largely a misnomer. 
 This is owing to the fact that the rule, in a large measure, is 
 one of substantive law. Especially is this true where the law 
 requires that the evidence of the thing to be proved shall be in 
 writing. Professor Thayer, in speaking of the rule, says: 
 "Fev/ things in our law are darker than this, or fuller of 
 subtle difficulties. It appears to me that the chief reason for 
 it is that most of the questions brought under this rule are out 
 of place; it is true, in a very great degree, that a mass of 
 incongruous matter is here grouped together, and then looked 
 at in a wrong focus. Because the rule deals with evidences, 
 with writings, — things the nature of which it is to be evidence 
 of what they record, — it is assumed that it belongs to the law 
 of evidence. But in truth most of the matters with which it 
 is concerned have nothing to do with the law of evidence. 
 It heightens the confusion, however, to find that some of them 
 belong there. "8 
 
 § 5. Reasons for the rule. — The two chief- reasons for the 
 rule are, (1) The uncertainty of memory, and (2) The danger 
 of falsehood. Lord Coke assigns as the reason for it the un- 
 certainty of "slippery memory. "'^ Justice Bell assigns "the 
 treachery of memory and the falsehood of men."^ Chief Jus- 
 tice Shaw says, "The rule is founded on the long experience, 
 that written evidence is so much more certain and accurate 
 than that which rests in fleeting memory only, that it would 
 be unsafe, when parties have expressed the terms of their con- 
 tract in writing, to admit weaker evidence to control and vary 
 the stronger, and to show that the parties intended a different 
 .contract from that expressed in the writing signed by them."* 
 Justice Sewall says, "The preference, which the law gives to 
 written evidence, when compared with parole testimony, of 
 parole agreements, is the unavoidable result of experience. It 
 is impossible to expect or attain that certainty and exactness 
 in the one form of evidence, which is found in the other. When 
 a contract has been stated in a writing assented to and signed 
 
 6 — 6 Harvard Law Review 325. 9 — Underwood v. Slmonds, 12 
 
 7 — Rutland's Case, 5 Coke 26. Mete. (Mass.) 275. 
 8 — Rearick's BxecutorB v. Rear- 
 ick, 15 Pa. St 66, 72. 
 
238, WKITINGS. 
 
 by the paxties concerned, and that continues in being, and 
 under the control of the party relying upon it, evidence of the 
 other parole agreements, to explain or vary the written con- 
 tract, , would be a rejection of that evidence, which is neces- 
 sarily the best."!" Justice Dean, in quoting with approval 
 Thayer, P. J., says, "If it were not for the rule no man would 
 be able to protect himself by the most solemn forms and at- 
 testations against falsehood, misrepresentation and perjury."" 
 
 § 6. Merger of prior and contemporaneoius agreements con- 
 clusively presumed. — When the parties to a contract have re- 
 duced their negotiations to a complete and perfect written 
 agreement, all prior and contemporaneous oral agreements per- 
 taining to it are, as a general rule, conclusively presumed to 
 have been merged in the document ; and evidence of such prior 
 and contemporaneous oral agreemients is inadmissible. Justice 
 Caton, in an early Illinois case, says, "The rule is, where a 
 contract is reduced to writing, that the writing affords the 
 only evidence of the terms and conditions of the contract. All 
 antecedent and contemporaneous verbal agreements are 
 merged in the written contract. "^^ Chief Justice Bailey says, 
 "where parties have deliberately put their engagements into 
 writing, in such terms as import a legal obligation, without any 
 uncertainty as to the object or extent of such engagement, it 
 is conclusively presumed that the whole engagement of the 
 parties, and the extent and manner of their undertaking, was 
 reduced to writing, and that all oral testimony of a previous 
 colloquium between the parties, or of conversations or declara- 
 tions at the time when it was completed, must be rejected."^* 
 Justice Craig says, "Where parties reduce their contract to, 
 writing, the law presumes that the whole terms and condi- 
 tions of the agreement are fully incorporated in and become 
 a part of the written instrument, "i* And Chief Justice Ma- 
 gruder says, "When parties, after whatever previous prepara- 
 
 10 — Hunt ' V. Adams, 7 Mass. 13 — U. N. Bank of Chicago v. 
 
 518, 521. 1,. N. A. & C. Ry. Co., 145 111. 
 
 11— Irvin V. Irvin, 169 Pa. St 208, 221. 
 
 529, 546. 14-i-Conwell v. S. & N. W. Ry. 
 
 12— Lane v. Sharpe, 3 Scam. Co.. 81 111. 232, 234. 
 (111.) 566, 572. 
 
THE PAKOL EVIDENCE RULE. 239 
 
 tion, reduce their agreement to writing, such written agree- 
 ment is the final consummation of their negotiation, and the 
 exact expression of their purpose. What has preceded it, if 
 not incorporated into it, is regarded as intentionally 
 rejected. "i» 
 
 § 7. Exceptions ajid limitations. — The Parol Evidence Rule, 
 though quite general in its application, has numerous excep- 
 tions and limitations. Much confusion exists, however, in their 
 application. Some so-called exceptions are in fact only ap- 
 parent exceptions. They define, in a way, the scope of the 
 rule, and constitute, in a sense, limitations. Justice Vann, in 
 commenting upon the rule, says, "This rule is not universal 
 in its application, because the courts, in their effort to prevent 
 fraud and injustice, have laid down certain exceptions, which 
 although correct in principle, are sometimes so loosely applied 
 in practice as to threaten the integrity of the rule itself, "i* 
 Taylor, in a general statement of the limitations of the rule, 
 says, it "applies only (1) between the parties; (2) to exclude 
 parol evidence; (3) when the effect is to vary, contradict or 
 control; (4) when the purport of the instrument has been as- 
 certained; (5) and provided it affirmatively appears that the 
 parties have intended to have the instrument embody their 
 agreement and understanding, "i^ 
 
 §8. Stephen's comprehensive statement. — Stephen, in his 
 "Digest of the Law of Evidence," gives the following com- 
 prehensive statement of matters which may be proved by parol 
 evidence, notwithstanding the Parol Evidence Rule: 
 
 " (1) Fraud, intimidation, illegality, want of due execution, 
 want of capacity in any contracting party, the fact that it is 
 wrongly dated, want or failure of consideration, or mistake in 
 fact or law, or any other matter, which, if proved, would pro- 
 duce any effect upon the validity of any document, or of any 
 part of it, or which would entitle any person to any judgment, 
 decree, or order relating thereto. 
 
 (2) The existence of any separate oral agreement as to any 
 
 15 — Graham v. Sadler, 165 III. 17 — Taylor's Evid. (Chamber- 
 
 95, 98. layne's ed.) 808, note. 
 
 16— Thomas v. Scutt, 127 N. Y. 
 133, 137, 138. 
 
240 WBITINGS. 
 
 matter on which a document is silent, and which is not incon- 
 sistent with its terms, if from the circumstances of the case the 
 court infers that the parties did not intend the document to 
 be a complete and final statement of the whole of the transac- 
 tion between them. 
 
 (3) The existence of any separate oral agreemient, consti- 
 tuting a condition precedent to the attaching of any obliga- 
 tion under any such contract, grant or disposition of property. 
 
 (4) The existence of any distinct subsequent oral agree- 
 ment to rescind or modify any such contract, grant, or dispo- 
 sition of property, provided that such agreement is not invalid 
 under the statute of frauds or otherwise. 
 
 (5) Any usage or custom by which incidents not expressly 
 mentioned in any contract are annexed to contracts of that 
 description; unless the annexing of such incident to such con- 
 tract would be repugnant to or inconsistent with the express 
 terms of the contract. 
 
 Oral evidence of a transaction is not excluded by the fact 
 that a documentary memorandum of it was made, if such mem- 
 orandum was not intended to have legal effect as a contract, 
 or other disposition of property. 
 
 Oral evidence of the existence of a legal relation is not ex- 
 cluded by the fact that it has been created by a document, 
 when the fact to be proved is the existence of the relationship 
 itself, and not the terms on which it was established or is car- 
 ried on. 
 
 The fact that a person holds a public office need not b6 
 proved by the production of his written or sealed appointment 
 thereto, if he is shown to have acted in it."^® 
 
 § 9. Existence and validity of the contract.— When the ques- 
 tion in issue is the execution, delivery, acceptance or validity 
 of a contract, the Parol Evidence Rule is not applicable. Thus, 
 parol evidence is admissible to show, that an alleged contract 
 was never executed, owing to want of authority of the person 
 who signed it;** that there was no valid delivery j^o that it is 
 
 18— Stephen's Digest of Evl- 20 — Price v. Hudson, 125 111. 
 (lence, art. 90. 284; Curry v. Colburn, 99 Wis. 
 
 19— Sherman v. Buick, 93 U. S. 319. 
 209; Rennlck v. Sanford, 118 
 Mass. 102. 
 
THE PAEOL EVIDENCE EULE. 
 
 241 
 
 in violation of law;^i that although delivered it was not to 
 take effect until the approval of a particular person ;22 that 
 the person who signed it was incapable of making a contract j^^ 
 that it was signed in the presence of the party sought to be 
 charged, and at his request ;2* that it was executed on a cer- 
 tain day, at a particular place, and under particular circum- 
 stnces;^* that it was fraudulently altered, the time when, and 
 the party by whom, it was done;^^ that it is usurious;^'' that 
 the party sought to be charged was fraudulently induced to 
 enter into it;^* that in reducing it to writing there was a mu- 
 tual mistake of fact;^^ that the minds of the parties did not 
 meet f that it was never intended to be operative between the 
 parties, and that in fact the real contract was an oral onej^^ 
 that it was not to take effect except upon certain conditions f^ 
 that two instruments bearing different dates were in fact exe- 
 cuted at the same time and as parts of the same transaction.^' 
 
 21 — Stackpole v. Araold, 11 
 Mass. 27; Friend v. Miller, 52 
 Kan. 139. 
 
 22— Pym v. Campbell, 6 El. & 
 Bl. 370 (In this case Justice 
 Earle says: "If it be proved that 
 in fact the paper was signed with 
 the express intention that it 
 should not be an agreement, the 
 other party cannot fix it as an 
 agreement upon those signing. 
 The distinction in point of law 
 is, that evidence to vary the 
 terms of an agreement in writing 
 !«! not admissible, but evidence to 
 show that there is not an agree- 
 ment at all is admissible"). See 
 also, Burke v. Dulaney, 153 U. S. 
 228; Cleveland Ref. Co. v. Dun- 
 ning, 115 Mich. 238. 
 
 23— Paye v. Patch, 132 Mass. 
 105; Lord v. Am. Mut, etc. 
 Assoc, 89 Wis. 19; Dan v. Clark, 
 10 N. J. L. 258. 
 
 24 — Mortoii v. Murray, 176 111. 
 64. 
 
 26— Chandler v. Morez, 195 lU. 
 16 
 
 596; Wilbur v. Stoepel, 82 Mich. 
 344. 
 
 26 — Montgomery v. Cross- 
 thwait, 90 Ala. 553; Winters v. 
 Mowser, 163 Pa. St. 239; Rich- 
 ards V. Day, 137 N. Y. 183; John- 
 son V. Pollock, 58 111. 181. 
 
 27 — Ferguson v. Sutphen, 8 111. 
 547; Roe v. Kiser, 62 Ark. 92, 34 
 S. W. R. 534, 54 Am. St. Rep. 288. 
 
 28— Barrle & Son v. Frost, 105 
 111. App. 187; Givan v. Masterson, 
 152 Ind. 127; Trambly v. Ricard, 
 130 Mass. 259. 
 
 29— Silbar v. Ryder, 63 Wis. 
 106; Habbe v. Viele, 148 Ind. 116. 
 See also notes in 6 L. R. A. 46, 
 and 30 Am. St. Rep. 642, 648. 
 
 30— Stone v. Daggett, 73 111. 
 367. 
 
 31— Robinson v. Nessel, 86 111. 
 App. 212 (citing 76 111. App. 669). 
 
 32— Ottawa, O. & F. R. Val. Ry. 
 Co. V. Hall, 1 111. App. 612. 
 
 33 — Greenebaum v. Gage, 61 III. 
 46. 
 
242 WRITINGS. 
 
 § 10. Incomplete documents. — Incomplete documents are 
 not within the scope of the Parol Evidence Rule. A contract 
 which is partly in writing and partly oral is regarded as a 
 parol contract; and extrinsic evidence is admissible to prove 
 the oral part, provided such evidence is not repugnant to the 
 written part. It is sometimes said that a contract cannot exist 
 partly in writing and partly in parol. Thus, Justice Schol- 
 field says, "No principle of law is better settled than that the 
 evidence of a contract can not exist partly in writing and 
 partly in parol. "^* This statement, however, is apt to be mis- 
 leading. To be correct, it must either assume that the written 
 part is complete in itself or merely mean that if the whole of 
 a contract has not been reduced to writing it rests entirely in 
 parol.38 For it is well settled that where a valid, complete, 
 verbal contract is partly reduced to writing, the rest may be 
 shown by parol evidence.^® Justice Burroughs says, "The 
 rule excluding parol evidence does not apply when the original 
 contract was verbal and entire and a part only is reduced to 
 writing. "^'^ Justice Walker says, "It is one of the most fa- 
 miliar rules to the profession that a contract can not rest ■ 
 partly in writing and partly by verbal understanding between 
 the parties, hence all prior propositions and negotiations are 
 superseded by the written contract. "^^ The latter clause of 
 the quotation shows that the writing is assumed to be a com- 
 plete contract in itself. Justice Green says, "It is evident, 
 therefore, that the whole of the actual contract between the 
 parties, being partly in parol and partly in writing, must all 
 be considered, in order to determine what the contract really 
 was. The principle that a contract which is partly in writing 
 and partly in parol becomes all parol is too familiar to require 
 the ^citations of authorities, "^s And Justice Brown says, 
 "Where a contract in writing shows upon its face that it is 
 
 34— Hartford Fire Ins. Co. v. 86 III. App. 469, 471 (citing Green- 
 Webster, 69 111. 392, 393. leaf on Evld. Vol. I, § 284; Lu- 
 
 35— Am. & Eng. Ency. of Law, deke v. Sutherland, 87 111. 431). 
 Vol. 21, p. 1089. 38— Longfellow v. Moore, 102 
 
 36— McCray Refrlg., etc., Co. v. 111. 289, 294. 
 Woods, 91 Mich. 273, 41 Am. St. 39— Schwab v. Ginklnger, 181 
 
 Rep. 599. Pa. St. 8, 14 
 
 37— Estate of Casner v. Stafford, 
 
THE PAROL EVIDENCE EXn^. 243 
 
 not the whole contract between the parties, and does not pur- 
 port to be a complete agreement, parol evidence is admissible 
 to show what was the whole contract, and the same then be- 
 comes all parol."*** 
 
 In this class of eases, therefore, parol evidence is held admis- 
 sible to complete .the entire contract of which the writing is 
 only a part. It is to be observed, however, that to bring a 
 case within this class, two things are essential: (1) The writ- 
 ing must not appear upon inspection to be a complete con- 
 tract ;*i (2) The parol evidence must be consistent with the 
 written evidence.*^ As a general rule, however,, the inspec- 
 tion of the writing is to be made in the light of attendant 
 facts and circumstances.*^ Chief Justice Start says, "In con- 
 sidering whether or not a particular writing is an incomplete 
 contract, within the rule stated, the controlling question is 
 whether it appears upon the face of the writing that the par- 
 ties intended it to be the exclusive evidence of their agreement. 
 While the writing itself is the only criterion by which the in- 
 tention of the parties is to be ascertained, yet it is not neces- 
 sary that the incompleteness of the writing should appear on 
 its face from a mere inspection of it, for it is to be construed in 
 the light of its subject-matter and the circumstances under 
 which and the purposes for which it was executed."** Some 
 courts, however, follow a more rigid rule. Thus, Justice Depue 
 says, "The only safe criterion of the completeness of a writ- 
 
 40 — Selig V. Rehfuss, 195 Pa. He also says, "The parol evidence 
 
 St. 200, 206. See also, Piatt v. must be consistent with and not 
 
 ^tna Ins. Co., 153 111. 121; Union contradictory of the written in- 
 
 Nat. Bank v. Louisville, etc., Ry. strument") ; Ryder v. Faxon, 171 
 
 Co., 145 111. 208; Bbert v. Arends, Mass. 206; Buhl v. Mechanics' 
 
 190 111. 221. Bank, 123 Mich. 591. 
 
 41— Thomas v. Scutt, 127 N. Y. 42— Horn v. Hanson, 56 Minn. 
 
 133, 138 (In this case Justice 46; Radigan v. Johnson, 174 Mass. 
 
 Vann says, "The writing must not 68; Gardner v. Mathews, 81 Mo. 
 
 appear upon Inspection to he a 627. 
 
 complete contract, embracing all 43 — ^Burton v. Morrow, 133 Ind. 
 
 the particulars necessary to make 221; Peabody t. Bement, 79 
 
 a perfect agreement and designed Mich. 47; Fawkner v. Smith Wall 
 
 to express the whole agreement Paper Co., 88 la. 169. See also, 
 
 between the parties, for in such a Illinois cases cited in foot note 40. 
 
 case it is conclusively presumed 44 — Potter v. Easton, 82 Minn, 
 
 to embrace the entire contract." 247. 
 
244 WEITINGS. 
 
 ten contract as the full expression of the terms of the parties' 
 agreement is the contract itself. . . If the written eon- 
 traet purports to contain the whole agreement, and it is not 
 apparent from the writing itself that something has been left 
 out to be supplied by extrinsic evidence, parol evidence to vary 
 or add to its terms is not admissible."*^ See also quotation 
 from Justice Vann's opinion in foot-note *i. 
 
 § 11. Collateral contemporaneoiis or prior parol agree- 
 ments. — In some cases agreements of this class are admissible 
 and in some cases they are not. In the following cases they 
 are admissible: (1) Where the subject-matter of the col- 
 lateral parol agreement is independent and distinct from that 
 to which the written contract relates;*^ (2) Where the pur- 
 pose of introducing the parol agreement is to show that 
 the written contract was not to become binding until the per- 
 formance of some condition precedent resting in parol ;*^ and 
 (,3) Where the purpose of the action is to recover damages for 
 breach of the parol agreement, and not to defeat an action on 
 the written eontraet.*^ But where the collateral parol agree- 
 ment and the written agreement relate to the same subject- 
 matter, and the latter agreement is complete upon its face, the 
 former agreement is conclusively presumed to be merged in 
 the latter, and evidence to show the former is inadmissible to 
 vary, or contradict the latter.*^ It is to be observed, however, 
 that the decisions pertaining to this subject are not har- 
 monious. Many hold that where the purpose of introducing 
 the parol agreement in evidence is not to vary or contradict 
 the written contract, but to establish an additional collateral 
 agreement, the parol agreement is admissible.'*" The test 
 given by one writer is as follows: "If it interferes with the 
 
 45 — Naumberg v. Young, 44 N. ed.) 649, note; Purinton v. North- 
 
 J. L. 331. ern 111. Ry. Co., 46 111. 297). Gard- 
 
 46— Llndley v. Lacey, 17 C. B. ner v. Lightfoot, 71 la. 577. 
 
 Div., N. S., 578. 49— Patterson v. Park, 166 Pa. 
 
 47— Curtis v. Harrison, 36 111. St. 25; Stevens v. Pierce, 151 
 
 App. 287; Michaels v. Olmstead, Mass. 207; Patek v. Waples, 114 
 
 157 U. S. 198; Thomas v. Barnes, Mich. 669; Costello v. Eddy, 128 
 
 156 Mass. 583; Cleveland Refining N. Y. 650. 
 
 Co. v. Dunning, 115 Mich. 238. 50— Snowden v. Gulon, 101 N. 
 
 48— Abbott's Trial Bvid. (2nd Y. 458, 462. 
 
THE PAROL EVIDENCE RULE. 245 
 
 writing it cannot be proved ; if, on the other hand, it relates to 
 a matter beyond the scope of the- written contract, the writing 
 does not affect it. . . In each ease it must be determined 
 from the character of the writing and from the circumstances 
 of the case, whether the parol agreement offered to be proved 
 was in regard to a matter which it is reasonable to infer the 
 parties thought settled by the terms of the writing, and if it 
 was, evidence to show it should be excluded. The writing 
 must speak just so far as it is fair to conclude that the parties, 
 acting as reasonable men and using intelligible language, in- 
 tended it should speak, and no farther.""! 
 
 §12. Same. Oral warranties. — As regards the question of 
 admissibility of parol evidence to establish an oral warranty, 
 the decisions are not harmonious. Upon principle, however, 
 and by the weight of authority, such evidence is inadmissible 
 to modify a written contract complete on its face.^^ 
 
 § 13. Usage and custom. — ^As a general rule, parol evidence 
 is admissible to show usage or custom, provided such evidence 
 is not repugnant to the written contract.^^ It is not admis- 
 sible, however, if inconsistent with the terms of the contract;^* 
 or with a sound ajid well-settled rule of law;"^ nor is it admis^ 
 sible if unreasonable."^ When admissible, the usage or custom 
 is considered as forming part of the contract by implication. 
 As stated by Justice Coleridge, "In all contracts, as to the sub- 
 ject-matter of which known usages prevail, parties are found 
 to proceed with the tacit assumption of these usages ; they com- 
 
 51 — Jones Constr. of Com. & 111. 324; Howe v. Hardy, 106 Mass. 
 
 Trade Cont., § 141. See also, Seitz 329; Robertson v. Nat. S. S. Co., 
 
 V. Brewers, etc.. Machine Co., 141 139 N. Y. 416. 
 
 U. S. 510. 54— Gilbert v. McGinnis, 114 
 
 52 — Naumberg v. Young, 44 N. 111. 28; Lonergan v. Courtney, 75 
 
 J. L. 331; McMillan v. De Tamble, 111. 580; Benson v. Gray, 154 
 
 93 111. App. 65; Conaut v. Nat. Mass. 391; Detroit Advertiser v. 
 
 etc., Bank, 121 Ind. 323; Mast v. Detroit, 43 Mich. 116. 
 
 Pearce, 58 la. 579, 43 Am. Rep, 55 — Walters v. Senf, 115 Mo. 
 
 125, and note; Powell v. Ed- 524; Sohn v. Jervis, 101 Ind. 578; 
 
 munds, 12 East 6, 10; McCray R. Kuppitz, etc., Brewing Co. v. 
 
 & C. S. Co. V. Woods, 99 Mich. Behm, 130 Mich. 649. 
 
 269; Thompson v. Libby, 34 Minn. 56 — Anderson v. Whittaker, 97 
 
 374. Ala. 690; Haskins v. Warren, 115 
 
 53— Corbett v. Underwood, 83 Mass. 514. 
 
246 WRITINGS. 
 
 monly reduce into writing the special particulars of their 
 agreement, but omit to specify these known usages, which are 
 included, however, as of course, by mutual understanding; 
 evidence, therefore, of such incidents is receivable. The con- 
 tract in truth is partly express and in writing, partly implied 
 or understood and unwritten. "^^ 
 
 § 14. Receipts versus releases. — The Parol Evidence Rule 
 is applicable to releases, but not to receipts. A release is an 
 extinguishment of a preexisting right; whereas a receipt is 
 merely an admission which raises a presumption which may be 
 rebutted. As stated by Chief Justice Tenterden, "A receipt 
 is an admission only, and the general rule is that an admission, 
 though evidence against the person who made it and those 
 claiming under him, is not conclusive evidence (except as to 
 the person who may have been induced by it to alter his condi- 
 tion). A receipt, therefore, may be contradicted or ex- 
 plained."** And as stated by Justice Cowen, "A release can- 
 not be contradicted or explained by parol, because it ex- 
 tinguishes a preexisting right. But no receipt can have the 
 effect of destroying per se any subsisting right; it is only evi- 
 dence of a fact. The payment of the money discharges or ex- 
 tinguishes the debt; a receipt for the payment does not extin- 
 guish the debt ; it is only evidence that it has been paid. Not 
 so of a written release; it is not only evidence of the extin- 
 guishment, but it is the extinguisher itself."^® 
 
 § 15. To show a deed absolute on its face is a mortgage.— In 
 equity, it is universally held that parol evidence is admissible 
 to show that a deed absolute on its face is in fact a mortgage. 
 The chief reason assigned for this rule is to prevent fraud. 
 As said by Justice 'Brien, ' ' The rule which excludes evidence 
 of parol negotiations or conditions, when offered to contradict 
 or substantially vary the legal import of a written agreement, 
 does not prevent a party to the agreement, in an action be- 
 tween the parties, from showing, by way of defense, the ex- 
 
 57 — Brown v. Byrne, 3 E. & B. 59 — McCrea v. Purmort, 16 
 703. Wend. (N. Y.) 460, 473. 
 
 58— Graves v. Key, 3 B. & Ad. 60— Helberg t. Schumann, 160 
 313. 111. 12, 21; Winters v. Earl, 52 N. 
 
 J. E. 52. 
 
THE PAEOL EVIDENCE RULE. 247 
 
 istence of a contemporaneous oral agreement, made at the time 
 the writing was executed and delivered, which would render 
 the use of the written instrument, for any purpose contrary to 
 or inconsistent with the oral stipulation, dishonest or fraudu- 
 lent."^^ Some courts, however, treat the agreement for the 
 defeasance as part of the consideration. Thus Justice Sher- 
 wood says, "The doctrine that a deed absolute on its face may 
 be shown to be a mortgage is old and well established. * * * 
 The agreement for the defeasance, whether written or unwrit- 
 ten, is no more than one of the conditions upon which the deed 
 was given, and, therefore, constitutes a part of the considera- 
 tion for the conveyance; and I have never been able to discover 
 why it was not competent to show it by parol in any case, 
 either at law or in equity, where it was competent to show the 
 actual consideration for the conveyance. "^^ Upon principle, 
 such evidence is admissible in actions at law, as well as in 
 suits in equity, where the title to the property is not directly 
 in issue. As said by Justice Wilkin, "If, as at common law, a 
 deed absolute in form could only be held a mortgage upon the 
 ground of accident, fraud or mistake, there would be much 
 reason for holding, as is done by other courts, that the fact 
 could only be proven in a court of equity, where such matters 
 are cognizable ; but our statute permits a deed absolute in form 
 to be held a mortgage upon another and different ground from 
 that of fraud, accident or mistake, namely : the intention of 
 the parties that it shall be merely a security. No gbod reason 
 c4n be shown for holding that intention may not be proved in 
 an action at law, where the title is not directly in issue."®* 
 There is much confusion in the cases owing to the fact that 
 insufficient care is exercised in giving consideration to the 
 object the parties had in view in executing and delivering the 
 instrument. The act of transferring the title, and the user 
 of the property transferred, are distinct legal ideas. Parol 
 evidence is inadmissible to vary or, contradict the former, but 
 such evidence is admissible to explain the latter. As said by 
 
 61— Baird v. Baird, 145 N. T. 63— German Ins. Co. v. Gibe, 
 659, 663. 162 III. 251, 256. 
 
 62— McMillan v. Bissell, 63 
 Mich. 66, 69, 70. 
 
248 WRITINGS. 
 
 Justice Field, "The rule which excludes parol testimony to 
 contradict or vary a written instrument has reference to the 
 language used by the parties. That cannot be qualified or 
 varied from its natural import, but must speak for itself. The 
 rule does not forbid an inquiry into the object of the parties in 
 executing and receiving the instrument. Thus, it may be 
 shown that a deed was made to defraud creditors, or to give 
 a preference, or to secure a loan, or for any other object not 
 apparent on its faee."^* 
 
 § 16. Consideration. — Extrinsic evidence is admissible to 
 show want or failure of consideration, and usually to contra- 
 dict a recital of the consideration.^^ In the latter case the re- 
 cital is treated as a mere acknowledgment or receipt which 
 may be disputed. Where, however, the statement of the con- 
 sideration constitutes an operative part of a contractual act, 
 parol evidence is inadmissible to contradict it. And whether 
 the consideration constitutes part of a contractual act or not 
 is a question for the court to determine. As stated by Justiee 
 Baker, in a recent case, "After this contract has been proved 
 and introduced in evidence, it was purely a matter of law for 
 the court to determine whether the consideration from appel- 
 lant to appellee was contractual or not. If the instrument 
 stated a contractual consideration, parol evidence was not ad- 
 missible to vary or contradict the consideration expressed; but 
 if the consideration was expressed merely as a recital of a 
 precedent or contemporaneous fact, parol evidence was receiv- 
 able to prove that the recited fact was untrue, that the recited 
 consideration was not paid at all or was paid on a different 
 account. ' '^'' Thus, in an action against a railway company for 
 
 64 — Peugh v. Davis, 96 U. S. 66 — McCrea v. Purmort, 16 
 
 332, 336. See also, Brick v. Brick, Wend. (N. Y.) 460, 467 (citing 
 
 98 U. S. 514. (In this case parol English and American decisions 
 
 evidence was held admissible to and summing them up) ; Baird v. 
 
 show that an absolute transfer of Ba:ird, 145 N. Y. 659, 40 N. B. R. 
 
 shares of stock was a pledge). 222. 
 
 65— Howell V. Moores, 127 111. 67 — Indianapolis, etc., Ry. Co. 
 
 67; Goodspeed v. Fuller, 46 Me. v. Houlihan, 157 Ind. 494, 60 N. 
 
 141, 71 Am. Dec. 572; Cardinal v. E. R. 943 (distinguishing Stew- 
 
 Hadley, 158 Mass. 352, 33 N. E. art v. Chicago, 141 Ind. 55, 40 N. 
 
 R. 575, 35 Am. St. Rep. 492; Hays E. R. 67), 
 V Peck, 107 Ind. 389. 
 
THE PAEOL EVIDENCE EULE. 249 
 
 personal injuries the defendant pleaded and introduced in evi- 
 dence a written contract releasing it from liability in consider- 
 ation of its agreement to pay certain expenses of the plaintiff, 
 and of a sum of money recited as having been paid; and the 
 court held that the consideration stated was contractual, and 
 that under a reply of no consideration parol evidence was not 
 admissible to contradict or vary the consideration expressed.*^ 
 
 § 17. Dates. — Since the date of an instrument is not re- 
 garded as an operative part of a contractual act, but as a mere- 
 ly formal part of the instrument, parol evidence is admissible 
 to show the true date of its execution and delivery, not only 
 where the instrument contains no date, but also where the 
 date given is incorrect.^^ 
 
 § 18. Meaning of phrases, words and abbreviations. — Parol 
 evidence is not admissible to explain phrases, words and ab- 
 breviations which have a common meaning and which are in- 
 telligible in the connections in which they are used. Such evi- 
 dence, however, is admissible to explain expressions which 
 have an ambiguous meaning, or which are rendered unintel- 
 ligible or ambiguous owing to the connections in which they 
 are used. Thus, parol evidence has been held admissible to 
 explain such expressions as 'barrels';™ 'current funds ';'* 
 'thousand' ;''2 'horse chains';'^* 'hard pan,'''* and the like.^^ 
 
 § 19. To identify parties or subject-matter. — Parol evidence 
 is admissible to identify the parties to a document, or to 
 identify its subject-matter. Thus, such evidence has been held 
 admissible to identify the members of a firm;'^^ to identify 
 
 68— Indianapolis, etc., Ry. Co. 72— Smith v. "Wilson, 3 B. & 
 
 V. Houlihan, supra. Add. 728. 
 
 63 — ^Abrams v. Pomeroy, 13 111. 73 — Swett v. Shumway, 102 
 
 133; Saunders v. Blythe, 112 Mo. Mass. 365, 3 Am. Rep. 471. 
 
 1, 20 S. W. R. 319; District of Co- 74— Blair v. Corby, 37 Mo. 313. 
 
 lumbia v, Camden Iron Works, 75 — See notes, 6 Am. Rep. 678, 
 
 181 U. S. 461; Shaughnessey v. 682; 6 L. R. A. 36. Also Whitney 
 
 Lewis, 130 Mass. 355; Ordeman v. v. Boardman, 118 Mass. 242; 
 
 Lawson, 49 Md. 135. Janesville Cotton Mills v. Ford, 
 
 70— Miller v. Stevens, 100 Mass. 82 Wis. 416; Grant v. Maddox, 15 
 
 518, 97 Am. Dec. 123. M. & W. 737. 
 
 71— Huse v. Hamblin, 29 la. 76— Sullivan v. Viscontl, 68 N. 
 
 501; contra: Marine Bank v. Bir- J. E. 542, 53 Atl. Rep. 598; Lind- 
 
 ney, 28 111. 90, 92. say v. Hoke, 21 Ala. 542. Sea 
 
250 WEITINQS. 
 
 legatees and devisees; '''' and, in proper cases, to identify the 
 property covered by a mortgage, and the debt secured by it. 
 But parol evidence is not admissible to contradict a descrip- 
 tion of property which is complete. ^^ 
 
 §20. To aid interpretation. — "Parol evidence is admissible, 
 in the construction of contracts, to define the nature and qual- 
 ities of the subject-matter, the situation and relations of the 
 parties, and all the circumstances, in order that the court may 
 put themselves in the place of the parties, see how the terms of 
 the instrument affect the subject-matter, and ascertain the 
 signification which ought to be given to any phrase or term 
 in the contract which is ambiguous or susceptible of more than 
 one interpretation; and this, although the result of the evi- 
 dence may be to contradict the usual meaning of terms and 
 phrases used in the contract; but if the words are clear and 
 unambiguous, a contrary intention may not be derived from 
 the circumstances."®* Thus, in the following bequests, "I 
 give and bequeath to my son "V^illiam the sum of i. x. x. To 
 my son Robert Charles the sum of o. x. x.," etc., parol evidence 
 is admissible to show the meaning of the letters i. x. x. and 
 0. X. x.^^ The testator's habit of using these letters to mean 
 certain values is an extrinsic fact which is admissible to aid the 
 court in interpreting the testator's expressed intention. It is 
 to be observed, however, that if the testator had not been in 
 the habit of using these letters to mean certain values, but had 
 merely told a party that he meant them to stand for certain 
 values, such parol evidence would be inadmissible. As stated by 
 Baron Parke, "no extrinsic evidence of the intention of the 
 party to the deed, from his declarations, whether at the time 
 of his executing the instrument or before or after that time, is 
 admissible; the duty of the court being to declare the mean- 
 also, Clark v. Houghton, 12 Gray 37; Weber v. Illing, 66 "Wis. 79; 
 (Mass.) 38; Williams v. Gillies, Payson v. Lamson, 134 Mass. 593, 
 75 N. Y. 197. 45 Am. Rep. 348, 351. 
 
 77— Gaston's Estate, 188 Pa. St. 79— Kurtz v. Hibner, 55 111. 
 374, 41 Atl. Rep. 529, 68 Am. St. 514, 8 Am. Rep. 669, and note. 
 Rep. 874 and note. See also, 80 — Brown's Parol Bvld., 179, 
 extended note in 50 Am. St. Rep. § 53. 
 285. 81— Kell v. Charmer, 23 BeaT. 
 
 78— Galen v. Brown, 22 N. Y. 195. 
 
THE PAROL EVIDENCE EXJUE. 251 
 
 ing of what is written in the instrument, not of what was in- 
 tended to have been written. "^^ rpije distinction between 
 explanatory evidence and evidence of intention, though a very 
 important one, is frequently overlooked.^^ Greenleaf says, 
 "The writing, it is true, may be read by the light of surround- 
 ing circumstances, in order more perfectly to understand the 
 intent and meaning of the parties; but, as they have consti- 
 tuted the writing to be the only outward and visible expres- 
 sion of their meaning, no other words are to be added to it, 
 or substituted in its stead. The duty of the courts in such 
 cases is to ascertain, not what the parties may have secretly 
 intended, as contradistinguished from what their words ex- 
 press, but what is the meaning of the words they have used. ' '^* 
 Taylor says, "Whatever be the nature of the document under 
 review, the object is to discover the intention of the writer as 
 evidenced by the words he has used; and, in order to do this, 
 the judge must put himself in the writer's place, and then see 
 how the terms of the instrument affect the property or subject- 
 matter. With this view, extrinsic evidence must be admissible 
 of all the circumstances surrounding the author of the instru- 
 ment. "«» 
 
 §21. An excessive description not inherently fatal. — ^It 
 sometimes happens that the subject-matter of a document, 
 after being correctly and completely described, is given a 
 superadded and incorrect description. In such cases the lat- 
 ter description may be rejected as surplusage. As said by 
 Chief Justice Caton, "If I give a bill of sale of my black horses, 
 and describe them as being now in my barn, I shall not avoid 
 it by showing that the horses were in the pasture or on the 
 road. The description of the horses being sufficient to enable 
 witnesses acquainted with my stock to identify them, the lo- 
 cality specified would be rejected as surplusage. Nor is this 
 rule confined to personal property. It is equally applicable to 
 real estate. If I sell an estate, and describe it as my dwelling 
 house in which I now reside, situate in the city of Ottawa, I 
 shall not avoid the deed by showing that my residence was 
 
 82— Shore v. Wilson, 9 CI. & F. 84—1 Greenl. on Evld. § 277. 
 
 555. 85— Taylor on Byld., § 1082. 
 
 83 — Thayer's Prelim. Treat, on 
 Evid. 444, 4Ti)-482. 
 
252 WRITINGS. 
 
 outside the city limits. So if a deed describe lands by its cor- 
 rect numbers, and further describe it as being situated in a 
 wrong county, the latter is rejected. The rule is, that where 
 there are two descriptions in a deed, the one, as it were, super- 
 added to the other, and one description being complete and 
 sufficient of itself, and the other, which is subordinate and 
 superadded, is incorrect, the incorrect description, or feature 
 or circumstance of the description, is rejected as surplusage, 
 and the complete and correct description is allowed to stand 
 alone. "8® Lord Bacon says, "There be three degrees of cer- 
 tainty — presence, name and demonstration or reference- 
 whereof the presence, the law holdeth of greatest dignity; the 
 name in the second degree, and the demonstration or reference 
 in the lowest; and always error or falsity in the less worthy 
 shall not control nor frustrate sufficient certainty and verity 
 in the more worthy. "^^ Thus, the maxim applicable in such 
 cases is Falsa demonstratis non nocet. 
 
 § 22. To rebut or support an equity. — Cases arise in which 
 parol evidence is admissible to 'rebut an equity.' That is, 
 parol evidence is admissible to rebut a disputable presumption 
 of law raised by principles of equity against the apparent in- 
 tention of the parties as expressed in a document. As stated 
 by Lord Bacon, "Also to oust an implication, and rebut an 
 equity, parol evidence has been admitted to explain the inten- 
 tion of the testator ; as where a man devises particular legacies 
 to his executors and makes no disposition of the surplus of his 
 estate; in this case, according to the notions of the courts of 
 
 86 — Myers v. Ladd, 26 111. 415, Atl. R. 489 (deed erroneous as to 
 
 417. county, admitted) ; Scates v. Hen- 
 
 87 — Bacon's Maxims of the derson, 44 S. C. 548, 22 S. B. R. 
 
 Ijaw, XXIV. (Works, Spedding's 724 (boundary of one side of lot 
 
 ed.. Vol. XIV., D. 267). The max- incorrectly described; incorrect 
 
 im stated in the text is applicable description rejected as surplus- 
 
 not only to wills and deeds but age) ; Donehoo v. Johnson, 113 
 
 also to contracts. See New York Ala. 126, 21 So. R. 70, 24 So. R. 
 
 Life Ins. Co. v. Aitkin, 125 N. Y. 888 (In this case the court im- 
 
 661. For further illustrations of properly rejected the principle, 
 
 the principle see Wiseman v. The word "northwest" had by 
 
 Green, 127 N. C. 288, 37 S. E. R. mistake been inserted instead of 
 
 272 ('west' read 'east'); Silliman "northeast"). 
 V. Whitmer, 196 Pa. St. 363, 46 
 
THE PABOL EVIDENCE KULE. 253 
 
 equity, the executors shall be only trustees for the next of 
 kin; but to rebut this equity, which arises by implication only, 
 the executors have been allowed to prove by parol evidence 
 that the testator designed them the surplus. ' '** And as stated 
 by Greenleaf, "In certain cases of presumptions of law, also, 
 parol evidence is admitted in equity to rebut them. But here 
 a distinction is to be observed between those presumptions 
 which constitute the settled rules of construction of instru- 
 ments, or in other words, conclusive presumptions, where the 
 construction is in favor of the instrument, by giving to the lan- 
 guage its plain and literal effect, and those presumptions 
 which are raised against the instrument, imputing to the lan- 
 guage, prima facie, a meaning different from its literal import. 
 In the latter class of cases parol evidence is admissible to rebut 
 the presumption and give full effect to the language of the in- 
 strument, but in the former class, where the law conclusively 
 determines the construction, parol evidence is not admissible 
 to contradict or avoid it."**' It is to be observed, therefore, 
 that parol evidence is admissible to rebut a disputable pre- 
 sumption of law, but not a conclusive one. Thus, where two 
 legacies, of like terms and motives, are bequeathed to the same 
 party by the same testator, in different instruments, a dis- 
 putable presumption of law is raised that the legacies are 
 not cumulative; and parol evidence is admissible to rebut this 
 presumption. The effect of the parol evidence in such a case 
 is not to show that the testator did not mean what the will 
 states, but rather to show that he did mean what it states. As 
 said by Vice-Chancellor Plumer, in an English case.^" "In 
 some cases, courts of equity raise a presumption against the 
 apparent intention of a testamentary instrument, and there 
 they will receive evidence to repel that presumption; for the 
 effect of such testimony is not to show that the testator did 
 not mean what he has said, but, on the contrary, to prove that 
 he did mean what he has expressed. Thus, where the court 
 raises the presumption against the intention of a double gift, 
 by reason that the sums and motives are the same in both in- 
 
 88 — 2 Bacon's Abr. (1st ed. 90 — Hurst v. Beach, 5 Madd. 
 1736) 309. 351 (1821). 
 
 89—3 Greenleaf on Evid. §366. 
 
254 WKITINQS. 
 
 struments, it will receive evidence that the testator actually 
 intended the double gift he has expressed." It is to be ob- 
 served, however, that, to render the parol evidence admissible, 
 both the motive and the amount of the legacy in each case must 
 be the same. If they differ in either respect the parol evidence 
 is inadmissible, for the reason that in such a case no presump- 
 tion is raised to be rebutted. Moreover, it is essential to the 
 admissibility of the parol evidence that the motive in each case 
 be expressed, as well as the amount. As said by Vice-Chan- 
 cellor Plumer, in the case cited in foot-note 90, "Where a tes- 
 tator leaves two testamentary instruments, and in both has 
 given a legacy simpliciter to the same person, the court, con- 
 sidering that he who has twice given, must, prima facie, be in- 
 tended to mean two gifts, awards to the legatee both legacies; 
 and it is indifferent whether the second legacy is of the same 
 amount, or less, or larger, than the first. But if in such two 
 instruments the legacies are not given simpliciter, but the mo- 
 tive of the gift is expressed, and in both instruments the same 
 motive is expressed, and the same sum is given, the court con- 
 siders these two coincidences as raising a presumption, that the 
 testator did not by the second instrument mean a second gift, 
 but meant only a repetition of the former gift. The court 
 raises this presumption only where the double coincidence 
 occurs, of the same motive, and the same sum, in both instru- 
 ments. It will not raise it, if in either instrument there be 
 no motive, or a different motive, expressed, although the sums 
 be the same ; nor will it raise it, if the same motive be expressed 
 in both instruments, and the sums be different." Again, not 
 only is parol evidence admissible, in a proper case, to reiut an 
 equity, but such evidence is also admissible, in a proper case, 
 to support an equity. It is to be observed, however, that parol 
 evidence is not admissible for the latter purpose unless such 
 evidence has first been introduced to rebut the equity. The 
 two reasons for this rule are, (1) Unless the presumption 
 raised be rebutted, parol evidence to support it would be un- 
 necessary; (2) Its effect, if any, would be to contradict the lan- 
 guage of the document. As stated in an English case,^* "The 
 
 91 — Palmer v. Newell, 20 Beav. Humphreys, 15 Pick. (Mass.) 133, 
 32, 8 De G. M. & G. 74, 24 L. J. 139; Reynolds v. Robinson, 82 
 Ch. 424. See also Richards v. N. Y. 103, 107. 
 
THE PAEOL EVIDENCE EULE. ^5 
 
 evidence on either side is admissible, not for the purpose of 
 proving, in the first instance with what intent the writing was 
 made, but simply with the view of ascertaining whether the 
 presumption, which the law has raised, is well or ill-founded. 
 But, in the absence of evidence to countervail the presumption, 
 no parol evidence in support of it can be adduced. In the first 
 place, such evidence would be unnecessary, and next, its ef- 
 fect, if it had any, would be to contradict the language of the 
 instrument. If, therefore, the circumstances are on the face of 
 the instrument such as to rebut the presumption drawn by 
 the law, or if the court does not raise any presumption at all, 
 parol evidence to fortify the presumption in the one case, or to 
 create it in the other, will be alike inadmissible; because, in 
 either event, the effect would be to contradict the apparent 
 meaning of the writing." 
 
 §23. To establish a resulting trust. — ^Parol evidence is ad- 
 missible to establish a resulting trust. A resulting trust is not 
 created by the agreement of the parties, but by implication of 
 law apart from the agreement. • It springs from the acts of the 
 parties and not from their contract.^^ As said by Justice Ma- 
 gruder, "When the two facts, to-wit: payment of the purchase 
 money by one, and conveyance of the title thereby purchased 
 to another, are found to exist, then the law so construes those 
 two facts as to make them constitute a resulting trust, and, 
 for this reason, such a trust is said to arise by operation of law. 
 . . . Since the whole foundation of resulting trusts of this 
 class is the ownership and payment of the purchase money by 
 one when the title is taken in the name of another, it follows 
 that such trusts may be established by parol evidence. "'^ The 
 parol evidence in such cases is not admitted to contradict the 
 language of the contract, or its legal import ; but to show that 
 the party holding the legal title is a trustee of the property 
 transferred. And where the legal title to real property, pur- 
 chased in a partnership transaction, is taken in the name of 
 one or more of the partnera, a resulting trust is created in 
 
 92—1 Perry on Trusts, § 134; kirk, 148 111. 8, 19. See also, 
 Donlin v. Bradley, 119 111. 142. Springer v. Kroeschell, 161 111. 
 93— Van Buskirk v. VaJl Bus- 358, 362. 
 
256 WRITINGS. 
 
 favor of the firm, which may be established by parol evi- 
 denee.8* 
 
 § 24. To show alteration of a document. — Parol evidence 
 is admissible to show that a certain document has been altered. 
 Such evidence is also admissible to show by whom, when and 
 the purpose for which such alteration was made. In all such 
 cases the Parol Evidence Rule has no application.** 
 
 §25. To show fraud, duress and undue influence. — Parol 
 evidence is admissible to show fraud, duress and undue in- 
 fluence. The purpose of the parol evidence in such cases is 
 not to contradict the terms of the document, but to show quali- 
 fying circumstances pertaining to the formation of it with the 
 view of having it set aside. The courts generally allow a wide 
 scope in admitting parol evidence in such cases.*® 
 
 § 26. To shxjw accident and mistake. — Parol evidence is also 
 admissible to show accident and mistake. Such evidence is 
 frequently admitted in courts of equity where the object 
 sought is the correction or reformation of a document where 
 there has been a mutual mistake of fact in reducing the agree- 
 ment to writing.*^ 
 
 § 27. To show illegality and incapacity. — Parol evidence is 
 always admissible to show illegality. Thus, such evidence is 
 admissible to show that a written contract never had a legal 
 existence, owing to the fact that it is against public policy, or 
 expressly forbidden by law, or supported by an illegal consid- 
 eration such as a gambling debt, or made in furtherance of 
 an unlawful enterprise.^ Parol evidence is also admissible to 
 show incapacity to make a contract. Thus, such evidence is 
 
 94— Kringle v. Rhomberg, 120 523; Smith's Will, 95 N. Y. 516, 
 
 la. 472, 478. 523; Mackall v. Mackall, 135 U. 
 
 95— MeNail v. Welch, 125 111. S. 167; Snyder v. Free, 114 Mo. 
 
 623; Lee v. Butler, 167 Mass. 426; 360. 
 
 Richards v. Day, 137 N. Y. 183; 97 — Lycoming F. Ins. Co. v. 
 
 Kranich v. Sherwood, 92 Mich. Jackson, 83 111. 302; Grlswold v. 
 
 397. Hazard, 141 U. S. 260; Silbar v. 
 
 96 — Razor v. Razor, 142 111. Ryder, 63 Wis. 106. 
 
 375; Antle v. Sexton, 137 111. 410; 1— Sherman v. Wilder, 106 
 
 Tyler v. Anderson, 106 Ind. 185; Mass. 537; Ferguson v. Sutphen, 
 
 Chandler v. Von Roeder, 65 TJ. S. 8 111.. 547. 
 224; Gilmor's Est, 154 Pa. St. 
 
THE PAROL EVIDENCE RULE. 257 
 
 admissible to defeat an action on a written contract by show- 
 ing insanity ,2 gross intoxication,* or infancy;* and in some 
 cases by showing coverture.® The introduction of parol evi- 
 dence for such purposes does not violate the Parol Evidence 
 Rule. 
 
 §28. To explain an ambiguity. To interpret an equivoca- 
 tion. — Concerning few subjects is there more confusion in the 
 decisions than exists in regard to the admissibility of parol 
 evidence to explain an ambiguity. There is confusion as to 
 what constitutes an ambiguity, and still more confusion a,i to 
 the circumstances which must exist to justify admitting parol 
 evidence to explain it. But, when properly understood, tlie 
 subject is comparatively free from difficulty, and the rules ap- 
 plicable to it are few and simple. 
 
 § 29. Same. Lord Bacon's view. — "There be two sorts of am- 
 biguities of words ; the one is ambiguitas patens and the other 
 latens. Patens is that which appears to be ambiguous upon the 
 deed or instrument; latens is that which seemeth certain and 
 without ambiguity, for anything that appeareth upon the deed 
 or instrument; but there is some collateral matter out of the 
 deed that breedeth the ambiguity. Ambiguitas patens is never 
 holpen by averment; and the reason is, because the law will 
 not couple and mingle matter of specialty, which is of the 
 higher account, with matters of averment, which is of inferior 
 account in law ; for that we were to make all deeds holl6w and 
 subject to averments, and so, in effect, that to pass without 
 deed which the law appointeth shall not pass but by deed."® 
 Based upon this view, it has very frequently been said that 
 parol evidence is admissible to explain a latent ambiguity, but 
 not to explain a patent one. This statement, however, is al- 
 together too broad, and quite misleading. Parol evidence is 
 
 2— Deu V. Clark, 10 N. J. L. 6— Circa 1597, Sir Francis Ba- 
 
 258; Mitchell v. Kingman, 5 con, Maxims, rule XXV. (Works, 
 
 Pick. (Mass.) 431. Spedding's ed., 1861, Vol. XIV., 
 
 3 — Prentice v. Achorn, 2 Paige p. 273). See also. Bacon's Law 
 
 Oh. (N. Y.) 30. Tracts, pp. 99, 100; Bacon's Max. 
 
 4 — ^Van Vaikenburgh v. Rouk. Reg. 23, 25; Brown's Leg. Max. 
 
 12 Johns. (N. Y.) 338. 608 et seq. 
 
 5 — Dale v. Roosevelt, 9 Cow. 
 (N. Y.) 307. 
 17 
 
258 -WEiTrNGS. 
 
 admissible to explain a patent ambiguity, except in the one 
 case of declarations of intention. 
 
 §30. Same. Chaplin's view. — "To sum up, then, extrinsic 
 evidence may be given to translate, or decipher, or to show the 
 facts relating to the person claiming or the thing claimed, un- 
 der the will. Next, where there is any ambiguity, that is any 
 double meaning, it is either patent or latent. If patent, the 
 underlying facts may be shown in order to put the judge, so 
 to speak, into the atmosphere surrounding the testator. If, in 
 the light of these facts the term used is sensible, it must be ap- 
 plied without any direct evidence of intent; if insensible, the 
 provision must fail. If latent, then in all the cases the under- 
 lying facts may here also be shown. If iu their light the mean- 
 ing is sufficiently clear to satisfy the mind of the judge, it must 
 be applied ; if still insensible, the provision fails. Thus far the 
 rules concerning latent and patent ambiguities are alike. In 
 the one particular class of latent ambiguities known as equivo- 
 cations, already described, further extrinsic evidence of in- 
 tent is admitted. Thus, it appears that extrinsic evidence of 
 the facts is admitted in all eases of both latent and patent am- 
 biguities, while extrinsic direct evidence of intent is admissible 
 in only one class of latent ambiguities. And this is all there is 
 in the rule concerning latent and patent ambiguities."' The 
 foregoing summing up is a correct and lucid exposition of the 
 law upon this much-abused subject. 
 
 §31. Same. Underbill's view. — "In every case the court 
 is entitled to be placed in possession of all the information 
 which is available of the circumstances of the estate and fam- 
 ily of the testator when he made his will, to the end that the 
 court may be in his situation as nearly as may be, and may 
 interpret and understand the will as he would if he were living. 
 When the evidence of extrinsic circumstances is all in, it may 
 appear that a description in the will which was intended by 
 the testator to apply to one object or thing is applicable, with 
 more or less certainty, to several objects or things. This is a 
 case of latent ambiguity, and parol evidence is then received 
 
 7 — Chaplin's Principles of the Law of Wills, as quoted in 
 Browne's Parol Bvld. 438. 
 
THE PABOL EVIDENCE RULE. 259 
 
 to ascertain which person or thing was intended by the tes- 
 tator. Where the ambiguity is latent, it is created by evidence 
 of extrinsic facts, and the same evidence is admissible to re- 
 move it. But such evidence is not direct evidence of inten- 
 tion, and if the rule in relation to the reception of parol evi- 
 dence to solve latent ambiguities permitted the introduction of 
 such evidence only, it would not require a separate discussion, 
 as it would be synonymous with the rule that extrinsic facts 
 are always admissible to explain the language of the will, re- 
 gardless of the nature of the ambiguity, whether it be patent 
 or latent. The principle goes much further than this. It is 
 not to be confined to the admission of facts appertaining solely 
 to the circumstances of the testator, and which merely tend to 
 show the meaning of his words. Under it, evidence showing or 
 suggesting a direct inference of intention as to the things or 
 objects disposed of in the will, including the testator's declara- 
 tions of intention uttered at the execution of the will, 
 and, according to some of the cases, subsequently thereto, are 
 received to assist the court in disposing of the latent am- 
 biguity, by showing which of several persons or things answer- 
 ing to the description was intended by the testator. Hence, it 
 will be seen that there may be, and usually is, an essential and 
 radical difference between the evidence which raises or creates 
 the latent ambiguity, i. e., proof of extrinsic circumstances of 
 the case, and the evidence which removes it or explains it, and 
 which may be declarations of the intention of the testator as 
 well as evidence of circumstances."* 
 
 §32. Declarations O'f intention. Equivocation. — Declara- 
 tions of intention, pertaining to the subject-matter of a docu- 
 ment, are, with one exception, inadmissible. The one excep- 
 tion is the case of an equivocation. An equivocation is a term 
 in a document, which, upon application to external objects, is 
 found to fit two or more of them equally. In applying the ex- 
 ception, however, the courts do not agree. As said by Justice 
 Brace, in a recent decision, "There is much conflict of judi- 
 cial opinion on the subject. The cases are numerous and irre- 
 concilable."^ ' 
 
 8—2 Underbill on the Law of 9— Willard v. Darrah, 168 Mo. 
 Wills, §'910. 660, 668 (1902). 
 
260 WRITINGS. 
 
 §33. Same. Schauler's view. — "The two classes of eases, 
 then, in which direct evidence dehors the will appears admis- 
 sible to show the testator's intention, are these: (1) Where 
 the person or thing, the object or subject of the disposition, is 
 described in terms which are applicable indifEerently to more 
 than one person or thing. (2) Where the description of the 
 person or thing is partly correct and partly incorrect, and the 
 correct part leaves something equivocal. Or, perhaps, to 
 take a broader view of the subject, extrinsic evidence of inten- 
 tion may be admitted whenever the instrument is insufBciently 
 expressed or applied in terms so as to raise a doubt of the ob- 
 ject or subject intended, and in order to give the disposition 
 effect, that doubt must be cleared and the insufficiency sup- 
 plied. On the other hand, such extraneous proof should be 
 ruled out, whenever its tendency is to establish an intention 
 different in essence from what the will expresses on its own 
 face ; for when admissible it is in aid of the testator's expressed 
 intention, not against it.''^'' The conflict of judicial opinion, 
 stated by Justice Brace, and quoted in the section next pre- 
 ceding, pertains to the latter of these two classes of cases. As 
 regards the former class, the decisions are entirely harmonious. 
 
 § 34. Same. Underbill's view.-— "It is not necessary in order 
 that parol evidence may be received, that the description in 
 the will shall apply precisely and in every respect to two or 
 more persons or things. In some cases where the rule has 
 been invoked, two persons of exactly the same name, or an- 
 swering precisely the same description, have claimed. But the 
 law requires only that the testamentary description shall apply 
 to the several objects with legal certainty, so that the mind 
 of the court is satisfied. The description, whether by name, 
 locality or occupation, must be sufficient to fairly satisfy the 
 court that the testator may have meant either of the several 
 persons or things which are revealed by the extrinsic evidence. 
 . . . Thus, if a benefit is claimed by several persons, all answer- 
 ing the description of the will in one or more material particu- 
 lars, though none of them answers to it perfectly and accur- 
 ately in ever;^ particular, extrinsic evidence is received, includ- 
 ing expressions of intentions. "^^ 
 
 10— Schouler on Wills (3rd ed.) 11 — 2 Underbill on the Law of 
 §576. Wills, § 910. 
 
THE PAROL EVIDENCE RULE. 261 
 
 § 35. The much-considered case of Miller v. Travers. — In the 
 
 nmeh-considered case of Miller v. Travers/^ Chief Justice Tin- 
 dal recognizes two separate classes of latent ambiguities. In 
 describing these classes he says, "The first class is, where the 
 description of the thing devised, or of the devisee, is clear 
 upon the face of the will ; but upon the death of the testator it 
 is found that there are more than one estate or subject-matter 
 of devise, or more than one person whose description follows 
 out and fills the words used in the will. As where the tes- 
 tator devises his manor of Dale, and at his death it is found 
 that he has two manors of that name. South Dale and North 
 Dale ; or where a man devises to his son John, and he has two 
 sons of that name. In each of these cases respectively parol 
 evidence is admissible to show which manor was intended to 
 pass and which son was intended to take. The other class of 
 cases is that in which the description contained in the will of 
 the thing intended to be devised, or of the person who is in- 
 tended to take, is true in part, but not true in every particular. 
 As where an estate is devised called A., and is described as in 
 the occupation of B., and it is found, that though there is an 
 estate called A., yet the whole is not in B's occupation; or 
 where an estate is devised to a person whose surname or Chris- 
 tian name is mistaken ; or whose description is imperfect or in- 
 accurate; in which latter class of eases parol evidence is ad- 
 missible to show what estate was intended to pass, and who 
 was the devisee intended to take, provided there is sufScient 
 indication of intention appearing on the face of the will to jus- 
 tify the application of the evidence. ' ' 
 
 § 36. The paradoxical case of Doe v. Hiscocks. — The ease of 
 Doe V. Hiscocks^* was an action in ejectment, and the decision 
 turned upon a devise to "my grandson John Hiscocks, eldest 
 son of the said John Hiscocks. ' ' There were two sons, — Simon 
 by the first wife, and John bj' the second wife. The descrip- 
 tion, therefore, did not exactly apply to either son; and the 
 question was, whether declarations of intention of the testa- 
 tor were admissible to explain which son he meant. Lord* 
 Abinger excluded the declarations, and in doing so said: "Now, 
 
 12—8 Bing. 244 (1833). 13—5 M. & W. 363 (1839). 
 
262 WRITINGS. 
 
 there is but one ease in which it appears to us that this sort 
 of evidence of intention (declarations of the testator) can 
 properly be admitted, and that is, where the meaning of the 
 testators words is neither ambiguous nor obscure, and 
 where the devise is on the face of it perfect and intelligible, 
 but, from some of the circumstances admitted in proof, an 
 ambiguity arises as to which of the two or more things, or 
 which of the two or more persons (each answering the words 
 in the will), the testator intended to express. . . . 
 But these cases (referring to several citations given) seem to 
 us at variance with the decision in Miller v. Traverse, 8 Bing. 
 244; 1 M. & Scott, 342, which is a decision entitled to great 
 weight. . . . We are prepared on this point (the point in judg- 
 ment in the ease of Miller v. Traverse, 8 Bing. 244; 1 M. & 
 Scott, 342) to adhere to the authority of that case." It is to 
 be observed, therefore, that Lord Abinger evidently believed 
 that the decision in Doe v. Hiscocks was in harmony with the 
 decision in Miller v. Travers. In point of fact, however, the 
 decision in the former case overruled the second part of the rule 
 laid down in the latter case. 
 
 § 37. Effect of Doe v. Hiscacks.— The effect of Doe v. His- 
 cocks has been, (1) To limit the admissibility of declarations of 
 intention made by a testator to the one class of cases, — "where 
 the person or thing, the object or subject of the disposition, is 
 described in terms which are applicable indifferently to more 
 than one person or thing"; and (2) To exclude such declara- 
 tions "where the description of the person or thing is partly 
 correct and partly incorrect, and the correct part leaves some- 
 thing equivocal." In England, while it has met with some ad- 
 verse criticism, it has been quite generally followed; and repre- 
 sents the law upon the subject in that country to-day.^* In the 
 United States, it has not met with so generous an approval; 
 nor does it represent the American rule. While there is much 
 confusion upon the subject in the American decisions, the 
 weight of authority is against it, and in harmony with Miller v. 
 
 14 — Chappell's Goods, Probate, . . . are probably not ad- 
 98 ("declarations of the testator missible"). 
 
THE PAEOL EVIDENCE RULE. 263 
 
 Traverse.15 In Illinois, the decision in Miller v. Traverse is 
 fully approved.i^ As reg-ards the text-book writers, some of 
 them, including Professor Thayer, favor Doe v. Hiscocks, while 
 others, including Prof. Wigmore, favor Miller v. Traverse. 
 
 §38. Rule applicable to the legal import of a document. 
 ^The Parol Evidence Rule is applicable not only to the ex- 
 press terms of a document, but also to its legal import.^^ 
 Thus, in a written contract which is silent as to the time of its 
 performance, the law implies that it is to be performed within 
 a reasonable time; and parol evidence is inadmissible to con- 
 tradict it.*^ It may be shown, however, by parol evidence 
 what constitutes a reasonable time. Again, where a person 
 is obligated in general terms in writing to pay another a sum 
 of money, parol evidence is inadmissible to show that payment 
 is to be made out of a particular fund.^^ 
 
 § 39. Rule not applicable to subsequent parol agreements. — 
 The Parol Evidence Rule is not applicable to a subsequent 
 parol agreement where the original written agreement is not 
 imder seal. Parties to an executory bilateral contract may, at 
 any time before a breach thereof, annul or vary it ; and where 
 the original contract is not under seal, the subsequent agree- 
 ment may be oral or written. This is owing to the fact that 
 an oral contract is not inferior in its nature to a written one 
 not under seal. Both are simple contracts. It follows, there- 
 fore, that parol evidence is admissible to prove the subsequent 
 contract. As stated by Mr. Freeman, "The rule forbidding 
 the introduction of parol evidence to contradict, add to, or 
 vary a writing, has no application to stipulations or agree- 
 ments made between the parties subsequent to the execution 
 of the written instrument. Agreements not by specialty, 
 whether written or unwritten, are of the same grade and dig- 
 nity in law, and are denominated simple contracts. Hence, 
 it follows that to admit evidence of a subsequent parol agree- 
 
 15 — Willard v. Darrah, 168 Mo. 18 — Harrow Spring Co. v. 
 
 660, 668. Whipple Harrow Co., 90 Mlcb. 
 
 16— Decker v. Decker, 121 111. 147, 30 Am. St. Rep. 421. 
 
 341, 12 N. B. R. 750. 19 — Mumford v. Tolman, 157 
 
 17— Johnson v. Glover, 121 111. 111. 258; Murchie v. Peck, 160 111. 
 
 283; Driver v. Ford, 90 111. 595. 175. 
 
264 WKITINGS. 
 
 ment, for the purpose of showing an abandonment, discharge, 
 or alteration of the terms of a previous written agreement not 
 under seal, would not be to affect or dissolve the agreement 
 by matter of an inferior nature. And, therefore, it is generally 
 admitted that it is competent for the parties to an executory 
 written contract not under seal, at any time before breach 
 thereof, by a subsequent verbal agreement, founded on a suf- 
 ficient consideration, either to waive altogether, or dissolve, 
 or annul the previous written agreement, or in any. manner to 
 add to, subtract from, or vary or qualify the stipulations of 
 such agreement, and thus to make a new or different eon- 
 tract, which may be proved by parol, whether it is a substi- 
 tute for the old, or in addition to, or beyond it. ' '^° 
 
 § 40. Rule not applicable to strangers to the document,— 
 It remains to observe that the Parol Evidence Rule does not 
 operate against strangers to the instrument, except where its 
 enforcement is the gravamen of the action.^i Even in an ac- 
 tion between a stranger and one of the parties to the instru- 
 ment it has no application.^^ But where a person, not a party 
 to a document, bases his claim upon it, and seeks to make it 
 serve him in an action against a party to it, he is estopped 
 from contradicting it by parol evidence. Thus, where a person 
 introduces in evidence a chattel mortgage to which he is not 
 a party, and relies upon it to defeat his adversary, he has no 
 more right to introduce parol evidence to vary or contradict 
 its terms than he would have were he a party to the instru- 
 ment.2^ 
 
 20 — ^Note to Harris v. Murphy, Hawkinson v. Vantine, 152 N. Y. 
 56 Am. St. Rep. 656, 662. 20. 
 
 21 — Northern Assur. Co. v. 22 — Chicago, etc., Ry. Co. v. 
 Chicago, etc., Assoc, 198 111. 474; Beach, 29 111. App. 157. 
 Harts V. Emery, 184 111. 560; 23— Schultz v. Plankinton, 141 
 
 111. 116. 
 
PART V. 
 
 WITNESSES. 
 
 CHAPTER I. 
 
 COMPETENCY. 
 
 §1. Definitions. — ^A witness, in the legal sense, is a person 
 who appears before a court or judicial officer, is sworn or af- 
 firmed, and is then orally examined touchiag certain matters 
 which are under judicial investigation. The term competency 
 as applied to a witness, signifies his legal fitness to give evi- 
 dence. Thus, a competent witness is a person who is legally 
 qualified to testify in a cause. The term competent is also ap- 
 plicable to documents. As a general rule, the term witness is 
 not applied to documents, but there are exceptions to this 
 rule.^ 
 
 § 2. Competency v. Credibility. — The terms competency and 
 credibility are not synonymous. A competent witness may 
 testify and his evidence be wholly disbelieved; while, on the 
 other hand, a perfectly credible witness may be utterly in- 
 competent. The question of the competency of a witness is a 
 preliminary question of fact for the court to determine ; while 
 the question of the credibility of a witness is a question for the 
 jury to pass upon. When a person is called as a witness he 
 is always presumed to be competent. 
 
 § 3. Persons disqiialified at common law. — At common law 
 the following classes of persons were incompetent to testify: 
 (1) Parties to the record; (2) Persons peeuniarly interested; 
 
 (3) Persons mentally incompetent, or otherwise incapacitated: 
 
 (4) Persons convicted of infajnous crimes; (5) Persons who 
 lacked in religious belief; (6) The husband or wife of a party 
 to the suit, except where a crime was charged by one spouse 
 against the other. 
 
 1— M'Chesney v. Lansing, 18 Johns. (N. Y.) 388. 
 
 265 
 
266 WITKESSKS. 
 
 § 4. Parties to the record. — ^At common law, parties to the 
 record were incompetent witnesses.^ They could not testify in 
 their own behalf, nor could they be compelled to testify against 
 themselves. This rule was based upon the interest of the par- 
 ties and the temptation to commit perjury. Where there were 
 several co-suitors one could not become a witness for the ad- 
 verse party without the consent of his associates; and where 
 a party to the record was merely a nominal party he could not 
 become a witness for the adverse party without the consent 
 of the real party in interest. There were, however, a few rec- 
 ognized exceptions to this general rule. Thus, in an action 
 against a common carrier or innkeeper for the loss of baggage 
 the plaintiff was a competent witness to testify to the articles 
 lost and their value, provided no other evidence was obtainable 
 upon these points, and provided the liability of the bailee was 
 first established by other evidence.^ In equity, the rule was 
 less rigid than at common law; but, as a general rule, it was 
 enforced in equity as well as at common law.* By statutes gen- 
 erally, both in England and in this country, the rule exchnling 
 parties to the record from testifying has been abolished, except 
 that in England it still obtains in criminal cases.^ 
 
 § 5. Persons pecuniai-ly interested. — Persons pecuniarly in- 
 terested in the result of the suit, or in the record as an instru- 
 ment of evidence, were incompetent witnesses at common law. 
 
 2— Marks v. Butler, 24 111. 568 land, 24 111.. 323; Adams Ex. Co. 
 (In this case Justice Walker says, v. Haynes, 42 111. 90. 
 "There is no question better set- 4 — Mixell v. Lutz, 34 111. 382, 
 tied than that a party to the rec- 388 (In this case, Chief Justice 
 ord in a common law cause, is Walker says, "The practice, how- 
 incompetent as a witness on the ever, in a court of chancery has 
 trial. The exceptions to this rule never authorized the complain, 
 are rare and independent of statu- ant to testify in his own behalf 
 tory enactment, it is believed but any more than at law"), 
 few exist The rule is so Inflex- 5 — Reg. v. Payne, L. R. 1 Crown 
 ibly established, that it is wholly Gas. 349, 355 (It is held in this 
 unnecessp.ry to refer to principles, case that one jointly indicted 
 or to adduce authorities in its with others is incompetent to tea- 
 support"), tify for or against his confeder- 
 
 3 — Parmelee v. McNulty, 19 111. ates where all are upon trial for 
 
 556; 111. Cent. Ry. Co. v. Cope- the same offense). See also, Ste- 
 phen's Dig. of Evid. art. 108. 
 
COMPETENCY. 267 
 
 To render witnesses disqualified, it was essential that the in- 
 terest be a legal, certain, direct, present and vested one. A 
 mere contingent, remote or social interest was not sufficient. 
 Moreover, the witness must have appeared to be interested 
 in favor of the party who called him.^ If his interest pre- 
 ponderated against the party who called him he was competent 
 to testify ; and even where his interest in the party who called 
 him was not greater than it was in the adverse party he was 
 a competent witness. As said by Justice Treat, "It does not 
 follow, because a witness is interested in the event of a suit that 
 he is incompetent to testify. If his interest is favorable to 
 the party calling him, he is incompetent; otherwise, where his 
 interest is balanced, or adverse to the party who introduced 
 him."'' The degree of the interest was immaterial, provided 
 it was real. Mere belief of the witness, however, that he was 
 morally under obligation to testify on behalf of the party who 
 called him, did not render him incompetent.* Nor did a mere 
 circuity of interest disqualify him. Thus, where a witness 
 was liable to a third party who was liable to the party who 
 called him, the witness was not incompetent.® But, where a 
 witness who, in the event of a judgment being rendered 
 against the defendant, would be liable to her for nearly the 
 amount of the judgment, the witness was held incompetent.^" 
 Mere declarations of a witness that he was materially inter- 
 ested in the result of a suit did not render him incompetent to 
 testify. Nor did mere expectation of deriving some material 
 advantage from the result disqualify him.12 An interest that 
 was doubtful or contingent affected the credibility of the wit- 
 ness in some cases but not his competency.i^ Greenleaf says, 
 ' ' The true test of the interest of a witness is that he will either 
 gain or lose by the direct legal operation and effect of the 
 judgment, or that the record will be legal evidence for or 
 
 6— Sims V. Givan, 2 Blackf. 9— Com. v. Allen, 30 Pa. St. 49. 
 
 (Ind.) 461. 10— Mason v. Jones, 36 111. 212. 
 
 7 — Stokes V. Kane, 4 Scam. 11 — George v. Stubbs, 26 Me. 
 
 (111.) 167. See also, Cadwell v. 243. 
 
 Meek, 17 111. 220; Kennedy v. 12 — Coghill v. Boring, 15 Gal. 
 
 Evans, 31 111. 258; Smalley v. 213. 
 
 Ellet, 136 111. 500. 13— Scull v. Mason, 43 Pa. St. 
 
 8— Frink v. McClung, '9 111. 569. 99; Cutter v. Fanning, 2 la. 580. 
 
268 WITNESSES. 
 
 against him in some other action. It must be a present, certain 
 and vested interest, and not an interest, uncertain, remote, or 
 contingent. ' 'i* Justice Taylor, in a comparatively recent ease, 
 says, "Under the common law the interest, in order to exclude 
 a witness, must have been some legal, certain, and immediate 
 interest, however minute, in the result of the cause, or in the 
 record as an instrument of evidence. Where actual gain or 
 loss would result simply and immediately from the verdict and 
 judgment, the witness was deemed incompetent by reason of 
 his interest; as, where he was a party, though but a nominal 
 party, to the suit; or was a party in beneficial interest, or 
 quasi a party, from having entered into a rule of court or 
 agreement that another cause, to which he was a party, should 
 abide the same result with that in whicji he proposed to give 
 evidence. A witness was also incompetent by the common 
 law where the record would, if his party succeeded, be evidence 
 of some matter of fact to entitle him to a legal advantage, or 
 repel a legal liability. "^^ On the other hand, an interest in 
 the question which did not involve an interest in the event of 
 the suit did not disqualify the witness. As said by Justice 
 Storyj"It is perfectly clear, that a person having an interest 
 only in the question, and not in the event of the suit, is a 
 competent witness; and in general, the liability of a witness 
 to a like action, or his standing in the same predicament, with 
 the party sued, if the verdict cannot be given in evidence for 
 or against him, is an interest in the question, and does not 
 exclude him."^^ 
 
 "Where a witness voluntarily acquired an interest in the 
 event of a suit for the purpose of depriving the party who 
 called him of the benefit of his testimony, he was not disquali- 
 fied ; but where the interest was acquired by operation of law 
 he was.^'' 
 
 At the common law there were many classes of persons who 
 were disqualified as witnesses on the ground of interest. Thus, a 
 partner was incompetent to testify either for or against his 
 
 14—1 Greenleaf on Evld., § 390. 16— Evans v. Eaton, 20 U. S. 
 
 15 — ^Adams v. Board of Trus- 355, 423. 
 
 tees, 37 Pla. 266, 20 So. Rep. 266 17— Jones v. Hosklns, 18 Ala. 
 
 (1896). 489. 
 
COMPETENCY. 269 
 
 copartner in a partnership transaction.^^ Even a dormant 
 partner was disqualified.^^ But where a partner had assigned 
 his interest and been released from all liability by the other 
 members of the firm, he was a competent witness to testify to 
 a debt due the firm before his assignment and release.^" A 
 shareholder in a trading corporation was an incompetent wit- 
 ness in suits involving the corporate property.^i But a sale 
 and transfer of his stock restored his competency.^^ In an 
 action on a bond against a surety, the principal was an in- 
 competent witness.23 A cestui que trust was not a competent 
 witness for the trustee in an action involving the trust es- 
 tate.2* A bankrupt was not a competent witness where the 
 effect of his testimony was to increase or diminish the estate.^^ 
 Nor were the creditors of a bankrupt or an insolvent debtor 
 competent witnesses where their testimony would have this 
 effect.^^ As a general rule, an assignor was an incompetent 
 witness.^® As regards vendors and vendees generally, in some 
 cases they were disqualified and in some cases not, depending 
 upon the question of interest. In the case of a warranty, the 
 vendor was incompetent if the suit involved his liability on 
 his covenants of warranty ;2^ but where the purpose of his 
 testimony was to impeach the title warranted he was compe- 
 tent.2^ The drawer of a bill of exchange was an incompetent 
 witness in an action against the acceptor.^^ In the case of 
 negotiable instruments, however, the question of competency 
 of the parties thereto, in actions on them, depended upon the 
 circumstances of the particular case.^" As regards non-nego- 
 
 18— Hurd V. Brown, 25 111. 504. Pa. St. 186; Bell v. Smith, 5 B. 
 
 19_-Vv^ooa V. Connell, 2 Whart. & C. 188. 
 
 (Pa.) 542. 25 — Williams v. Williams, 6 M. 
 
 20— Hosack v. Rogers, 25 Wend. & W. 170; Bridges v. Armour, 5 
 
 (N. Y.) 313. How. (U. S.) 91. 
 
 21-Montgomery, etc., Co. v. ,,'«-°^^^^': ^- ^°^°' ^ C. & P. 
 
 Webb, 27 Ala. 618; Thrasher v. ^^- Parrmgton v. Parrmgton, 4 
 
 Pike Co. Ry. Co., 25 111. 393, ^f^^" ^f ^; ^^^ ,^^ ,, „^ ^ 
 
 „ ,, 27— Meek v. Walthall, 20 Ark. 
 
 22—111. Mut. F. Ins. Co. v. Mar- g^g 
 
 seilles Mfg. Co., 6 111. 236. 28-Robb v. Lefevre, 7 la. 150. 
 
 23— Riddle v. Moss, 7 Cranch. 29— Barney v. Newcomb, 9 
 
 (U. S.) 206. Cush. (Mass.) 46. 
 
 24 — Buchanan v. Buchanan, 46 30 — Hayes y. Gorham, 3 111. 
 
270 WITNESSES. 
 
 tiable instruments, a party thereto was a competent witness 
 to impeach its validity.*^ 
 
 § 6. The common law rule abolished. — The rule at common 
 law which rendered persons pecuniarily interested incompetent 
 to testify has been practically abolished by statute, both in 
 England and in this country. An exception to this very gen- 
 eral change is the case of a witness, or the husband or wife of 
 a witness, to a will, who is also a beneficiary under the will. 
 Best says that this exception is the "sole survival of the 
 numerous exclusionary rules making witnesses incompetent 
 by reason of relationship or pecuniary interest. "^^ fhe stat- 
 utes very generally provide, however, that an interested person 
 is incompetent to testify in an action against the executor or 
 administrator of a deceased person, or the guardian or commit- 
 tee of an insane person concerning transactions with such per- 
 son.^^ 
 
 §7. Persons mentaJly incompetent, or otherwise incapaci- 
 tated. — Persons mentally incompetent, or otherwise incapaci- 
 tated, are disqualified as witnesses. This rule has always 
 obtained. Those included in this class are insane persons, 
 idiots, infants of tender years and intoxicated persons. 
 
 § 8. Insane persons. — An insane person is one who is labor- 
 ing under a perverted or unbalanced mind. Such a person, 
 however, is not necessarily an incompetent witness. Thus, an 
 insane person who understands the nature of an oath, and is 
 sane as to the facts concerning which he is called to testify, is 
 a competent witness. Both of these features, however, are es- 
 sential. As said by Justice Field, "The general rule, there- 
 fore, is that a lunatic or a person affected with insanity is ad- 
 missible as a witness if he have sufficient understanding to 
 apprehend the obligation of an oath, and to be capable of 
 giving a correct account of the matters which he has seen or 
 heard in reference to the questions at issue; and whether he 
 have that understanding is a question to be determined by the 
 
 429; Smith v. Walters, 23 111. 32— Best on Evid. (Chamber- 
 
 283; Curtis v. Marrs, 29 111. 508; lain Ed.) p. 178, note. 
 
 Walters v. Witherlll, 43 111. 388. 33— Sutherland v. Ross, 140 Pa. 
 
 31— Brown v. Babcock, 3 Mass. St. 379; Rev. St. U. S. § 858. 
 29. 
 
COMPETENCY. 271 
 
 court, upon examination of the party himself, and any compe- 
 tent witnesses who can speak to the nature and extent of his 
 insanity."^* This is also the English rule. As stated by Chief 
 Justice Campbell, "The proper test must always be, does the 
 lunatic understand what he is saying, and does he understand 
 the obligation of an oath? The lunatic may be examined him- 
 self that his state of mind may be discovered, and witnesses 
 may be~adduced to show in what state of sanity or insanity he 
 actually is."^^ "Wharton says, "It was once held that an idiot 
 was inadmissible, and so of a lunatic. It is now settled, how- 
 ever, that in all cases, either an idiot or lunatic may be re- 
 ceived, if, in the discretion of the court, he appear^ to have suf- 
 ficient understanding to apprehend the obligation of an oath, 
 and to be able to give a correct answer to the questions put. 
 The competency is to be determined by the judge trying the 
 ease, upon the examination of the witness himself, or upon the 
 testimony of third persons. ' '^* An idiot, however, in the strict 
 sense, is never a competent witness. During lucid intervals a 
 lunatic is a competent witness. The fact that he was insane 
 at the time the transaction or event occurred does not render 
 him incompetent. Peake says, "that all persons who are ex- 
 amined as witnesses must be fully possessed of their under- 
 standing; that is, such understanding as enables them to re- 
 tain in memory the events of which they have been witnesses, 
 and gives them a knowledge of right and wrong; that, there- 
 fore, idiots and lunatics, while under the influence of their 
 ■malady, not possessing their share of understanding, are 
 excluded."^'' And Justice Bouldin says, "It will be seen then, 
 that a witness is not excluded by this rule, merely because he 
 is a lunatic. That is not enough per se to exclude him; but he 
 must at the time of his examination be so under the influence 
 of his malady as to be deprived of that ' share of understanding 
 which is necessary to enable him to retain in memory the events 
 of which he has been witness, and gives him a knowledge of 
 
 34 — District of Columbia v. 37 — Pealce on Evidence; quoted 
 
 Arnes, 107 U. S. 519, 521, 522. and emphatically approved in 
 
 35_Ileg. V. Hill, 5 Cox Cr. Gas. Hartford v. Palmer, 16 Johns. (N. 
 
 259. ' Y.) 143. 
 
 36—1 Wharton's Crlm. Law, 
 §752. 
 
272 WITNESSES. 
 
 right and wrong. ' If at the time of his examination he has this 
 share of understanding, he is competent. That is the test of 
 competency, ajid of such competency the court is the judge; 
 while the weight of testimony — the credit to be attached to it — 
 is left with the jury."^^ And Justice Story, in speaking for 
 all the members of the United States Supreme Court, says, 
 "a person being subject to fits of derangement is no objection 
 either to his competency or credibility if he is sane at the time 
 of his giving his testimony. "^^ 
 
 § 9. Idiots. — An idiot is a person who has been without un- 
 derstanding from his birth, and who will always be in this 
 condition. His infirmity is not mental perversion but mental 
 deficiency. As said in a Maryland case, "Idiocy is that con- 
 dition in which the human creature has never had, from birth, 
 the least glimmering of reason, and is utterly destitute of all 
 those intellectual faculties by which nuan, in general, is so 
 eminently and peculiarly distinguished. It is not the condi- 
 tion of a deranged mind, but that of a total absence of mind. 
 Hence, this state of fatuity can rarely or ever be mistaken by 
 any, the most superficial observer. The medical profession 
 seem to regard it as a natural defect, not as a disease in itself, 
 or as the result of any disorder. In law it is also considered 
 as a defect, and as a permanent and hopeless incapacity."*" 
 An insane person may have lucid intervals, but an idiot never 
 can. Under no circumstances can an idiot, in the strict sense, 
 
 38 — Coleman v. Com., 25 Grat.t. his memory, or that he does not 
 
 (Va.) 865, 18 Am. Rep. Til. understand his responsibility as 
 
 39 — Evans v. Hettick, 5 Wheat, a witness. When the reason for 
 
 (U. S.) 470. See also, Worthing- the exclusion of the witness does 
 
 •ington v. Meuser, 96 Ala. 310, 11 not exist, he should he permitted 
 
 So. Rep. 72 (In this case Justice to testify." And Justice Talfourd 
 
 Walker says, "The true reason says, "It would he very disas- 
 
 for not admitting the testimony trous if mere delusions were held 
 
 of a person non compos mentis to exclude a witness. Some of 
 
 in any case is because his mal- the greatest and wisest, of man- 
 
 ady involves such a want or im- kind have had particular delu- 
 
 pairment of faculty that events sions."). 
 
 are not correctly impressed on 40 — Owing's Case, 1 Bland Ch. 
 
 his mind, or are not retained in (Md.) 372. 
 
COMPETENCY. 273 
 
 be sensible to the obligations of an oath; hence he can never 
 be a competent witness.*^ 
 
 § 10. Deaf and dumb persons. — Originally, deaf and dumb 
 persons were presumed to be imbeciles, and, as such, incompe- 
 tent witnesses. This presumption, however, was not conclu- 
 sive. According to the modern rule no such presumption ob- 
 tains. A deaf and dumb person is presumed a competent wit- 
 ness, and he may give his testimony by signs or by writing. 
 The mode of communicating his testimony rests in the discre- 
 tion of the court. The fact that he can write does not exclude 
 communication by signs. As said by Justice Sherwood, "The 
 presumption that a person deaf and dumb from birth should 
 be deemed an idiot, does not seem to obtain in modern prac- 
 tice, at least in the United States. . . Such unfortunate 
 persons may be witnesses, if able to communicate their ideas 
 by signs through the medium of an interpreter, or by writing, 
 if they write and read writing. And even if the witness can 
 write, this does not prevent his testimony from being com- 
 municated by signs; either way may be adopted. "^^ 
 
 § 11. Intoxicated persons. — Intoxicated persons are not 
 necessarily incompetent witnesses.*^ If, however, the degree 
 of intoxication is so excessive as to render them incapable of 
 testifying correctly, they will be excluded.^* The competency 
 of witnesses who are intoxicated rests in the sound discretion 
 of the court. The fact that they were intoxicated at the time 
 the fact in question occurred will not render them incompetent, 
 but it may affect their credibility.*^ Habitual drunkenness does 
 not render witnesses incompetent.** It may, however, affect 
 their credibility. The rules governing the competency of wit- 
 nesses who indulge in the use of opium and other stupifying 
 drugs are similar to those which pertain to the competency of 
 witnesses who indulge in intoxicating liquor.*'' 
 
 41 — Coleman v. Com., supra. 44 — Hartford v. Palmer, 16 
 
 42— The State v. Howard, IIS Johns. (N. Y.) 143. 
 
 Mo. 127, 143, 144. See also, 5 45— State v. Costello, 62 la. 
 
 Am. and Eng. Encyc. of Law, 119, 404, 17 N. W. R. 605. 
 
 and cases cited. 46— Thayer v. Boyle, 30 Me. 475. 
 
 43— Eskridge v. State, 25 Ala. 47— State v. White, 10 Wash. 
 
 611. 
 
 18 
 
274 WITNESSES. 
 
 §12. Infants of tender years. — There is no precise age 
 within which children are excluded as witnesses on the groimd 
 of insufficient intelligence. At the age of fourteen years every 
 person is presumed to have common discretion and understand- 
 ing. Under that age there is no presumption either way. The 
 question of the competency of a child under fourteen years de- 
 pends upon his intelligence and not his age. As said by Jus- 
 tice Walker, "It is also an elementary rule of evidence that in- 
 telligence, and not age, must govern in permitting persons of 
 tender years to give testimony. The law has fixed no age at 
 which they may or may not testify."*® Wharton says, "Age, 
 at least after four years are past, does not touch competency; 
 and the question is one of intelligence, which, whenever a 
 doubt arises, the court 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 for perjury."*' 
 Justice Brewer says, "While no one would think of calling as 
 a witness an infant only two or three years old, there is no 
 precise age which determines the question of competency. This 
 depends on the capacity and intelligence of the child, his ap- 
 preciation of the difference between truth and falsehood, as 
 well as of his duty to tell the former. The decision of this 
 question rests primarily with the trial judge, who sees the pro- 
 posed witness, notices his manner, his apparent possession or 
 lack of intelligence, and may resort to any examination which 
 will tend to disclose his capacity and intelligence as well as 
 his understanding of the obligations of an oath."^" Justice 
 Newman says, "It seems to be the settled law that, after four 
 years of age, a child is not incompetent to testify as a witness 
 by reason of any rule of law which excludes him. Whether a 
 child above that age is competent to testify depends upon his 
 intelligence, which is to be determined by the trial court by 
 examination of the child in court. The question is addressed 
 to the discretion of the trial court. Its determination on such 
 examination is final, except in a clear case of the abuse of its 
 
 48— Draper v. Draper, 68 111. IV, 50— Whesler v. United States, 
 
 19. 159 U. S. 523, 524 (boy between 
 
 4'9 — 1 Wharton on Bvid. (Sd five and six held competent), 
 ed.) 8 399. 
 
COMPETENCY. 275 
 
 discretion. "'1 The intelligence essential to render a witness 
 competent to testify does not mean his education or learning, 
 but rather his knowledge as to the facts concerning which he is 
 called upon to testify.^^ Children between five and six years 
 of age have been held competent witnesses.^^ In determining 
 the question of competency the preliminary examination of a 
 child should be made in open court in the presence of the jury 
 and counsel. The presiding judge may, however, examine 
 him in private.*** 
 
 §13. Same. Cross-examination. Weight of testimony. — 
 The sympathies of the jury are usually with the child. For 
 this reason his testimony is apt to be given more weight than 
 it deserves. Again, the imagination of a child is, as a rule, 
 proportionately great ; and for this reason his testimony is apt 
 to be overdrawn. The danger, therefore, is in giving his tes- 
 timony too much weight rather than too little. In summing 
 up this matter one very eminent writer says, "A chi.d will 
 have been taught to say that, if it tells a lie, it will go to the 
 bad place when it dies (which is usually taken to show that it 
 knows the meaning of an oath) long before it has any real 
 notion of the practical importance of its evidence in a tem- 
 poral point of view ; and also long before it has learned to dis- 
 tinguish between its memory and its imagination, or to under- 
 stand, in the least degree, what is meant by accuracy of expres- 
 sion. It is hardly possible to cross-examine a child, for the test 
 is too rough for an immature mind. However gently the ques- 
 tions may be put, the witness grows confused and frightened, 
 partly by the tax on its memory, partly by the strangeness of 
 the scene ; and the result is that its evidence goes to the jury 
 practically unchecked, and has usually greater weight than it 
 deserves, for the sympathies of the jury are always with it. This 
 is a considerable evil, for in infancy the strength of the imag- 
 ination is out of all proportion to the power of the other facul- 
 ties; and children constantly say what is not true, not from de- 
 
 51— The State v. Juneau, S8 426; Wheeler v. United States, 
 
 Wis. 180, 182. supra; The State v. Juneau, supra. 
 
 52— Chicago City Ry. Co. v. 54— McGulre v. People, 44 Mich. 
 
 Biederman, 102 111. App. 617. 286. 
 
 53— Com. v. Robinson, 165 Mass. 
 
276 WITNESSES. 
 
 ceitfulness, but simply because they have come to think so, by 
 talking or dreaming of what has passed. The evil, however, is 
 one which the law cannot remedy. It would be a far greater 
 evil to make children incompetent witnesses up to a certain 
 age. The only remedy is that judges should insist to juries 
 more strongly than they generally do on the unsatisfactory 
 nature of the evidence of children, and on the danger of being 
 led by sympathy to trust in it."^^ 
 
 § 14. Persons convicted of infamous crimes. — ^At the com- 
 mon law, persons who had been convicted of infamous crimes 
 were incompetent witnesses. Infamous crimes meant treason, 
 felony and crimen falsi. Just what crimes were included in 
 the last term is not very clear. Justice Boggs, in a recent case, 
 says, "Crimen falsi, according to the better opinion, does not 
 include all offenses which involve a charge of untruthfulness, 
 but only such as injuriously affect the administration of jus- 
 tice, such as perjury, subornation of perjury, suppression of 
 testimony by bribery or conspiracy to procure the absence of a 
 witness, or to accuse one wrongfully of a crime, or barratry, or 
 the like."^® This disqualification, however, has been abolished 
 by statutes ; but the fact of conviction may still be shown for 
 the purpose of impeaching the credibility of the witness.'' At 
 common law, the conviction could only be proved by offering 
 the record of conviction and identifying the witness as the 
 convicted person; but in some states, including Illinois, the 
 conviction may be proved by oral evidence.''® 
 
 § 15. Persons who lacked in religious belief. — The theory of 
 the common law was that the only guaranty of truthfulness 
 was the oath. As a result of this theory, persons who felt no 
 force in the oath, owing to lack of religious belief, were dis- 
 qualified as witnesses. Lord Coke held that an infidel — mean- 
 ing a person without belief in the Scriptures of- the Old and 
 New Testament — ^was an incompetent witness.^^ This ' view, 
 
 55 — General View of the Crim- & Eng. Ency. of Law (2d ed.) 
 
 Inal Law of England, by James 246, 247. 
 
 Fitzjames Stephen. 57 — Gage v. Eddy, 167 111. 108. 
 
 56 — Matzenhaugh v. The Peo- 58 — Revised Statutes of lUinoiB, 
 
 pie, 194 111. 108, 113. See also, 1 sec. 1, chap. 51. See also, Gage v. 
 
 Greenleaf on Evld. §373; 16 Am. Eddy, supra. 
 
 59—7 Coke, 17b. 
 
COMPETENCY. 277 
 
 however, has been severely criticised and repudiated, both in 
 England and in this country. Chief Justice Seates in criticis- 
 ing it says, "In early times Lord Coke laid down the rule as 
 excluding all not Christians — a rule as narrow, bigoted and 
 inhuman as the spirit of fanatical intolerance and persecution 
 which disgraced his age and country, "^o In a leading English 
 case,*^ it was settled! that an infidel in general was a competent 
 witness if he believed in a God and in a future state of rewards 
 and punishments ; but if he did not so believe he was incompe- 
 tent. An atheist, therefore, was an incompetent witness. As 
 said by Justice Wilde, "It would indeed seem absurd to admin- 
 ister to a witness an oath, containing a solemn appeal for the 
 truth of his testimony, to a Being in whose existence he has no 
 belief. "^^ A person who had no religious belief, who did not 
 acknowledge a Supreme Being, and who did not feel himself 
 accountable to any moral punishment here or hereafter, but 
 who merely acknowledged his amenability to the criminal law, 
 was not a competent witness.®^ It was not essential, however, 
 that a witness should believe in punishment hereafter to render 
 him competent. It was sufficient if he believed in the existence 
 of a God and future punishment here.^* By constitutional 
 provisions and by statutes, however, the common law rule has 
 been very generally abolished, and the religious test of com- 
 petency has largely passed away. The constitution of Illinois 
 provides that," no person shall be denied any civil or political 
 right, privilege or capacity, on account of his religious opin- 
 ions ";®s and Justice Baker, in interpreting this provision, says, 
 "We are of the opinion that the effect of this constitutional 
 provision is to abrogate the rule which obtained in this state 
 prior to the constitution of 1870, and that there is no longer 
 any test or qualification in respect to religious opinion or be- 
 lief, or want of the same, which affects the competency of citi- 
 zens to testify as witnesses in courts of justice."^* 
 
 60— The Cent. Mil. Tract Ry. 64— Noble v. People, Breese 
 
 Co. V. Rockafellow, 17 111. 541, 552. (111.) 54. 
 
 61 — Omichund v. Barker, lAtk. 65 — Constitution of 1870, sec. 3, 
 
 21, and Willes 538. art. 2. 
 
 62— Thurston v. Whitney, 2 66— Hronefi; v. People, 134 111. 
 
 Cush. (Mass.) 104. 139, 152. 
 
 63— Case cited in foot note 60. 
 
278 WITNESSES. 
 
 A witness was always presumed to have the necessary re- 
 ligious belief, and if denied, the burden of proof was upon the 
 party who objected to the witness."^ ^ 
 
 Lack of religious belief could be shown by declarations of 
 the witness. As said by Justice Wilde, "It has been argued, 
 that this mode of proof was not admissible, the general rule of 
 evidence being, that a witness shall not be permitted to dis- 
 qualify himself by declarations not under oath, made out of 
 court, as they might be untruly made for that purpose. But 
 it has been frequently held, that this mode of proof is admis- 
 sible, and is an exception to the general rule, from the neces- 
 sity of the case; it being deemed unreasonable that the party 
 objecting should be restricted to the testimony of the witness 
 on the voir dire, as the objection supposes he has no regard to 
 the sanction of an oath ; and if so, his declarations under oath 
 are of no more weight than those made seriously when not un- 
 der oath. . . But notwithstanding these objections, which 
 have some weight, it is well settled, that the avowal of a wit- 
 ness of his religious belief or disbelief may be proved like any 
 other fact."^* 
 
 § 16. Husband or wife of party to suit. — At common law, 
 the husband or wife of a party to a suit was an incompetent 
 witness either for or against the other, except in a criminal 
 action against one of them for personal injuries to the other.*^ 
 They were also incompetent to testify to communications be- 
 tween each other, or to any fact or transaction, the knowledge 
 of which was obtained by means of the marital relation.™ 
 This rule, with some modifications, still obtains. The fact that 
 the wife's interest in the subject-matter of the suit is independ-' 
 ent of her husband does not change the rule.''^ But where one 
 spouse is merely a nominal party to the record the rule is held 
 not to apply.''^ The rule is based upon interest and public 
 policy. Chief Justice Tindal says, "A wife never can be ad- 
 
 67 — Donnelly 
 
 V. State, 26 N. J. 
 
 70_Pyie V. Onstatt, 92 111. 209. 
 
 L. 463. 
 
 
 71 — Palmer v. Henderson, 20 
 
 68 — Thurston 
 
 v. Whitney, 56 
 
 Ind. 297. 
 
 Mass. 104, 108. 
 
 
 72— Belk V. Cooper, 34 111. App. 
 
 69 — Hayes v. 
 
 Parmalee, 79 111. 
 
 649. 
 
 B63; Seaton v. 
 
 Kendall, 171 111. 
 
 
 410. 
 
 
 
COMPETENCY. 279 
 
 mitted as a witness against her husband. She cannot be a wit- 
 ness for him, because her interest is precisely identical with 
 his; nor against him, upon grounds of public policy, because 
 the admission of such evidence would lead to dissension and 
 unhappiness, and possibly to perjury."''^ Where a married 
 woman is incompetent to testify on her own behalf, her hus- 
 band is also incompetent. Thus, where the adverse party sues 
 or defends as the executor of a deceased person, a husband is 
 not a competent witness in behalf of his wife.^* Where one 
 spouse acts as the agent of the other, he or she is a competent 
 witness. Where the cause of action grows out of the hus- 
 band's neglect to furnish his spouse suitable support, the wife 
 is competent to testify as to articles constituting necessaries.'^ 
 In criminal prosecutions, neither spouse is a competent witness 
 in behalf of the other. Stephen says, "In criminal cases the 
 accused person and his or her wife or husband, and every per- 
 son and the wife or husband of every person jointly indicted 
 with him, and tried at the same time, is incompetent to testify. 
 Provided that in any criminal proceedings against a husband 
 or wife for any bodily injury or violence inflicted upon his or 
 her wife or husband, such wife or husband is competent and 
 compellable to testify."''^ It is to be observed, however, that 
 in many states, by statute, in criminal cases the accused and 
 their wives or husbands may testify, but cannot be compelled 
 to do so. 
 
 Probably in all the states statutes exist which regulate the 
 competency of spouses to act as witnesses. Generally speak- 
 ing, however, the fundamental principles of the common law 
 still remain. The Illinois statute provides as follows: 
 "No husband or wife shall, by virtue of section 1 of this act, 
 be rendered competent to testify for or against each other as 
 to any transaction or conversation occurring during the mar- 
 riage, whether called as a witness during the existence of the 
 marriage, or after its dissolution, except in cases where the 
 wife would, if unmarried, be plaintiff or defendant, or where 
 
 73 — O'Connor v. Majoribanks, i 75 — Wilcoxon v. Read, 95 111. 
 
 Man. & G. 435. App. 33. 
 
 74— Mann v. Forein, 166 111. 76 — Stephen's Digest on Bvid., 
 
 446. art. X08. 
 
280 WITNESSES. 
 
 the cause of action grows out of a personal wrong or injury- 
 done by one to the other or grows out of the neglect of the 
 husband to furnish the wife with a suitable support; and ex- 
 cept in cases where the litigation shall be concerning the sep- 
 arate property of the wife, and suits for divorce; and except 
 also in actions upon policies of insurance of property, so far as 
 relates to the amount and value of the property alleged to be 
 injured or destroyed, or in actions against carriers, so far as 
 relates to the loss of property and the amount and value there- 
 of, or in all matters of business transactions, where the trans- 
 action was had and conducted by such married woman as the 
 agent of her husband in all of which cases the husband and 
 wife may testify for or against each other, in the same manner 
 as other parties may, under the provisions of this act: 
 Provided, that nothing in this section contained shall be con- 
 strued to authorize or permit any such husband or wife to tes- 
 tify to any admissions or conversations of the other, whether 
 made by him to her or by her to him, or by either to third per- 
 sons, except in suits or causes between such husband or 
 wife."" 
 
 § 17. Accomplices. — Ah accomplice is not necessarily an in- 
 competent witness. In fact, as a general rule, he is competent. 
 Courts and authors generally sustain this view.'^ When called 
 in behalf of the state, and his trial is severed from that of the 
 other defendants, he is usually held competent.'^® When called 
 in behalf of the other defendants, and he is separately indicted, 
 some courts hold that he is competent,^" while other courts 
 hold the contrary.*! Some courts recognize his competency 
 even when jointly indicted with the other defendants, provided 
 his trial is severed from theirs.*^ Chief Justice Peters says, 
 
 77— Revised Statutes of Illinois, 412, 44 S. W. R. 240; CJonway v. 
 
 chap. 51, §5. State, 118 Ind. 482, 21 N. E. R. 
 
 78—2 Russell on Crimes 957; 285; Lindsay v. People, 63 N. Y. 
 
 2 Starkie on Bvid. 11; Roscoe on 143. 
 
 Crim. Bvid. ('dtli ed.) 130; 1 80— State v. Unuble, 115 Mo. 
 
 Hale's Pleas of the Crown 305; 452, 22 S. W. R. 378. 
 
 Hawkins' Pleas of the Crown, 81 — Com. v. Marsh, 10 Pick. 
 
 Book 2, chap. 46, §90; 1 Green- (Mass.) 57; State v. Jones, 51 
 
 leaf on Evid., § 379; Wharton on Me. 125, 126. 
 
 Crim. Kvid. (8th ed.) § 439. 82— Marshall T- State, 8 Ind. 
 
 79— State v. Stewart, 142 Mo. 498, 
 
COMPETENCY. 281 
 
 "As a question simply at common law, although there is a con- 
 tradiction in the cases, the preponderance of authority seems 
 to favor the admission of a eodefendant, not on trial, as a wit- 
 ness, if called by the prosecution. There is very much less 
 authority allowing him to be sworn as a witness for the de- 
 fence. Whether the distinction be a sensible one or not, it has 
 prevailed extensively. . . Most of the authors on evidence 
 evidently adopt the view that the testimony is admissible when 
 offered by the State. Although but little authority is adduced 
 to support their statements, and the doctrine is not very 
 clearly or positively stated in some instances, still such a gen- 
 eral concurrence of favorable expression has much weight upon 
 the question. It goes far to show the common opinion and 
 practice."^* Justice Brewer says, "Eef erring to the English 
 authorities, it has there been held that, at common law, and 
 independently of any statute, when two persons jointly in- 
 dieted are tried together, neither is a competent witness; but 
 that if one is tried separately, the other is a competent witness 
 against him, because as observed by Mr. Justice Blackburn, 
 'the witness was a party to the record, but had not been given 
 in charge to the same jury.' "** Greenleaf says, "The usual 
 course is, to leave out of the indictment those who are to be 
 called as witnesses, but it makes no difference as to the admis- 
 sibility of an accomplice, whether he is indicted or not, if he 
 has not been put on his trial at the same time with his compan- 
 ions in guilt. "®^ And Wharton says, "An accomplice is a 
 competent witness for the prosecution, although his expecta- 
 tion of pardon depends upon the defendant's conviction, and 
 although he is a eodefendant, provided in the latter case his 
 trial is severed from that of the defendant against whom he is 
 offered. "86 
 
 §18. Judicial officers. — ^Upon the question of the compe- 
 tency of judges to act as witnesses in cases tried before them 
 the decisions are conflicting. When a nobleman is upon triak 
 
 83 — state v. Barrows, 76 Me. 84 — Benson v. United States. 
 401. See also, Noland v. The 146 U. S. 325, 334. 
 State, 19 Ohio 131; Noyes v. The 85—1 Greenleaf on Evid., § 379. 
 State, 41 N. J. L. 418. 86— Wharton on Crlm. Evid. 
 
 (8fh ed.) § 439. 
 
282 WITNESSES. 
 
 before the House of Lords any of the peers is a competent 
 witness ;^'^ and it has been held in England that where there is 
 more than one presiding judge one of them may testify, but if 
 he does so he must descend from the bench and not return dur- 
 ing the trial.^^ Mr. Rapalje says, "If the judge sits alone, he 
 cannot be sworn at all ; and, if he be one of several judges, he 
 ought not to be, unless he leaves the bench during the trial."*' 
 Justice Folger says, "the inclination of the courts has been to 
 hold, that when it is necessary for the conduct of the trial that 
 one should act as judge, he may not be called from the bench 
 to be examined as a witness ; but when his action as a judge is 
 not required, because there is a sufficient court without him, he 
 may become a witness, though it is then decent that he do not 
 return to the bench, "^o Instances in which presiding judges 
 have been called upon to testify are exceedingly rare; and, gen- 
 erally speaking, they may be said to be incompetent witnesses. 
 If the rule were otherwise embarrassing conditions would arise. 
 Thus, the judge would have to pass upon, the admissibility of 
 his own testimony, the right to assert his privileges as a wit- 
 ness, overruling or Sustaining motions to strike out his testi- 
 mony, and the impeachment by other witnesses of his own testi- 
 mony. Judges are not disqualified, however, when called as 
 witnesses before other courts. They are competent witnesses 
 in such cases to testify to facts which occurred at the trials 
 where they were presiding. 
 
 § 19. Petit jurors. — Originally, jurors were chosen from the 
 neighborhood where the subject of litigation arose, because 
 they were presumed to possess knowledge concerning it. Ac- 
 cording to the modern view, however, the less personal knowl- 
 edge they have of the case the better. Jurors are required by 
 their oaths to base their verdicts upon the evidence in the ease ; 
 and if they have personal knowledge of material facts involved 
 they must not give it any weight in reaching a verdict un- 
 
 87— Lord Stafford's Case, 7 How. nett, 49 N. Y. 137; Reg. v. Gazard, 
 
 St. Trials, 1384, 1458, 1552. 8 C. & P. 595; Rogers v. State, 60 
 
 88— Sichel, Wit. 14. Ark. 6, 2'9 S. W. R. 894; an inter- 
 
 89— Rapalje on Witnesses, § 45. esting foot note, 1 Campbell's 
 
 90— People v. Dohrig, 59 N. Y. Lives Ch. Jus. 166. 
 874, 379. See also, People v. Ben- 
 
COMPETENCY. 283 
 
 less sueh knowledge is given under oath upon the stand. There 
 is no rule of the common law, however, which renders a petit 
 juror incompetent as a witness in the cause in whicJi he is em- 
 paneled.^^ Justice Bullard, in a ease decided in 184Q, says, "It 
 is every day's practice to swear jurors to give evidence to their 
 fellow jurors. "^2 T^Ms comment, however, is not at all ap- 
 plicable to the rule of today. For a petit juror to serve as a 
 witness in a cause in which he is empaneled is practically un- 
 heard of now. He has never been held a competent witness to 
 impeach the verdict.^* 
 
 § 20. Grajid jurors. — Grand jurors are competent witnesses 
 to impeach the credibility of persons who have testified before 
 them, and also where such persons are charged with having 
 committed perjury before them. In the latter case, such grand 
 jurors are competent witnesses either before a subsequent 
 grand jury or before a petit jury after indictment.** Grand 
 jurors are also competent witnesses to testify to admissions 
 and confessions made before them.*" 
 
 § 21. Arbitrators. — Arbitrators are competent witnesses at 
 the hearing before themselves.*^ But whether they can be 
 compelled or not to testify is not well settled.*'^ They arc com- 
 petent witnesses to sustain their award,** but not to impeach 
 it,** except on the ground of fraud or mistake.^ They are com- 
 
 91 — Patterson v. Boston, 20 95 — Hinshaw v. State, 147 Ind. 
 
 Pick. (Mass.) 159; .Howserv. Com., 334; United States v. Porter, 2 
 
 51 Pa. St. 332; Wharton v. State, Cranch (C. C.) 60; Kirk v. Gar- 
 
 45 Tex. 2; Rex v. Rosser, 7 C. & rett, 84 Md. 383. 
 
 P. 648; Heath's Case, 18 How. St. 96— Graham v. Graham, 9 Pa. 
 
 Tr. 132; Savannah, etc., Ry. Co. St. 254, 49 Am. Dec. 557. 
 
 V. Quo., 103 Ga. 125; Fellow's 97— Ellis v. Saltan, cited in 4 
 
 Case, 5 Me. 333. C. & P. 327, note. 
 
 92 — Rondeau v. New Orleans 98 — Strong v. Strong, 9 Cush. 
 
 Imp. & Bank Co., 15 La. 160. (Mass.) 560; Russell on Awards 
 
 93— Am. & Eng. Ency. of Law, (6th ed.) 509; Valle v. N. M. Ry. 
 
 Vol. 29, p. 1008 et seq. Co., 37 Mo. 445. 
 
 94— Gordon v. Com., 92 Pa. St. 99— Schmidt v. Glade, 126 111. 
 
 216; Izer v. State, 77 Md. 110; 485; Doke v. James, 4 N. Y. 575. 
 
 People V. Young, 31 Cal. 563; 1 — Pulliam v. Pensoneau, 33 111. 
 
 United States v. Reed, 2 Blatchf. 375; King v. Jemison, 33 Ala. 499. 
 (U. S.) 435. 
 
284 WITNESSES. 
 
 petent to testify to admissions made before them, when not 
 confidential or made with the view of effecting a compromise.^ 
 
 § 22. Attorneys. — ^Attorneys who act as counsel in a cause 
 are not disqualified as witnesses. If they testify, however, they 
 should withdraw as counsel. Taylor says, ' ' The judges at Nisi 
 Prius were at one time inclined to regard as incompetent to- 
 testify all persons, whether counsel, attorneys or parties, who 
 being engaged in a cause, had actually addressed the jury on 
 behalf of that side on which they were afterwards called upon 
 to give evidence. Further investigation of the subject, how- 
 ever, has led to a judicial acknowledgment that no such prac- 
 tice exists. ' '^ Justice Rogers says, ' ' The furthest 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 address the jury. It is said, and I agree, that it is a 
 highly indecent practice for an attorney to cross-examine wit- 
 nesses, address the jury, and give evidence himself to contradict 
 the witnesses. It is a practice which, as far as possible, should 
 be discountenanced by courts and counsel."* And Justice Met- 
 calf says, ' ' The only question that has been argued in this case 
 is, whether the plaintiff's attorney, who acted as counsel at the 
 trial, was a competent witness for his client ; and we know of 
 no common law authority for excluding his testimony, besides 
 the two very recent decisions in the English bail court, which 
 were cited by the counsel for the defendants. (These two de- 
 cisions were subsequently overruled. )'5 . . We cannot ex- 
 clude a witness by reason of any views we may entertain re- 
 specting the policy of permitting him to testify. "We can only 
 administer the law as we find it to be. And by the common 
 law, persons are competent witnesses, unless they are made in- 
 competent by want of capacity, or of religious faith, by in- 
 famy, or by direct interest in the result of the cause. . . In 
 most cases, counsel cannot testify for their clients without sub- 
 
 2— Cady v. Walker, 62 Mich. 4— Frear v. Drinker 8 Barr, 521. 
 
 157, 4 Am. St Rep. 834. 5— Chief Justice Read in P'ol- 
 
 3— Taylor on Bvid. (4th ed.), lansbee v. Walker, 72 Pa. St. 228, 
 
 Vol. II., § 1240. 231. 
 
COMPETENCY. 285 
 
 jecting themselves to just reprehension. But there may be 
 cases in which they can do it, not only without dishonor, but 
 in which it is their duty to do it. Such cases, however, are 
 rare; and whenever they occur, they necessarily cause great 
 pain to counsel of the right spirit."^ 
 
 6— Potter V. Inhabitants of Ware, 55 Mass. 519, 523, 524; Bish- 
 op V. Hilliard, 227 111. 382 (1907). 
 
CHAPTER II. 
 
 PRIVILEGED COMMUNICATIONS. 
 
 § 1. Definition. — Privileged communications, as ordinarily 
 understood, are communications made bona fide concerning a 
 matter in which the party cammunicating has an interest, or 
 with respect to which he has a duty, to a party having a cor- 
 responding interest or duty. Such communications are said to 
 be privileged in the sense that the party making them is not 
 civilly or criminally liable for so doing. In the law of evi- 
 dence, privileged communications are communications whose 
 disclosure upon the witness stand are not compellable. 
 
 §2. The grounds and attributes of privileged communica- 
 tions. — The grounds upon which privileged communications 
 are based are public policy and necessity. Four fundamental 
 conditions are essential to their existence. These four condi- 
 tions, as stated by Professor Wigmore, are as follows: "(1) 
 The communications must originate in a confidence that they 
 will not be disclosed ; (2) This element of confidentiality must 
 be essential to the full and satisfactory maintenance of the 
 relation between the parties; (3) The relation must be one 
 which in the opinion of the community ought to be seduously 
 fostered; and (4) The injury that would inure to the relation 
 by the disclosure of the communications must be greater than 
 the benefit thereby gained for the correct disposal of litiga- 
 tion."! 
 
 § 3. Four classes of privileged communications. — There are 
 four general classes of privileged communications. These four 
 classes are as follows: (1) Professional communications; (2) 
 Political communications; (3) Judicial communications; and 
 (4) Social communications. 
 
 1— Wigmore on Bvid., Vol. IV., § 2285. 
 
 286 
 
PEIVILEGBD COMMUNICATIONS. 287 
 
 §4. Professional comnmnications. — At the common law, 
 there was only one class of professional communications priv- 
 ileged. This class comprised communications between attor- 
 neys and their clients. By statute, however, other classes have 
 been added. These include communications between physi- 
 cians and their patients, and communications between spiritual 
 advisers and laymen. 
 
 § 5. Communications between attorneys and their clients. — 
 Communications between attorneys and their clients have al- 
 ways been privileged. The basis of this rule is public policy. 
 The proper protection of rights and the due administration of 
 justice demand its observance. As said by Chief Justice Shaw, 
 "So numerous and complex are the laws by which the rights 
 and duties of citizens are governed, so important is it that they 
 should avail themselves of the superior skill and learning of 
 those who are sanctioned by the law as its ministers and ex- 
 pounders, both in ascertaining their rights in the country, and 
 maintaining them most safely in courts, without publishing 
 those facts, which they have a right to keep secret, but which 
 must be disclosed to a legal adviser and advocate, to enable him 
 successfully to perform the duties of his office, that the law has 
 considered it the wisest policy to encourage and sanction this 
 confidence, by requiring that on such facts the mouth of the 
 attorney shall be forever sealed. "^ 
 
 This privilege of exemption is confined to attorneys when ap- 
 plied to as such and when acting in that capacity, and to those 
 persons whose intervention is strictly essential to enable the 
 client and attorney to communicate with each other. Such 
 persons may include interpreters, clerks, etc. It does not ex- 
 tend to law students who may be studying in law offices, even 
 though clients believe them to be attorneys.^ Nor does it ex- 
 tend to justices of the peace, as such. The mere fact that an 
 agent is an attorney does not render the communications be- 
 tween him and his principal privileged. The relation between 
 the parties must be that of attorney and client.* Moreover, 
 
 2 — Hatton v. Robinson, 31 Mass. 753 (In this case Justice Duller 
 
 416, 422. says, "The privilege is confined to 
 
 3 — Barnes v. Harris, 61 Mass. the case of counsel, solicitor and 
 
 576. attorney, and it must be proved 
 
 4 — Wilson V. Rastall, 4 T. R. that the information was com- 
 
288 WITNESSES. 
 
 the purpose of the communication must be to elicit legal ad- 
 vice. Where the function performed by an attorney is merely 
 that of a conveyancer,^ or notary," there is no exemption. It is 
 not essential, however, that a fee be paid, or even contem- 
 plated ;^ nor that a suit be commenced, or even contemplated.* 
 But the fact that a retainer has been paid is not privileged. 
 In Illinois it has been held that where a fee is not contemplated 
 the cotamunication is not privileged ;* but this is not the gen- 
 eral rule. Third persons who overhear the communications 
 are not privileged.^" Nor does the rule apply where the pur- 
 pose of the communications is illegal.^^ Communications made 
 by the attorney to the client are privileged as well as those 
 made by the client to the attorney.^ ^ 
 
 The privilege exists for the benefit of the client and not for 
 the benefit of the attorney. Hence, only the client, or someone 
 who stands in his place, can waive it. Greenleaf says, "The 
 protection given by the law to such communications does not 
 cease with the termination of the suit, or other litigation or 
 business, in which they were made; nor is it affected by the 
 party's ceasing to employ the attorney and retaining another; 
 nor by any other change of relations between them; nor by 
 the death of the client. The seal of the law, once fixed ijpon 
 them, remains forever, unless removed by the party himself, in 
 whose favor it was there placed, "i* In the case of testamen- 
 tary dispositions, however, the reason for the rule is wanting; 
 and the cases hold that the personal representative of a de- 
 
 municated to the witness, in one 8 — Alexander v. United States, 
 
 of those characters; for if he be 138 U. S. 353; Root v. Wright, 84 
 
 employed merely as a steward, N. Y. 72. 
 
 he may be examined"). See also, 9 — De "Wolf v. Strader, 26 111. 
 
 Hatton V. Robinson, supra. 225. . 
 
 5 — Hatton v. Robinson, supra; 10 — People v. Buchanan, 145 N. 
 
 De Wolf V. Strader, 26 111. 225, Y. 1, 39 N. E. R. 846 
 
 79 Am. Dec. 371; Stallings v. 11 — Regina v. Cox, 6 Cr. L. Mag. 
 
 Hullum, 79 Tex. 421, 15 S. W. R. 569, L. R. 14 Q. B. D. 153; State 
 
 677. V. Kidd, SS la. 56, 56 N. W. R. 
 
 6— Lukin v. Halderson, 24 Ind. 263. 
 
 App. 645, 57 N. E. R. 254. 12— Bigles v. Rayher, 43 Ind. 
 
 7— King V. Barrett, 11 Ohio St. 112; Matter of Whitlock, 51 Hnn 
 
 261; Beeson v. Beeson, 9 Pa. St (N. Y.) 351. 
 
 279. 13—1 Greenleaf on Evid., i iiU. 
 
PRIVILEGED COMMUNICATIONS. 289 
 
 ceased client may exercise in favor of the client's estate the 
 right to waive the privilege which the client had in his life- 
 time for his own benefit, and may call on the latter 's attor- 
 ney to disclose as a witness communications made to him by 
 the client.^* Some decisions which' thus sustain the right of the 
 personal representative of a deceased client to waive the priv- 
 ilege, erroneously hold that the privilege cannot be waived by 
 an heir at law in a contest with devisees. Justice Ladd, in 
 commenting upon these decisions, says, "These decisions are 
 based on the ground that the executor or devisee represents the 
 deceased, and the evidence is offered to sustain the will which 
 it is the policy of the law to maintain. The particular vice in 
 the reasoning in these cases, in making the distinction between 
 the heir at law and the devisee, is the assumption that the 
 paper in dispute is the will of the deceased. The statutes are 
 for the benefit of the patient while living and of his estate 
 when dead. The very purpose of the contest is to determine 
 whether the deceased in fact made a will, who shall be his rep- 
 resentative, and who is entitled to his estate. . . And no 
 one can be said to represent the deceased in that contest, for 
 he could only be interested in having the truth ascertained, 
 and his estate can only be protected by establishing or defeat- 
 ing the instrument as the truth so ascertained may require. "^^ 
 An attorney may be compelled to testify to the identity of his 
 client ji*" or to his handwriting.^ '^ Whether he may be compelled 
 to disclose his client's address or not depends upon the circum- 
 stances of the particular case. If the client communicated it 
 to him in professional confidence for the purpose of obtaining 
 advice the communication is privileged; but if not, it is not 
 privileged.!^ He may also be compelled to testify to the fact 
 of his employment as attorney, and when the employment be- 
 
 14_Glover v. Patten, 165 V. S. 16— White v. State, 86 Ala. 69; 
 
 394; Brooks v. Holden, 175 Mass. Gower v. Emery, 18 Me. 79. 
 
 137, 55 N. B. R. 802 ; Scott v. Har- 17 — Poster v. Hall, 12 Pick, 
 
 ris, 113 111. 447. (Mass.) 89; White v. State, supra. 
 
 15_-V^rinters v. Winters, 102 la. 18 — Alden v. Goddard, 73 Me. 
 
 51, 58 (In this case the communi- 345; Heath v. Crealock, L. R. 15 
 
 cations were betweep physician Eq. 257, 42 L. J. Ch. 455 ; Ex parte 
 
 and patient). Campbell, L. R. 5 Ch. 703, 23 L. 
 
 T. N. G. 289, 
 
 19 
 
290 WITNESSES. 
 
 gan and ended.^^ He may not, however, disclose the nature of 
 his client's cause, or the reason for his employment.^" As an 
 attesting witness to a will he is not privileged.^^ Upon this 
 point all the decisions are harmonious. The same rule obtains 
 where he is an attesting witness to a deed, or other doeu- 
 ment.22 Pleadings which have been sworn to. by a client, but 
 which have not been filed, are privileged.^* 
 
 § 6. Communications between physicians ajid their patients. 
 
 — ^At common law, communications between physicians and pa- 
 tients are not privileged.^* In most jurisdictions, however, 
 based upon considerations of public policy, statutes have been 
 enacted which prohibit the disclosure of information acquired 
 by physicians in their professional capacity, except in a few 
 cases, unless the privilege be waived by the patients, or by 
 persons representing them.^s Under these statutes three con- 
 ditions are essential. The party who interviews or examines 
 the patient must be a physician in fact ;^^ the relation of physi- 
 cian and patient must exist between them;^^ and the physician 
 must act in a professional capacity at the time the communica- 
 tions are made.^* Where, however, the relation is such that 
 no confidence is reposed, the communications are not privi- 
 leged.^^ The privilege does not extend to communications 
 made to or by a druggist,*^ as such; nor to those made to or 
 by a dentist ;*i nor to those made to or by a veterinary sur- 
 
 19 — Shaughnessy v. Fogg, 15 La. 25 — Con. Mut. Life Ins. Co. v. 
 
 Ann. 330. Union Trust Co., 112 U. S. 250; 
 
 20' — Chirac v. Reinicker, 11 Davis v. Sup. Lodge, etc., 165 N. 
 
 Wheat. (U. S.) 280. Y 159. 
 
 21— Matter of Coleman, 111 N. 26— Wiel v. Cowles, 45 Hun (N, 
 
 Y. 220; Denning v. Butcher, 91 Y.) 307. 
 
 la. 425; McMaster v. Scriven, 85 27 — People v. Koerner, 154 N. Y. 
 
 Wis. 162, 39 Am. St. Rep. 828. 355, 48 N. E. R. 730. 
 
 22 — Hughes v. Boone, 102 N. C. 28 — Bower v. Bower, 142 Ind. 
 
 137; Robson v. Kemp, 5 Esp. 52. 194, 41 N. E. R. 523. 
 
 23 — Burnham v. Roberts, 70 111. 29 — Scripps v. Foster, 41 Mich. 
 
 19. 742. 
 
 24 — Campau v. North, 39 Mich. 30 — Brown v. Hannibal Ry. Co., 
 
 606, 33 Am. Rep. 433; Springer v. 66 Mo. 588, 597. 
 
 Byram, 137 Ind. IB, 45 Am. St. 31 — People v. De France, 104 
 
 Rep. 159; Winters v. Winters, 102 Mich. 563; 62 N. W. R. 709. 
 la. 53, 63 Am. St. Rep. 428. 
 
peivhjEgbd communications. 291 
 
 geon.'^ Not only are communications made by the patient to 
 the physician privileged, but those made by other necessary 
 parties, such as nurses, are privileged ;8* and those made by the 
 physician are also privileged.^* The mere presence of a phy- 
 sician does not render communications made to him priv- 
 ileged.*'' On the other hand, to render communications made 
 by a patient privileged it is not essential that the physician 
 be employed by him.*® It has recently been held that com- 
 munications may be privileged even where the physician treats 
 the patient against his consent.*^ In this case Justice Vann 
 says, "When one who is sick unto death is in fact treated by 
 a physician as a patient even against his will, he becomes the 
 patient of that physician by operation of law. The same is 
 true of one who is unconscious and unable to speak for him- 
 self. If the deceased had been in a comatose state when the 
 physician arrived, the existence of the professional relation 
 could not be questioned. The relation of physician and pa- 
 tient, so far as the statute under consideration is concerned, 
 springs from the fact of professional treatment, independent of 
 the causes which led to such treatment. An examination made 
 in order to prescribe establishes the same relation. , . The 
 fact of treatment is the decisive test in this case." Where a 
 physician is employed by a party, who is responsible for in- 
 juries to another, to examine the injured party merely with a 
 view to a possible claim for damages, and with no view to pro- 
 fessional treatment, the communications are not privilegedi'* 
 But where the party responsible for the injuries employs the 
 physician to treat the injured party the communications are 
 privileged ;*8 employment by the patient is not essential.*" 
 
 32 — Hendershot v. West. Union 36 — Renihan v. Dennin, 103 N. 
 
 Tel. Co., 106 la. 529, 68 Am. St. Y. 573, 57 Am. Rep. 770. 
 
 Rep. 313. 37— Meyer v. Knights of Pythi- 
 
 33— Springer v. Byram, 137 Ind. as, 178 N. Y. 63. 
 
 15, 45 Am. St. Rep. 159. 38— Heath v. Broadway, etc., Ry, 
 
 34— Keist v. Chicago, etc., Ry. Co., 57 N. Y. Superior Ct. 496; 
 
 Co., 110 la. 32, 81 N. W. R. 181; Weitz v. Mound City Ry. Co., 53 
 
 Edington v. Mut. Life Ins. Co. 67 Mo. App. 39. 
 
 N. Y. 185. 3d— "Weitz v. Mound City Ry. Co., 
 
 35 — SutclifCe v. Iowa State, etc., supra. 
 
 Ass'n, 119 la. 220, 93 N. W. R. 90. 40— Keist v. Chicago, etc., Ry 
 
 Co., supra. 
 
292 WITNESSES. 
 
 1 
 
 Where a public prosecutor sends a physician to examine a 
 woman upon whom an abortion has been committed, and she 
 accepts professional treatment from him, the communications 
 are privileged.*^ Where the purpose is to alleviate or cure, the 
 statutes are applicable; but such a purpose is essential.*^ In 
 all jurisdictions the statutes are given a liberal interpretation. 
 The presumption is that all information given the physician is 
 to aid him to prescribe.*^ But the party who claims the pro- 
 tection of the statute has the burden of showing facts which 
 bring his case within it.** Where a physician makes visits 
 which are in part professional and in part social, and he is un- 
 able to separate information acquired as a physician from that 
 acquired as a friend, the communications are privileged.*^ In- 
 such a case, however, facts justifying the exclusion of the tes- 
 timony must be shown. The mere statement of the physician 
 that he cannot make the separation is not sufficient.*^ Where 
 a prosecuting attorney sends a physician to examine the men- 
 tal and physical condition of a prisoner, the communications 
 are not privileged, unless the prisoner is led to believe that the 
 purpose of the visit is professional treatment of which he 
 stands in need.*^ Communications between physicians at- 
 tending the same patient are privileged, provided that such 
 communications pertain to his condition or treatment.** Phy- 
 sical defects or degrading marks on the patient may not be dis- 
 closed by the physician.** Nor may he disclose the nature of 
 the ailment or disease of the patient."" Nor are his prescrip- 
 tions admissible in evidence; or testimony, the purpose of 
 
 41 — People V. Murphy, 110 N. 47 — People v. Kemmler, 119 N. 
 
 Y. 128, 54 Am. Rep. 661. Y. 580; People v. Glover, 71 Mich. 
 
 42— /ra re Bruendle, 102 Wis. 45. 303. 
 
 43— Peeney v. Long Id. Ry. Co., 48— State v. Smith, 99 la. 26, 61 
 
 116 N. Y. 375. Am. St. Rep. 219. 
 
 44 — People v. Koerner, 154 N. 49 — Kling v. Kansas City, 27 Mo. 
 
 Y. 355; Bowles v. Kansas City, 51 App. 231. 
 
 Mo. App. 416. 50 — Lammiman v. Detroit Citi- 
 
 45— Matter of Darragh, 52 Hun zens' St. Ry. Co., 112 Mich. 602; 
 
 (N. Y.) 591. Sloan v. New York Cent. Ry. Co., 
 
 46 — Gartside v. Connecticut Mut 45 N. Y. 125; Nelson v. Nederland 
 
 liHe Ins. Co., 76 Mo. 446, 43 Am. Life Ins. Co., 110 la. 600. 
 Rep. 765. 
 
PBIVILEaED COMMUNICATIONS. 293 
 
 which is to explain their ingredients.*^ Nor is a physician a 
 competent witness to testify to his patient's previous condi- 
 tion of health, where his knowledge of such is based upon ob- 
 servation and interviews during professional visits.'^ Nor is 
 he competent as an expert witness to give an opinion based 
 upon information acquired while acting in a professional ca- 
 pacity.^* He may, however, testify as to an autopsy of the 
 body of a person who had not been his patient.** And where 
 he has attended a patient he may give expert testimony based 
 upon a hypothetical question which does not involve informa- 
 tion acquired by him while acting in a professional capacity.** 
 The fact that the relation of physician and patient existed is 
 not privileged; nor the fact that the physician attended the 
 patient in a professional capacity; nor the fact of the number 
 of professional visits made.*^ Communications made for an 
 unlawful purpose are not privileged.*'' Such communications 
 are governed by the same rule that obtains in the case of com- 
 munications between attorney and client which are made for 
 an unlawful purpose. In all cases, however, the presumption 
 exists that they were made for a lawful purpose, and the party 
 who asserts the contrary has the burden of showing that fact.*^ 
 Where a physician is sued by his patient for malpractice he 
 may testify to all matters pertaining to the treatment or opera- 
 tion upon which the action is based.** 
 
 § 7. Same. Waiver of the privilege.^The privilege is for the 
 benefit of the patient ; and only he, or his personal representa- 
 tive, or his beneficiary, may waive it. The patient may waive 
 it at any time.^° After his death, it may be waived, as a gen- 
 
 '51— Nelson v. Nederland Life '57— State v. Smith, 99 la. 26, 61 
 
 Ins. Co., supra. Am. St. Rep. 219. 
 
 52— Barker v. Cunard Steam- 58 — Guptill v. Verback, 58 la. 
 
 ship Co., 91 Hun 495. 98. 
 
 53— Thompson v. Ish, 99 Mo. 59— Cramer v. Hurt, 154 Mo. 112, 
 
 160, 17 Am. St. Rep. 552. 77 Am. St. Rep. 752; Warsaw V. 
 
 54 — Harrison v. Sutter Ry. Co., Fisher, 24 Ind. App. 46. 
 
 116 Cal. 156. 60 — Morris v. New York, etc., 
 
 55— People v. Schuyler, 106 N. By. Co., 148 N. Y. 88, 51 Am. St. 
 
 Y. 298. ' Rep. 675; Cramer v. Hurt, supra; 
 
 56— Dittrlch v. Detroit, 98 Mich. In re Bruendl, 102 Wis. 45, 78 N. 
 
 245; Nelson v. Nederland Life Ins. W. R. 16. 
 Co., supra. 
 
294 WITNESSES. 
 
 eral rule, by his personal representative.^^ In some jurisdic- 
 tions it is held that it may be waived by the patient's attor- 
 ney .^^ In an action on a life .insurance policy by the bene- 
 liciary against the insurance company, the former may waive 
 the privilege attaching to communications between the insured 
 and his physician.^* And in the probate of a will the pro- 
 ponents may waive the privilege of the testator as regards the 
 testimony of his physician.^* In the case of infant patients 
 who are not sui juris, it has been held that the privilege ac- 
 cruing to them may be waived by their parents.^^ If the pa- 
 tient testifies to matters which are privileged, the privilege is 
 waived;^® and the same result follows where he calls the 
 physician to testify to such matters.®'^ But where there are 
 two or more physicians, the patient in calling one of them to 
 testify does not waive his privilege as to the other or others 
 with respect to wholly distinct privileged matters.^^ And a 
 waiver as to privileged matters which occurred at one time is 
 not a waiver as to privileged matters which occurred at a dif- 
 ferent time.8^ The mere fact that the patient goes upon the 
 stand to testify generally does not constitute a waiver of his 
 privilege, nor does the fact that he calls the physician to the 
 stand to testify generally constitute a waiver.'''* 
 
 § 8. Same. Exceptions to the general rule. — In an action by 
 a patient against his physician for malpractice the rule of priv- 
 ilege, as heretofore stated, has no application. In this class 
 
 61 — Morris v. Morris, 119 Ind. 1111; HighflU v. Missouri Pac. Ry. 
 
 341; Holcomb v. Harris, 166 N. Y. Co., 93 Mo. App. 219. 
 
 257. 67— Holcomb v. Harris, 166 N. 
 
 62— Albertl v. New York, etc, Y. 257, 59 N. E. R. 820; Thompson 
 
 Ry. Co., 118 N. Y. 77. v. Ish, 99 Mo. 160, 17 Am. St. 
 
 63 — Penn. Mut. Life Ins. Co. v. Rep. 552, and note, 12 S. W. R. 
 
 Wiler, 100 Ind. 92, 50 Am. Rep. 510. 
 
 769. 68— Penn., etc., Ins. Co. v. 
 
 64 — Fraser v. Jennison, 42 Wiler, 100 Ind. 92. 
 
 Mich. 206. 69 — Barker v. Steamship Co., 
 
 65— State v. Depolster, 21 Nev. 91 Hun. 495 (approved in 157 N. 
 
 107, 25 Pac. Rep. 1000 (In this Y. 693). 
 
 case it Is held that a waiver of 70 — McConnell v. Osage, 80 la. 
 
 the privilege may be implied). 293; Butler v. Manhattan Ry. Co., 
 
 66— Lane v. Bolcourt, 128 Ind. 143 N. Y. 630. 
 420, 25 Am. St. 442, 27 N. B. R. 
 
PRIVILEGED COMMUNICATIONS. 295 
 
 of cases the physician is at liberty to make full disclosures 
 touching all matters pertaining to the treatment or operation 
 upon which the action is based. ''* But in an action by a phy- 
 sician against his patient for the value of professional serv- 
 ices rendered, the physician is prohibited from disclosing any 
 matters which fall within the general rule.'''^ Generally 
 speaking, this rule of privilege is applicable to criminal, as 
 well as civil, cases ;'^^ but where the purpose of introducing the 
 testimony of a physician is to. throw light upon the innocence 
 or guilt of the prisoner, the rule does not apply.''* The rea- 
 son the rule does not apply in the latter case is, a higher pub- 
 lic policy than that upon which the rule is based demands that 
 it should not. 
 
 §9. Communications between spiritual advisers and lay- 
 men. — At common law, communications between spiritual ad- 
 visers and laymen are not privileged.''^ In many jurisdictions, 
 however, such communications are privileged by statute. It 
 has been held that the privilege extends to replies by the 
 clergyman as well as to statements made to him.''^ Usually, 
 however, the privilege as regards clergymen is confined to 
 confessions made to them in the course of discipline enjoined 
 by the church.^ ^ The New York statute provides that, "A 
 clergyman or other minister of any religion shall not be al- 
 lowed to disclose a confession made to him in his professional 
 character in the course of discipline enjoined by the rules of 
 practice of the religious body to which he belongs."'* 
 Statements which are not of a confidential nature, and which 
 are not made to a clergyman for the purpose of obtaining ad- 
 vice or assistance, are not privileged under the statutes.''® 
 
 71— Cramer v. Hurt, 154 Mo. shaw, 69 L. T. N. S. 468; Wheel- 
 
 112; Warsaw v. Fisher, 24 Ind. er v. Le Marchant, 17 Ch. Div. 
 
 App. 46; Van Allen v. Gordon, 83 675, 50 L. J. Ch. 793. 
 
 Hun, (N. Y.) 379. 76— Gill v. Bouchard, 5 Quebec 
 
 72— Van Allen v. Gordon, supra. Q. B. D. 138. 
 
 73— People v. Murphy, 101 N. Y. 77— Knight v. Lee, 80 Ind. 201; 
 
 126, 54 Am. St. Rep. 661. People v. Gates, 13 Wend. (N. Y.) 
 
 74— Hank v. State, 143 Ind. 311. 
 
 238; People v. Lane, 101 Cal. 513; 78— C. C. P. 1877, § 833. 
 
 People V. Harris, 136 N. Y. 423. 79— State v. Brown, 95 la. 381. 
 
 75 — Normanshaw v. Norman- 
 
296 WITNESSES. 
 
 §10. Same. Waiver of the privilege. — The privilege is 
 for the benefit of the penitent and not for the benefit of the 
 spiritual adviser. Hence the former may waive it, but not the 
 latter. Unless waived by the penitent it remains forever.^o 
 
 § 11. Political commimicatioins. State secrets. — Communi- 
 cations involving state secrets have always been regarded as 
 privileged. The basis of the rule is public policy. This pub- 
 lic policy manifests itself in two aspects. First, a disclosure 
 of state documents might involve danger to the nation ;^i and 
 secondly, it might result injuriously to servants of the state 
 as individuals.^^ It is to be observed, however, that the rule 
 of privilege which is applied to political communications is 
 one which is fraught with very serious danger, inasmuch as it 
 is open to gross abuse by being utilized for partisan and self- 
 ish ends, and, perhaps, at the expense of justice to innocent 
 persons. "No nation," says the great American jurist, Ed- 
 ward Livingston, ' ' ever yet found any inconvenience from too 
 close an inspection into the conduct of its officers; but many 
 have been brought to ruin, and reduced to slavery, by suffer- 
 ing gradual impositions and abuses which were inpereeptible 
 only because the means of publicity had not been secured."*' 
 Mr. Botts says, "I can never express, in terms sufSeiently 
 strong, the detestation and abhorrence which every American 
 should feel towards a system of State secrecy. It never can 
 conduce to public utility, though it may furnish pretexts to 
 men in power to shelter themselves and their friends and 
 agents from the just animadversion of the law, to direct their 
 malignant plots to the destruction of other men while they 
 are themselves secure from punishment."^* And Professor 
 Wigmore says, "The menace which this supposed privilege im- 
 plies to individual liberty and private right will justify us in 
 
 80 — Westover v. .Etna Life Ins. 83 — Works of Edward Living- 
 Co., 99 N. Y. 56. ston. Vol. I., p. 15. 
 
 81 — Thompson v. German Val. 84 — ^Aaron Burr's Trial, Robert- 
 
 Ry. Co., 22 N. J. Eq. 111. son's Rep. Vol. II., p. 517. See 
 
 82 — Hennessy v. Wright, L. R. also Justice Mondelet's severe crit- 
 
 21 Q. B. 509, 512 (1888). icism of the rule in Gugy v. Ma- 
 
 guire, 13 Low. Can. 33, 38. 
 
PEIVILEGED COMMUNICATIONS. 297 
 
 repudiating it before it is too solidly entrenched in prece- 
 dent, "s^ 
 
 Political communications comprise the following two classes : 
 (1) Those which pertain to affairs of State; and (2) Those 
 which pertain to the administration of penal justice. 
 
 § 12. Communications which pertain to affairs of state. — 
 In so far as a disclosure of official communications between of- 
 ficers of the state would be injurious to public interests such 
 communications are privileged. This rule is applicable to 
 official communications between the president of the United 
 States and the members of his cabinet; to those between the 
 governor of a state and the heads of departments of the state : 
 and to those between heads of departments of a state and their 
 subordinate officers. In all secret employment of the govern- 
 ment in time of war, or in matters affecting our foreign rela- 
 tions, where the disclosure of service might embarrass or com- 
 promise the government in its public duty, or endanger the 
 person or injure the character of such employee, testimony 
 pertaining thereto is exeluded.^s 
 
 In England, no member of the House of Lords, or of the 
 House of Commons, or officer of either House, can be compelled 
 to disclose what takes place in secret sessions. This rule is 
 also applicable to executive sessions of the Congress of the 
 United States. 
 
 Upon the question who is to decide whether a disclosure of 
 certain official communications would be injurious to the pub- 
 lic or not, there are two views. One view is that the officer who 
 has the communications in his possession is to decide it, and 
 not the court ; and that his decision is conclusive. The reason 
 assigned for this view is that the court could come to no con- 
 clusion upon the matter without a judicial inquiry which must 
 of necessity be public ; and this preliminary examination would 
 necessarily give to the communications that very publicity 
 which public policy requires should be avoided.^'' The other 
 view is that the question is one for the court to decide. The 
 
 85— Wigmore on Evid., Vol. IV., U S. 105; Hartranft's Appeal, 85 
 p. 3342. Pa. St. 433, 447. 
 
 86— Totten v. United States, 9? 87— Beaton v. Skene, 5 H. & N. 
 
 838, 853. 
 
298 WITNESSES. 
 
 grounds of this view are : (1) It is an inherent function of the 
 court to decide matters pertaining to the admissibility of evi- 
 dence; and (2) A higher public policy obtains ia its favor 
 than obtains in favor of the former view. Of these two views 
 it is submitted that, both upon principle and public policy the 
 latter should be sustained. Upon principle it should be sus- 
 tained because it is an inherent function of the court to decide 
 upon all preliminary questions of fact upon which the admis- 
 ibility of testimony rests. Upon the ground of public policy 
 it should be sustained because to leave the determination of 
 such questions to designing officials is to enable them to keep 
 from public exposure their own wrongdoings, and perhaps at 
 the expense of innocent individuals. As said by Professor 
 Wigmore, "The truth cannot be escaped that a court which 
 abdicates its inherent function of determining the facts upon 
 which the admissibility of evidence depends wiU furnish to 
 designing officials too ample opportunities for abusing the 
 privilege. The lawful limits of the privilege are extensible 
 beyond any control, if its applicability is left to the determin- 
 ation of the very official whose interest it is to shield his 
 wrongdoing under the privilege. Both principle and policy 
 demand that the determination of the privilege shall be for 
 the judge."** 
 
 § 13. Communicaitions which pertain to the administration 
 of penal justice. — Communications which relate to the com- 
 mission of crimes, made to the proper officials with a view to 
 the prosecution or detection of suspected offenders, are priv- 
 ileged. Lord Chief Justice Eyre, in a celebrated English case, 
 says, "It is perfectly right that all opportunities should be 
 given to discuss the truth of the evidence given against a pris- 
 oner ; but there is a rule which has universally obtaiaed on ac- 
 count of its importance to the public for the detection of 
 crimes, that those persons who are the channel by means of 
 which that detection is made should not unnecessarily be dis- 
 closed."*^ The basis of this rule of privilege is public pol- 
 icy. It is in the interest of 'the public that such information 
 be not suppressed; and immunity from a compulsory diselos- 
 
 88— Wigmore on Evid., Vol. IV., 89— Hardy's Trial, 24 How. St 
 p. 3345. Tr. 8. 
 
PRIVILEGED COMMUNICATIONS. 299 
 
 ure of the informant's identity is a strong incentive to furnish, 
 it. It is to be observed, hovrever, that the rule is subject to 
 certain limitations. The privilege is confined to the identity 
 of the informant and does not extend to the contents of the 
 information. It follows, therefore, that where the informer's 
 identity is known and admitted no reason exists for the appli- 
 cation of the rule. The information must be communicated to 
 officers whose function is to prevent public wrongs and bring 
 offenders to justice, and it must concern the wrongful acts of 
 third persons. Moreover, the rule will not be applied where 
 a highei* public policy demands that it should not be. As said 
 by Lord Esher, Master of the Rolls, "I do not say it is a rule 
 which can never be departed from ; if upon the trial of a pris- 
 oner the judge should be of opinion that the disclosure of the 
 name of the informant is necessary or right in order to show 
 the prisoner's innocence, then one public policy is in conflict 
 with another public policy, and that which says that an inno- 
 cent man is not to be condemned when his' innocence can be 
 proved is the policy that must prevail. ' '" 
 
 Under this rule a person who has been employed to collect 
 information for the use of the government, or for the use of 
 the police department, is a privileged witness ; and he will not 
 be allowed, as a general rule, to disclose any matters con- 
 nected with such employment.*^ Where a person is prose- 
 cuted for larceny, the owner of the goods stolen may refuse to 
 disclose the names of the parties who furnished him the infor- 
 mation which induced him to proceed to have the guilty party 
 indicted.*^ In an action for maliciously and falsely repre- 
 senting to the treasury department of the United States that 
 the plaintiff was intending to defraud the revenue, the de- 
 fendant cannot be compelled to answer interrogatories, filed 
 by the plaintiff, inquiring whether he did not give or cause 
 to be given to the department information of supposed or al- 
 leged frauds on the revenue contemplated by the plaintiff.** 
 Lord Kenyon, in the earliest case upon the subject, says, "The 
 
 90 — Marks v. Beyfus, L. R. 25 United States v. Moses, 4 Wash. 
 
 Q B. D. 494, 498. C. C. 726. 
 91 — Hardy's Trial, supra. 93 — Wortliington v. Scrlbner, 
 
 92— State v. Soper, 16 Me. 2a3; 109 U. S. 487. 
 
300 WITNESSES. 
 
 defendant's counsel have no right, nor shall they be permitted 
 to inquire the name of the person who gave the information of 
 the smuggled goods. "^* And Justice Gray says, "All the 
 English authorities agree that the rule has ever since been 
 held in revenue cases to prevent a witness from answering 
 questions that would disclose the informer, if a third per- 
 son. ' '^^ Nor is a witness required to answer on cross-examina- 
 tion whether he himself was the informer.^" In an action for 
 libel, by an army ofScer against the president of a military 
 court of inquiry, neither their report to the commander-in- 
 chief, nor an office copy of it, is admissible in evidence.^'' And 
 in an action for slander, by one military officer against another, 
 for speaking defamatory words of the military conduct of the 
 plaintiff, the secretary of war may refuse to produce in evi- 
 dence the minutes of a court of inquiry, and letters written to 
 the war department by the plaintiff himself, on the ground 
 that their production would be prejudicial to the public serv- 
 ice.98 Justice Gray, in summing up the matter, says, "It is 
 the duty of every citizen to communicate to his government 
 any information which he has of the commission of an offence 
 against its laws. To encourage him in performing this duty 
 without fear of consequences, the law holds such information 
 to be among the secrets of the state and leaves the question 
 how far and under what circumstances the names of the in- 
 formers and' the channel of communication shall be suffered to 
 be known, to the absolute discretion of the government, to be 
 exercised according to its views of what the interests of the 
 public require. Courts of justice, therefore, will not compel 
 or allow the discovery of such information, either by the sub- 
 ordinate officer to whom it is given, by the informer himself, 
 or by any other person, without the permission of the govern- 
 ment. The evidence is excluded, not for the protection of the 
 witness or of the party in the particular case, but upon general 
 grounds of public policy, because of the confidential nature 
 of such communications."®^ 
 
 94— -Rex V. Akers, 6 Esp. 125. 97— Home v. Bentlrlck, 2 Brod. 
 
 95 — Worthington v. Scritner, & Bing. 130. 
 
 supra. 98 — Beatson v. Skene, supra. 
 
 98 — Attorney General v. Briant, 99 — Worthington v. Seribner, 
 
 15 M. & W. 169. supra. 
 
PRIVILEGED COMMUNICATIONS. 301 
 
 § 14. Judicial communications. — Judicial communications 
 which are privileged comprise the foUovring four classes: (1) 
 Deliberations of judges; (2) Deliberations df petit jurors ; (3) 
 Deliberations of grand jurors; and (4) Deliberations of arbi- 
 trators. The basis of the rule of privilege applicable to these 
 four classes of communications is public policy. 
 
 § 15. Deliberations of judges. — The deliberations of judges 
 in determining their judgments, and the reasons for their con- 
 clusions, are privileged. They may also refuse to disclose 
 upon the witness stand what witnesses have testified on trials 
 before them.i They are at liberty, however, to waive their 
 privilege if they choose to do so.^ In an action on a forfeited 
 recognizance bond, a former judge of the court, who directed 
 the forfeiture to be entered, is a competent witness to estab- 
 lish the fact that the forfeiture was taken after the final ad- 
 journment of the court.* A justice of the peace who tried a 
 cause is a competent witness to prove the grounds upon which 
 It was decided.* And generally, where the issues are not clear, 
 the trial judge is a competent witness, in a subsequent suit not 
 tried before him, to testify as to the real matters in issue at the 
 former trial.^ And, in a proper case, his minutes of the pro- 
 ceedings before him have been held competent evidence.® 
 
 §16. Deliberations of petit jurors. — The deliberations of 
 petit jurors, while engaged in seeking to reach a verdict, 
 are also privileged. As said by Justice Morton, "The secrecy 
 of the deliberations and discussions of the jury, and the ex- 
 emption of jurors from the liability of being questioned as to 
 their motives and grounds of action, are highly important to 
 the freedom and independence of their decisions."'' Jurors 
 are competent witnesses to prove what evidence was given 
 upon a trial in which they served; but they are not competent 
 
 1 — Welcome v. Batchelder, 23 5 — Doty v. Brown, 4 N. Y. 71, 
 
 Me. 85. 53 Am. Dec. 350; Supples v. Can- 
 
 2 — ^Welcome v. Batchelder, su- non, 44 Conn. 424. 
 
 pra. 6 — Ex parte Gillebrand, L. R. 
 
 3— The State v. Hindman, 159 30 Ch. 52. 
 
 Ind. 586. 7 — Hannum v. Belchertown, 18 
 
 4_Taylor v. Larkin, 12 Mo. 103, Pick. (Mass.) 311. 
 49 Am. Dec. 119. 
 
302 WITNESSES. 
 
 witnesses as to the elements of their verdict, nor as to the de- 
 liberations by which it was reached.^ And Justice Gray says, 
 ' ' The proper evidence of the decision of the jury is the verdict 
 returned by them upon oath aad affirmed in open court; it is 
 essential to the freedom and independence of their delibera- 
 tions that their discussions in the jury room should be kept 
 secret and inviolable."* 
 
 § 17. Same. Impeaching their verdict. — Whether the affi- 
 davit of a juryman as to what was said or done in the jury 
 room is admissible in evidence or not, is a question upon which 
 the decisions are in conflict. Some hold that it is not admis- 
 sible for any purpose. Some that it is admissible to support 
 the verdict, but not to impeach it. While others hold that it 
 is admissible under some circumstances to impeach it. The 
 question most frequently arises on a motion to set aside a ver- 
 dict and grant a new trial. 
 
 § 18. Same. The three principles involved. — As pointed 
 out by Professor Wigmore,i° in determining whether a petit 
 juror's affidavit is admissible or not, three general and inde- 
 pendent principles are involved. These three principles are 
 as follows: (1) The deliberations of a petit juror in the jury 
 room are privileged and may not be disclosed without his eon- 
 sent; (2) The parol evidence rule is applicable to verdicts as 
 well as to other classes of writings; and (3) A witness should 
 not be allowed to give self-stultifying testimony. 
 
 § 19. Same. The first principle. — On the ground of pubhc 
 policy freedom of expression in the jury room is absolutely es- 
 sential. It follows, therefore, that the rule of privilege is ap- 
 plicable in the full sense of the term to the deliberations of 
 petit jurors. This principle has always obtained. 
 
 §20. Same. The second principle. — This principle, in de- 
 termining the question of the admissibility of a petit juror's 
 testimony or affidavit as to what occurred in the jury room, is 
 frequently overlooked. The principle, however, is an im- 
 portant one, and it should not be forgotten that it is applicable 
 
 8 — Hewett v. Chapman, id Mich. Mass. 453, 9 Am. Rep. 49, 51. 
 4. 10 — Wigmore on Evld., Vol. IV., 
 
 9— Woodward v. Leavitt, 107 § 2345. 
 
PRIVILEGED COMMUNICATIONS. 303 
 
 to verdicts to the same extent as to other writings. Under 
 this principle, the testimony or affidavit of a petit juror is not 
 admissible to prove his consultations or motives which resulted 
 finally in his written verdict. It is admissible, however, to 
 prove the precise scope of the issues upon which the verdict 
 was based; or to prove a mistake on the part of the foreman 
 in declaring the verdict; or a mistake on the part of the clerk 
 in recording it ; or to show the invalidity of the verdict owing 
 to the misconduct of the jurors in determining it. 
 
 § 21. Same. The third principle. — This principle, as a rule 
 of evidence, was recognized at an early day; but generally 
 speaking, it was repudiated long ago, and the only vestige of 
 it remaining is an occasional recognition of it in connection 
 with the admissibility of the testimony or affidavits of petit 
 jurors. As pointed out by Professor Wigmore, it would be 
 well if it disappeared altogether. 
 
 § 22. Samei. The eaxly English rule. Prior to Lord Mans- 
 field's time the testimony or affidavit of a petit juror was ad- 
 missible even to impeach his verdict. Chief Justice Holt says, 
 "The jury were very shy of giving a reason of their verdict, 
 thinking they have an absolute despotic power; but I did rec- 
 tify that mistake, for the jury are to try causes with the assis- 
 tance of the judges, and ought to give reasons when required, 
 that if they go upon any mistake they may be set right. "^^ 
 
 § 23. Some. Lord Mansfield's rnle. — Lord Mansfield, upon 
 the theory of forbidding self-stultification, laid down the rule 
 that a juror's testimony or affidavit was inadmissible to im- 
 peach his verdict. In rejecting the affidavits of two jurors, 
 who had sworn that their verdict was based upon chance, he 
 says, "The court cannot receive such an affidavit from any of 
 the jurymen themselves, in all of whom such conduct is a very 
 high misdemeanor;" and adds the paradoxical statement, "but 
 in every such case the court must derive their knowledge from 
 some other source, such as some person having seen the trans- 
 action through a window or by some such other means. "^^ 
 This latter statement has been severely criticised a number of 
 
 11— Ash V. Ash, Comberb, 357 12— Vaise v. Delaval, 1 T. R. 11, 
 (1697). K. B. (1785). 
 
304 WITNESSES. 
 
 times. Twenty-two years later he says, "The affidavit of a 
 juryman (pertaining to misconduct of the jury) cannot be re- 
 ceived. It is singular indeed that almost the only evidence 
 of which the case admits should be shut out; but considering 
 the arts which might be used if a contrary rule were to pre- 
 vail, we think it necessary to exclude such evidence. "^^ And 
 five years after this Justice Yeates says, "I frankly confess 
 that I feel the utmost repugnance to such testimony, although 
 I am fully aware, that I thereby exclude almost the only evi- 
 dence, which the case naturally admits of. But, by admitting 
 it, I as readily perceive that I should open a door to the exer- 
 cise of the most pernicious arts, and tampering with jurors; 
 and that the practice would be replete with dangerous conse- 
 quences. . . But, above all, I greatly fear that the practice, 
 if adopted, would tend to an inquisition over the consciences 
 of jurors, as to the grounds and reasons of their verdict, and 
 bring questions of fact more frequently before the court for 
 their decision than is consistent with sound policy. I am op- 
 posed to penetrating into the recesses of a jury room, through 
 the instrumentality of jurors who are kept together until 
 they have agreed upon their verdict, "i* 
 
 §24. Same. The modern English rule. — ^Lord Mansfield's 
 rule of exclusion became firmly established in England and 
 still obtains. Not only is the testimony or affidavit of a petit 
 juror inadmissible to impeach his verdict, but it is also inad- 
 missible to support it. Baron Alderson says, "It is entirely 
 against public policy to allow a juryman to make affidavit of 
 anything that passes in agreeing to a verdict.^^ Justice Willes 
 says, "If the affidavits are to be taken as a statement of some- 
 thing that passed in the jury room, they clearly are not admis- 
 sible, "i^ And Justice Patteson says, "The general rule is, 
 that the affidavits of jurors are not admissible either to sup- 
 port or to impugn their verdict."*^ 
 
 13— Owen v. Warburton, 1 B. & 223, 225, 8 L. J. N. S. (Bxch.) 86. 
 
 P. N. R. 326, 329. 16— Raphael v. Bank of Eng- 
 
 14— Cluggage V. Swan, 4 Binn. land, 17 C. B. 161, 174. 
 
 150, 155. 17— Standewick v. HopkinB, 2 
 
 15— Straker v. Graham, 7 Dowl. D. & L. 502. 
 
PRIVILEQED COMMUNICATIONS. 305 
 
 § 25. Same. The American rule. — In most of the jurisdic- 
 tions of this country Lord Mansfield's rule has become firmly- 
 established and obtains today. In the federal courts, however, 
 and in the courts of Iowa, Illinois, Kansas, Nebraska, Ten- 
 nessee and Texas a more liberal rule obtains. In Illinois the 
 courts hold that the testimony or affidavit of a petit juror is 
 admissfble to support his verdict, but not to impeach it, except 
 in a case where a part of the jurors swear that they never 
 consented to the verdict.^* 
 
 § 26. Same. The Iowa rule. — "What has come to be known 
 as the Iowa rule, as contradistinguished from Lord Mansfield's 
 rule, and which, it is submitted, is correct, both upon princi- 
 ple and public policy, is as follows: "The affidavits of jurors 
 may be received for the purpose of avoiding a verdict, to 
 show any matter occurring during the trial, or in the jury- 
 room, which does not essentially inhere in the verdict itself, 
 as that a juror was improperly approached by a party, his 
 agent or attorney; that witnesses or others conversed as to 
 the facts or merits of the cause out of court and in the pres- 
 ence of jurors; that the verdict was determined by aggrega- 
 tion and average, or by lot, or game of chance, or other arti- 
 fice, or improper manner; but such affidavit, to avoid the ver- 
 dict, may not be received to show any matter which does es- 
 sentially inhere in the verdict itself, as that he misunderstood 
 the instructions of the court, the statement of the witnesses, 
 or the pleadings in the case; that he was unduly influenced 
 by the statements of his fellow-jurors, or mistaken in his cal- 
 culations or judgment, or other matters resting alone in the 
 juror's breast."!^ 
 
 §27. Same. Mr. Freeman's view. — Mr. Freeman, com- 
 piler and annotator of "American Decisions," in commenting 
 upon the Iowa rule, says : ' ' The rule, as thus adopted by the 
 supreme court of Iowa, seems to be the one best adapted to 
 secure the impartial administration of justice by jury trials. 
 It commends itself for the protection it affords litigants 
 
 18 — Smith v. Eames, 3 Scam. 19 — Justice Cole, speaking for 
 
 (111.) 76; Martin v. Ehrenfels, 24 the court, in Wright v. 111. & Miss, 
 
 111. 187; Allison v. The People, 45 Tel. Co., 20 la. 195, 
 111. 37. 
 
 20 
 
306 WITNESSES. 
 
 against a verdict obtained by unlawful means, and at the 
 same time it enshrines the deliberations of juries in the jury 
 room with that mantle of secrecy which the policy of the 
 law has always designed to secure, in order that a verdict may 
 be the united judgment of all sworn to try the cause. Much 
 as we might be inclined, however, to adopt this as the better 
 rule, were we permitted to decide, we must yield our opin- 
 ions to the great weight of modern authority, which is un- 
 doubtedly opposed to the admission of affidavits of jurors in 
 any case to show such misconduct on their part as will vitiate 
 their verdict" (citing many authorities).^'' 
 
 §28. Same. Chief Justice Shaw's view. — Chief Justice 
 Shaw, ia favoring Lord Mansfield's rule, says: "We think 
 the judge was right in rejecting evidence of the alleged par- 
 tiality and misconduct of a juror in the jury-room by the testi- 
 mony of the juror himself, or of the other jurors. It is a 
 rule founded upon obvious considerations of public policy, 
 and it is important that it should be adhered to, and not broken 
 in upon to afford relief in supposed hard cases. A verdict, 
 as the name imports (veredictum), is taken, in theory of law, 
 to be absolute truth, and it is important that it be so regarded. 
 All communications among the jurors are confidential; they 
 are intended to be secret and it is best that they should re- 
 main so. It is very probable, indeed it is almost inevitable, 
 that many things should be said and views expressed by indi- 
 vidual jurors, which not only have no influence on others, but 
 which they themselves do not ultimately adhere to and act 
 upon. "21 
 
 §29. Same. Justice Allen's view. — Justice Allen, of the 
 New York Court of Appeals, in support of the same rule, says : 
 "There are reasons of public policy, why jurors should not be 
 heard to impeach their verdicts, whether by showing their 
 mistakes or their misconduct. Neither can they properly be 
 permitted to declare, with a view to affect this verdict, an in- 
 tent different from that actually expressed by the verdict as 
 rendered in open court. In early times the pains and penal- 
 
 20 — 24 Am. Dec. 477. 21— Cook v. Castner, 9 Cush. 
 
 (Mass.) 278, 
 
PRIVILEGED COMMUNICATIONS. 307 
 
 ties visited upon jurors for false verdicts furnished an addi- 
 tional reason why they should not be allowed to impeach 
 them. But the rule is well established, and at this day rests 
 upon well-understood reasons of public policy as connected 
 with the administration of justice, that the court will not re- 
 ceive the affidavits of jurymen to prove misconduct on their 
 part, or any act done by them which would tend to impeach or 
 overthrow their verdict. This rule excludes affidavits to show 
 mistake or error of the jurors in respect to the merits, or irreg- 
 ularity or misconduct, or that they mistook the effect of their 
 verdict, and intended something different. "^^ 
 
 The following reasons have also been assigned why the affi- 
 davits of petit jurors should not be received to impeach their 
 verdict: (1) Because they would tend to defeat their own 
 solemn acts under oath; (2) Because their admissions would 
 open a door to tamper with jurymen after they had given their 
 verdict; and (3) Because they would be the means, in the 
 hands of a dissatisfied juror, to destroy a verdict at any time 
 after he had assented to it.^* 
 
 § 30. Deiiberations of grand jurors. — The foregoing princi- 
 ples, applicable to the deliberations of petit jurors, are equally 
 applicable to the deliberations of grand jurors. The testimony 
 or affidavit of a grand juror is not admissible to impeach the 
 indictment ;2* or to show opinions expressed in the jury 
 room;25 or to show how a grand juror voted, or why he so 
 voted ;28 or, as a general rule, what a witness testified. Justice 
 Bigelow says, "The reasons on which the sanction of secrecy 
 which the common law gives to proceedings before grand juries 
 is founded are said in the books to be threefold. One is that 
 the utmost freedom of disclosure of alleged crimes and of- 
 fences by prosecutors may be se6ured. A second is that per- 
 jury and subornation of perjury may be prevented by with- 
 holding the knowledge of facts testified to before the grand 
 
 22 — Dalrymple v. Williams, 63 25 — Jenkins v. State, 35 Fla. 
 
 N. Y. 363, 20 Am. Rep. 544. 737, 48 Am. St. Rep. 267. 
 
 23 — Graham & Waterman on 26 — State v. Johnson, 115 Mo. 
 
 New Trials, Vol. 3, p. 1428. 480; Com. v. Hill, 11 Cush. 
 
 24— Shoop V. People, 45 111. App. (Mass.) 137. 
 110; State v. Davis, 41 la. 311; 
 State V. Baker, 20 Mo. 33S. 
 
308 WITNESSES. 
 
 jury, which, if known, it would be for the interest of the ac- 
 cused or their' confederates to attempt to disprove by procur- 
 ing false testimony. The third is to conceal the fact that an 
 indictment is found against a party, in order to avoid the 
 danger that he may escape and elude arrest upon it, before 
 presentment is made."^'^ Professor "Wigmore says: "These 
 reasons are obviously fourfold in their bearing, (a) The grand 
 pirors themselves are to be secured in .freedom from the ap- 
 prehension that their opinions and votes may be subsequently 
 disclosed by compulsion, (b) The complainants and the wit- 
 nesses summoned are to be secured in freedom from the ap- 
 prehension that their testimony may be subsequently disclosed 
 by compulsion, and this in order that the State may secure 
 willing witnesses, (c) The guilty accused is not to be provided 
 with such clues as will enable him to flee from arrest or to 
 suborn false testimony or tamper with witnesses, (d) The in- 
 nocent accused, who is charged by complaint before the jury, 
 but is exonerated by their refusal to indict, is entitled to be 
 protected from the compulsory disclosure of the fact that he 
 has been groundlessly accused. "^^ 
 
 The rule of privilege is applicable not only to the grand jur- 
 ors themselves, but also to their clerk,^* to the prosecuting attor- 
 ney,^" and to the witnesses who appear before them.^i In 
 the last case, however, the privilege is not for the benefit of 
 the witnesses. The rule is applied to them in order that the 
 state may readily procure willing witnesses. 
 
 It has been held, however, that the testimony or affidavit of 
 a grand juror is admissible to support the indictment.^^ ^,j 
 where a higher public policy demands it, it is also admissible to 
 prove what a witness testified before the grand jury. Thus, where 
 
 27 — Com. V. Mead, 12 Gray 95; State v. Johnson, 115 Mo. 480, 
 
 (Mass.) 167. 22 S. "W. Rep. 463. 
 
 28 — Wigmore on Bvid., Vol. IV., 31 — People v. Thompson, supra; 
 
 p. 3312. People v. Lander, 82 Mich. 109, 
 
 29— People v. Thompson, 122 132, 46 N. W. Rep. 956. 
 
 Mich. 411, 81 N. W. Rep. 344. 32— J?a; parte Schmidt, 71 Cal. 
 
 30 — Knott V. Sargent, 125 Mass. 212, 12 Pac. Rep. 55; Slmms v. 
 
 State, 60 Ga. 145. 
 
PRIVILEGED COMMUNICATIONS. 809 
 
 the accused is on trial for perjury committed in testifying 
 before a grand jury, a grand juror may testify to the evi- 
 dence given by the accused before that body.^* As said by 
 Justice MeSherry, "If witnesses who testify falsely before the 
 grand jury are free from all the penalties of perjury merely 
 because of the juror's oath of secrecy, the object designed to 
 be effected by that clause of his oath would be perverted, and 
 a measure intended to promote the public welfare would be 
 transformed into a means to defeat the ends of justice. The 
 law does not permit the obligation of secrecy which has been 
 imposed for one purpose to be availed of for a totally different 
 one. The grand juror's oath of secrecy cannot, therefore, be 
 interposed to obstruct the administration of justice."^* And 
 the testimony of a grand juror is admissible to impeach the 
 credibility of a witness when testifying before a petit jury.^s 
 Whether a grand juror may testify or not to the number con- 
 curring in the indictment is a question upon which the deci- 
 sions are in conflict. In Massachusetts, New York, Pennsyl- 
 vania, Alabama and some other states, the courts hold that he 
 may.^^ In England, and in Illinois, Iowa, Indiana, Missouri, 
 Minnesota and some other states the courts hold the contrary.^'' 
 In the latter jurisdictions the certificate of the foreman is 
 deemed conclusive upon this point.^^ A 'grand juror may 
 testify that during the deliberations of the grand jury strang- 
 ers were present.*® He is not competent, however, to testify 
 why an indictment was not found.*" Nor, in some jurisdic- 
 tions at least, is he competent to impeach the indictment by 
 testifying that the prosecuting attorney was present during 
 the deliberations of the grand jury.*i A grand juror may 
 
 33— Com. V. Mead, 12 Gray 37— Gitchell v. People, 146 111. 
 
 (Mass.) 167, 71 Am. Dec. 741; 175; 37 Am. St. Rep. 147 (where 
 
 State V. Wood, 53 N. H. 484. a number of cases are cited and 
 
 34— Izer v. State, 77 Md. 110,26 approved). 
 
 Atl. Rep. 282. 38 — Gitchell v. People, supra; 
 
 35— State v. Benner, 64 Me. 278; Rex v. Marsh, 6 Ad. & El. 236, 33 
 
 Com. V. Mead, supra. E. C. L. 66. 
 
 36— Com. V. Smith, 9 Mass. 107; 39— State v. Will, 97 la. 58. 
 
 Sparrenberger v. State, 53 Ala. 40 — Owens v. Owens, 81 Md. 518. 
 
 481, 25 Am. Dec. 643. See also, 1 41 — State v. Johnson, 115 Mo. 
 
 Greenleaf on Bvid. § 252. 480. 
 
310 WITNESSES. 
 
 testify to confessions made before the grand jury.*^ The prose- 
 cuting attorney may be called to impeach a witness who also 
 testified before a grand jury.*^ And a grand juror is compe- 
 tent to support a witness who testified before the grand jury, 
 as well as to impeach him.** 
 
 § 31. Deliberations of arbitrators. — Generally speaking, the 
 principles applicable to the deliberations of petit jurors are 
 also applicable to the deliberations of arbitrators. But since 
 arbitrators exercise functions of both judge and jury, the pre- 
 cise scope of the issues upon which the award is made is not 
 open to investigation lik^ that of the issues upon which the 
 verdict of a petit jury is made. Arbitrators are not compe- 
 tent witnesses to impeach their award,*^ except in the case 
 of fraud or mistake.*^ Chief Justice "Walker says, "As a 
 general rule, arbitrators will not be permitted to give evi- 
 dence to impeach their award; to this rule there is an excep- 
 tion in cases of fraud (giving citations), and an exception has 
 -been allowed to establish a mistake in the award. "*^ Arbi- 
 trators may refuse to state the reasons or grounds of their 
 award, what itenis it includes, or what they meant by it. The 
 award is conclusive upon the parties both as to the law and 
 the facts.** The, conclusion reached by arbitrators is the 
 judgment of the court of the parties* own choosing, and in 
 most respects it is similar to other judgments. Arbitrators are 
 competent witnesses to support their award ;*9 but not to 
 prove their own misconduetj^" or that of their fellow-arbitra- 
 tors.^1 They may testify to the circumstances under which 
 
 42 — Hinshaw v. State, 147 Ind. Pulliam v. Pensoneau, 33 III. 375; 
 
 334; United States v. Porter, 2 1 Greenleaf on Evld., § 249. 
 
 Cranch (C. C.) 60, 27 Fed. Cas. 47— Pulliam v. Pensoneau, su- 
 
 No. 16,072. prd, 
 
 43— State v. Van Buskirk, Sd 48— Pulliam v. Pensoneau, su- 
 
 Ind. 384. pra. 
 
 44— People v. Hulbut, 4 Denlo 49— Stone v. Atwood,. supra; 
 
 (N. Y.) 133, 47 Am. Deo. 244. Ellison v. Weathers, supra. 
 
 45— Stone v. Atwood, 28 111. 30; 50— Claycomb v. Butler, 36 IlL 
 
 Ellison V. Weathers, 78 Mo. 115. loo; Tucker v. Page, 69 111. 179. 
 
 46 — Spruck v. Crook, 19 111. 415; 51 — Tucker v. Page, supra. 
 
PRIVILEGED COMMUNICATIONS. 311 
 
 the award was made, and when it was made f^ and in a legal 
 proceeding to enforce their award they may testify to matters 
 material to the issue.^^ 
 
 §32. Social communications. Husband and wife. — Confi- 
 dential communications between husband and wife have al- 
 ways been privileged.^* At the common law neither spouse 
 was a competent witness either for or against the other. En- 
 abling statutes have been enacted very geaerally modifying 
 this rule, but these statutes do not affect the rule of privilege 
 applicable to confidential communications between husband 
 and wife.^' The basis of this rule of privilege is the sacred- 
 ness of the marital relation. As said in a recent case by Chief 
 Justice Taylor, "Society has a deep-rooted interest in the 
 preservation of the peace of families, and in the maintenance 
 of the sacred institution of marriage; and its strongest safe- 
 guard is to preserve with jealous care any violation of those 
 hallowed confidences inherent in, and inseparable from the 
 marital status. Therefore the law places the ban of its pro- 
 hibition upon any breach of the confidence between husband 
 and wife, by declaring all confidential communications be- 
 tween them to be incompetent matters for either of them to 
 expose as witnesses."^® 
 
 There exists, as is pointed out by Professor Wigmore,^'' 
 much confusion in the decisions owing to failure on the part 
 of some courts to discriminate between the marital disquali- 
 fications to testify and the anti-marital privilege. The disquali- 
 fication of one spouse to testify on behalf of the other is quite 
 a different matter from the privilege of one spouse against 
 the disclosure of communications by the other. The courts, 
 however, frequently confuse these matters. It is to be ob- 
 
 52— Woodbury v. Northy, 3 Me. 55 — Bassett v. United States, 137 
 
 85, 14 Am. Dec. 214. U. S. 496; Hyde v. Gannett, 175 
 
 53— Graham v. Graham, 9 Pa. Mass. 177, 55 N. E. Rep. 991; Peo- 
 
 St. 254, 49 Am. Dec. 557. pie v. Wood, 126 N. Y. 249, 27 N. 
 
 54— Hopkins v. Grimshaw, 165 E. Rep. 362. 
 
 U. S. 342; Geer v. Goudy, 174 111. 56— Mercer v. State, 40 Fla. 216, 
 
 514; Puller v. Fuller, 177 Mass. 24 So. Rep. 154. 
 
 184; Derham v. Derham, 125 Mich. 57— Wigmore on Bvld., Vol. IV., 
 
 100. § 2334, 
 
312 WITNESSES. 
 
 served that a disqualification is never subject to waiver, 
 whereas a privilege usually is. This distinction, however, is 
 frequently overlooked. Thus, as pointed out by Professor 
 Wigmore, a common error of the courts is to ignore the hus- 
 band's right to waive the privilege when he offers to prove by 
 his wife communications made by him to her. The "erroneous 
 tendency is to treat the disclosure as absolutely prohibited in 
 spite of his consent." 
 
 To render the communications privileged, a valid marriage 
 is essential. If either of the parties has been previously mar- 
 ried to a third party who is still living and not divorced the 
 communications are not privileged.*^* It is also essential that 
 the communications be made during the existence of the mari- 
 tal relation. If made before the relation was created, or after 
 it was terminated, they are not privileged.**^ An injunction of 
 secrecy is not essential to create the privilege.^" 
 
 By the weight of authority it is essential that the communica- 
 tions be confidential in their nature.*^ This is the English rule, 
 as it obtains at common law.*^ In a few states the courts extend 
 the privilege to all communications between the spouses.^^ 
 And in a few others they extend it to all information acquired 
 by virtue of the marital relation.^* According to the last 
 view the privilege is applicable not only to positive acts,^^ but 
 also to silence on a particular subject.^^ Justice Sheldon says, 
 "We do not find from the authorities, that this rule of exclu- 
 sion is confined to subjects which are confidential in their na- 
 ture, and we think it should apply whenever the wife is called 
 
 58— Cole V. Cole, 153 lU. 585, 194; Beverldge v. Minter, 1 C. & 
 
 38 N. E. Rep. 703 ; Wells v. Fletch- P. 364, 11 B. C. L. 421. 
 
 er, 5 C. & P. 12, 24 E. C. L. 198. 63— Com. v. Hayes, 145 Mass. 
 
 59 — Stillwell v. Patton, 108 Mo. 289; Newstrom v. St. Paul, etc., 
 
 352, 18 S. W. Rep. 1075. Ry. Co., 61 Minn. 78. 
 
 60— Robin v. King, 2 Leigh 64— Pyle y. Oustatt, 92 111. 209; 
 
 (Va.) 140. Mercer y. State, supra; Perry v. 
 
 61— Seltz y. Seltz, 170 Pa. St. Randall, 83 Ind. 143; Holman y. 
 
 71; Hagerman y. Wlgent, 108 Bachus, 73 Mo. 49; MeCague v. 
 
 Mich. 192; Parkhurst y. Berdell, Miller, 36 Ohio St. 595. 
 
 110 N. Y. 386; Beyerline y. State, 65— Perry v. Randall, suprd. 
 
 147 Ind. 125. 66— Goodrum v. State, 60 Ga. 
 
 62 — Ayeson v. -Kinnaird, 6 East 509. 
 
PRIVILEGED COMMUNICATIONS. 313 
 
 upon to disclose any matter, which came to her knowledge in 
 consequence of the marriage relation. "^^ But, as said by 
 Professor Wigmore, ' ' The essence of the privilege is to protect 
 confidences only."^^ ^jj^ ^s said by President Green, "Where 
 there is not even a seeming confidence, when the act done or 
 declaration made by the husband, so far from being private 
 or confidential, is designedly public at the time, and from its 
 nature must have been intended to be afterwards public, there 
 is no interest of the marriage relation or society which in the 
 absence of all interest of the husband or wife requires the 
 latter to be precluded from testifying between other parties to 
 such act or declaration not affecting the character or person 
 of her husband. ' '^^ Letters written by one spouse to the other 
 are privileged;'^'' and also documents intrusted by one spouse 
 to the custody of the other.'* In some jurisdictions the courts 
 hold that the privilege may be asserted even in the case of 
 vituperative epithets by one spouse against the other j'^^ while 
 in other jurisdictions the courts hold the contrary.''* "Where 
 one of the spouses is on trial for a crime committed against a 
 third party, the rule of privilege is applicable;'* but it is held 
 that, where one spouse is on trial for a crime against the 
 other spouse, it is not." In civil actions between the spouses 
 themselves, the rule is held to be applicable in some jurisdic- 
 
 67 — Reeves Jr. v. Herr, 59 111. 68 — Wigmore on Evid., Vol. IV., 
 
 81, 85 (In this case it is held that § 2336. 
 
 in an action by the executor of a 69 — White v. Perry, 14 W. Va. 
 
 deceased person, to recover on an 66, 80. 
 
 account in favor of the deceased 70 — Derham v. Derham, 125 
 
 against the defendant, the widow Mich. 109; State v. Ulrieh, 110 Mo. 
 
 of the testator is incompetent to 350. 
 
 testify for the plaintiff in relation 71— Toole v. Toole, 107 Ga. 472. 
 
 to a conversation of the defend- 72— King v. King, 42 Mo. App. 
 
 ant with her husband in her pres- 454. 
 
 ence during coverture, in regard 73 — French v. French, 14 Gray 
 
 to the account, by which it was (Mass.) 186. 
 
 sought to prove an admission by 74 — People v. Mullings, 83 Cal. 
 
 the defendant of the account sued 138, 17 Am. St. Rep. 223. 
 
 on, and a promise on his part to 75 — Jordan v. State, 142 Ind. 
 
 pay the same within the period 422; People v. Warner, 117 Cal. 
 
 fixed by the statute of limitations 637. 
 barring such an action). 
 
314 WITNESSES. 
 
 tions/^ and in some notJ'' In divorce suits especially, the 
 rule, in some jurisdictions, is- not applicable.''* 
 
 Where a conversation between the spouses is overheard by a 
 third party the rule is not applicable. In such cases even an 
 eavesdropper may testify to the conversation.''^ But where the 
 conversation takes place in the presence of a third party who is 
 incapable of understanding it,*" or in the presence of the youth- 
 ful members of the family ,*i the reason for this exception to the 
 rule of privilege fails and the rule itself is applicable. Where 
 letters by one spouse to the other get into the hands of third 
 parties most courts hold that the privilege is gone.*^ Others 
 hold that where this happens unintentionally on the part of 
 the spouses, and without their fault, it is not.*^ 
 
 Where a third party is on trial for the murder of one spouse, 
 the other spouse is a competent witness to testify to dying decla- 
 rations of the deceased- As said by Justice Hobson, ' ' On grounds 
 of public policy, the wife cannot testify against the husband as 
 to what came to her from him confidentially or by reason of 
 the marriage relation, but this rule does not apply to a dying 
 communication made by the husband to the wife on a trial 
 of the one who killed him. The declaration of deceased made 
 in extremis in such cases is the thing to be proved, and this 
 proof may be made by any competent witness who heard the 
 statement. The wife may testify for the state, in cases of 
 this character, as to any other fact known to her."*^ And 
 
 76 — Hall v. Hall, 77 Mo. App. 81 — Hopkins y. Grlmshaw, 165 
 
 600; French v. French, 14 Gray U. S. 342; Lyon v. Prouty, 154 
 
 (Mass.) 186. Mass. 488 (In this case the court 
 
 77 — Goelz V. Goelz, 157 111. 33; holds that the presence of a four- 
 Joiner V. Duncan, 174 111. 252; teen-year-old daughter will not de- 
 Hunt V. Eaton, 55 Mich. 362. stroy the privilege). 
 
 78— Smith v. Smith, 77 Ind. 80; 82— State v. Ulrieh, 110 Mo. 
 
 Eobinson v. Robinson, 22 R. I. 121. 350; People v. Hayes, 140 N. T. 
 
 79— Com. V. Griffin, 110 Mass. 484, 37 Am. St. Rep. 572. 
 
 181; People v. Hayes, 140 N. Y. 83— Scott v. Com., 94 Ky. 511, 
 
 484, 37 Am. St. Rep. 572; State v. 42 Am. St. Rep. 371; Mercer v. 
 
 Hoyt, 47 Conn. 518, 36 Am., Rep. State, 40 Pla. 216, 74 Am. St. Rep. 
 
 89. 135. 
 
 80— Schierstein v. Schierstein, 84— Hilbert v. Com. (Ky. 1899), 
 
 68 Mo. App. 205. 51 S. W. Rep. 817. 
 
PEIVILEGED COMMUNICATIONS. 315 
 
 either spouse may testify to the fact of marriage.^^ Or to any 
 fact within the personal knowledge of either spouse not com- 
 municated by the other.*^ 
 
 Where one spouse acts as the agent of the other it is usually 
 held that the rule of privilege does not apply.^'' And likewise 
 as to business negotiations generally.^* Nor does the rule apply 
 ill certain eases of fraud. As said by Justice Sherwood, "where 
 a husband is made the conduit and mouthpiece of the fraud of 
 others, and in furtherance of that fraud prevails upon his wife 
 to sign a note and incumber her property, a court of equity, in 
 the absence of other evidence, in order to unearth that fraud and 
 to expose it in all of its details, will ex necessitate rei, and upon 
 a familiar common law principle, respecting evidence of fraud, 
 permit both husband and wife to testify as to the conversations 
 had between them in regard to the transaction. ' '^^ 
 
 At common law, neither spouse may waive the privilege 
 with respect to confidential communications between them. 
 Lord Ellenborough says, "It is sound doctrine, that trust and 
 confidence between man and wife shall not be betrayed."*" 
 And Justice McLean says, "To break down and impair the 
 great principles which protect the sanctities of husband and 
 wife, would be to destroy the best solace of human exist- 
 ence."*^ In most jurisdictions, however, the privilege may 
 be waived. In some of them it may be waived by the party 
 who made the communication.*^ While in others concurrence 
 on the part of both spouses is essential.*^ Taking the stand 
 and testifying with respect to the communication constitutes 
 a waiver;** and so does calling the other spouse to testify to 
 
 85 — Chase v. United States, 7 90 — Aveson v. Kinnaird, 6 East, 
 
 App. Cas. (D. C.) 149. 192. 
 
 86 — Brown v. Johnson, 101 Wis. 91 — Stein v. Bowman, 38 U. S. 
 
 661; White v. Perry, 14 W. Va. 66. 207, 222. 
 
 87— State v. Burlingame, 146 92— Stickney y. Sticltney, 131 U. 
 
 Mo. 207; Schmied v. Frank, 86 S. 227; Hutchason v. State, 67 Ind. 
 
 Ind. 250. Contra, Com. v. Hayes, 449. 
 
 145 Mass. 289; Kelly v. Andrews, 93— People v. Wood, 126 N. Y. 
 
 102 la. 119. 249; Maynard v. Vinton, 59 Mich. 
 
 88— Beitman y. Hopkins, 103 139, 60 Am. Rep. 276. 
 
 Ind. 177. 94— State v. Turner, 36 S. C. 
 
 89— Moeckel v. Heim, 134 Mo. 534, 15 S. B. Rep. 602. 
 K76, 580. 
 
316 WITNESSES. 
 
 it.^^ But testifying generally in the cause does not.*^ Nor 
 does the death of either spouse or a decree of divorce.^T 
 
 §33. Business communications. Telegraphic dispatchesr— 
 As a general rule, ordinary business communications are not 
 privileged. Though made in confidence their disclosure may 
 be compelled. Thus, communications made between a princi- 
 pal and agent,^ or master and servant,^ or guardian and ward,^ 
 or copartners,* or codefendants,'' or cotenants,^ are not privi- 
 leged. Nor are communications between members of fraternal 
 organizations privileged at common law. Thus it has been 
 held that communications between members of the Masonic or- 
 der are not privileged.'' Nor are communications made to 
 newspaper reporters privileged.® Nor those made to a com- 
 mercial agency.® Nor those made to a banker .i" The mere 
 fact that a communication was made in confidence under a 
 pledge of privacy, or oath of secrecy, will not prevent its 
 disclosure in a court of justice.^^ 
 
 Telegraphic dispatches are not privileged communications. 
 The telegraph company, through its agents, can be compelled 
 to disclose them.i^ A few able jurists, however, have advo- 
 cated that, on the ground of public policy, they should be 
 treated as privileged. Thus, Justice Cooley says, "The tele- 
 graph is used as a means of correspondence, and as a valuable 
 and in many cases an indispensable substitute for the postal 
 facilities; and the communication is made, not because the 
 
 95 — Columlbia, etc., Ry. Co. v. 4 — ^Wills Point Bank v. Bates, 
 
 Hawthorne, 3 Wash. Ter. 353. 72 Tex. 137. 
 
 96— People v. MuUings, 83 Cal. 5— Hamilton v. Nott, L. R. 16 Bq. 
 
 138, 17 Am. St. Rep. 223. 112, 42 L. J. Ch. 512. 
 
 97 — Geer v. Goudy, 174 111. 514; 6 — Sutton v. Sutton, supra. 
 
 Hopkins v. Grimshaw, 165 U. S. 7 — Owens v. Frank, 7 Wyo. 457. 
 
 342; Owen v. State, 78 Ala. 425, 8— People v. Durrant, 116 Cal. 
 
 66 Am. Rep. 40; Hitchcock v. 179. 
 
 Moore, 70 Mich. 112; State v. Ko- 9 — Shaner v. Alterton, 151 U. S. 
 
 dat, 158 Mo. 125; Brock v. Brock, 607. 
 
 116 Pa. St. 109. 10— toyd v. Freshfield, 2 C. & 
 
 1— Kerr v. Gillespie, 7 Beav. 572. P. 325, 329. 
 
 2 — Falmouth v. Moss, 11 Price 11 — Cox v. Montague, 24 C. C. 
 
 455. A. 364, 78 Fed. Rep. 845. 
 
 3— Sutton V. Sutton (Tenn. Ch. 12 — United States v. Hunter, 15 
 
 WOO) 58 S. W. Rep. 891. Fed. Rep. 712; Woods v. Miller, 55 
 
PRIVILEGED COMMUNICATIONS. 317 
 
 party desires to put the operator in possession of facts, but 
 because transmission without it is impossible. It is not volun- 
 tary in any other sense than this, that the party makes it 
 rather than deprive himself of the benefits of this great in- 
 vention and improvement. The reasons of a public nature for 
 maintaining the secrecy of telegraph communication are the 
 same with those which protect correspondence by mail; and 
 though the operator is not a public officer, that circumstance 
 appears to us immaterial. He fulfils an important public func- 
 tion; and the propriety of his preserving inviolable secrecy in 
 regard to communications is so obvious that it is common to 
 provide statutory penalties for disclosure. If on grounds of 
 public policy the operator should not voluntarily disclose, why 
 do not the same considerations forbid the Courts compelling 
 him to do so?"^^ And Baron Bramwell says, "I really think 
 that for the public good there ought to be no power of com- 
 pelling the production of these documents. It is the necessary 
 consequence that persons who correspond by telegram are 
 obliged to repose confidence in the Crown, and I believe it will 
 be for the public good if it is found that that is a confidence 
 that the Crown cannot be compelled to violate. Inconvenience 
 might arise in many cases. It might arise in the case of a con- 
 fidential communication between attorney and client, or hus- 
 band and wife; therefore we must look to the general prin- 
 ciple."!* 
 
 In England, telegraphic dispatches were originally treated 
 as not privileged.!^ After the Government assumed control of 
 the telegraphic service in 1868, the courts for a time took the 
 opposite view ;i*- but later they abandoned it, and since then 
 the original view has obtained.!^ In this country,!^ and in 
 Canada,!® the original English rule has always obtained. 
 
 la. 168, 39 Am. Rep. 170; State v. 16 — Stroud Election Cases, s«- 
 
 Litchfield, 58 Me. 267; Ex parte pra. 
 
 Brown, 72 Mo. 83, 37 Am. Rep. 426. 17— iSe Smith, L. R. Jr., 7 Ch. 
 
 13— Cooley's Constitutional Llm- Dlv. 286. 
 
 Itations (6th ed.), p. 371, note. 18— Cases cited In foot-note 13. 
 
 14— Stroud Election Cases, 2 19— Be Dwight v. Maclam, 15 
 
 O'M. & H. 107, 112. Ont. 148, 154 (able opinion by 
 
 15— Henlslaw v. Freedman, 2 Chancellor Boyd). 
 Pars. Eq. Cas. 274. 
 
318 WITNESSES. 
 
 iJpon principle, telegraphic dispatches should not be treated 
 as privileged. As said by Professor Wigmore, "the very first 
 condition of a privilege is lacking, namely, the intention to 
 keep the message secret in the hands of the transmitter. It is 
 given to him for the sole purpose of being delivered to some 
 one else; and that some one else is not only compellable to 
 disclose it in court, but (for aught that appears) may freely 
 and honorably publish it to others at any time. In short, 
 there is no ultimate and absolute confidentiality in a tele- 
 gram, but only a mediate and relative secrecy. Since the law 
 need not respect its privacy in its ultimate stage, there 'is no 
 reason for respecting the intermediate stage. "^'' Nor should 
 they be treated as privileged on grounds of public policy. As 
 said by Justice King, "If we adopt this construction of the 
 law, the telegraph may be used with the most absolute secur- 
 ity for purposes destructive to the well-being of society, — a 
 state of things rendering its absolute usefulness at least ques- 
 tionable. The correspondence of the traitor, the murderer, the 
 robber, and the swindler, by means of which their crimes and 
 frauds could be the more readily accomplished and their detec- 
 tion and punishment avoided, woiTld become things so sacred 
 that they never could be accessible to the public justice, how- 
 ever deep might be the public interest involved in their produc- 
 tion. For the result of the principle contended for is that the 
 seal of secrecy is placed on all telegraphic communications, as 
 well in courts of justice as elsewhere, and that they are to be 
 classed with privileged communications, such as those between 
 husband and wife, counsel and client. . . . The law is jealous 
 of extending the circle of persons excused or interdicted from 
 giving testimony. Parents are required to testify against chil- 
 dren, children against parents, brothers agaiast brothers, 
 friends against friends. Communications by letter, made un- 
 der the deepest obligations of friendship, affection or honor, 
 still must be produced, if deemed necessary to the ascertain- 
 ment of the truth and the administration of justice by the pub- 
 lic tribunals. To this great end of social organization, all 
 secondary causes are required to give way."^* 
 
 20 — wigmore on Bvld., Vol. IV., 21 — Henlslaw v. Freedman, ««- 
 p. 3191. pra. 
 
CHAPTER III. 
 
 EXAMINATION OF WITNESSES. 
 
 §1. Swearing' the witnesses.— Before witnesses are examined 
 they are sworn or aiHrmed. This is to quicken their consciences 
 with the view of insuring the truth. As said by Best, ' ' The ob- 
 ject of the law in requiring an oath is to get at the truth by 
 obtaining a hold on the conscience of the witness. ' '^ And as said 
 by Justice Somerville, it is "to purge the conscience, and im- 
 press the witness with a due sense of religious obligation, so as 
 to secure the purity and truth of his testimony under the influ- 
 ence of its sanctity. ' '^ And as said by Justice Ashburn, ' ' The 
 purpose of the oath is not to call the attention of God to the 
 witness, but the attention of the witness to God; not to call 
 upon Him to punish the false-swearer, but on the witness to 
 remember that He will surely do so. By thus laying hold of 
 the conscience of the witness and appealing to his sense of 
 accountability, the law best insures the utterance of truth. "^ 
 
 § 2. — Form of administering the oath. — The form of admin- 
 istering the oath varies in different jurisdictions. Its force is 
 subjective rather than objective. It should be administered in 
 such form as will most effectively serve the purpose of quicken- 
 ing the conscience of the witness and stimulate him to tell the 
 truth. As said by Chief Justice Rejmolds, "The pure prin- 
 ciple of the common law is that oaths are to be administered to 
 all persons according to their own opinions, and as it most, 
 affects their consciences."* And as said by Lord Chief Justice 
 Mansfield, "upon the principles of the common law there is no 
 particular form essential to an oath to be taken by a witness; 
 but as the purpose of it is to bind his conscience, every man of 
 every religion should be bound by that form which he himself 
 
 1— Best on Evld., §161. 3— Clinton v. State, 33 Ohio St. 
 
 2— Blackstone v. State, 71 Ala. 33. 
 319. 4— Gill V. Caldwell, 1 111. 5S. 
 
 319 
 
320 WITNESSES. 
 
 thinks will bind his own conscience inost."3 And as said by- 
 Lord Chancellor Hardwieke, "It is laid down by all writers 
 that the outward act is not essential to the oath. . . . It has 
 been the wisdom of all nations to administer such oaths as are 
 agreeable to the notion of the person taking. ' '^ And as said by 
 Lord Stairs, "It is the duty of judges in taking the oaths of 
 witnesses to do it in those forms that wiU most touch the con- 
 science of the swearers according to their persuasion and cus- 
 tom; and though Quakers and fanatics deviating from the com- 
 mon sentiments of mankind refuse to give a formal oath, yet if 
 they do that which is materially the same, it is materially an 
 oath.'"^ Quakers and others, however, who have refused to 
 take an oath owing to conscientious scruples against swearing 
 have been committed to jail for contempt. This happened in 
 England as late as 1854. ^ It also happened in Boston in 1815.' 
 According to the modern rule, however, based very generally 
 upon statutes, such persons may affirm. 
 
 §3. Same. Usual forms at common law. — At the English 
 common law, the usual form of administering the oath in crim- 
 inal cases is as follows : The clerk of the court hands the wit- 
 ness a copy of the Bible and then says to him, "The evidence 
 you shall give between our sovereign lord the king and the pris- 
 
 5 — Atcheson v. Everitt, Cowp. the mode prescribed by his pecu- 
 
 389. liar faith, a Chinese by his spe- 
 
 6 — Omichund v. Earlier, 1 Atk. cial ceremonies, and the like." 
 
 45 (This is a leading English case And in the same case Chief Baron 
 
 and one which has been very fre- Pollock says, "It appears to me to 
 
 quently cited and commented have decided merely this, — that 
 
 upon. See 9 Harvard Law Review the common law of England agrees 
 
 for an article on it and some oth- with the law of nations, that the 
 
 ers decided a little earlier. It was form of an oath is to be accommo- 
 
 decided 1745. In commenting upon dated to the religious persuasion 
 
 it in 1852, Baron Alderson, in Mil- which the swearer entertains."), 
 
 ler V. Salomons, 7 Exch. 535, 558, 7 — Institutes of the Laws of 
 
 says: "Omichund v. Barker has Scotland, p. 692; and quoted with 
 
 settled that it ought to be taken approval by Lord Chief Justice 
 
 in that form and upon that sane- Willes in Omichund v. Barker, su- 
 
 tion which most effectually binds pra. 
 
 the conscience of the party swear- 8 — Powell on Evid. (4th ed.) 32. 
 
 ing. Thus, a Jew is to be sworn 9— United States v. Coolidge, 2 
 
 on the Book of the Law and with Gall. 363. 
 his head covered, a Brahmin by 
 
EXAMINATION OF WITNESSES. 321 
 
 oner at the bar shall be the truth, the whole truth, and noth- 
 hig but the truth. So help you God." In civil cases the clerk 
 says to the witness, "The evidence that you shall give to the 
 Court and jury, touching the matters in question, shall be the 
 truth, the whole truth, and nothing but the truth. So help you 
 God." The witness in each ease then kisses the Book.i'' 
 
 §4. The custom of kissing the Bible. — The custom which 
 obtained for centuries in England of witnesses kissing the Bible 
 has been criticised frequently. Professor Wigmore says, "The 
 custom of kissing the Book is now coming to be generally recog- 
 nized as both repulsive and unsanitary. "^^ And in a recent 
 case the trial judge characterized it as "a relic of idolatry." 
 In explanation of his statement he said further, "I mean that 
 it was established by the church to show the humiliation of the 
 people before the first judges, who were clerics. It has been 
 abolished in England, judicial declarations, subject to penal- 
 ties, being substituted. I mean that it is a relic of a supersti- 
 tious age and superstitious people, under the subjection of 
 priestcraft. It is a relic of that age when trial by fire took the 
 place of trial by jury; when a man's guilt or innocence de- 
 pended on his physical capacity to resist pain and torture; but 
 its worst feature is the dirt and disease which is imparted to 
 the book by the constant handling it receives from dirty wit- 
 nesses. . . . It is like the custom of kissing the brass toes of 
 graven images. ... I think swearing on the Bible should be 
 abolished. I think a witness can take just as good an oath with 
 the uplifted hand as on the Bible. "^^ To secure better sanitary 
 conditions, in some jurisdictions celluloid covers have been pro- 
 vided.^ ^ In this country it ha^ been very generally held that 
 swearing with uplifted hand, without the Bible, is sufficient at 
 common law.i* And in the case of a Chinese witness, to snuff 
 out a candle and to pray that he be snuffed out likewise if he 
 commits perjury has been held sufficient.^^ 
 
 §5. Constitutional and statutory provisions relating to 
 oaths. — In practically all of the jurisdictions of this country 
 
 10— Chltty's Criminal Law (4th 13—20 Montreal Legal News 274. 
 
 Amer. ed.). Vol. I, p. 616. 14 — Gill v. Caldwell, supra; 
 
 11— Wigmore on Evid., Vol. Ill, McKinney v. People, 7 111. 540. 
 
 p. 2353, note. 15— State v. Gin Pou, 16 Wash. 
 
 12—31 Central Law Journal 93. 425, 47 Pac. Rep. 961. 
 21 
 
322 WITNESSES. 
 
 the injustice of the English common law rule relating to oaths 
 has been removed, either by constitutional or statutory pro- 
 visions, or by both. But in no jurisdiction has the use of the 
 oath been abolished. Some of these provisions are merely de- 
 claratory of the common law. In some instances they merely 
 duplicate each other, and in some they are inconsistent with 
 each other. The constitutional provisions very generally guar- 
 antee that a person's theological belief shall not affect his civil 
 capacity, and this includes his competency to act as a witness. 
 In two states, however, the constitutions expressly declare that 
 a theological belief is essential to the competency of a witness. 
 These two states are Maryland and Arkansas.i^ The statutes 
 very generally provide that a witness may choose to make 
 affirmation instead of oath. Oklahoma is the only state in 
 which statutes upon this subject do not provide this alternative. 
 The Oklahoma statute is as follows: "Before testifying, the 
 witness shall be sworn to testify to the truth, the whole truth, 
 and nothing but the truth. The mode of adminfstering an oath 
 shall be such as is most binding on the conscience of the wit- 
 ness."!^ 
 
 § 6. Same. Constitutional and statutory provisions in Illi- 
 nois.— The constitution of Illinois provides as follows: "No 
 person shall be denied any civil or political right, privilege, or 
 capacity, on account of his religious opinions; but the liberty 
 
 16 — The provisions in the Mary- tual confirmation by the attesta- 
 
 land constitution are as follows: tion of the Divine Being." Con- 
 
 "Nor shall any person, otherwise stitution of 1867, Articles 36 aud 
 
 competent, be deemed incompetent 39. 
 
 as a witness or juror on account The provisions in the Arkansas 
 of his religious belief; provided constitution are as follows: "Nor 
 he believes in the existence of shall any person be rendered in- 
 God, and that under His dispensa- competent to be a witness on ac- 
 tion such person will be held mor- count of his religious belief; but 
 ally acountable for his acts and nothing herein shall be construed 
 be rewarded or punished therfor to dispense with oaths or affirma- 
 either in this world or the world tions. . . No person who da- 
 te come. . . That the manner nies the existence of a God shall 
 of administering an oath or af- . . . be competent to testify as 
 flrmation to any person ought to a witness in any court" Consti- 
 be such as those of the religious tution of 1874, Art II, § 26, and 
 persuasion, profession, or denom- Art. XIX, § 1. 
 ination of which he is a member, 17 — Statutes of 1893, § 4229. 
 generally esteem the most effec- 
 
EXAMINATION OF WITNESSES. 323 
 
 of conscience hereby secured shall not be construed to dispense 
 with oaths or affirmations, "i^ And the statutes of this state 
 provide as follows : ' ' The person swearing shall, with his hand 
 uplifted, swear by the everliving God, and shall not be com- 
 pelled to lay the hand on or kiss the Gospels . . . (and that 
 when) such person shall have conscientious scruples against 
 taking an oath, he shall be admitted, instead of taking an oath, 
 to make his solemn affirmation or declaration in the following 
 form, to- wit: You do solemnly, sincerely and truly declare 
 and affirm. Which solemn affirmation or declaration shall be 
 equally valid as if such person had taken an oath in the usual 
 form; and every person guilty of falsely and corruptly declar- 
 ing, as aforesaid, shall incur and suffer the like pains and pen- 
 alties as are or shall be inflicted on persons convicted of willful 
 and corrupt perjury, "i* 
 
 §7. Extent of the option to swear or affirm. — Under the 
 legislative provisions which give the option of swearing or 
 affirming, witnesses who have a theological belief, and have no 
 conscientious scruples against taking an oath, are, as a general 
 rule, not allowed to affirm. In some jurisdictions, however, 
 such persons are allowed to affirm, as well as those who have 
 no theological belief, or who have conscientious scruples against 
 taking an oath. 
 
 § 8. Effect of testifying without being sworn or affirmed. — 
 
 Where a witness testifies without being sworn or affirmed, and 
 the omission is not discovered until after the verdict is rendered, 
 the verdict will be set aside.^" But where the omission is dis- 
 covered before the jury retires, and no objection is made, the 
 error will be deemed waived. As said by Justice Hanna, ' ' The 
 statute (2 R. S., p. 80) requires witnesses to be sworn, which 
 is but in accordance with the doctrines of the elementary writers. 
 1 Greenl. Ev. § 328. But in the case at bar, we are not informed 
 when the mistake, as to the testimony having- been given with- 
 out the sanction of an oath, was discovered by the complaining 
 party. The first we hear of it is in the reasons for a new trial. 
 
 18— Constitution of 1870, Art. 20— Reg. v. James, 6 Cox C. C. 
 
 11^ § 3. 5; Hawkes v. Baker, 6 Me. 72. 
 
 19— Revised Statutes of 1874. 
 ehap. 101, §§ 3 and 4. 
 
324 WITNESSES. 
 
 If it was known before the jury retired, the mistake could have 
 been corrected by swearing the witness and rehearing the evi- 
 dence; or if that course was not taken, by an instruction to the 
 jury to' disregard his statements. If no motion was made upon 
 the discovery, by either party, it would amount to an acquies- 
 cence in the reception of his statements as evidence in the 
 case. ' '21 And as said by Chief Justice Shaw, ' ' Taking the facts 
 as stated, the Court are of opinion, that the defendant, knowing 
 that the witness had not been sworn, before the cause went 
 to the jury, without giving notice thereof to the Court, or tak- 
 ing any exception, has waived his right to except, after verdict. 
 . . In the present case, if notice had been seasonably given 
 and the exception taken, the witness might probably have been 
 recalled; if not, the jury should have been discharged, to avoid 
 giving an erroneous and useless verdict. Had the witness been 
 recalled, and confirmed his testimony on re-examination, the 
 defect would have been cured; had he refused to do so, the 
 cause might have been withdrawn from the jury, or other proper 
 course adopted. But a verdict having been taken, with knowl- 
 edge of the omission of the witness to be sworn, through inad- 
 vertence of all parties, the objection comes too late, and cannot 
 effect the validity of the verdict. "22 
 
 §9. Effect where an atheist takes the oath and testifies. 
 Bradlaugh's case, — At the common law an atheist is an in- 
 competent witness. If, however, he tenders himself as a witness 
 and gives evidence under oath, he cannot take advantage of his 
 own wrong. If, therefore, he testifies falsely he may be pun- 
 ished for committing perjury. Other persons, however, may 
 object to the validity of his testimony and to his incompetency, 
 if the objection be made in due season. 
 
 Moreover, under the English Parliamentary Oaths Act he 
 cannot qualify himself, as a member of parliament, to vote. In 
 a celebrated English case, decided in 1885, Mr. Bradlaugh, the 
 defendant, had been elected a member of parliament. He had 
 no belief in a Supreme Being, but he repeated and subscribed 
 the oath required of the members and voted. He was prose- 
 cuted by the Attorney-General for voting without having taken 
 
 21— Slaughter v. Whitelock, 12 22 — Cady v. Norton, 31 Mass. 
 Ind. 338. 236. 
 
EXAMINATION OF WITNESSES. 325 
 
 the oath of allegiance within the meaning of the Parliamentary 
 Oaths Act and judgment was entered against him. Lord Chief 
 Justice Coleridge, in summing up the ease to the jury, said the 
 meaning of tlie term "I swear," in the Act, meant "I invoke 
 the protection or the vengeance of the Supreme Being, accord- 
 ing as I perform or break the promise with which such appeal 
 is now made to Him. ' ' An appeal was taken, and Brett, Master 
 of the Rolls, said, "No oath can be legally taken by a person 
 who has no belief in a Supreme Being: this is established by a 
 long string of authorities, but it is only necessary to cite Omi- 
 chund V. Barker (1) to show that in order that ah oath may be 
 lawfully taken, there must exist a belief in a Supreme Being. 
 ... A witness, who does not regard an oath as binding upon 
 him, nevertheless may be convicted of, and sentenced for per- 
 jury, if he gives false evidence; for he has tendered himself 
 as a competent witness, and he shall not be allowed to take advan- 
 tage of his own wrong by alleging that he was incompetent to 
 be sworn. ... If a man takes an oath, he himself is estopped 
 from denying its validity; but other persons may object that he 
 is incompetent to take it. ' '^^ 
 
 § 10. The true piurpose of the oath. The early view. Its in- 
 justice. The modern view,— The true purpose of the oath is to 
 increase testimonial efficiency of the witness by quickening his 
 conscience and thereby stimulating him to tell the truth. Ac- 
 cording to the early view its purpose in a measure was miscon- 
 ceived. This misconceived purpose was to exclude witnesses 
 from testifying merely because they lacked theological belief, 
 or had conscientious scruples against taking an oath. As a 
 result, suitors were often denied a full measure of justice. This 
 early misconception, however, and its consequent injustice, have 
 been largely eliminated. As said by Professor Wigmore, ' ' The 
 true purpose of the oath is not to exclude any competent wit- 
 ness, but merely to add a stimulus to truthfulness wherever 
 such a stimulus is feasible". Until the 1800s, however, this 
 advanced notion of its purpose had not been reached. The 
 requirement wa^ inexorable; with the result that three classes 
 of persons were absolutely excluded from testifying, namely, 
 adults having an atheistical belief, infants lacking any theologi- 
 
 23— Attorney-General v. Bradlaugh, 14 Q. B. D. 667, 671, 680, 681. 
 
326 WITNESSES. 
 
 cal belief, and adults having the requisite belief but forbidden 
 by conscience to take an oath. It came gradually to be per- 
 ceived that the use of the oath, not to increase testimonial effi- 
 ciency, but to exclude qualified witnesses, was not only an abuse 
 of its true principle, but also a practical injustice to suitors 
 who needed testimony. This injustice is clearly enough seen 
 to-day; but its perception was naturally slow in coming, so 
 long as in the community at large the profession of belief in 
 deism or atheism was associated closely with the notion of moral 
 defects. This association hardly passed away in any degree 
 until the middle of the 1800s, — an era marked at the same 
 time, by the indirectly related movements of literary romanti- 
 cism, political liberalism, industrial invention, legal free speech, 
 and theological free thought. The first statutory efforts in Eng- 
 land to relieve from this injustice are found at the end of the 
 first quarter of the 1800s. To-day, practically everywhere, the 
 injustice is remedied. Arguments are no longer needed to 
 prove the impropriety of the old inexorable rule. It is con- 
 ceded that the oath should be dispensed with for appropriate 
 classes of witnesses. We are today at the end of that stage of 
 the question. What is to be noted (but is sometimes forgotten) 
 is that the demand for the dispensation of the oath for witnesses 
 for whom it is inappropriate differs entirely from the proposal 
 to abolish the oath for persons theologically capable of taking 
 it. One is a question of the past ; the other is a question for the 
 future. "2* 
 
 § 11. Capacity of infants to testify. Oath-capacity and testi- 
 monial qualifications distingfuished. — At the English common 
 law a child who was incompetent to take an oath was an incompe- 
 tent witness. There was no precise age, however, under which 
 an infant was excluded on the presumption that he possessed in- 
 sufficient intelligence. At the age of fourteen years he was 
 presumed to have ordinary discretion and understanding. Under 
 that age there was no presumption one way or the other. 
 Whether he possessed sufficient understanding and understood 
 the nature and meaning of an oath, or not, were matters for the 
 trial judge to determine. This preliminary examination usually 
 took place in open court. The child was questioned concerning 
 
 24— Wigmore on Evid., Vol. Ill, § 1827, par. (2). 
 
EXAMINATION OF WITNESSES. 327 
 
 the nature of an oath, and what would become of him if he told 
 a lie. The usual reply was that he would go to hell, or to the 
 bad place. This reply was usually considered satisfactory. In 
 an early case the court say: "An infant, though under the 
 age of seven years, may be sworn in a criminal prosecution, 
 provided such infant appears on strict examination by the Court 
 to possess a sufficient knowledge of the nature and consequences 
 of an oath. For there is no precise or fixed rule as to the time 
 within which infants are excluded from giving evidence ;, but 
 their admissibility depends upon the sense and reason they 
 entertain of the danger and impiety of falsehood, which is to 
 be collected from their answers to questions propounded to them 
 by the Court; but if they are found incompetent to take an 
 oath, their testimony cannot be received. "^^ 
 
 Generally speaking, this early rule still obtains. It is very 
 doubtful, however, that the competency of an infant to testify 
 should depend upon any theological test. In some jurisdictions, 
 including Michigan, statutes have been passed which allow 
 infants under ten years of age or thereabouts to testify without 
 taking an oath. These statutes are sensible, and should prevail 
 in every jurisdiction. The Michigan statute provides substan- 
 tially that whenever a child under ten years of age is desired 
 as a witness, the court shall ascertain whether he has sufficient 
 understanding and sense of moral obligation to tell the truth or 
 not; and if he has such he may be admitted to testify on his 
 promise to tell the truth. No oath is essential. The jury may 
 give his testimony such credit as they think it deserves.^^ Pro- 
 fessor Wigmore says, "But it may be doubted whether this 
 analysis of a child's belief, which sometimes becomes a far from 
 edifying proceeding, is ever of any real profit. A child's incli- 
 nation to tell the truth or the opposite is apt to be more a matter 
 of instinct and of previous training and surroundings than of 
 a conscientious reflection upon the prospects of a future state. 
 It has already been suggested {ante, §509, post, §1826) that, 
 for any purpose whatever, the preferable course is to accept a 
 child's story for what it seems to be worth, as ascertainable upon 
 testifying, and not to impose any fixed limitations. For the 
 same reasons, any theological tests, especially when applied in 
 
 25— Rex V. Brasier, East Pleas 26 — Howell's Ann. Statutes, § 
 of the Crown, I, 443 (1779). 7546, a. 
 
328 
 
 WITNESSES. 
 
 erude form by laymen in court, must be more or less inappros 
 priate."27 
 
 It is to be observed, therefore, that capacity to take an oath 
 and capacity to testify are not synonymous terms. According 
 to the early view, however, they were so considered. The oath 
 is a special test or security of trustworthiness, and should always 
 be used where the witness possesses a theological belief and has 
 no conscientious scruples against taking an oath. But, on the 
 other hand, where a witness has not the capacity to take an 
 oath, but possesses sufficient intelligence and a moral sense to 
 tell the truth he should not be excluded from giving his testi- 
 mony. 
 
 § 12. The custom of swearing' several witnesses at the same 
 time. — The custom of swearing at the same time all the wit- 
 nesses called by one of the parties to the suit is a pernicious one. 
 It saves time, but its objectional features outweigh this .advan- 
 tage. It is not against principle, but it is against public policy. 
 Its chief objectionable features are the following: (1) It 
 weakens the solemnity of the act. Bunching a number of wit- 
 nesses together apparently diminishes the obligation of each, 
 and weakens the individual impressiveness of the occasion: (2) 
 The interval which intervenes between the act of taking the 
 oath and the act of testifying tends to diminish the influence 
 of the former upon the mind of the witness; and (3) It tends 
 to produce confusion. 
 
 § 13. Publicity of the examination. Its advantages. Its lim- 
 itations. — ^In the ecclesiastical courts, and in others which have 
 borrowed their system of procedure from the civil law, trials 
 are conducted secretly. Under the common law, however, they 
 are conducted publicly. Bishop says, "It is the immemorial 
 usage of the common law, not only in England, but in every 
 part of this country, since its earliest settlement, to try all pris- 
 oners in open court, to which spectators are admitted. "^^ An 
 amendment to the Federal Constitution provides that "in all 
 criminal prosecutions, the accused shall enjoy the right to a 
 speedy and public trial, by an impartial jury of the state and 
 district wherein the crime shall have been committed. "^^ And 
 
 27 — ^wigmore on Evid., Vol. Ill, 29 — Federal Constitution, Art 6 
 5 1821, par. (b). of the amendments. 
 
 28 — 1 Bish. Grim. Proc. I 957. 
 
EXAMINATION OF WITNESSES. 329 
 
 the constitutions of the various states contain the same pro- 
 vision or similar ones. 
 
 Public trials have decided advantages over secret trials. In 
 the first place they play an important part in stimulating wit- 
 nesses to tell the truth. A witness who is inclined to falsify will 
 naturally be more inclined to tell the truth if persons are pres- 
 ent who may also be informed. Their presence will tend to in- 
 spire him with a wholesome fear of being prosecuted for perjury 
 should he testify falsely. As said by Sir William Blackstone, 
 "This open examination of the witness, viva voce, in the pres- 
 ence of all mankind, is more conducive to the clearing up of 
 truth than the private and secret examination taken down before 
 an ofQcer or clerk in the ecclesiastical courts and all others that 
 have borrowed their practice from the civil law; where a wit- 
 ness may frequently depose that in private which he will be 
 ashamed to testify in a public and solemn tribunal."^* Then 
 again, public trials are conducive to correct and conscientious 
 conduct on the part of all the court officials. The publicity of 
 the occasion is an inspiration to the efiSeient and faithful per- 
 formance of official duties. And lastly, public trials are effectual 
 in. inspiring in the public at large a confidence in judicial inves- 
 tigations and in the administration of justice that could not be 
 inspired by any secret procedure. 
 
 This wise and general system, however, has some limitations. 
 Cases arise in which public policy demands that it be limited. 
 And in some jurisdictions, including England, "Wisconsin, Mich- 
 igan, Colorado, Georgia and Utah, statutes have been passed 
 which , provide that this may be done. These statutes leave the 
 matter to be decided in the sound discretion of the court. 
 
 Judge Cooley, in speaking upon this subject, says, "It is 
 also requisite that the trial be public. By this is not meant 
 that every person who sees fit shall in all cases be permitted to 
 attend criminal trials ; ■ because there are many cases where, 
 from the character of the charge and the nature of the evidence 
 by which it is to be supported, the motives to attend the trial 
 on the part of portions of the community would be of the worst 
 character, and where a regard to public morals and public 
 decency would require that at least the young be excluded from 
 hearing and witnessing the evidences of human depravity which 
 
 30— Blackstone's Com. Book III, 73. 
 
330 WITNESSES. 
 
 the trial must necessarily bring to light. The requirement of a 
 public trial is for the benefit of the accused, that the public 
 may see he is fairly dealt with and not unjustly condemned, and 
 that the presence of interested spectators may keep his triers 
 keenly alive to a sense of their responsibility and to the im- 
 portance of their functions; and the requirement is fairly 
 observed if, without partiality or favoritism, a reasonable pro- 
 portion of the public is suffered to attend, notwithstanding that 
 those persons whose presence could be of no service to the 
 accused, and who would only be drawn thither by a prurient 
 curiosity, are excluded altogether, "^i 
 
 The statutes upon the subject usually provide that spectators, 
 especially minors, may be excluded in actions for rape, seduc- 
 tion, abortion, criminal conversation, and the like. Such a 
 statute was passed in England in 1848,^^ and others have been 
 passed there since. The Colorado statute provides that it shall 
 be the duty of the court to exclude persons not officers or con- 
 nected with the case on the suggestion of counsel that the evi- 
 dence "will be of such character that unnecessary publicity 
 would operate injuriously on public morals.^^ The Utah stat- 
 ute provides that, "In an action for divorce, criminal conver- 
 sation, seduction, abortion, rape, or assault with intent to com- 
 mit rape, the Court may in its discretion exclude all persons 
 who are not directly interested therein, except jurors, witnesses, 
 and officers of the court.^* And the Wisconsin statute provides 
 substantially the same.^s 
 
 The constitutionality of such statutes has been questioned; 
 and in Michigan the supreme court have declared such a statute 
 unconstitutional.36 Tj^g Michigan statute provided that "When- 
 
 31 — Cooley on Const. Lim. (6th in the case, but announced that 
 
 ed.), § 379. any friend or person that was con- 
 
 32 — 11 and 12 Vict, chap. 42, nected or related to or interested 
 
 § 19. in the defendant himself was not 
 
 33— Colo. C. C. P. 1891, § 421. tc be excluded. "I don't propose," 
 
 34— Utah Rev. Stats. 1898, § 696. says the court, "to have the court- 
 
 35— Wis. Stats. 1898, § 4789. room filled up with people here to 
 
 36 — People v. Yeager, 113 Mich, embarrass witnesses in this case. 
 
 228. In this case the defendant . . I have told the officer not 
 
 was tried for assault with intent to let anybody in here who is not 
 
 to commit rape. The trial court either a friend of the complaining 
 
 excluded from the court-room all witness or of the defendant. He 
 
 persons not legitimately interested will ascertain that fact as they ap- 
 
EXAMINATION OF WITNESSES. 331 
 
 ever it shall appear that, upon the trial of any cause, evidence 
 of licentious, lascivious, degrading or peculiarly immoral acts or 
 conduct, will probably be given, the judge presiding at such 
 trial may, in his discretion, require and cause every person, 
 except those necessarily in attendance thereof, to retire and 
 absent himself or herself from the court-room during such trial, 
 or any portion .thereof. "^'^ The Michigan constitutional pro- 
 vision reads as follows: "In every criminal prosecution, the 
 accused shall have the right to a speedy and public trial by an 
 impartial jury.''^^ According to the better view, however, such 
 statutes do not violate the spirit of the constitutional provisions 
 and therefore should be sustained. 
 
 In an early decision in Illinois the court held, in a capital 
 case, that "The constitution of this State has guaranteed a 
 public as weU as an impartial trial to persons accused; and the 
 closing of the doors of a court-room, to prevent confusion arising 
 from noise and disturbance, when ingress and egress are not 
 prevented, or for a temporary purpose, where existing circum- 
 stances eminently require it to be done, but not for the purpose 
 of excluding any one connected with the trial, does not render 
 the trial private, and ought not to be objected to."^^ 
 
 ,§ 14. Sequestration of witnesses. Origin of the rule.— The 
 custom of separately examining witnesses had its origin in very 
 early times. The earliest recorded instance of it seems to -be 
 Daniel 's vtudication of Susanna, an account of which is given in 
 the apocryphal Scriptures. Susanna, wife of Joacim, was covet- 
 ed by two elders, but she repulsed them. In revenge they plotted 
 her downfall and charged her with adultery. Daniel had the 
 two elders put far apart and examined each separately. One 
 testified that Susanna's alleged offense took place under a 
 
 ply for admission. All such peo- Chief Justice Champlin In People 
 
 pie will be admitted, and the pub- v. ' Murray, 89 Mich. 276, 28 Am. 
 
 lie will be kept out." And the of- St. Rep. 294, and the Interesting 
 
 ficer was directed by the court to note in the latter citation, pp. 308, 
 
 see that the order was enforced. 309. 
 
 In commenting upon the deci- 37 — Mich. Stats. 1893, Act 408, 
 
 sion of the Supreme Court In this § 18. 
 
 case Professor Wigmore character- 38 — Mich. Const., Art. 6, § 28. 
 
 izes It as "deplorable." Wigmore 39— Stone v. The People, 2 
 
 on Evid., Vol. Ill, p. 2378, note. Scam. (111.) 326, 327. 
 See also the elaborate opinion by 
 
332 WITNESSES. 
 
 mastick tree, and the other testified that it occurred under an 
 holm tree. Thus, Daniel "convicted the two elders of false wit- 
 ness by their own mouth." And the record further informs 
 us that "Prom that day forth was Daniel had in great reputa- 
 tion in the sight of the people." This Scriptural instance of 
 separating witnesses has been referred to many times. Lord 
 Chief Justice Jeffreys refers to it in the trial of the notorious 
 perjurer Gates. In reply to a question by the defendant he 
 says, "as you know the perjury of the elders in the case of 
 Susanna was by their different testimony in particular cir- 
 cumstances discovered."*" Perhaps the earliest recorded in- 
 stance of the custom in England occurred in the early part of 
 the fourteenth century. The record says, "The justices imme- 
 diately called the four witnesses before them and examined 
 each of them separately as to the making, sealing, and place 
 and time, how and when, and other necessary circumstances 
 touching the deed."*^ 
 
 § 15. Reason for the rule. — The chief reason for separating 
 witnesses is to secure truthful and unbiased testimony. As said 
 in a recent decision by Chief Justice McClellan, "The purpose 
 to be subserved in putting witnesses under the rule is that they 
 may not be able to strengthen or color their own testimony, or 
 to testify to greater advantage in line with their bias, or to 
 have their memories refreshed, sometimes unduly, by hearing 
 the testimony of other witnesses ; and it is legitimate argument 
 against the veracity or fairness of a witness to say that his testi- 
 mony has been developed along the lines of his inclination in 
 the case by the opportunities he has had, from hearing the other 
 witnesses, to refute them or to amplify his own statements to 
 meet the exigencies of the trial. ' '*2 The same idea is contained 
 in the following statement by Justice Freeman: "The object be- 
 ing to prevent the witnesses with feelings interested from being 
 prepared to meet the statements of witnesses already made, and 
 to compel them to rely on their own memory for the accuracy 
 of their statements without being warped or influenced in their 
 
 40— Dates' Trial, 10 How. St. 42— Louisvlle & N. R. Co. v. 
 
 Tr. 1079, 1158 (1685). York, 128 Ala. 305, 30 So. Rep. 
 
 il— Anon., Ph Ab. 351, col. 1, 676 (1902). 
 London. 
 
EXAMINATION OF WITNESSES. 333 
 
 statements by what they have already heard deposed. "*3 And 
 also in the following statement by Justice Kirkpatrick: "The 
 less a witness hears of another's testimony, the more likely he ia 
 to declare his own knowledge simply and unbiased."** 
 
 § 16. Discretion of the court. The early English rule. The 
 modern rule. — According to the early English doctrine, the 
 separation of witnesses is not demandable as of right, but rests 
 in the sound discretion of the court.*^ And by the great weight 
 of authority this view still obtains.*® In a few jurisdictions, 
 however, it has been repudiated.*'^ 
 
 §17. Same. The better view. — Upon principle, as well as 
 upon grounds of public policy, the separation of witnesses 
 should be demandable as of right. Every opportunity possible 
 should be afforded an adversary to expose perjury, and to sep- 
 arate the witnesses is both feasible and simple. The right of an 
 adversary to demand the separation of the witnesses who are 
 called to testify against him is entitled to the same recognition 
 as his right to cross-examine them. In the event of any com- 
 bination on their part to commit perjury, his right to have them 
 examined separately would be a powerful weapon of defence. 
 Moreover, the object of trials is to elicit truth in order that 
 justice may be done; but the practice of allowing witnesses to 
 testify in the presence of each other often results in defeating 
 justice. As said by Justice Sneed, ' ' The lawyer who has prac- 
 ticed long in jury cases cannot have failed to observe that the 
 practice of permitting witnesses to hear each other's testimony 
 has often resulted in a great and gross abuse of public justice. 
 Human nature is frail, and that frailty is as often illustrated in 
 the jwitness box as elsewhere. The witness in an excited litiga- 
 tion often becomes the mere partisan of the litigant whose cause 
 he represents. ... He has heard the evidence of his own 
 
 43 — ^wisener v. Maupin, 2 Baxt. 46 — Com. v. Thompson, 159 
 
 (Tenn.) 342, 357. Mass.; Errissman v. Errissman, 
 
 44— State v. Zellers, 7 N. J. L. 25 111. 119; People v. Consldine, 
 
 226 (1824). 105 Mich. 149, 63 N. W. Rep. 196; 
 
 45_Vaughaii's Trial, 13 How. McClelan v. State, 117 Ala. 140, 
 
 St. Tr. 485, 494 (In this case Lord 23 So. Rep. 653. 
 
 Chief Justice Holt says, "You can- 47— Shaw v. State, 102 Ga. 660, 
 
 not insist upon it as your right, 29 S. E. Rep. 477; T?7atts v. Hol- 
 
 but only a favor that we may land, 56 Tex. 54; Nelson v. State, 
 
 grant"). 2 Swan (Tenn.) 237, 257. 
 
334 WITNESSES. 
 
 party in regard to the transaction, and perhaps he remembers 
 it somewhat differently; but a conflict would be fatal, and he 
 often reasons his flexible conscience into the opinion that his 
 own memory is at fault and the statement of his confederate is 
 the true version; and he therefore corroborates it. He has 
 heard the testimony of the adverse party, and his ingenuity is 
 taxed at once to strike it where it is vulnerable and to destroy 
 it ; a brief and whispered conference behind the bar, and he finds 
 one of his own party who saw the transaction as he saw it ; and 
 the thing is done. . . . The object of the trial is to elicit 
 truth; but under such circumstances and in an excited eon- 
 troversy the truth is as often smothered as disclosed. . . . This 
 doctrine that upon the mere motion or suggestion of a party it 
 does not seem a matter of right (to order the separation of the 
 witnesses) appears to be traceable to the darker ages of Eng- 
 lish jurisprudence. We have no hesitation in declaring that 
 such a doctrine cannot stand the test of principle, and that it 
 "is utterly incompatible with the perfect enjoyment of the right 
 of a fair trial guaranteed by the laws to the citizens of this 
 country."** 
 
 § 18. Exceptions to the rule. — The rule relating to the sep- 
 aration of witnesses is subject to certain exceptions. Thus, it is 
 not applicable to the parties to the suit.*® This exception ob- 
 tains both in civil and criminal cases. The basis of it is the 
 right of parties litigant to be present during the trial. Thus, in 
 a civil case in which the trial court required the plaintiff to go 
 out of the court room and remain out until he was examined as 
 a rebutting witness, and in which an appeal was taken. Justice 
 Frazer says, "This proceeding is probably without a precedent. 
 The right of a party litigant to be present during the trial of 
 his cause, that he may be heard in his own behalf, has been so 
 long accorded by universal custom, and is so obviously neces- 
 sary for the security of private rights, that the refusal to enter- 
 tain the cause at all would scarcely be a greater error than the 
 denial of this privilege, "s" Where the guardian of a minor de- 
 
 48— Rainwater v. Elmore, 1 Mich. 198, 203, 44 N. W. Rep. 592; 
 Heisk. 363, 365. State v. Kelly, 97 N. C. 404. 
 
 49— Mcintosh v. Mcintosh, 79 50 — Larue v. Russell, 26 Ind. 
 
 386, 387. 
 
EXAMINATION OF WITNESSES. 335 
 
 fendant is a witness, he is entitled to claim this privilege.^i 
 Where two persons are jointly tried for the same crime, and 
 they announce their intention to testify as witnesses, each for 
 himself, neither may be placed under the rule and excluded 
 from the court room during the examination of the other.^^ 
 This is owing to the fact that the constitution guarantees to 
 every defendant in a criminal prosecution the right to be pres- 
 ent at every stage of the trial.^^ Attorneys in the case are also 
 entitled to assert this privilege.^* And agents of a party to the 
 suit, whose presence is essential to advise counsel, should not be 
 excluded. Justice Monks says, "It is within the discretion of 
 the trial court to except from the order directing a separation 
 of the witnesses any agent, director or managing officer of a 
 corporation who is a witness in the cause and whose presence is 
 essential to advise counsel so as to enable them to properly con- 
 duct the cause. "^^ Where counsel for the defendant in a crim- 
 inal prosecution request that one of the two officers who made 
 the arrest be excluded from the court room during the time that 
 the other is testifying, a refusal on the part of the court to grant 
 the request is not error.^^ And it has been held that expert 
 witnesses should be allowed to hear the testimony upon the sub- 
 ject concerning which they are to testify.^ ^ 
 
 § 19. Penalty for violating the court's order. — All the courts 
 agree that where a witness violates an order of the court to 
 withdr^aw from the court room he may be punished for con- 
 tempt. Whether the court may exclude him or not from testi- 
 fying is a question upon which there is some conflict. Accord- 
 ing to some decisions the court may exercise its discretion in 
 the matter.58 This rule obtains in Illinois.Bs The violation of 
 the order by the witness certainly should not disqualify him. 
 
 51 — Cottrell v. Cottrell, 81 Ind. 56 — People v. Maohen, 101 Mich. 
 
 87. 400. 
 
 52 — Richards v. State, 91 Tenn. 57 — Johnson v. State, 10 Tex. 
 
 723, 30 Am. St. Rep. 907. App. 571. 
 
 53 — Cooley's Constitutional Lim- 58 — Grant v. State, 89 Ga. 396, 
 
 Stations 390. 15 S. E. Rep. 49; The People v. 
 
 54— Powell V. State, 13 Tex. Burns, 67 Mich. 537. 
 
 App. 244; State v. Ward, 61 Vt. 59— BuUiner v. The People, 95 
 
 153, 179, 17 Atl. Rep. 483. Ill, 394. 
 
 55— The Zenia Real Est. Co. v. 
 Macy, 147 Ind. 568, 577. 
 
336 WITNESSES. 
 
 As said by Justice Scholfield, "If witnesses, after an order of 
 separation, upon being spoken to by third parties in violation of 
 an order of court, would become thereby disqualified to testify, 
 a wide door would be opened to unscrupulous friends of those 
 charged with crime to disqualify all material prosecuting wit- 
 nesses.s" According to the better view, if the party who calls 
 the witness is without fault, and the witness violates the order 
 of the court, the party who calls him should not be deprived of 
 his testimony. As said by Justice Coffey, "The rule to be de- 
 duced from these cases is that, when a party is without fault 
 and a witness disobeys an order directing the separation of the 
 witnesses, the party shall not be denied the right of having the 
 witness testify, but the conduct of the witness may go to the 
 jury upon the question of his credibility, "'i And comments by 
 counsel upon the misconduct of the witness, with the view of 
 impeaching his credibility, are perfectly proper.^^ 
 
 § 20. Eefreshing present recollection vs. adopting past recol- 
 lection. — Refreshing a present recollection and adopting a past 
 recollection are separate and distinct ideas. Courts, however, 
 have frequently lost sight of this distinction and this oversight 
 has resulted in much confusion in the decisions. Eecollection, 
 by which is meant the mental reproduction of impressions orig- 
 inally obtained by observation or some other source of knowl- 
 edge, comprises the following two classes: (1) Present recol- 
 lection; and (2) Past recollection. 
 
 §21. Refreshing present recollection. — ^For the purpose of 
 refreshing his present memory a witness may examine memor- 
 anda. Where the examination is made for this purpose it is im- 
 material by whom, or when, the memoranda were made. In this 
 case, the memoranda themselves are, as a rule, inadmissible. 
 After making the examination, the witness testifies independent- 
 ly of them. As said by Lord Chief Justice Ellenborough, "If 
 upon looking at any document he can so far refresh his memory 
 as to recollect a circumstance, it is sufficient, and it makes no 
 difference that the memorandum is not written by himself, for it 
 is not the memorandum that is evidence, but the recollection of 
 
 60 — Bulliner v. The People, 62 — Grimes v. Martin, 10 la. 
 
 supra. 347; McHugh v. State, 42 Ohio 
 
 61— Taylor v The State, 130 St. 154, 158. 
 Jnd. 66, 70. 
 
EXAMINATION OP WITNESSES. 337 
 
 the witness."®^ This statement has frequently been quoted by 
 courts with approval. To the same effect is the following state- 
 ment by Justice Fields: "It was competent for him to use the 
 declaration or any other paper for the purpose of refreshing his 
 memory upon the subject."^* And the following statement by 
 Justice Jewett: "It is well settled that he is permitted to as- 
 sist his memory by the use of any written instrument; and it 
 is not necessary that such writing should have been made by 
 himself, or that it should be an original writing, providing after 
 inspecting it he can speak to the facts from' his own recollec- 
 tion."^^ And also the following statement by Justice Earl: "A 
 witness may, for the purpose of refreshing his memory, use any 
 memorandum, whether made by himself or another, written or 
 printed, and when his memory is thus refreshed, he must tes- 
 tify to facts of his own knowledge, the memorandum itself not 
 being evidence."** In the same case Justice Earl also says, 
 "Memoranda may be used in other eases which do not precise- 
 ly come under either of the foregoing heads. A store of goods 
 is wrongfully seized, and an action is brought to recover for the 
 conversion. There are thousands of items. No witness could 
 carry in his mind all the items and the values to be attached to 
 them. In such a case, a witness may make a list of all the items 
 and their values, and he may aid his memory while testifying 
 by such list. He must be able to state that all the articles named 
 in the list were seized, and that they were of the values therein 
 stated, and he may use the list to enable him to state the items. 
 After the witness has testified, the memorandum which he has 
 used may be put in evidence, not as proving anything itself, 
 
 63 — Henry v. Lee, 2 Chitty 124. not merely because they are stat- 
 6'4 — Dunlop V. Berry, 5 111. 327. ed or referred to in the paper, his 
 65 — Huff V. Bennet, 6 N. Y. evidence will be admissible not- 
 337. (In this case the witness withstanding the manner in which 
 refreshed his memory by inspect- his recollection was revived, and 
 Ing a newspaper report.) See no matter when or by whom the 
 also Brie, etc., Co. v. Miller, 52 paper was made, nor whether it 
 Conn. 444, 52 Am. Rep. 607. (In be original or a copy, or an ex- 
 this case the court say: "The doc- tract nor whether referred to by 
 trine established by the authori- the witness in court or else- 
 ties seems to be that if the wit- where.") 
 
 ness, afer looking at the paper, 66 — Howard v, McDonough, 77 
 
 to recall the facts, can speak from N. Y. 592. 
 his own recollection of them, and 
 22 
 
338 WITNESSES. 
 
 but as a detailed statement of the items testified to by the wit- 
 ness. ' ' 
 
 § 22. Same. Right of opposing counsel and the jury to in- 
 spect the memorandum. — Although a memorandum which is 
 used by a witness merely to refresh his memory is not, as a 
 general rule, admissible in evidence, the opposing counsel have 
 the right to inspect it and to cross-examine him upon it. More- 
 over, the jury also have the right to inspect it. The purpose, of 
 course, is to test the veracity of the witness. As said by Chief 
 Justice Cooley, ' ' The other party had a right to know what the 
 memorandum was on which he relied, and whether it had any 
 legitimate tendency to bring the fact in controversy to mind. 
 It would be a dangerous doctrine which would permit a witness 
 to testify from secret memoranda in the way which was permit- 
 ted here. . . . The defendant was entitled to see it at the 
 time in order to test the candor and integrity of the witness. ' '«' 
 And as said by Lord Chief Justice Tenterden, "You put the 
 paper into the witness ' hands to refresh his memory. It is very 
 usual for the opposite counsel to see it and examine upon it, 
 and I think he has a right to see it. ' '^* And as said by Justice 
 Endicott, "The opposite party is entitled to cross-examine the 
 witness in regard to it; and it may be shown to the jury, not 
 for the purpose of establishing the facts therein contained, but 
 for the purpose of showing that it could not properly refresh 
 the memory of the witness."^® 
 
 It is held, however, that cases arise where it is not essential 
 to produce the memorandum. Russell says, "A witness, to as- 
 sist his memory, may use a written entry, if it were made by 
 himself shortly after the occurrence of the fact to which it re- 
 lates; but if he cannot speak to the fact from recollection any 
 further than as finding it entered in a book or paper, such book 
 or paper ought to be produced, and if not evidence, the testi- 
 mony of the witness amounts to nothing. "'''' Greenleaf, in dis- 
 cussing this question, divides the cases in which writings may be 
 referred to by witnesses to refresh or supplement their recol- 
 lection into the following three classes: "First. Where the 
 
 67— Duncan v. Seeley, 34 Mich. 69— Com. v. .TefEs, 132 Mass. 5. 
 
 369. 70 — 2 Russell on Crimes 622 
 
 68— Rex V. Ramsden, 2 0. & P. 
 603. 
 
EXAMINATION OF WITNESSES. 339 
 
 writing is used only for the purpose of assisting the memory of 
 the witness. In this case it does not seem necessary that the 
 writing should be produced in court, though its absence may af- 
 ford matter of observation to the jury, for the witness at last 
 testifies from his own recollection. Second. "Where the witness 
 recollects having seen the writing before, and though he has now 
 no independent recollection of the facts mentioned in it, yet he 
 remembers, that at the time he saw it, he knew the contents to be 
 correct. In this ease the writing itself must be produced in 
 court in order that the other party may cross-examine. . 
 Third. "Where the writing in question neither is recognized by 
 the witness, as one which he remembers to have before seen, nor 
 awakens his memory to the recollection of any thing contained 
 in it, but nevertheless knowing the writing to be genuine, his 
 mind is so convinced that he is on that ground enabled to swear 
 positively to the fact.''^^ Elliott says, "If a witness, before 
 going into court, has his memory refreshed by referring to a 
 memorandum in his possession, it is not necessary that the mem- 
 orandum be brought into court, because the witness in such case 
 really makes a statement from memory. The fact that the 
 writing is not produced may, however, affect the weight of the 
 testimony. "^2 j^t^^ Justice Mclver says, ""Where a memor- 
 andum or other writing is referred to by a witness simply to re- 
 fresh his memory, and it is not proposed to use such memoran- 
 dum or .writing as testimony, but to rely entirely upon the recol- 
 lection of the witness as refreshed by such memorandum or 
 writing, there can be no necessity for producing the same in 
 court."'* But where a witness refreshes his memory by exam- 
 ining a memorandum in court, it is very generally held that op- 
 posing counsel have the right to inspect it and cross-examine him 
 upon it; and also that the jury have the right to examine it. As 
 said by Lord Chief Justice Eyre, "It is always usual and very 
 reasonable, when a witness speaks from memorandums, that 
 the counsel should have an opportunity of looking at those mem- 
 orandums, when he is cross-examining that witness ' '''* 
 
 71 — 1 Greenleaf on Evid., § 436. tain matters as within their recol- 
 
 72 — 2 Elliott on Evid., § 868. lection, refreshed by referring to 
 
 73 — State v. Collins, 15 S. C. 373, the contemporaneous records of 
 
 377, 40 Am. Rop. 697, 702. (In the hospital.) 
 
 this case employees in a hospital 74 — Hardy's Trial, 24 How. St, 
 
 testified, In a capital case, to cer- Tr. 824. 
 
340 WITNESSES. 
 
 § 23.— Adopting a past recollection. — Not only may a witness 
 use memoranda to refresh his present memory, but he may al- 
 so adopt memoranda as a record of past recollection. In the 
 former case he testifies independently of the memoranda, in 
 which case the memoranda themselves, as previously stated, are 
 usually inadmissible. In the latter ease his testimony is based 
 upon the memoranda which are themselves admissible. In the 
 former case he swears to an a,ctual present recollection. In the 
 latter case he swears to recorded facts because of his confidence 
 in the correctness of the memoranda. As said by Chief Jus- 
 tice Simpson, "The rule upon this subject, in its broadest out- 
 line, embraces two classes of cases : firsts where the witness, after 
 referring to the paper, speaks from his own memory and de- 
 pends upon his own recollection as to facts testified to; second, 
 where he relies upon the paper and testifies only because he 
 finds the facts contained therein. "'^^ And as said by Justice 
 Rowell, "Nor was it necessary that the witness should have had 
 an independent recollection. . . The old notion that the wit- 
 ness must be able to swear from memory is pretty much ex- 
 ploded. All that is required is that he be able to swear that the 
 memorandum is correct.^ There seem to be two classes of cases 
 on this subject: (1) Where the witness by referring to the 
 memorandum has his memory quickened and refreshed thereby, 
 so that he is enabled to swear to an actual recollection; (2) 
 Where the witness after referring to the memorandum under- 
 takes to swear to the fact, yet not because he remembers it, but 
 because of his confidence in the correctness of his memorandum. 
 In both cases the oath of the witness is the primary substantive 
 evidence relied upon; in the former the oath being grounded on 
 actual tecolleetion, and in the latter on the faith reposed in the 
 verity of the memorandum. ' '^^ In the latter case it is essential 
 that the memorandum was made at or about the time the events 
 recorded therein occurred, and that it be verified and adopted 
 by the witness as a record of past recollection. It is not essen- 
 tial, however, that the memorandum was written by the witness 
 himself. As said by Lord Chief Justice Ellenborough, "If the 
 witness looked at the log-book from time to time, while the oc- 
 currences' mentioned were recent and fresh in his memory, it 
 
 75— Bank v. Zorn, 14 S. C. 444. 76i— Davis v. Field, 66 Vt 426. 
 
EXAMINATION OF WITNESSES. 341 
 
 is as good as if he had written the whole with his own hand. ' ''''' 
 And as said by Chief Justice Le Grand, "What was supposed 
 to be the ancient rule has been relaxed by more recent decisions ; 
 and now it is held not to be necessary that the memorandum 
 should have been made by the witness, but . . . the wit- 
 ness having then seen it and recognized it as containing the 
 truth, of which he is still convinced at the time of the trial, he 
 may be examined in regard to it."''* This principle has been 
 recognized very frequently, both in England and in this coun- 
 try.''® In a few cases, however, the contrary has been incor- 
 rectly held.®** 
 
 "Where the witness adopts the memorandum as a record of 
 past memory, the original memorandum, if available, must be 
 produced and not merely a copy of it. The reason for this rule 
 is, the original is the best evidence of what in fact was ;recorded. 
 Moreover, the adversary is entitled to have such evidence pro- 
 duced, if available, as it affords him the best means of testing 
 the veracity of the witness. But where the original is lost, or 
 for some other reason unavailable, a copy may be used.^i Where 
 the original is not accounted for, a copy will be excluded ;*2 
 and also a copy of a copyl^^ 
 
 Not only has the adversary the right to inspect the memor- 
 andum or copy, but he also has the right to cross-examine the 
 witness on it. As said by Justice MuUin, "If the witness can- 
 not be compelled to produce it, he might use documents made 
 for him by the party calling him, of the accuracy of which he 
 knows nothing. . . The right of a party to protection against 
 the introduction against him of false, forged, or manufactured 
 evidence, which he is not permitted to inspect, must not be in- 
 
 77 — Burrough v. Martin, 2 Mass. 72; Schmidt v. Wambacher, 
 
 Camp. 112. 62 Ga. 323; Wellman v. Jones, 124 
 
 78— Green v. Caulk, 16 Md. 573. Ala. 580, 27 So. Rep. 416. 
 
 79— Anderson v. Whalley, 3 C. 81— Clifford v. Drake, 110 111. 
 
 & K. 54; Clark v. Bank, 164 N. 135; Chicago & A. R. Co. v. Amer- 
 
 Y. 498, 58 N. W. Rep. 659 (1900); ican Strawboard Co., 190 Ilf. 268, 
 
 Hazer v. Streich, 92 Wis. 505, 66 60 N. B. Rep. 518; Smith v. Scully, 
 
 N. W. Rep. 720; Union Cent. L. 66 Kan. 139, 71 Pac. Rep. 249. 
 
 I. Co. V. Smith, 119 Mich. 171, 77 82— Amor v. Stoeckele, 76 Minn. 
 
 N. W. Rep. 706. 180, 78 N. W. Rep. 1046. 
 
 80 — Morrison v. Chapin, 97 83 — Green v. Caulk, supra. 
 
342 WITNESSES. 
 
 vaded a hair's breadth. "s* And as said by Justice Patterson, 
 "If he could not recollect the facts independently of the writ- 
 ing, the original writing ought to have been in court in order 
 that the other party might cross-examine ; not that such writing 
 is to be made evidence itself, but that the other party is to have 
 the benefit of the witness refreshing his memory in every 
 part. "85 
 
 § 24. An unorthodox doctrine. — In a few jurisdictions, in- 
 eluding New York, it has been held that an indispensable pre- 
 liminary to the introduction of memoranda to be used as evi- 
 dence of a past recollection, is inability on the part of the wit- 
 ness, with the aid of the memoranda, to speak from present 
 memory concerning the facts. ^^ This doctrine has also been fol- 
 lowed in the United States courts.^'' Upon principle, howeverj 
 it is fallacious, and in most jurisdictions repudiated. 
 
 § 25. Effect of suspicious circumstances. — The circumstances 
 connected with the making of a memorandum may arouse suf- 
 ficient suspicion to justify its exclusion. Thus, where it has 
 been tampered with by the party calling the witness, or by his 
 attorney, this fact may justify excluding it. And where it was 
 made so long after the alleged facts occurred as to raise a pre- 
 sumption that the memory of the witness at that time was prob- 
 ably very dim concerning them, it may for this reason be ex- 
 cluded. In all such cases, however, the matter rests in the sound 
 discretion of the court.** 
 
 § 26. Enforced inspection of memorunda. — Where a witness 
 declines to inspect his memoranda to refresh his memory when 
 in doubt he may be required to do so. This is also a matter 
 which rests in the sound discretion of the court. As said by 
 Chief Justice Shaw, "There may be cases undoubtedly, in 
 which it would be a great hardship upon a witness to require 
 him to qualify himself, so to speak, to testify, by reference to 
 
 84— Tibbetts v. Sterberg, 66 Bromley, 65 Mich. 214, 31 N. W. 
 
 Barb. (N. Y.) 201. Rep. 839. 
 
 85— Rex V. St. Martin's, 2 Ad. 87— Vlcksburg Ry. Co. v, 
 
 & El. 210. O'Brien, 119 U. S. 99. 
 
 86— Russell v. Ry. Co., 17 N. Y. 88— Bergman v. Shoudy, 9 Wash. 
 
 134; People v. McLaughlin, 150 N. 331, 37 Pac. Rep. 453; Schuyler, 
 
 Y. 365, 44 N. B. Rep. 1017; Jaquea etc., Bank v. Bollong, 24 Neb. 821, 
 
 v. Horton, 76 Ala. 243; Weaver v. 825. 
 
EXAMINATION OP WITNESSES. 343 
 
 papers and documents in his power; as when it would subject 
 him to much trouble or expense, or involve any breach of confi- 
 dence, of duty or of honorary obligation, or unreasonably dis- 
 close a knowledge of his own affairs. But there are other cases, 
 in which it would lead to an entire perversion and frustration of 
 the purposes of justice, if a witness could not be required to re- 
 fresh his memory, and prepare himself to testify, by an exam- 
 ination of papers in his own custody or power, or when they 
 are produced at the trial. As where a mate of a vessel, who had 
 kept his cargo book, or an inspector of elections his tally list, or 
 .a clerk in a warehouse his memorandum of the receipt and de- 
 livery of goods, they may testify with great accuracy by the 
 aid of their memoranda, but very imperfectly, or not at all, 
 without. And multitudes of similar cases might be suggested. 
 Suppose these witnesses, from malice or caprice, or still worse, 
 from a desire to favor the adverse party, should refuse to ex- 
 amine their memoranda; the rights of life, liberty, property or 
 reputation, public and political, as well as private, civil and 
 social rights, might be affected and put in jeopardy. It would 
 be hardly going beyond the principle contended for, to say that 
 an attesting witness, called to prove a will or deed, if he chose to 
 close his eyes and refuse to look at the instrument, might not be 
 required to look at it, and thus qualify himself to say whether 
 he attested it or not. . . It is a question of sound judicial 
 discretion, for the judge at the trial, to direct how the examin- 
 ation shall be conducted; and he will be governed in this re- 
 spect, by a view to the rights of the parties and the furtherance 
 of justice, having due regard to the rights of the witness, under 
 all the circumstances of the case."*® 
 
 § 27. The right to begin. The order of examination.— For a 
 
 discussion of "the right to begin the introduction of evidence see 
 § 17, at page 20 of this volume. 
 
 The examination of a witness may be said to comprise four 
 stages. These four stages are as follows: (1) The examina- 
 tion-in-chief by the party who calls him; (2) The cross-examin- 
 ation by the adverse party; (3) The re-examination by the party 
 who calls him; and (4) The re-cross examination by the ad- 
 verse party. It often happens, however, that the fourth stage 
 
 89— Chapin v. Lapham, 37 Mass, 467, 472, 473. 
 
844 WITNESSES. 
 
 is omitted. Sometimes the third stage is also omitted and ocea- 
 sionally the second. The court may, in its discretion, recall a 
 witness for further examination;*" but the party who produces 
 him cannot, as a matter of right, claim this privilege.®^ 
 
 It is also to be observed that, although a party who begins to 
 introduce his evidence must, as a general rule, continue until the 
 whole of it is given, before the adverse party may introduce any, 
 yet this regular order of proof may be, and frequently is, de- 
 jJarted from by the court. The court, however, is not bound in 
 any case to allow a departure from the regular order of pro- 
 cedure. It is a matter which rests solely in its discretion. As 
 said by Justice Story, "If every party had a right to introduce 
 evidence at any time, at his own election, without reference to 
 the stage of the trial in which it is offered, it is obvious that the 
 proceedings of the court would often be greatly embarrassed, 
 the purpose of justice be obstructed, and the parties themselves 
 be surprised by evidence destructive of their rights, which they 
 could not have foreseen or in any manner have guarded against. 
 It seems to us, therefore, that all courts ought to be, as indeed 
 they generally are, invested with a large discretion on this sub- 
 ject, to prevent the most mischievous consequences in the admin- 
 istration of justice to suitors. "82 And as said by Judge Mills, 
 "In strict practice, he who has the affirmative ought to intro- 
 duce all the evidence to make out his side of the issue; then the 
 evidence of the negative side is heard; and finally the rebutting 
 proof of the affirmative, which closes the examination. In doing 
 this, neither side ought to be permitted to give evidence by 
 piecemeal, then to apply for instructions, and again to mend 
 and add to this proof, until, by repeated experiments, he shall 
 come up to the opinion of the court. An adherence to these 
 rules, generally, will be found necessary in all courts of original 
 jurisdiction; and without them, confusion, loss of time, captious 
 and irritable conduct must follow. We say generally, for it 
 will often be found necessary for the presiding judge, for good 
 reasons, to depart from them to attain complete justice, and 
 when they ought or ought not to be varied must, in a good meas- 
 
 90— Wlliamson v. Tingling, 93 92— Pliiladelphla & T. Ry. Co. T. 
 
 Ind. 42, 48. Stimpson, 14 Pet. (U. S.) 448, 
 
 91— Nixon V. Beard, 111 Ind. 462, 
 137, 12 N. B. Rep. 131. 
 
EXAMINATION OP WITlOiSSES. 345 
 
 lire, be left to the sound discretion and prudence of the court, 
 and a court of error ought never to interfere for such departure, 
 except where injustice is done by it."** 
 
 §28. The examination-in-chief. — ^After the witness has been 
 sworn or affirmed the attorney of the party who called him pro- 
 ceeds to examine him. This is done by submitting to him a 
 series of questions. The purpose of this examination is to elicit 
 from the witness and present before the court and jury material 
 facts of the case of which he has knowledge. Of necessity, the 
 examination, in a large measure, is under the control of the 
 presiding judge. As said in one case, "A circuit judge presid- 
 ing at a trial is not a mere moderator between contending par- 
 ties; he is a sworn officer, charged with grave public duties. In 
 order to establish justice and maintain truth and prevent wrong, 
 he has a large discretion in the application of rules of practice, 
 and his action in this respect will not be reversed by this court, 
 unless it exhibits an abuse of discretion resulting in injustice. ' '^ 
 "Within certain limits he may prescribe the manner and scope 
 of the examination. Thus, in the exercise of a sound discretion, 
 he may prevent the examination from being needlessly pro- 
 tracted j^ exclude evidence which is merely cumulative;* pre- 
 vent the witness from going beyond proper limits in giving his 
 testimony;* prevent counsel from asking the witness irrelevant 
 questions;^ and also prevent needless interruptions by opposing 
 counsel.* With the view of eliciting the whole truth, he may 
 ask the witness questions himself f and may even call a witness 
 of his own motion and question him. As said by Lord Esher, 
 M. R., in a recent English case, "If there be a person whom 
 neither party to an action chooses to call as a witness, and the 
 judge thinks that that person is able to elucidate the truth, the 
 judge, in my opinion, is himself entitled to caU him ; and I can- 
 not agree that such a course has never been taken by a judge 
 
 93— Braydon v. Goulman, 1 T. 4 — State v. Farley, 87 la. 22, 53 
 
 B. Monroe (Ky.) 118. N. W. Rep. 1089. 
 
 1— Huffman y. Cauble, 86 Md. 5— Skaggs v. State, 108 Ind. 53, 
 
 591, 596. 8 N. E. Rep. 695. 
 
 2— Adriance v. Arnot, 31 Mo. 6— State v. Scott, 80 N. C. 365. 
 471. 7— Shaefer v St Louis, etc., Ry. 
 
 3— Lake Shore, etc., Ry. Co. v. Co., 128 Mo. 64; Sessions v. Rice, 
 
 Brown, 123 111. 162; Mears v. 70 la. 306; Palmer v. "White, 10 
 
 Cornwall, 73 Mich. 78. Cush. (Mass.) 321. 
 
346 WITNESSES. 
 
 before. ' '* It is also his province, in the exercise of a sound dis- 
 cretion, to limit the number of witnesses.* 
 
 As a general rule, immaterial or irrelevant questions are ex- 
 eluded; but where counsel promises to introduce evidence of 
 other facts which will make such questions proper, they are al- 
 lowed.i" Where intent or motive is a relevant fact the witness 
 may be questioned concerning it.^i And where a witness is 
 asked his impression as to a certain fact he may give it, pro- 
 vided it is based upon recollection and is not a mere inference 
 or conclusion.^ 2 And as a reason for his recollection he may 
 state circumstances which impressed the fact in question upon 
 his mind. As said by Justice Ladd, in a breach of promise ease 
 in which a material fact in issue was the time of birth of plain- 
 tiff's child, "Undoubtedly a witness may state that he had a 
 conversation with another, on the subject inquired about, at a 
 specified time, or mention some collateral circumstances, as a 
 reason for recollecting the fact spoken of. "i* Vague and ambig- 
 uous questions are objectionable, and usually are excluded.'* In 
 the examination of a witness, counsel will not be allowed to as- 
 sume any material fact in issue, and which is to be found by the 
 jury; or to assume that any particular answer has been given 
 contrary to the fact. And this rule is applicable not only in the 
 examination-in-chief, but also in the cross-examination. As 
 said by Justice McAllister, "The rules of law which govern in 
 the examination of witnesses as effectually prohibit counsel from 
 assuming in their questions any facts which are material to the 
 point of the inquiry, but which are to be ultimately found by 
 the jury, as other rules of law forbid the presiding judge from 
 assuming such facts in his instructions to the jury. In the 
 former case, the reason of such rules does not rest merely upon 
 the consideration that such assumption of facts might mislead 
 
 8— Coulson v. Disborough, 2 Q 522; Forbes v. Walker, 25 N. Y. 
 
 B. D. (1894) 316. 430. 
 
 9_Green v. Phoenix Mut. Life 12— Blake v. People, 73 N. Y. 
 
 Ins. Co., 134 111. 310, 25 N. E. Rep. 586; State v. Flanders, 38 N. H. 
 
 583, 10 L. R. A. 576; Barhyte v. 324. 
 
 Summers, 68 Mich. 341, 36 N. W. 13— Stewart v. Anderson, 111 la. 
 
 Rep. 93. 330, 332. 
 
 10— Wyngert v. Norton, 4 Mich. 14 — Hill v. State, 91 Tenn. 521; 
 
 286. Bassett v. Shares, 63 Conn. 39. 
 
 11 — Perry v. Porter, 121 Mass. 
 
EXAMINATION OP WITNESSES. 347 
 
 the witness, but upon that of the liability of such assumption or 
 assertion of facts by counsel becoming a substitute in the minds 
 of jurors for evidence, and thus calculated to mislead them. In 
 the latter case the reason is the same, with the further reason 
 that the assumption by the court in its instructions to the jury 
 of material facts to be found by them, is regarded as an invasion 
 by the court of the peculiar province of the jury. The rules in 
 the former case are so rigidly maintained that they will not 
 permit counsel, even upon cross-examination and when leading 
 questions may be put, to assume any material facts in issue and 
 which are to be found by the jury, or to assume that particular 
 answers have been given contrary to the fact."^^ 
 
 § 29. Same. Anticipating the defence. — The pleadings may 
 be such as to justify the plaintiff when introducing his evidence 
 to anticipate the defense and seek to avoid it. As said in a 
 leading English case, "When affirmative pleas of justification 
 are put on the record with the general issue, the plaintiff's 
 counsel may, if they please, not only prove the facts of the dec- 
 laration, but also may, in the first instance, and before the de- 
 fendant's case is gone into at all, go into any evidence which 
 goes to destroy the effect of the justifications by way of antici- 
 pating the defense; or, if they please, content themselves with 
 proving the fact on the general issue, and then close their case, 
 leaving the defendant to make out his justifications as he can, 
 and afterwards go into evidence in reply as to the justifications. 
 But if the plaintiff's counsel, knowing by the pleas what the 
 defense is to be, close their case, and trust to evidence in reply, 
 they are to be restricted to such evidence as goes exactly to an- 
 swer the case proved, or attempted to be proved by the defend- 
 ant, in support of the justifications, and they cannot be allowed 
 to go beyond it.''^* This rule obtained at common law, and it is 
 very generally recognized to-day both in England and in this 
 country. It is to be observed, however, that where the plain- 
 tiff introduces evidence with the view of anticipating the de- 
 fense he is usually precluded from introducing further evidence 
 upon that matter by way of rebuttal. As said by Justice Mer- 
 rick, ' ' The plaintiff knew from the answer what was to be th3 
 
 15— Haish v. Munday, 12 Bradw. Starkie on Evid., star page 188. 
 (111.) 539, 545, 546. See also, 1 16— Plerpont v. Shopland, 1 Car. 
 Greenleaf on Evid. § 434; 1 & Payne 447. 
 
348 WITNESSES. 
 
 nature of the defence. He chose to attack, and, if he could, to 
 disprove it, in advance of any evidence offered in relation to it 
 by the defendant ; and he was permitted to do so by the court. 
 No restraint whatever appears to have been put upon him in 
 this course of proceeding. This justly precluded him from the 
 right, without the permission of the court, of introducing, in 
 reply, and at the close of the trial, merely cumulative evidence 
 to the same point. "i^ And as said by Justice Bigelow, "The 
 plaintiff, in proving his prima facie case, offered evidence to 
 show that the words alleged to be slanderous were not spoken 
 under circumstances which would bring them within the rule 
 touching privileged communications. He was not bound to do 
 this; but, in the exercise of his own discretion, he saw fit thus 
 far to anticipate the defence. Having thus opened this part of 
 the case, and introduced as much evidence respecting it as he 
 deemed expedient, he could not afterwards claim, as a matter of 
 right, to accumulate testimony upon the same point. It was then 
 a mere matter of discretion, with the judge who presided at the 
 trial, to admit or reject the evidence, to the exercise of which no 
 exception can be taken. 1 Greenl. Ev. §§ 74, 431, Browne v. 
 Murray, Ry. & Mood. 254. As a general rule in the conduct of 
 trials, if a party elects to proceed in the first instance with proof 
 to anticipate the defence, he should not afterwards be allowed 
 to offer evidence on the same point, in reply to the ease made 
 by the testimony of the defendant. To permit a party thus to 
 divide his case leads to confusion, and gives him an unfair ad- 
 vantage over his adyersary."!* 
 
 § 30. The cross-examination. Its importance. — The second 
 stage in the examination of a witness is the cross-exam- 
 ination. After the examination-in-chief is finished the wit- 
 ness is turned over to opposing counsel for cross-examination. 
 This right is an exceedingly important one, and its importance 
 has been frequently emphasized. Justice Richardson says, "The 
 defendant's cross-examination expresses well the searching 
 process and practical test furnished and intended by this rule 
 of law. . . Experience has proved that it is, of all others, 
 the most effective, the most satisfactory, and the most indispens- 
 
 17— Holbrook v. MoBride, 70 18 — York v. Pease, 68 Mass. 282, 
 Mass. 215, 218. 219. 283, 284. 
 
EXAMINATION OP WITNESSES. 349 
 
 able test of the evidence narrated on the witness' stand. . . 
 I know of no disagreement, among the expounders of evidence, 
 upon the importance of cross-examination, "i® Justice Ruffin 
 says, "All trials proceed upon the idea that some confidence is 
 due to human testimony, and that this confidence grows and be- 
 comes more steadfast in proportion as the witness has been sub- 
 jected to a close and searching cross-examination; and this be- 
 cause it is supposed that stich an examination will expose any 
 fallacy that may exist in the statement of the witness, or any 
 bias that might operate to make him conceal the truth; and 
 trials are appreciated in proportion as they furnish the oppor- 
 tunities for such critical examinations. "2* Justice Nisbet says, 
 "I have been thus particular in planting the power of cross- 
 examination upon a foundation laid in authority, because of the 
 sacred character of that right. The power of cross-examination 
 is the most efficacious test which the law has devised for the dis- 
 covery of truth. . . The right to be confronted with the wit- 
 ness, and to sift the truth out of the mingled mass of ignorance, 
 prejudice, passion, and interest, in which it is very often hid, is 
 among the very strongest bulwarks of justice, "^i Professor 
 Wigmore says, "it is beyond any doubt the greatest legal engine 
 ever invented for the discovery of truth. However difficult it 
 may be for the layman or the foreign jurist to appreciate this 
 its wonderful power, there has probably never been a moment's 
 doubt upon this point in the mind of a lawyer of experience. 
 . . Striking illustrations of its power to expose inaccuracies 
 and falsehoods are plentiful in our records; and it is apparent 
 enough, in some of the great failures of justice in Continental 
 trials, that they could not have occurred under the practice of 
 effective cross-examination. ' '22 And Greenleaf says, ' ' The power 
 of cross-examination has been justly said to be one of the prin^ 
 cipal, as it certainly is one of the most efficacious tests, which 
 the law has devised for the discovery of truth. By means of it, 
 the situation of the witness with respect to the parties, and to 
 the subject of litigation, his interest, his motives, his inclination 
 and prejudices, his means of obtaining a correct and certain 
 
 19— State V. Campbell, 1 Rich. 21— McCloskey v. \,eadbetter, 1 
 L, 126. Ga. 551, 555. 
 
 20— State v. Morris, 84 N. C. 22— Wigmore on Evid., Vol. 11, 
 764. § 1367. 
 
350 WITNESSES. 
 
 knowledge of the facts to which he bears testimony, and deserip- 
 tion, are all fully investigated and ascertained, and submitted to 
 the consideration of the jury, before whom he has testified, and 
 who have thus had an opportunity of observing his demeanor, 
 and of determining the just weight and value of his testimony. 
 It is not easy for a witness, who is subjected to this test, to im- 
 pose on a court or jury; for however artful the fabrication of 
 falsehood may be, it cannot embrace all the circumstanjjes to 
 which a cross-examination may be extended. "^^ 
 
 § 31. Same. Its dangers. — It is to be observed, however, that, 
 in the hands of an unskillful person, a very important instru- 
 ment may prove to be an exceedingly dangerous weapon. This 
 is true of the legal engine of cross-examination. As said by 
 Reynolds, ' ' Cross-examination is a most powerful weapon in the 
 hands of the skillful advocate, but likewise a very dangerous 
 one to be trifled with by a person who does not "understand how 
 to manage it, as it is a matter of every-day occurrence for a wit- 
 ness who has utterly failed to establish by his testimony in chief 
 the facts that he has been called to prove, to be completely re- 
 habilitated by an iajudicious cross-examination. ' '^* And as said 
 by Sergeant Ballantine, ' ' If the principles upon which cross-ex- 
 amination ought to be founded are not understood and acted upon 
 it is worse than useless, and it becomes an instrument agaiast its 
 employer. "25 Wendell Phillips says, "You can do anything 
 with a bayonet — except sit upon it." And Professor Wigmore 
 says, "A lawyer can do anything with a cross-examination, — ^if 
 he is skillful enough not to impale his own cause upon it."^^ 
 
 § 32. Same. Scope of the cross-examination.— Whenever a 
 witness is examined in chief, opposing counsel is entitled to cross- 
 examine him. If the witness should die, or otherwise become 
 incapacitated so as to prevent his cross-examination, evidence 
 given by him in his direct examination must be excluded. The 
 reason for the rule is, ex parte statements are too unreliable to 
 be considered in the investigation of controverted facts, and 
 
 23—1 Greenleaf on Bvld., § 446. Barrister's Life," pub. by H. Holt 
 
 24— Reynolds on Bvld. (3rd ed.) & Co., N. Y., 1882, p. 104. 
 
 $ 124. 26— Wigmore on Evid., Vol. 11, 
 
 25— "Some Experiences of a § 1367, p. 1698. 
 
EXAillNATION US' WITNESSES. 351 
 
 should not therefore be received as evidence.^'' Justice Grover 
 says, "Mrs. Adams was sworn and examined in chief, and upon 
 such examination gave material evidence agaipst the prisoner, 
 and before the prisoner had had any opportunity for cross-ex- 
 amination, fainted away, and after rallying therefrom, became 
 so severely ill as to render her cross-examination impossible. 
 . . This evidence may have injured the prisoner; and if in- 
 competent against him, his request that it should be struck out 
 and withdrawn from the jury should have been complied with. 
 The question presented is of rare occurrence, upon which there 
 has been but little judicial authority. . . The rule of the 
 civil law is different. "^^ According to the English rule, if a 
 witness has been intentionally sworn he may be cross-examined 
 even though he has not been examined in chief.^^ The rule, 
 however, is held not to apply where the witness is called merely 
 to produce a document, or in order to be identified. In this 
 country the English rule has been substantially followed in a 
 few jurisdictions, including Michigan and Massachusetts; but in 
 most jurisdictions, including Illinois, it has been repudiated.^" 
 Justice Champlin says, "In England the rule is that when any 
 witness has been examined in chief, or has been intentionally 
 sworn, the opposite party has a right to cross-examine him, ex- 
 cept when the witness was called merely to produce a document 
 on a subpoena duces tecum, or in order to be identified; 
 and this rule has been substantially adopted in Massachusetts 
 and other of the American states. It has been substantially 
 acted upon in practice in this state. We had occasion to re- 
 mark upon the scope allowed upon cross-examination in the ease 
 of People V. Barker, 60 Mich. 277, 302 (27 N. W. Rep. 539). It 
 is therefore no reason for rejecting or striking out the cross-ex- 
 amination of a witness that he has not given any testimony in 
 chief, or that his testimony in chief has been stricken out."3i 
 
 27— Kissam v. Forrest, 25 Wend. 112; Miller v. Miller, 92 Vt. 510; 
 
 651. Johnson v. Wiley, 74 Ind. 233, 237; 
 
 28— People v. Cole, 43 N. Y. 508. Phila., etc., Ry. Co. v. Stimpson, 
 
 See also to same effect, People v. 14 Pet. (U. S.) 448. 
 
 Hayes, 140 N. Y. 484, 494. 31— Turnbull v. Richardson, 69 
 
 29— Dickinson v. Shee, 4 Esp. Mich. 400, 416, 417. See also, 
 
 67; Rex v. Brooke, 2 Stark. 409. Blackington v. Johnson, 126 Mass. 
 
 30— Bonnet v. Glattfeldt, 120 111. 21; State v. Sayers, 58 Mo. 585; 
 
 166; Fulton v. Bank, 92 Pa. St Mask v. State, 32 Miss. 405. For 
 
352 WITNESSES. 
 
 Eeynolds says, in his Americanized edition of Stephen's Digest 
 of Evidence, "If a witness dies, or becomes incapable of being 
 further examined [before an opportunity for his cross-examin- 
 ation has been afforded to the party against whom his evidence 
 is to be used, the testimony already given must be excluded.] 
 If in the course of a trial a witness who was supposed to be 
 competent appears to be incompetent, his evidence may be with- 
 di'awn from the jury, and the case may be left to their decision 
 independently of it."^^ 
 
 Where a witness is called merely to prove the attestation of a 
 document, and his examination-in-chief is confined to this point, 
 some courts hold that his cross-examination is also to be confined 
 to this f^ while other courts hold that he may be cross-examined 
 upon the whole case.^* The former view is usually considered 
 the better one.^^ 
 
 According to the English rule, when a witness testifies to a 
 single fact in his examination-in-chief he may be cross-examined 
 upon the whole case.^^ This view obtains in a few jurisdictions 
 in this country ,3'' but it is not the better view and is contrary to 
 the general American rule. According to the American rule, 
 his cross-examination must be confined to matters brought out in 
 his direct examination^ss fpi^jg yjg-^y obtains in Illinois. As said 
 by Chief Justice Walker in an early ease, "It seems to be the 
 well recognized rule, that when a witness is called by one party, 
 the other has only the right to cross-examine upon the facts to 
 which he testified in chief. If he can give evidence beneficial to 
 the other party, he should call him at the proper time, and 
 make him his own witness and examine him in chief, thereby 
 
 a collection of cases holding this 36 — Mayor v. Murray, 19 L. J. 
 
 view see 1 Wharton on Bvid., § (ch.) 281. 
 
 529 and note. 37— Hay v. Reid, 85 Mich. 296; 
 
 32 — Reynolds" Stephen on Evid. Blackington v. Johnson, supra; 
 
 (3rd. ed.) Art. 126. Sands v. Southern Ry. Co., 108 
 
 33— Fulton V. Cent. Bank, 92 Pa. Tenn. 1, 64 S. W. Rep. 478; Hunts- 
 
 St. 112; Gale v. People, 26 Mich, ville, etc., Ry. Co. v. Corpening, 
 
 157. 97 Ala. 681. 
 
 34 — Blackington v. Johnson, 38 — Halley v. Gregg, 82 la. 622, 
 
 supra. Lamprey v. Munch, 21 48 N. W. Rep. 974; Helser v. Mc- 
 
 Minn. 329. Grath, 52 Pa. St 531; Simons v. 
 
 35— Bllmaker v. Buckley, 16 Busby, 119 Ind. 13; Sauntry v. 
 
 Sarg. & Rawle (Pa.) 72, 77. United States, 117 Fed. Rep. 132; 
 
 Welcome v. Mitchell, 81 Wis. 566, 
 
EXAMINATION OF WITNESSES. 353 
 
 giving the other party the benefit of a cross-examination on such 
 evidence in chief. Otherwise, the party calling the witness 
 would be deprived of a cross-examination as to evidence called 
 out by the other side, and the party against whom the witness 
 was first called, would obtain the advantage of getting evidence 
 under the latitude allowed in a cross-examination. "^^ And as 
 said by Justice Thornton, "Though there are authorities to the 
 contrary, the rule established in this State is, that when one 
 party introduces a witness and examines him, the cross-examin- 
 ation is limited to the facts elicited by the examination in chief. 
 If his testimony is desired as to other and distinct matters, the 
 opposite party must call him, and make him his own witness. ' '** 
 And as said by Justice Craig, in a case in which a witness had 
 been called siqiply to prove a handwriting, "When a witness is 
 called to prove a single fact, the opposite party, under the guise 
 of a cross-examination, can not enter upon a general examina- 
 tion of the witness, but the cross-examination must be confined 
 to the examination in chief. This rule, we apprehend, is well 
 established by the authorities. "*i Whether a particular ques- 
 tion, submitted in cross-examination, is within the scope of the 
 examination-in-chief, is a matter for the trial court to decide; 
 and as a general rule, courts of review are slow to interfere with 
 the exercise of this discretion.'*^ Even under the American rule, 
 the cross-examination may include questions the answers to 
 which may tend to rebut or modify inferences or conclusions 
 growing out of the examination-in-ehief.*^ And, as generally 
 understood, it is not restricted to the specific matter brought out 
 in the examination-in-chief, but may extend to the general sub- 
 ject thereof** as said by EUiott, "The American rule, however, 
 as generally understood and applied, does not necessarily pre- 
 vent the cross-examination from going into matters and facts 
 connected with the matters stated in the direct examination. 
 
 39— Stafford v. Fargo, 35 111. 43— Central Ry. Co. v. Allmon, 
 
 481, 486. 147 111. 471; Thomas t. Miller, 151 
 
 40— Bell V. Prewitt, 62 111. 362, Pa. St. 482; Gilmer v. Higley, 110 
 
 367. 
 
 U. S. 47. 
 
 41— Hurlbut V. Meeker, 104 111. 
 
 44— Eames v. Kaiser, 142 U. S. 
 
 541, 543. 
 
 488; Washburn v. Chicago, etc.. 
 
 42— Bailey v. Bailey, 94 la. 598, 
 
 Ry. Co., 184 Wis. 251, 54 N. W. 
 
 63 N. W. Rep. 341; Neil v. Thorn, 
 
 Rep. 504. 
 
 88 N. Y. 270. 
 
 
 23 
 
 
354 WITNESSES. 
 
 . . There is some apparent conflict upon this proposition, and 
 some courts are inclined to limit the cross-examination to the 
 specific subject or phase of the general subject gone into on the 
 examination-in-chief, but the rule, as we have stated it, is sup- 
 ported by the weight of authority and the better reasons. "^^ 
 
 § 33. Same. Witness called by court, — As stated in § 28 of 
 this chapter, the presiding judge may, of his own motion, call a 
 witness and question him. In such a case, counsel of neither 
 party can claim as a matter of right the privilege of cross-ex- 
 amining the witness. If, however, the evidence given by such 
 witness be adverse to either party, the latter should be allowed 
 to cross-examine the witness upon such evidence. As said by 
 Lord Esher, M. R., ' ' "When a witness is called in this way by the 
 judge, the counsel of neither party has a right to cross-examine 
 him without the permission of the judge. The judge must exer- 
 cise his discretion whether he will allow the witness to be cross- 
 examined. If what the witness has said in answer to the ques- 
 tions put to him by the judge is adverse to either of the parties, 
 the judge would no doubt allow, and he ought to allow, that 
 party's counsel to cross-examine the witness upon his answers. A 
 general fishing cross-examination ought not to be permitted."*' 
 And as said by Lord Justice Smith in the same case, "A witness 
 called in this way is the witness of the judge, not of either of the 
 parties. It is the function of the judge to try and find out the 
 truth, whether he is hearing the case with or without a jury. 
 Neither party can cross-examiae a witness so called as of right ; 
 the leave of the judge must first be obtained." Moreover, the 
 presiding judge, in examining a witness, called either by him- 
 self or by a party to the suit, may ask him leading questions. 
 
 § 34. Same. Leading questions. — One of the advantages of 
 cross-examination, which does not usually obtain in the examina- 
 tion-in-chief, is the privilege of counsel to ask leading questions. 
 Questions are said to be leading which are put in such a way as 
 to suggest to the witness the answers expected or desired. They 
 are allowable in cross-examination upon all matters in reference 
 to which the witness may be cross-examined. According to the 
 English rule he may be asked leading questions touching entire- 
 
 45— Elliott on Evid., Vol. 2, § 46— Coulson v. Disborough, L 
 920. Q. D. (1894) 316, 318. 
 
EXAMINATION OF WITNESSES. 355 
 
 ly new matter, provided it be* relevant to the issue. According 
 to the American rule, however, he may not be questioned at all 
 outside of his direct examination, except where the purpose is 
 to impeach his credibility. 
 
 By the use of leading questions a witness can be restricted in 
 his answers to yes or no ; and owing to this fact he may be fre- 
 quently surprised into admitting the truth of facts which he 
 has denied in his examination-in-chief, and vice versa. 
 
 § 35. Sajue. Preliminary examinations by the court. — It is 
 
 usually held that as regards preliminary examinations of wit- 
 nesses by the court, to determine questions relating to the com- 
 petency of witnesses, and the admissibility of certain testimony, 
 such as confessions, dying declarations, secondary evidence, and 
 the like, the adverse party is not entitled as a matter of right 
 to cross-examine the witnesses, except where the evidence is to 
 go to the jury. Thus, in a trial for robbery, counsel for defend- 
 ants requested that a preliminary examination be instituted to 
 determine the question of the admissibility of certain confessions 
 alleged to have been made by the defendants. The request hav- 
 ing been granted, counsel for defendants claimed the right to 
 cross-examine the witnesses on this preliminary issue; but the 
 presiding judge ruled that as matter of law no such cross-exam- 
 inations could be allowed. In sustaining this ruling. Chief Jus- 
 tice Chapman says, "The purpose of such an examination is to 
 satisfy the judge whether the evidence is admissible. Upon the 
 request being made, it was for him to direct the course of the 
 examination; and he might, if he thought proper, direct the 
 prosecuting ofiScer to conduct it. The defendants' counsel had 
 no legal right to conduct it contrary to the direction of the 
 judge ; and the extent to which it should be carried, and its ef- 
 fect upon the admissibility of the confessions, were to be de- 
 cided by the judge. It is not alleged that the right of cross- 
 examination was abridged when the evidence was offered to the 
 jury."*'' Some cases, however, hold that even where the evi- 
 dence is addressed to the court and not to the jury instances 
 arise where the right of cross-examination exists. Thus, in an 
 Illinois case in which it was sought to introduce secondary evi- 
 dence of the contents of an execution which was alleged to have 
 
 47— Com. V. Morrell, 99 Mass. 542. 
 
356 WITNESSES. 
 
 been lost, and in which an affidavit of the clerk of the circuit 
 court and another person was introduced to prove this fact, Jus- 
 tice Thornton says, ' ' We think that the clerk of the circuit court 
 and Mrs. Porter should have been produced as witnesses, and 
 examined in the ordinary mode. It is no answer to say, that 
 these persons did not make affidavit as to any issue of fact. It 
 is true, their evidence was addressed to the court, and not to the 
 jury, but the determination of the court, as to the loss of the 
 execution and the alleged diligent search, was a matter of deep 
 interest to appellants. On that, the ease hinged, as appears 
 from the record. They should have had the privilege to cross- 
 examine the affiants, as to the assumed fact of the loss of the ex- 
 ecution and the character of the search. The following cases 
 indicate the correctness of this rule: Rankin v. Crow, 19 lU. 
 626; Whitehall v. Smith, 24 111. 166. "*8 And in an early Massa- 
 chusetts case the court say, "The affidavit of a party, on the 
 question of loss of paper, may be admitted to exclude any pre- 
 sumption that he may have it in his possession; but those who 
 may be admitted as witnesses must testify in the usual form, in 
 order that the advantage of cross-examination may be pre- 
 served. ' '** 
 
 § 36. Impeachment of witnesses.— The subject of impeach- 
 ment is an important branch of the examination of witnesses. 
 Some quite vexatious questions are connected with it, and con- 
 cerning some of its phases the decisions are very conflicting. 
 The rules which govern the impeachment of one's own witnesses 
 are very different from those which govern the impeachment of 
 the adversary's witnesses. 
 
 §37. Same. Impeachment of one's own witness. — It has 
 often been said that a party may not impeach his own witness. 
 The chief reason for this rule was stated by Francis BuUer a 
 century ago, and this reason has been adopted by leading au- 
 thors, including Greenleaf,^*' Best^^ and Wharton.^^ BuUer says, 
 "a party never shall be permitted to produce general evidence 
 to discredit his own witness, for that would be to enable him to 
 destroy the witness if he spoke against him, and to make him a 
 
 4g_Becker v. Quigg, 54 111. 390, 50—1 Greenleaf on Bvid., § 443. 
 
 395. 51 — 2 Best on Evid., § 645. 
 
 49_Poignard v. Smith, ? Pick. 52 — 1 Wharton on Evid., § 549. 
 (Mass.) 272. 
 
EXAMINATION OF WITNESSES. 357 
 
 good witness if he spoke for him, with the means in his hands 
 of destroying his credit if he spoke against him."^^ 
 
 A party who puts a witness upon the stand presents him to 
 the court as worthy of credit, and, as a general rule, he will not 
 he permitted to discredit him.^* There are, however, excep- 
 tions to this rule. Thus, where a party is obliged to call a par- 
 ticular witness, as for instance the subscribing witness to a will, 
 he may impeach directly his credibility.^^ And where the party 
 who called the witness is taken by surprise by his evidence, 
 some decisions hold that the former may call other witnesses to 
 show by them inconsistent statements of the witness made pre- 
 viously."* 
 
 The party who calls a witness may always impeach his credi- 
 bility indirectly. And he may do this by other witnesses. Upon 
 this point Wharton says, ' ' In this country, while a party cannot 
 ordinarily discredit his own witnesses, his right to prove a case 
 inconsistent with that stated by such witness is unquestioned, 
 even though this discredit the witness incidentally.""'^ Justice 
 Breese says, "The rule is, if a witness state facts against the 
 interest of the party calling him, another witness may be called 
 by the same party to disprove those facts, for such facts are evi- 
 dence in the cause, and the other witness is not called directly 
 to discredit the first, but the impeachment of his credit is inci- 
 dental, only, and consequential. ""^ And Justice Campbell 
 says, "There is nothing in any known rule of evidence to pre- 
 vent a party from contradicting his own witnesses, and it would 
 be a very dangerous thing to introduce such a rule. Every one 
 would then be at the mercy of his own witnesses, and if the first 
 witness sworn should swear against him he would lose the testi- 
 mony of all the rest. This would be a perversion of justice. "^^ 
 "Where a witness, who has been called by one of the parties to 
 the suit, is subsequently called by the adverse party, the former 
 
 53— Buller N. P. 297. 56— State v. Benner, 64 Me. 267; 
 
 54— Coulter v. Am. Merch. U. Campbell v. State, 23 Ala. 45. 
 
 Ex. Co., 56 N. Y. 585. 57— Wharton on Evid. § 549. 
 
 55 — Brown v. Bellows, 4 Pick. 58 — Rockwood v. Poundstone, 38 
 
 (Mass.) 179; Harden v. Hays, 9 111. 199, 201. 
 
 Pa. St. 151; 1 Greenleaf on Evld. 59 — Snell v. Gregory, 37 Mich. 
 
 § 443. 500, 501, 502. 
 
358 WITNESSES. 
 
 party cannot impeach him directly, either by general evidence 
 or by proof of contradictory statements out of court.*" 
 
 § 38. Same. Party calling witness surprised. His right to 
 show inconsistent statements made out of court. — ^It frequently 
 happens that the party who called the witness is taken by sur- 
 prise by his evidence. The question then arises whether he 
 may question him as to inconsistent statements made by the wit- 
 ness out of court; and, if he denies making such statements, 
 whether other witnesses may be called to contradict him. All 
 the courts agree that the witness himself may be questioned as 
 to his previous inconsistent statements out of court for the pur- 
 pose of refreshing his memory ; and also to explain the attitude 
 of the party who called him. If the witness deny having made 
 such inconsistent statements, some courts hold that he may not 
 be contradicted by the party who called him for the reason that 
 he is not allowed to impeach directly his own witness. While 
 other courts recognize in a case of this kind an exception to the 
 general rule. Chief Justice Fuller says, "When a party is 
 taken by surprise by the evidence of his witness, the latter may 
 be interrogated as to inconsistent statements previously made 
 by him for the purpose of refreshing his recollection and in- 
 ducing him to correct his testimony ; and the party so surprised 
 may also show the facts to be otherwise than as stated, although 
 this incidentally tends to discredit the witness. As to witnesses 
 of the other party, inconsistent statements, after proper founda- 
 tion laid by cross-examination, may be shown; Eailway Com- 
 pany V. Arterz, 137 U. S. 507; but proof of the contradictory 
 statements of one's own witness, voluntarily called and not a 
 party, inasmuch as it would not amount to substantive evidence 
 and could have no effect but to impair the credit of the witness, 
 was generally not admissible at common law. Best Ev. § 645 ; 
 Whart. Ev. § 549 ; Melhnish v. Collier, 15 Q. B. 878. 
 
 By statute in England and in many of the States, it has been 
 provided that a party may, in case the witness shall in the opin- 
 ion of the judge prove adverse, by leave of the judge show that 
 he has made at other times statements inconsistent with his pres- 
 ent testimony, and this is allowed for the purpose of counter- 
 acting actually hostile testimony with which the party has been 
 
 go— Coulter v. Am. March. U. Ex. Co., supra. 
 
EXAMINATION OF WITNESSES. 359 
 
 surprised. Adams v. Wheeler, 97 Mass. 67 ; Greenough v. Beeles. 
 5 C. B. (N. S.) 786; Rice v. Howard, 16 Q. B. D. 681. "ei And 
 Justice Eapallo says, "The further question has frequently- 
 arisen whether the party calling the witness should, upon being 
 taken by surprise by unexpected testimony, be permitted to 
 interrogate the witness in respect to his own previous declara- 
 tions, inconsistent with his evidence. Upon this point there is 
 considerable conflict in the authorities. We are of the opinion 
 that such questions may be asked of the witness for the purpose 
 of probing his recollection, recalling to his mind the statements 
 he has previously made, and dra-^ing out an explanation of his 
 apparent inconsistency. This course of examination may result 
 in satisfying the witness that he has fallen into error and that 
 his original statements were correct, and it is calculated to 
 elicit the truth. It is also proper for the purpose of showing the 
 circumstances which induced the party to call him. Though 
 the answers of the witness may involve him in contradictions cal- 
 culated to impair his credibility, that is not a sufficient reason 
 for excluding the inquiry. Proof by other witnesses that his 
 statements are incorrect would have the same effect, yet the ad- 
 missibility of such proof cannot be questioned. It is only evi- 
 dence offered for the mere purpose of impeaching the credibility 
 of the witness, which is inadmissible when offered by the party 
 calling him. Inquiries calculated to elicit the facts, or to show 
 to the witness that he is mistaken and to induce him to correct 
 his evidence, should not be excluded simply because they may 
 result unfavorably to his credibility. In case he should deny 
 having made previous statements inconsistent with his testimony, 
 we do not think it would be proper to allow such statements to 
 be proved by other witnesses; but where the questions as to 
 such statements are confined to the witness himself, we think 
 they are admissible. As a matter of course, such previous un- 
 sworn statements are not evidence, and when the trial is before 
 a jury that instruction should be given. "^^ 
 
 According to the better view a party who has been surprised 
 by his own witness who denies having made inconsistent state- 
 ments previously, may show such inconsistent statements by 
 other witnesses ; and in England and in many of the states stat- 
 
 61 — Hickory v. United States, 62 — BuUard v. Pearsall, 53 N. Y. 
 151 U. S. 303, 309. 230, 231. 232. 
 
360 WITNESSES. 
 
 utes have been enacted in harmony with this view. It is probable 
 that the weight of modem authority is to the same effect. Mr. 
 Freeman, however, says, ' ' The weight of authority would appear 
 to be against the "right to prove inconsistent statements by other 
 witnesses. "«3 And Mr. Best holds this view.^* But Dr. Green- 
 leaf says, "The weight of authority seems in favor of admitting 
 the party to show that the evidence has taken him by surprise, 
 and is contrary to the examination of the witness preparatory 
 to the trial, or to what the party had reason to believe he would 
 testify, or that the witness had recently been brought under the 
 influence of the other party and has deceived the party callmg 
 him. "86 For an excellent review of the authorities, and many 
 of the state statutes, see an elaborate note on the subject gen- 
 erally in 21 L. R. A. 418. See also, 16 Cent. Law Journal, 325 ; 
 Am. Law Rev., 261 ; 60 Am. Dec, 751 ; and the reference given 
 in foot-note 22. 
 
 §39. Impeachment of a witness of the adverse party.— A 
 witness may be impeached in the following ways: (1) By dis- 
 proving by other witnesses statements by him material to the 
 issue; (2) By proving by other witnesses inconsistent state- 
 ments previously made by him; (3) By introducing evidence 
 derogatory to his character for truth and veracity; and (4) By 
 exhibiting the improbability of his statements by a skillful 
 cross-examination. 
 
 § 40. Same. Disproving' by other witnesses material state- 
 ments. — ^A very common way for an adversary to impeach a 
 witness is by disproving his statements by other witnesses. And, 
 as heretofore indicated (§37), even the party who calls the 
 witness may impeach him indirectly in this way. 
 
 § 41. Same. Proving by other witnesses inconsistent state- 
 ments previously made. — ^A witness may be impeached by show- 
 ing by other witnesses inconsistent statements previously made 
 by him. Before this can be done, however, the attention of the 
 witness must be called to such statements in order that he may 
 be afforded an opportunity to explain or qualify them. His 
 attention should be called specifically to the person to whom they 
 were made and the time and place. Wharton says, "In order 
 
 63—82 Am. St Rep. 59. 65—1 Greenleaf on Evid., § 444. 
 
 64—2 Best on Evid. § 645. 
 
EXAMINATION OF WITNESSES. 361 
 
 to discredit a witness in this way, it is generally necessary to 
 first ask him on cross-examination, whether or not he has made 
 such prior contradictory statement, specifying the person to 
 whom such alleged statement was made, and as far as possible, 
 the time and place. ""s Chief Justice Seholfield says, "It i» 
 very clear the ruling of the court was erroneous. Parker, in 
 his examination, did not have his attention directed to either of 
 these conversations, and the rule is inflexible, that a witness 
 can not be impeached by proof of his having made contradictory 
 statements out of court, unless his attention has been directed, 
 on his examination, to those contradictory statements, specify- 
 ing particularly, time and place. ' '^'^ And as said by Chief Jus- 
 tice Walker, "The record in this case fails to show, that the 
 proper foundation was laid to impeach John Horwitz, by con- 
 tradicting his evidence. The question propounded to him was, 
 whether he told Hellman that he had sold out to avoid trouble 
 with his creditors. There was neither time nor place named, or 
 any other circumstance referred to, calculated to direct the 
 attention of the witness to the conversation about which the 
 inquiry is made. Until this was done, the law will not permit 
 a witness to be contradicted. This would be permitting a wit- 
 ness to be entrapped, when the law requires that he should be 
 treated fairly. If, after his attention has been particularly 
 called to the conversation, in which the statement is supposed 
 to have been made, and the witness denies making the state- 
 ment, then he may be contradicted. ' '^® 
 
 It has been contended that statements by a witness may not 
 be contradicted unless intentionally false. This contention, how- 
 ever, is erroneous. It has also been contended that such state- 
 
 66 — Wharton on Evld., § 555. the time and place thereof."); 
 
 67— Richardson v. Kelly, 85 111. Downer v. Dana, i9 Vt. 338. ("It 
 
 491, 493. See also, Root v. Wood, is, indeed, an established rule of 
 
 34 111. 283; WInslow v. Newlan, 45 practice in this state that testi- 
 
 111. 145. mony of this kind cannot be re- 
 
 68 — Miner v. Philips, 42 111. 123, ceived to impeach a witness pro- 
 
 130. To the same effect are the duced upon the stand, unless an 
 
 following: Williamson v. Peel, 29 opportunity be first afforded to the 
 
 la. 458 ("The credibility of a wit- witness, whose testimony it Is 
 
 ness can be impeached by proof of proposed to impeach, to explain or 
 
 contradictory statements, only at- qualify the imputed declar^- 
 
 ter" laying a proper foundation by tions.") 
 asking the witness in reference to 
 
362 WITNESSES. 
 
 ments may not be contradicted unless material to the issue. This 
 contention is also erroneous. As said by Justice Sheldon, 
 ' ' There is no legal warrant requiring, as conditions affecting the 
 credibility of the witness, that the testimony so contradicted 
 should be material to the issue and intentionally false, as as- 
 serted by the instruction. Testimony may affect the party 
 against whom it is adduced whether it be true or false, and if 
 false, whether it be so intentionally or unintentionally; and evi- 
 dence of contradictory statements by the witness giving the 
 testimony tends to affect his credibility, whatever be the char- 
 acter of the testimony so contradicted, in these respects. It is 
 true that a witness can not be contradicted as to matters purely 
 collateral, but where contradictory statements, by a witness in 
 a matter collateral, are suffered to be proved without objection, 
 such evidence being in the case, tends, as we conceive, to affect 
 the credibility of the witness, and may be so considered and 
 weighed by the jury."^* It is to be observed, therefore, that 
 where the adverse party in cross-examining a witness asks an 
 irrelevant question he is concluded by the witness' answer; but 
 where irrelevant matter is brought out in the direct examination 
 the testimony may be contradicted. This important distinction, 
 however, is frequently overlooked. 
 
 §42. Same. Attacking the character of the witness for 
 truth and veracity.— A witness may be impeached by introduc- 
 ing evidence derogatory to his character for truth and veracity. 
 The general reputation of the witness for truth and veracity 
 may always be shown. In some jurisdictions his general moral 
 character may be shown. ^^ In others, including Illinois, it may 
 not.''^ In an early Illinois case Justice Trumbull says, "The 
 
 69 — Craig v. Rohrer, 63 111. 325, witness in regard to such state- 
 
 326. See also, Schell v. Plumb, ment") ; Com. v. Beau, 111 N. Y. 
 
 65 N. Y. 592 ("The question pre- 438; Peck v. Ritchie, 66 Mo. 114; 
 
 sented must he settled by the ap- Schlater v. Winpenny, 75 Pa. St. 
 
 plication of certain rules of evi- 321. 
 
 dence, which are well settled. A 70 — Mitchell v. State, 94 Ala. 68, 
 
 party has the right, for the pur- 10 So. Rep. 518; State v. Shroyer, 
 
 pose of discrediting the testimony 104 Mo. 441, 24 Am. St. Rep. 748; 
 
 of an adverse witness, to prove People v. Silva, 121 Cal. 668, 54 
 
 statements made by him contra- Pao. Rep. 146. 
 
 dieting the testimony given, after 71 — People v. Abbott, 97 Mich, 
 
 the requisite examination of the 484, 37 Am. St. Rep. 360, 56 N. W. 
 
EXAMINATION OF WITNESSES. 363 
 
 authorities are uniform that it is only the general reputation of 
 a witness that can be inquired into, for the purpose of impeach- 
 ing his testimony; and although there is some conflict in the 
 decisions, as to whether the inquiry should be confined to the 
 general character of the witness for truth and veracity, we 
 think the better rule is, that it should be so confined. "''^ And 
 Justice Scholfield, after quoting Justice Trumbull's statement, 
 adds, "This doctrine has been frequently referred to with ap- 
 proval in subsequent cases, and in no instance questioned."''* 
 There are many decisions on either side of this question. Mr. 
 Freeman says, "There is a marked confiict of authority on the 
 question as to whether, in proving character, the party is lim- 
 ited to the witness' character for truth and veracity, or whether 
 he can show what his general moral character is. There is no 
 doubt that his general reputation for truth and veracity may 
 be shown, for this goes directly to discredit his testimony. . . . 
 In a number of jurisdictions, however, the rule is well settled 
 that, in proving the general reputation of a witness, the evidence 
 should be limited to showing his reputation for truth and 
 veracity, and that it is improper to allow inquiries relative to 
 his general moral character. ... In fully as many jurisdic- 
 tions the rule is equally well established that you may not only 
 inquire as to a witness' reputation for truth and veracity, but 
 his general moral character may be shown. A witness' whole 
 moral character may be attacked, and a party is not limited 
 to showing his bad reputation for truth and veracity (citing 
 numerous cases on both sides.) "^* 
 
 The credibility of a witness, however, may not be impeached 
 by proving, by other witnesses, particular acts of immorality. 
 Upon this point the decisions are quite harmonious. ''' Chief 
 
 Rep. 862; Atwood v. Impson, 20 N. to his reputation for truth and ve- 
 
 J. Eq. 150; Rudsdill v. Slingerland, racity.) 
 
 18 Minn. 380. (In this case the 72 — Frye v. Bank of Illinois, 11 
 
 court say that the only object in 111. 366, 379. 
 
 inquiring into the character of a 73 — Dimick v. Downs, 82 111. 
 
 witness is for the purpose of ascer- 570, 573. 
 
 taining whether he is a truthful 74—82 Am. St. Rep. 29 (1898). 
 
 person or not. And for this rea- 75 — Rhea v. State, 100 Ala. 119, 
 
 son Inquiries concerning his gen- 14 So. Rep. 853; State v. Rogers, 
 
 eral reputation should be confined 108 Mo. 202, 18 S. W. Rep. 976; 
 
364 "WITNESSES. 
 
 Justice Scholfield says, "The reputation of a witness can not 
 be impeached by proof of particular acts ; it must be by proving 
 his general reputation for truth and veracity to be bad. ' ''« The 
 reason assigned for this rule is, that although a person is pre- 
 sumed to be able at all times to defend his general reputation, he 
 is not presumed to be ready on the spur of the moment to dis- 
 prove particular acts. As said by Chief Justice Breese, "Every 
 man is presumed to be ready at all times to defend his general 
 character, but not his individual acts — of those he must have 
 due notice."''^ 
 
 It is to be observed, however, that, while the rule prohibits 
 proof of particular acts by other witnesses, some courts hold 
 that, in the discretion of the trial court, evidence of such acts 
 may be brought out on the cross-examination of the witness. 
 Thus, in the trial of a man charged with assaulting a woman, 
 for the purpose of impeaching the credibility of the prosecutrix, 
 and also for the purpose of showing that she had a mania for 
 telling false stories of assaults made upon her by other persons, 
 the defendant offered to show that she had told false stories of 
 iiow her parents had assaulted her, made her lie with a goat in 
 the cellar, had scalded her and driven her from home, and how 
 the authorities of the Tewksbury Almshouse had attempted to 
 strangle her with a sheet and kill her with medicine, and had 
 strangled infants there. The trial court excluded the evidence; 
 and the court of review say, "The purpose for which the ex- 
 cluded evidence was offered, as appears by the bill of excep- 
 tions, and has been assumed in the argument for the dependants, 
 w^as not to prove insanity, but to prove a lying habit of mind or 
 a propensity to lie; the evidence offered was only that the wit- 
 ness had lied on other occasions, which would present collateral 
 issues, and was not competent as independent evidence ; and it 
 does not appear that it was offered by way of cross-examination 
 of the witness, nor, if it was, that the defendant sought to have 
 it admitted in the discretion of the judge. ' ''^^ And according to 
 the New York rule a witness may be asked, upon eross-examina- 
 
 People V. Dorothy, 156 N. Y. 237, 77 — McCarty v. People, 51 111. 
 
 50 N. E. Rep. 800; Griffith v. State, 231, 232. 
 
 140 Ind. 163, 39 N. B. Rep. 440. 78— Com. v. Kennon, 130 Mass. 
 
 76— Giffiord v. People, 87 111. 39, 40. 
 310, 214. 
 
EXAMINATION OP WITNESSES. 365 
 
 tioa, whether or not he has ever been in jail or state prison - 
 and how much of his life he has passed in such places."''* 
 According to the Texas rule a witness may be asked 
 upon his cross-examination any question which tends to test 
 his truth and veracity, however irrelevant to the facts in issue, 
 and however disgraceful to himself, provided the answer does 
 not tend to expose him to a criminal charge.^" The decisions 
 upon this subject, however, are in irreconcilable conflict. In 
 some jurisdictions a witness upon cross-examination cannot be 
 compelled to answer questions which merely tend to degrade 
 him, and do not affect his credibility.^^ This rule 
 obtains in Illinois.^^ In some jurisdictions the mat- 
 ter rests in the sound discretion of the court.^*. If, how- 
 ever, the matter elicited is material to the issue, the witness 
 must answer however disgraceful his answers may be.^* It has 
 been held that a witness, upon his cross-examination, may refuse 
 to answer whether he has a loathsome disease;*' whether he is 
 a chronic litigant;*^ whether he is a deserter from the army;*'' 
 whether he has been expelled from church;** whether he is an 
 insolvent debtor;** whether he is a street loafer and general 
 bum;*" at what saloon he loafs, and how much he pays for 
 whiskey .*! It has also been held that the fact that a witness 
 has no religious belief has no bearing upon his credibility.** 
 But a witness may be impeached by showing that when the 
 facts sworn to occurred he was intoxicated.*^ And his general 
 reputation for truth and veracity may always be shown.** 
 
 79— Real v. People, 42 N. Y. 270. 87— Gulf, etc.. Ry. Co. v. John- 
 
 80— Carroll v. State, 32 Tex. Cr. son, 83 Tex. 628, 19 S. W. Rep. 151. 
 
 Rep. 431, 40 Am. St. Rep. 786, 24 88— People v. Dorthy, 46 N. Y. 
 
 S. W. Rep. 100. Supp. 970, 20 App. Div. 308. 
 
 81— Penn. Co. v. Bray, 125 Ind. 89— Smith v. Brockett, 69 Conn. 
 
 229, S5 N. E. Rep. 439. 492, 38 Atl. Rep. 57. 
 
 82— Yoe V. People, 49 111. 410. 90 — Houston, etc., Ry. Co. v. 
 
 83— People v. Noelke, 94 N. Y. White, 23 Tex. Civ. App. 280, 56 
 
 137, 46 Am. Rep 128. S W. Rep. 204. 
 
 84— Clementine v. State, 14 Mo. 91— Drye v. State (Tex. Cr.), 55 
 
 112. S. W. Rep. 65. 
 
 85— Herod v. State (Tex.), 56 92— People v. Copey, 71 Cal. 548, 
 
 S. W. Rep. 59. 12 Pac. Rep. 721. 
 
 86— Palmeri v. Manhat. Ry. Co., 93— Tuttle v. Russell, 2 Day 201, 
 
 133 N. Y. 261, 28 Am. St. Rep. 632, 2 Am. Dec. 89. 
 
 30 N. E. Rep. 1001. 94— Foulk v. Eckert, 61 III. 318. 
 
366 WITNESSES. 
 
 § 43. Same. Hajrward's case. — Young Hayward was tried 
 for murder. The evidence showed that the alleged crime con- 
 sisted in the killing of a saloon keeper, the difificulty between 
 the accused and the saloon keeper growing out of a dispute about 
 a game of cards they had played together. The parties had 
 been playing cards and drinking together in deceased's saloon. 
 The dispute between them culminated in the shooting of the 
 saloon keeper by the accused upon the street near the saloon. 
 The accused was a witness in his own behalf. A material fact 
 in issue was, whether or not the accused was the aggressor in the 
 affair upon the street. He was a medical student in Chicago 
 where the killing occurred, and had always borne a good char- 
 acter in the neighborhood from which he came for being peace- 
 able and inoffensive. On his cross-examination the presiding 
 judge ruled that he should answer questions touching his habits, 
 and his testimony thus elicited showed that he had frequented 
 other saloons in the city where he had drank liquor, and played 
 cards and billiards on divers occasions. He was convicted and 
 sentenced to penitentiary for life. In delivering the opinion of a 
 majority of the supreme court. Chief Justice Dickey says, "Look- 
 ing further into the record we find that, on cross-examination of 
 the accused when on the stand as a witness, the court compelled 
 him, against objections interposed, to testify that he had fre- 
 quented other saloons in Chicago and drank, and played cards 
 and billiards on divers times at other saloons in Chicago. This, 
 we think, was error, and may have prejudiced some of the jurors 
 against the accused. We can not perceive that these circum- 
 stances had any legitimate bearing upon the issue in the case, or 
 that they were competent as bearing upon the credibility of the 
 accused. ' '^ 
 
 § 44. Same. Impeachment oif proseoutrix in a rape case.— 
 
 The fact that the prosecutrix in a rape ease had been guilty of 
 previous acts of unchastity, or had a bad general reputation for 
 unchastity, is no defense to the crime of rape. But evidence is 
 admissible to show such facts since they are material upon the 
 question of her consent. AU courts hold that her general repu- 
 tation for unchastity may be shown, provided such general rep- 
 utation existed prior to the commission of the offense charged. 
 Evidence of a bad general reputation acquired subsequently is 
 1-— Hayward v. The People, 96 111. 492, 502, 503. 
 
EXAMINATION OF WITNESSES. 367 
 
 inadmissible.2 As to the admissibility of testimony relating to 
 specific acts of intercourse on her part the decisions are in hope- 
 less conflict. In England, and in some jurisdictions in this 
 country, she may be asked whether or not she had prior connec- 
 tion with men other than the defendant; but she may decline 
 to answer.* If she answers in the negative, she may not, accord- 
 ing to the English rule, be contradicted.* This rule, however, 
 has been repudiated in this country.^ In some jurisdictions in 
 this country she may not be questioned as to specific acts with 
 other men, but she may be as to prior acts with the accused.* 
 In Illinois, and in some other states, she may be compelled to 
 answer, lupon cross-examination, whether or not she had prior 
 intercourse with other men.'' And evidence of habitual \\n- 
 chastity with other men promiscuously is held admissible.* Evi- 
 dence is admissible to show that the prosecutrix had, prior to 
 the alleged rape, given birth to an illegitimate child.^ But evi- 
 dence of the bad character of her parents is inadmissible.^** 
 
 The fact that the prosecutrix had prior connection with the 
 accused may be shown by her own declaration.^! 
 
 After impeaching evidence has been introduced against the 
 prosecutrix, it may be rebutted by introducing evidence of her 
 good character.! 2 
 
 § 45. Same. Impeachment by shoiwing indictment, arrest or 
 conviction.— The decisions upon this subject are not at all har- 
 monious. Many decisions hold that a witness, whether he be 
 the defendant or not, may be compelled to answer on cross- 
 examination whether or not he has ever been indicted or ar- 
 rested.i* There are, however, many which hold the contrary .1* 
 
 a— State V. Forsliner, 43 N. H. 9— Wilson v. State, 17 Tex. App. 
 
 89. 525. 
 
 3— Rex V. Holmes, 12 Cox C. C. 10 — State v. Anderson, 19 Mo. 
 
 137. 241. 
 
 4 — Rex v. Holmes, supra. 11— ;State v. Cook (la.), 22 N. 
 
 5— Strang v. People, 24 Mich. 1. W. Rep. 675. 
 
 6— Cons. V. Harris, 131 Mass. 12 — McCain v. State, 57 Ga. 390; 
 
 336; Bessette v. State, 101 Ind. 85; People v. Tyler, 36 Cal. 522. 
 
 Shaitzer v. State, 63 Md. 149. 13— Ellis v. State, 152 Ind. 326, 
 
 7— Shirwin v. People, 69 111. 55; 52 N. E. Rep. 82; Leland v. Kauth, 
 
 Rogers v. People. 34 Mich. 345. 47 Mich. 508; Hill v. State, 42 Neb. 
 
 8— Hall V. People, 47 Mich. 636; 503, 60 N. W. Rep. 916. 
 
 Woods V. People, 55 N. Y. 515; 14 — People v. Irving, 95 N. Y. 
 
 Rex V. Martin, 6 Car. & P. 562. 541; State v. Brown, 100 la. 50, 
 
368 WITNESSES. 
 
 By the weight of authority, a witness may be compelled to state 
 upon his cross-examination whether or not he has been convicted 
 of an infamous erime.is Some decisions, however, hold the con- 
 trary .i« As a general rule, parol evidence is inadmissible to 
 show this fact by other witnesses.^'' The record of the convic- 
 tion is the best evidence. 
 
 In most jurisdictions a witness may be compelled to state, 
 upon his cross-examination, whether or not he has ever been in 
 penitentiary or in jail, and how long he was there.i* This may 
 be done even where the conviction for a crime must be shown 
 by the record.^* 
 
 §46. Same. Mode of proving general reputation Before 
 
 a witness is allowed to state the general reputation of a person, 
 he must show that he is qualified to speak. He should first be 
 asked, therefore, if he has knowledge of that person's general 
 reputation in the neighborhood in which he lives. As said by 
 Chief Justice Walker, "It is a rule of evidence that the wit- 
 ness should be sisked, first, whether he is acquainted with the 
 general character of the person intended to be impeached, for 
 truth and veracity, in his neighborhood, and the impeaching 
 witness must state that he knows what character he bears before 
 he can be asked as to what that character is. This rule is so 
 elementary that it would be useless to refer to authorities in its 
 support. It is presumed that all practicing lawyers know it to 
 be the rule. ' '^° Having answered the first question in the afiirm- 
 ative, the witness is then asked to state whether that general 
 reputation is good or bad. If he replies that it is bad, he may 
 then be asked, whether from his knowledge of that reputation, 
 he would believe him under oath.^^ 
 
 The impeaching witness must have personal knowledge of the 
 
 69 N. W. Rep. 277; McKisson v. v. Miller, 100 Mo. 606, 622, 13 S. 
 
 Sherman, 51 Wis. 303, 8 N. W. W. Rep. 1051. 
 
 Rep. 200. IS- 
 IS— Real V. People, 42 N. Y. 270; 19— State v. Taylor, 118 Mo. 153, 
 
 Ellis V. State, supra; State v. Tay- 24 S. W. Rep. 449. 
 
 lor, 118 Mo. 153, 24 S. W. R. 449. 20— Foulk v. Eckert, 61 111. 318, 
 
 16— Newoomb v. Griswold, 24 N. 319. 
 
 Y. 298; Ryan v. People, 79 N. Y. 21— Knight v. House, 29 Md. 
 
 593; Marx v. Hilsendegen, 46 194, 96 Am. Dec. 515; Nelson v. 
 
 Mich. 336, 9 N. W. Rep. 439. State, 32 Pla. 244, 13 So. Rep. 361. 
 17 — Real v. People, supra; State 
 
EXAMINATION OF WITNESSES. 369 
 
 general reputation of the person sought to be impeached,^^ but 
 it is not essential that he be personally acquainted with him.^^ 
 It has been held, however, that where the impeaching witness 
 had been sent into the neighborhood in which the party formerly 
 lived for the express purpose of learning his character the 
 former was not qualified to speak.^* The fact that the impeach- 
 ing witness has heard a f&w persons say that they would not 
 believe the party under oath does not qualify him;^^ on the 
 other hand, it is not essential for him to know what a majority 
 of the party's neighbors say of him.^^ The mere personal opin- 
 ion of the impeaching witness does not qtfalify him to speak j^^ 
 but to gain personal knowledge it is not essential that he be a 
 resident of the immediate locality where the other party 
 resides.^* 
 
 Greenleaf says that an impeaching witness may not be asked 
 whether he would believe a certain other witness under oath. 
 The fallacy of this statement, however, is shown in an early 
 Michigan ease.^^ By the great weight of American authority 
 this question may be asked. 
 
 It is also to be observed that the impeaching witness may, and 
 should, be subjected to a rigid cross-examination. This feature 
 has been emphasised by Justice Cooley.^" 
 
 §47. Same. Weight to be given impeaching: evidence. — 
 The weight to be given the evidence of an impeaching witness 
 is a matter for the jury to determine. The same rules govern 
 in determining the weight to be given such evidence as in the 
 case of an ordinary witness. As said by Justice Magruder, in 
 the celebrated Spies' ease, "The defense introduced nine wit- 
 nesses, living in Chicago, for the purpose of impeaching Gilmer. 
 The prosecution introduced eight witnesses from Iowa, where 
 
 22— Ayres v. Duprey, 27 Tex. 26 — Crabtree v. Hagenbaugh, 25 
 
 593, 86 Am. Dec. 657. III. 233, 79 Am. Dec. 324. 
 
 23— State v. Turner, 36 S. C. 27— Bucklin v. State, 20 Ohio 
 
 534, 15 S. B. Rep. 602. 18; KItteringham v. Dance, 58 la. 
 
 24— Douglass v. Tousey, 2 Wend. 632, 12 N. W. Rep. 612. 
 
 (N. Y.) 352, 20 Am. Dec. 616; Reid 28 — Dupree v. State, 33 Ala. 380, 
 
 V. Reid, 17 N. J. Bq. 101. 73 Am. Dec. 422. 
 
 25— Houston, etc., Ry. Co. v. 29— Hamilton v. People, 29 Mich. 
 
 White, 23 Civ. App. 280, 56 S. W. 173. 
 
 Rep. 204. 30 — People v. Annis, 13 Mich. 
 
 511. 
 
 24 
 
370 WITNESSES. 
 
 Gilmer lived from 1870 to 1879, and ten witnesses from Chicago, 
 where he lived from 1879 to 1886, to sustain his reputation for 
 truth and veracity. Before a witness can say that he will not 
 believe a man under oath, he must first swear that he knows that 
 man's reputation for truth and veracity among his neighbors, 
 and that such reputation is bad. The unwillingness to believe 
 under oath must follow from and be based upon two facts: (1) 
 The fact that the witness knows the reputation for truth and 
 veracity among the man's neighbors. (2) The fact that such 
 reputation is bad. As the reputation must be bad before it can 
 be known to be bad, the most material fact to be proved is that 
 such reputation is bad. What a man's reputation is, is a fact to 
 be proved just as any other fact. Where, as here, eighteen wit- 
 nesses of standing and credibility swear that a man's reputation 
 is good, while nine of equal standing and credibility swear that 
 it is bad, the jury must determine for themselves whether they 
 will believe the eighteen men or the nine men. ' '^^ 
 
 § 48. Same. Impeachment by showing bias, hostility, sympa- 
 thy, etc. — A witness may be impeached by showing that he 
 entertains bias or hostility toward the adverse party, or sym- 
 pathy toward the party who calls him. This may be done by 
 showing either his declarations or aets.*^ A witness may not 
 be impeached by showing the falsity of his statements concern- 
 ing collateral facts. This rule is well established.^* But mat- 
 ters which show bias or hostility on the part of a witness are 
 not considered collateral to the issue, so that as regards such 
 matter he may be contradicted. As said by Justice Seholfield, 
 "As to collateral matters in general, if gone into on cross-exam- 
 ination, the party is bound by the answers of the witness, but 
 the state of feeling of the witness towards the adverse party is 
 held not to be irrelevant (1 Greenleaf on Evidence §450), and 
 hence it is held to be competent to inquire, on cross-examination, 
 whether the witness has not used expressions of animosity or 
 revenge towards the party against whom he bears testimony, 
 
 31— Spies v. The People, 122 111. 33— North Chicago St. Ry. Co. 
 
 1, 208, 3 Am. St. Rep. 426. v. Southwick, 165 111. 494, 46 N. 
 
 32 — Swett V. Shumway, 102 E. Rep. 377; Swanson v. French, 
 
 Mass. 365; Carr v. Moore, 41 N. 92 la. G95, 61 N. W. Rep. 407; 
 
 H. 131; Batdorff v. Farmers' Nat. .Tohnson v. Brown, 130 Ind. 534, 
 
 Bank of R., 61 Pa. St. 183. 2S N. E. Rep. 698. 
 
EXAMINATION OP WITNESSES. 371 
 
 and if the witness deny that he has, to introduce evidence, to 
 contradict him. "2* Many courts hold that, while the bias or 
 hostility itself may be shown, the details of the trouble between 
 the parties which caused the enmity may not be shown.^" Some 
 courts, however, hold the contrary. ^^ The better view is that 
 such details may be shown in so far as it is necessary to do so 
 in order to determine the extent and nature of the enmity. As 
 said by Justice Berry, "It is further urged that the question 
 was properly excluded because, 'while personal controversy and 
 ill-feeling may be shown, yet the particulars thereof are not 
 inquirable into.' The authorities which we have cited not only 
 do not lay down the rule in this way, but an examination of 
 them will show that the practice is to permit the particulars 
 of the hostility of feeling to be inquired into." See, also, Roscoe, 
 Grim. Ev. 181, 182. The object of this kind of testimony is to 
 show bias and prejudice on the part of the witness for the pur- 
 pose of leading the jury to scrutinize, and perhaps discredt, the 
 testimony. If testimony of this character is to be received, it 
 should be received in its most effective form, so that the pur- 
 poses for which it is introduced may be best accomplished. A 
 mere vague and general statement that hostile feeling existed 
 would possess little force. It certainly must be proper to ask 
 what the expressio^Q of hostility was, for the purpose of inform- 
 ing the jury of the extent and nature of the hostile feeling, so 
 that they may determine how much allowance is to be made for 
 it. An inquiry into particulars beyond what is proper to 
 ascertain the extent and nature of the hostile feeling should 
 not, we think, be allowed, as it would lead to interminable in- 
 vestigations."^'^ But facts which of themselves are incapable 
 
 34 — Phenlx v. Castner, 108 111. may not be contradicted as to a 
 
 207, 214. See, to the same effect, collateral matter.) 
 
 Skinner v. State, 120 Ind. 127, 22 35— Polk v. State, 62 Ala. 237; 
 
 N. E. Rep. 115; McGuire v. Mc- Langhorn v. Com., 76 Va. 1012; 
 
 Donald, 99 Mass. 49; Helwig v. Chelton v. State, 45 Md. 564. 
 
 Lascowskl, 82 Mich. 619, 46 N. W. 36— People v. Webster, 139 N. 
 
 Rep. 1033; Hayes v. Smith, 62 Y. 73, 34 N. E. Rep. 730; Drum 
 
 Ohio St. 161, 56 N. E. Rep. 879. v. Harrison, 83 Ala. 384, 3 So. 
 
 (This case holds that this is Rep. 715. 
 
 deemed a well-recognized excep- 37 — State v. Dee, 14 Minn. 27, 
 
 tlon to the rule that a witness 29, 30. 
 
372 WITNESSES. 
 
 of showing hostility or bias may not be inquired into at all.^s 
 And where the witness admits his hostility the court may ex- 
 clude testimony of a third party pertaining to statements of 
 the witness indicative of su.eh hostility .^^ 
 
 The basis of the hostility is immaterial. It may have resulted 
 from a quarrel pertaining to the subject-matter of the suit, or 
 otherwise.*" It is essential, however, that the event upon which 
 the hostility is based is sufficiently recent as to raise a presump- 
 tion that it still exists. But, in the case cited in foot-note ^'', 
 the threats which showed the hostility of the witness, and which 
 were held admissible to show such hostility, were made eleven 
 months before the trial. 
 
 As a general rule, a proper foundation must be laid before a 
 witness can be contradicted as to the fact of his bias or hostility. 
 This is done by calling his attention to certain statements made 
 by him, or acts done, which show such hostility.*^ The decisions 
 upon this point, however, are conflicting. In a few jurisdictions 
 it is not essential to lay a foundation in any case before con- 
 tradicting the witness.*^ And in some, in which ordinarily a 
 foundation must be laid, no foundation is required in this case.*^ 
 
 Innumerable situations .arise which tend to show bias, and 
 great latitude is allowed in the scope of the cross-examiaation. 
 Thus, it has been held that a witness may be asked, if she has not 
 had improper relations with the defendant;** if he has made a 
 
 38 — Carpenter v. State, 98 Ala. witness must first be examined as 
 
 31, 13 So. Rep. 534. to his hostility, and that then, 
 
 39— Jennings v. State (Tex. and not till then, witnesses may 
 
 Cr.), 57 S. W. Rep. 642. be called to contradict him, be- 
 
 40— Beardsley v. Wildman, 41 cause it is not a case where the 
 
 Conn. 515. party against whom the witness 
 
 41— Davis v. State, 51 Neb. 301, is called is seeking to discredit 
 
 70 N. W. Rep. 984; Langhorne him by contradicting him. He is 
 
 V. Com., 76 Va. 1012. simply seeking to discredit him 
 
 42— Day v. Stiokney, 14 Allen by showing his hostility and mal- 
 
 fMass.) 255; Cook v. Brown, 34 Ice; and as that may be proved 
 
 N. H. 460. by any competent evidence, we 
 
 43 — Martin v. Barnes, 7 Wis. see no reason for holding that 
 
 239; People v. Brooks, 131 N. Y. he must first be examined as to 
 
 321, 30 N. E. Rep. 189. (In this his hostility. 
 
 ■ case the court say, "there can be 44— Martin v. State, 125 Ala. 
 
 no reason for holding that the 64, 28 So. Rep. 92. 
 
EXAMINATION OF WITNESSES. 373 
 
 wager on the result of the ease;*^ if the deceased was not her 
 lover ;*8 if she has not agreed to pay defendant 's attorney fees ;*^ 
 whether his compensation is contingent upon a recovery by his 
 client;*^ whether he is to receive a reward in case the defendant 
 is convicted;*® whether he or his wife has an interest in the 
 subject-matter of the suit;^'' whether, if he testified to certain 
 facts showing that he had been guilty of negligence in operating 
 his engine, he would be discharged.^i And evidence is ad- 
 missible to show, an attempt on the part of the witness to 
 bribe ;^ 2 an agreement to suppress testimony for a considera- 
 tion ;^3 and an attempt to persuade a witness for the prosecution 
 to fail to identify the^defendant.''* In fact it may be said that 
 practically any condition, circumstance or statement, which 
 shows bias or hostility of the witness toward the adverse party, 
 and which is not too remote, may be shown to impeach the 
 credibility of the witness. It has been held, however, that the 
 fact that the witness had defaced a picture belonging to the 
 defendant was too uncertain to prove ill-will ; and that evidence 
 of such fact is inadmissible to impeach the credibility of the 
 witness.88 On the other hand, it has been held that the fact that 
 a physician was employed for the express purpose of using him 
 as a witness in the case may be shown to impeach his cred- 
 ibility.''* 
 
 The fact that a witness entertains bias or hostility toward the 
 adverse party to the suit may be shown upon his cross-examina- 
 tion, or by other witnesses.®'^ 
 
 45— People v. Parker, 137 N. Y. 52— State v. McKlnstry, 100 la 
 
 535, 32 N. E. Rep. 1013. 82, 69 N. W. Rep. 267. 
 
 46 — Pedple v. Worthlngton, 105 53 — Alward v. Oakes, 63 Minn. 
 
 Cal. 166, 38 Pac. Rep. 689. 190, 65 N. W. Rep. 270; Barkly 
 
 47— Magruder v. State, 35 Tex. v. Copeland, 86 Cal. 483, 25 Pac. 
 
 Cr. Rep. 214, 33 S. W. Rep. 233. Rep. 1. 
 
 48 — Harrington v. Hamburg, 85 54 — Webb v. State (Tex. Cr. 
 
 la. 272, 52 N. W. Rep. 201. App.), 58 S. W. Rep. 82. 
 
 49 — Taylor v. United States, 89 55 — State v. Punshon, 133 Mo. 
 
 Fed. Rep. 954. 44, 34 S. W. Rep. 25. 
 
 50 — ^Renoux v. Geney, 65 N. Y. 56 — Jones v. Portland, 88 Mich. 
 
 Supp. 508. 598, 50 N. W. Rep. 731. 
 
 51— Chicago, etc., Ry. Co. v. 57 — People v. Webster, 139 N. 
 
 Thomas, 155 Ind. 634, 58 N. B. Y. 73, 34 N. E. Rep. 730; Swet 
 
 Rep. 1040; Haver v. Cent. Ry. Co., v. Shumway, 102 Mass. 365, 3 Am. 
 
 64 N. J. L. 312, 45 Atl. Rep. 593. Rep. 471; People v. Anderson, 
 
 105 Cal. 32, 38 Pac. Rep. 513. 
 
374 WITNESSES. 
 
 § 49. corroboration of witness. Definition. — ^A witness may 
 be corroborated as well as impeached." "Corroborating evi- 
 dence," as defined in a comparatively recent case, "is such 
 evidence as tends, in some degree, of its own strength and inde- 
 pendently to support some essential allegation or issue raised 
 by the pleadings testified to by the witness whose evidence is 
 sought to be corroborated, which allegation or issue, if unsup- 
 ported, would be fatal to the case; and such corroborating evi- 
 dence must of itself, without the aid of any other evidence, ex- 
 hibit its corroborative character by pointing with reasonable 
 certainty to the allegation or issue which it supports, and such 
 evidence will not be material unless the evidence sought to be 
 corroborated itself supports the allegation or point in issue."'* 
 
 § 50. Same. Wlien corroborative evidence is allowable. — 
 
 A witness may always be corroborated by calling other wit- 
 nesses to testify to the same facts when material to the issue.^' 
 Where the credibility of a witness has been impeached on cross- 
 examination by contradictory statements made by him previous- 
 ly, he may support his statements made on his direct examina- 
 tion, by explaining on his redirect-examination the inconsistent 
 statements.^" It is to be observed, however, that before cor- 
 roborating evidence is admissible to support the credibility of a 
 witness his credibility must first be attacked.^i Where the 
 character of a witness for truth and veracity has been attacked, 
 rebuttal evidence is always admissible to sustain it.^^ And 
 where the witness is a stranger residing in another state, some 
 cases hold that evidence of his good character is admissible to 
 corroborate him even where his character has not been at- 
 tacked.^3 Where a witness has been impeached by showing 
 previous contradictory statements, some courts hold that he may 
 
 58 — Glldersleeve v. Atkinson, 6 61 — Bryant v. Tidgewell, 133 
 
 N. Mex. 250, 27 Pac. Rep. 477. Mass. 86; State v. Patrick, 107 
 
 59— Green v. Gould, 3 Allen Mo. 147. 
 
 (Mass.) 465; Russell v. Cham- 62— State v. Nelson, 58 la. 208, 
 
 ters, 31 Minn. 54, 16 N. W. Rep. 12 N. W. Rep. 253; Haley v. State, 
 
 458. 63 Ala. 83. 
 
 60 — Bressler v. People, 117 111. 63 — Merriam v. Hartford, etc., 
 
 422, 8 N. E. Rep. 62; Ferris v. Ry. Co., 20 Conn. 354, 52 Am. Dec 
 
 Hard, 135 N. Y. 354, 32 N. E. Rep. 344. 
 129. 
 
EXAMINATION OF WITNESSES. 375 
 
 be corroborated by evidence of good character,^* while others 
 hold the coiitrary.^5 If a witness is charged with the com- 
 mission of a crime, or admits on cross-examination that he has 
 been indicted for a crime, he may rebut this by stating that he 
 was acquitted of the charge, or that he was innocent.^* He may 
 not, however, go into the details.®'^ Where a sustaining witness 
 is called to prove the good character of a witness who has been 
 impeached his competency must first be established. He must 
 show that he has personal knowledge of the other's character. 
 The same rules govern in this respect as in the case of an im- 
 peaching witness.^* As said by Justice Wilkin, "The evidence 
 of witnesses in support of another witness is only admissible 
 because the general reputation of that other has been assailed, 
 and the rule is, without exception, that the witnesses speaking 
 for or against the one assailed must first state that they know 
 his general reputation, — that is to say ,that they know what is 
 generally said of him by 'those among whom he dwells, or with 
 whom he is chiefiy conversant, for it is this, only, that constitutes 
 his general reputation or character.' (1 Greenleaf on Evidence, 
 §461)."®* Where a witness has been impeached by showing 
 prior inconsistent statements, some courts hold that he may be 
 corroborated by showing other prior statements which are con- 
 sistent.'^" Upon this point, however, the courts are in hopeless 
 conflict. Many courts hold that this may not be done.'^i This 
 view obtains in Illinois, and is probably supported by the weight 
 of authority. Justice Sheldon says, "This Court, in Gates v. 
 
 64— Tonns v. State, 111 Ala. 1, People, 139 111. 138, 28 N. E. Rep. 
 
 20 So. Rep. 598; Berryman v. 1077. 
 
 Cox, 73 Mo. App. 67; Stratton v. 69— Magee v. People, supra. 
 
 State, 45 Ind. 468. 70 — Hinshaw v. State, 147 Ind. 
 
 65— Webb v. State, 29 Ohio St. 334, 47 N. E. Rep. 157; State v. 
 
 351; State v. Rice, 49 S. C, 418, Grant, 79 Mo. 113, 49 Am. Rep. 
 
 61 Am. St. Rep. 816, 27 S. E. Rep. 218; Wallace v. Grizzard, 114 N. 
 
 452; Russell v. Coffin, 8 Pick. C. 488, 19 S. E. Rep. 760. 
 
 (Mass.) 143. 71— Stolp v. Blair, 68 III. 541, 
 
 66 — Jackson v. State, 33 Tex. 543; Dufresne v. Wise, 46 Wis. 
 
 Cr. Rep. 281, 47 Am. St. Rep. 80, 290, 1 N. W. Rep. 59; State v. 
 
 26 S. W. Rep. 194, 622. Vincent, 24 la. 570, 95 Am. Dec. 
 
 67— Ryan v. State, 97 Tenn. 753; McKelton v. State, 86 Ala. 
 
 206, 36 S. W. Rep. 930. 594, 6 So. Rep. 301, overruling 
 
 68— Gifford v. People, 148 111. Sonnebau v. Bernstein. 49 Ala. 
 
 173, 35 N. E. Rep. 754; Magee v. 168. 
 
376 WITNESSES. 
 
 The People, 14 111. 434, recognized the existence of a conflict 
 of authority upon the question whether the former declarations 
 of a witness, whose credibility is attacked, may be given in 
 evidence to corroborate his testimony. We find the decided 
 weight of authority to be, that proof of declarations 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 discredited, and we 
 are satisfied with the correctness of the rule. "''^ Some courts 
 make a distinction between the case of an ordinary witness and 
 one who is also a party to the suit. In the latter case, it is 
 held that the witness may not introduce prior consistent state- 
 ments, for the reason that to allow him to do so would be to 
 permit him to introduce self-serving declarations which would 
 necessarily do much more towards establishing the case itself 
 than sustain his credibility as a witness. As said by Chief Justice 
 Elliott, "The trial court erred in admitting in evidence these 
 declarations of the appellee. In giving an account of the ac- 
 cident the appellee was testifying as to facts and was assuming 
 to state facts. In disproving by his own admissions his state- 
 ments on the witness stand, the appellant did not merely im- 
 peach his credibility, but gave evidence which tended to dis- 
 prove the facts he assumed to state. The testimony given by 
 the witnesses who testified as to his admissions was not offered 
 or received as impeaching evidence, but as evidence of the ad- 
 missions of a plaintiff. Where a party makes admissions they 
 are accepted as original evidence, upon the ground that the ad- 
 missions of a party against his interest are made because they 
 truthfully embody the facts, and they are, therefore, sub- 
 stantive proof of the facts admitted. They relate to the facts 
 themselves as facts, and not merely to the question of the trust- 
 worthiness of the party as a witness."''^ 
 
 § 51. Same. Corroboration of prosecutrix in a rape case.— 
 In a trial for rape it is always allowable to corroborate the 
 evidence of the prosecutrix by showing that soon after the com- 
 mission of the alleged offense she made complaint. It is gen- 
 erally held, however, that the details of the complaint are in- 
 
 72— Stolp V. Blair, supra. 136, 20 N. E. Rep. 703. See also, 
 
 73 — The Logansport, etc.. Turn- State v. Lenihan, 88 la, 670, 56 
 pike Co. v. Heil, 118 laa. 135, N. W. Rep. 292, 
 
EXAMINATION OF WITNESSES. 377 
 
 admissible/* unless she is impeached on cross-examinationJ' 
 In a few jurisdictions she may state the details of the complaint, 
 even where she is not impeached.'^^ The fact that she made 
 complaint promptly is a circumstance which tends to cor- 
 roborate her;'''' while, on the other hand, any considerable delay 
 on her part, or an entire failure, to do so, may have the op- 
 posite effect. As said by Chief Justice Church, "Any consid- 
 erable delay on the part of the prosecutrix to make complaint of 
 the outrage constituting the crime of rape, is a circumstance of 
 more or less weight, depending upon the other surrounding 
 circumstances. There may be many reasons why a failure to 
 make immediate or instant outcry should not discredit the wit- 
 ness. A want of suitable opportunity, or fear, may sometimes 
 excuse or justify a delay. There can be no iron rule on the 
 subject. The law expects and requires that it should be prompt, 
 but there is and can be no particular time specified. The rule 
 is founded upon the laws of human nature, which induce a 
 female thus outraged to complain at the first opportunity. Such 
 is the natural impulse of an honest female. But if instead of 
 doing this she conceal the injury for any considerable time, it 
 naturally excites suspicion of fraud, and tends to discredit 
 her. The rule does not require that it is to be made to the first 
 person who happens to be seen. A proper opportunity must 
 be presented."'* In some states, by statute, corroboration of 
 the prosecutrix is essential to a conviction j''^ and in a few juris- 
 dictions it is held essential at common law.®" In most juris- 
 dictions, however, it is not essential unless made so by statute.*^ 
 § 52. Same. Corroboration of complainant in a divorce case. 
 — Where a wife asks for a divorce on the grounds of cruelty 
 
 74— state v. Richards, 33 la. 79 — State v. Carnagy, 106 la. 
 
 420; Regina v. Megson, 9 Car. & 483, 76 N. W. Rep. 805. 
 
 P. 420. 80— Mathews v. State, 19 Neb. 
 
 75— Thompson v. State, 38 Ind. 330, 27 N. W. Rep. 234. 
 
 39. 81 — Johnson v. People, 197 111. 
 
 76— State v. Kinney, 44 Conn. 48, 64 N. B. Rep. 286' (assault 
 
 353; Burt v. State, 23 Ohio St. with intent to rape); State v. 
 
 394. Marcks, 140 Mo. 656, 41 S. W. 
 
 77— Laughlln v. State, 18 Ohio Rep. 973, 43 S. W. Rep. 1095; 
 
 99. Lanphere v. State, 114 Wis. 193, 
 
 78— Higgins v. People, 58 N. Y. 89 N. W. Rep. 128. 
 377, 379. 
 
378 WITNESSES. 
 
 and desertion, and the defendant introduces evidence of specific 
 acts of the complainant, tending to reflect upon her character for 
 sobriety, and modest and peaceable behavior, she may not rebut 
 such evidence by proof of her general good character. Starkie 
 says, "There are three classes of cases in which the moral char- 
 acter and conduct of a person in society may be used in proof 
 before a jury, each resting upon peculiar and distinct grounds. 
 Such evidence is admissible : first to afford a presumption that 
 a particular party has or has not been guilty of a criminal act; 
 secondly, to affect the damages in particular cases where their 
 amount depends upon the character and conduct of any in- 
 dividual; and thirdly, to impeach or confirm the veracity of 
 a witness. "^2 And Justice Craig says, "While it is true, the 
 defendant introduced, on the trial, evidence of specific acts of 
 the complainant tending to reflect upon her character for so- 
 briety, and modest, peaceable behavior, yet, under the rule an- 
 nounced by Starkie, we do not understand that she had the right 
 to rebut by proof of general good character. Her general char- 
 acter was not in issue. "^^ 
 
 § 53. Same. Corroboration of an accomplice. Deflnition.— 
 
 An accomplice is one who is in some way concerned in the com- 
 mission of a crime. He may be a principal in the first or 
 second degree, or an accessory before or after the fact. At the 
 English common law a conviction might be based solely on the 
 evidence of an accomplice.^* In a case tried before Justice 
 BuUer, the twelve judges who reviewed it were unanimously of 
 opinion that an accomplice alone is a competent witness, and 
 that if the jury, weighing the probability of his testimony, 
 think him worthy of belief, a conviction supported by such tes- 
 timony alone is perfectly legal.®^ Lord Ellenborough says, 
 ' ' That judges in their discretion wiU advise a jury not to believe 
 an accomplice unless he is confirmed, or only in so far as he is 
 confirmed; but if he is believed, his testimony is unquestionably 
 sufficient to establish the facts he deposes to."^^ In some juris- 
 dictions, statutory provisions prohibit basing a conviction solely 
 
 82— Starkie on Evld., Vol. 2, p. 84— Reglna v. Hastings, 7 Car. 
 
 364. & Payne, 87. 
 
 83— Berdell v. Berdell, 80 111. 85— Atwood's case, 1 Leach, 464. 
 
 604, 607. 86— Jones' case, 2 Campbell, 132. 
 
EXAMINATION OF WITNESSES. 379 
 
 on the evidence of an aceompliee.^^ In many jurisdictions, ir- 
 respective of statutory provisions, the courts exercise a discre- 
 tion in the matter and frequently advise the jury to acquit where 
 the evidence is confined to that of an accomplice.®^ Chief Jus- 
 tice Breese says, "It is a matter of discretion with the court to 
 advise, rather than a rule of law. If a jury believe the testi- 
 mony of an accomplice, who may have been induced to make 
 disclosures, from remorse, or from any other motive, why should 
 they not be allowed to credit him ? Is he in a position different 
 from any other witness whose credibility is to be inquired into 
 by the jury? We can see no real difference. "^^ Justice Craig 
 says, "The record discloses evidence tending to implicate the 
 witness, Flagg, in the crime, and to impeach his testimony. 
 Under such circumstances, the jury ought to have received his 
 evidence with great caution, but, in law, he was a competent 
 witness, and the jury were the judges of the credibility to be 
 attached to his evidence. If the evidence of the witness was 
 worthy of belief, and the jury gave credit to his statements, 
 then there can be no doubt in regard to the guilt of the de- 
 fendant."^" Chief Justice Craig says, "Freeman was an ac- 
 complice, it is true, but that fact did not exclude him from testi- 
 fying in the case, — it would only go to his credibility. It was 
 for the jury to determine whether the witness was worthy of 
 belief. It is true, a jury should receive the evidence of an ac- 
 complice with caution, but if they think him worthy of belief, 
 in view of all the circumstances, they may convict upon his 
 evidence, although it might not be corroborated, "^i Justice 
 Mulkey says, "Whatever the law may be in other States with 
 respect to the right of a jury to convict upon the uncorroborated 
 testimony of an accomplice, it is well settled the right exists here, 
 and convictions upon such testimony will not be disturbed by 
 this court on that ground alone. "^^ Justice Scholfield says, 
 
 87— People v. Mayhew, 150 N. 89— Cross v. The People, 47 111. 
 
 Y. 346, 44 N. E. Rep. 971; People 152, 160. 
 
 V. Cloonan, 50 Cal. 449; Craft v. 90— Earll v. The People, 73 111. 
 
 Com. 80 Ky. 349. 329, 335, 336. 
 
 88— Ingalls v. State, 48 Wis. 91— Friedberg v. The People, 
 
 647; State v. Maney, 54 Conn. 102 111. 160, 164. 
 
 178, 6 Atl. Rep. 401; Com. v. 92— Rider v. The People, 110 111. 
 
 Brooks, 9 Gray (Mass.) 299. 11, 15. 
 
380 WITNESSES. 
 
 "The principal evidence tending to prove the guilt of plaintiff 
 in error is found in the testimony of his co-defendants, — ac- 
 complices who admit that they committed the arson, but say that 
 plaintiff in error hired them to do it. It has often been ques- 
 tioned in England and in this country, by courts of the highest 
 respectability, whether convictions on such testimony alone > 
 should be allowed to stand; but it is held by this court, in con- 
 formity with the prevailing ruling elsewhere, that convictions 
 may be sustained on such testimony, alone, although the court 
 may, in its discretion, in such cases, advise the jury not to con- 
 vict. But the authorities agree, and common sense teaches, that 
 such evidence is liable to grave suspicion, and should be acted 
 upon with the utmost caution, for otherwise the life or liberty 
 of the best citizen might be taken away on the accusation of 
 the real criminal, made either to shield himself from punish- 
 ment or to gratify his malice. ' '^^ Phillipps says, ' ' Accomplices, 
 upon their own confession, stand contaminated with guilt. 
 They admit a participation in the very crime which they en- 
 deavor, by their evidence, to fix upon the prisoner. They are 
 sometimes entitled to even a reward upon obtaining a convic- 
 tion, and always expect to earn a pardon. Accomplices are 
 therefore of a tainted character, giving their testimony under 
 the strongest motives to deceive."^* Best says, "No doubt, if 
 it was not absolutely necessary for the execution of the law 
 against notorious offenders that accomplices should be received 
 as witnesses, the practice is liable to many objections ; and though 
 under this practice they are clearly competent witnesses, their 
 single testimony, alone, is seldom of sufficient weight with the 
 jury to convict the offenders, it being so strong a temptation to 
 a man to commit perjury, if, by accusing another, he can es- 
 cape himself. ' '^s To like effect are Greenleaf ^s and Wharton.^^ 
 It is to be observed, therefore, that while a jury may convict 
 upon the uncorroborated testimony of an accomplice, such tes- 
 timony is to be subjected to the same tests which are applied to 
 the testimony of other witnesses, and courts should proceed 
 upon such testimony with great caution. Moreover, the cir- 
 
 93— Hoyt V. The People, 140 111. 95— Best on Evid., § 170. 
 
 588, 595. 96—1 Greenleaf on Evid., § 379. 
 
 94 — 1 Phillipps on Evid. (Cow- 97 — Wharton on Grim. Law 
 
 en, Hill & Edward notes) p. 111. (7th ed.) 785. 
 
EXAMINATION OF WITNESSES. 381 
 
 cumstances connected with such a ease may be such as will 
 justify a court of review in setting aside a conviction based upon 
 such evidence.®^ 
 
 § 54. Some practical suggestions on the examination of wit- 
 nesses. — The examination of witnesses is both a science and an 
 art. As an art it is capable of a very high degree of develop- 
 ment. For a person to acquire such a degree of development, 
 however, it is essential that he possess a peculiar talent for it. 
 He must also be thoroughly grounded in the rules of evidence 
 and their exceptions, and have practical experience in their ap- 
 plication. 
 
 § 55. Same. The examination-in-chief.— The object of the 
 examination-in-chief is to elicit from the witness the truth and 
 nothing but the truth in so far as it is beneficial to his client. 
 Facts calculated to benefit the adversary should be carefully 
 avoided. It is of the highest importance, therefore, to ask only 
 such questions as will accomplish this object. Never ask any 
 question without this definite object in view; and the moment 
 you have elicited from the witness all that he knows beneficial 
 to your clientj stop. To be able to carry out this fundamental 
 rule, it is essential that you possess beforehand information as 
 to the extent of his knowledge of the facts of the case. To 
 acquire this information you should question him carefully, in 
 your ofiice or elsewhere, before the trial. A memorandum 
 should be made showing the extent of his knowledge as to all 
 the material facts of the case; and this memorandum should be 
 consulted at the trial, especially to avoid the serious mistake of 
 omitting to interrogate him upon some material fact beneficial 
 to your client, and which you may not be able to prove by any 
 other witness. Don't forget that after you have turned him 
 over to the adversary for cross-examination it is too late to 
 rectify such an error. 
 
 The general mode of examining a witness, upon his exami- 
 nation-in-chief, should depend, in a large measure at least, upon 
 his disposition. In this respect, witnesses may be divided into 
 the following three classes: (1) The ordinary witness; (2) The 
 hostile witness; and (3) The rapid witness. 
 
 98— Campbell v. The People, 159 111. 8 (1895). 
 
382 WITNESSES. 
 
 § 56. Sajue. The ordinary witness. — The ordinary witness, 
 upon his examination-in-chief, should be made to feel at ease 
 at once, and then allowed to tell his story in his own way with 
 as little interruption as possible. Care should be taken to treat 
 him in a very pleasant and friendly way. To put him at ease, 
 a few unimportant questions should be asked, very deliberately 
 and in a conversational tone. If, after he has begun to tell his 
 story, interruptions become necessary, they should be made very 
 pleasantly and in a somewhat apologetic manner. Having in- 
 • structed him beforehand to relate the facts in the order of their 
 occurrence, should he manifest a tendency to reverse this order 
 gently direct him, without asking leading questions, along the 
 proper course; and should he omit material facts, gently and 
 pleasantly call his attention to them. If he should manifest 
 considerable stupidity, exercise the greatest patience with him, 
 and under no circumstances manifest the slightest irritability. 
 Let your questions be short, clear and simple. Always avoid 
 verbosity and also pomposity. When the witness has told all 
 the facts which you desired to prove by him, don't ask him to 
 repeat his testimony, but turn him over at once to your ad- 
 versary for cross-examination. 
 
 § 57. Same. The hostile witness. — The rules applicable to 
 the mode of examination of a hostile witness are very different 
 from those which are applicable to the mode of examination of 
 an ordinary witness. In the first place, a hostile witness should 
 .not be called at all unless his testimony is indispensable. Where 
 it is necessary to call him, his hostility should be made to ap- 
 pear at the earliest moment. Two reasons exist for this rule. 
 One is that as soon as his hostility is made manifest the court 
 will allow leading questions. The other is that the jury from 
 that moment will give more weight to his favorable answers 
 and less weight to his unfavorable answers. The questions sub- 
 mitted to him should be short and pointed. The reason is he 
 should be given as narrow a scope as possible for explanations 
 and evasions. Should he attempt to make explanations he 
 should be stopped by informing him that they may be omitted 
 for the present. As soon as he has given the information de- 
 sired, turn him over at once for cross-examination. A hostile 
 witness should be dismissed at the earliest moment practicable. 
 Two reasons exist for this rule. One is that he should be given 
 
EXAMINATION OF WITNESSES. 383 
 
 as little opportunity as possible to give adverse testimony; and 
 the other is that, since under the American rule the scope of the 
 cross-examination is restricted to that of the examination-in- 
 ehief , the scope of the former should be made as narrow as pos- 
 sible consistent with the object desired. 
 
 § 58. Same. The rapid witness. — In most respects, the prin- 
 cipal rules applicable to a hostile witness are also applicable 
 to a rapid witness. Both are dangerous witnesses and should 
 be handled with much care. In the case of the rapid witness 
 the danger lies in his telling too much. He may be likened to 
 a street-ear going down an incline. It is essential at all times 
 to have control of the brake. He must be held in check con- 
 stantly. To accomplish this, questions put to him should be 
 short and pointed as in the case of the hostile witness. Moreover, 
 the manner assumed toward him by counsel should be grave, 
 dignified and ceremonious. Questions and demeanor of this 
 character will tend strongly to repress him. As in the case of 
 the hostile witness, the moment the desired information has been 
 obtained from him he should be dismissed. 
 
 § 59. Same. Duties of opposing counsel during the examina- 
 tion-in-cbief. — Opposing counsel, during the examination-in- 
 chief, have two principal duties to perform. One is to watch 
 carefully the questions asked and the answers given with the 
 view of having improper ones excluded; and the other is to take 
 notes of the testimony given. 
 
 Frivolous objections should be carefully avoided. As a rule 
 they are worse than useless, and if frequently indulged in they 
 militate strongly against the party who makes them. With 
 respect to merely formal or introductory matters leading ques- 
 tions are allowable, and objection to them should never be made. 
 Even as to leading questions which are improper, it is not, as a 
 general rule, considered good policy to object, in the first in- 
 stance, abruptly to them. Counsel should first be good-na- 
 turedly cautioned that his questions are leading; and if he per- 
 sist in asking them the court then should be appealed to for a 
 ruling. It is well to observe that improper questions must be 
 objected to before they are answered. Hence alertness on the 
 part of the objector is an important consideration. 
 
 Notes of the testimony given on the direct examination should 
 be taken, as they serve a useful purpose on the cross-examina- 
 
384 WITNESSES. 
 
 tion, as well as in making the argument before the jury, and 
 again in preparing a bill of exceptions in ease of an appeal. 
 
 §60, Same. The cross-examination. — As previously stated, 
 the legal engine of cross-examination is not only a powerful 
 weapon, but it is also a dangerous one. Especially is the latter 
 part of this statement true as regards inexperienced and un- 
 skillful advocates. 
 
 In the discussion pertaining to the mode of conducting the 
 examination-in-chief, the most important rule given is, never ask 
 any question without a definite object in view. In its applica- 
 tion to the mode of conducting the cross-examination this funda- 
 mental rule is doubly important. The reason is, in view of the 
 fact that the witness is presumably adverse to the cross-exam- 
 iner he is all the more likely to give adverse answers. Lord 
 Abinger used to say, "Never drive out two tacks by trying to 
 hammer in a nail. ' ' This axiom has long been justly celebrated. 
 
 The cross-examiner should begin early to "size up" the wit- 
 ness with the view of forming an opinion as to his character and 
 probable motives. As said by Sergeant BaUantine, "In order 
 to attain success in this branch of advocacy, it is necessary for 
 counsel to form in his own mind an opinion upon the facts of 
 the case, and the character and probable motives of a witness, 
 before asking a question. This doubtless requires experience, 
 and the success of his cross-examination must depend upon the 
 accuracy of the judgment he forms. The object of cross-ex- 
 amination is not to produce startling effects, but to elicit facts 
 which will support the theory intended to be put forward. "^ 
 
 The character of the questions, and the manner which should 
 be assumed toward the witness, should depend very largely upon 
 the opinion formed as to his disposition and intentions. If the 
 opinion be formed that he is an honest witness, and has no in- 
 tention to misrepresent the facts, the manner assumed toward 
 him should be pleasant and courteous. It is the common ex- 
 perience of mankiad that most people are much more easily led 
 than driven. 
 
 If, on the other hand, the conclusion be reached that the wit- 
 ness is dishonest, an opinion should be formed as to the extent 
 to which he will be willing to go in manifesting it upon the stand. 
 
 1 — "Some Experiences of a Barrister's Life," supra. 
 
EXAMINATION OP WITNESSES. 385 
 
 If the concluson be reached that he will not go so far as to 
 flatly perjure himself, but will merely equivocate, he should be 
 closely pressed as to the salient points of the case; but, if the 
 conclusion be reached that he is a desperate character, and will 
 not hesitate to commit perjury, and intends to swear his case 
 through at all hazards, even to the extent of flatly perjuring 
 himself, a different course should be pursued. In such a case 
 he will probably be prepared along the, line of the salient poiats, 
 and the more he is questioned concerning them the more nearly 
 consistent and truthful his story wiH appear. His attention, 
 therefore, should be directed toward matters concerniug which 
 he is not likely to be prepared. This may be done by interro- 
 gating him in regard to minute details having no apparent im- 
 mediate bearing upon the salient points. The questions should 
 be put to him in rapid succession to prevent him from inventing 
 answers on the spur of the moment which will be less likely to 
 betray him. 
 
 Reynolds says, "In forming an opinion as to the moral char- 
 acter of a witness' testimony, it will be well to bear in .mind 
 the statement of Sergeant Ballantiue, who says that his ex- 
 perience has led him to the conclusion that honest witnesses 
 endeavor to keep themselves to the facts they come to prove, 
 but that lying ones endeavor to distract the attention by intro- 
 ducing something irrelevant. Often the best method to deal 
 with an adverse witness is to decline cross-examining him at all, 
 which, if done with a rather supercilious air, will frequently 
 impress the jury with the idea that his testimony is either totally 
 untrustworthy, or else has little or no bearing upon the case. ' '* 
 In cross-examining a witness, great care should be taken to 
 avoid giving him an opportunity, (1) To supply any omission 
 in the evidence given upon his examination-in-chief; or, (2), 
 To explain any inconsistencies in that evidence; or, (3) To re- 
 peat any strong points in it which favor the party who called 
 him; or, (4) To widen its scope so as to enable the party who 
 called him to bring out on the re-examination testimony un- 
 favorable to the other party to the suit which otherwise would 
 have been inadmissible. 
 ' The omissions in the evidence given in the examination-in- 
 
 2— Reynolds on Evid. (3rd ed.), § 126. 
 
386 WITNESSES. 
 
 chief, and the inconsistencies in that evidence may be discussed 
 to advantage in the argument to the jury. 
 
 Great care should always be taken by counsel to avoid any 
 display of anger on his part. It may be advisable sometimes 
 to stir up the anger of the witness, but no consideration will 
 ever justify a display of anger on the part of counsel. Nor is it 
 good policy to attack a witness without just provocation, which 
 is palpable to the jury. Nor to dispute with him. If he have 
 a strong prejudice toward the adversary of the party who called 
 him, make it palpable to the jury at the earliest moment possible. 
 
 § 61. Same. Women as witnesstes. — ^It is sometimes said that 
 while women are often peculiarly good witnesses on the examina- 
 tion-in-chief, owing, in a large measure, to the minuteness, defi- 
 niteness and circumstantial quality of their recollection, on the 
 other hand they are usually peculiarly bad witnesses on the cross- 
 examination. In advising a young lawyer upon the subject, the 
 distinguished advocate, Rufus Choate, once humorously remark- 
 s' : " Let me give you my dying advice, — never cross-examine a 
 woman. It is no use. They cannot disintegrate the story they 
 have once told, they cannot eliminate the part that is for you 
 from that which is against you. They can neither combine, nor 
 shade, nor qualify. They go for the whole thing; and the 
 moment you begin to cross-examine one of them, instead of being 
 bitten by a single rattlesnake, you are bitten by a whole barrel 
 full. I never, except in a case absolutely desperate, dare to cross- 
 examine a woman. ' '* 
 
 § 62. Same. Duties of opposing counsel during the cross- 
 exajnination. — The chief duty of opposing counsel during the 
 cross-examination is to watch the answers given and take notes 
 of them where necessary for use in the re-examination. It is 
 also his duty, in some instances, to object to questions asked. 
 It must be remembered, however, that frivolous interruptions 
 are very objectionable, and usually militate against the party 
 who makes them. Such interruptions always deserve, and fre- 
 quently get, a rebuke from the court, which always leaves an 
 unfavorable impression upon the minds of the jury. Instances, 
 however, sometimes arise where objections are not only justifiable 
 
 3 — Memoir of Rufus Choate, by of the Mass. Hist. Soc. 154 (Oct. 
 Clement Hugh HIU. Proceedings 1896). 
 
EXAMINATION OF WITNESSES. 387 
 
 but should be made. Thus, where questions are asked the wit- 
 ness concerning matters not at all connected with the matter 
 brought out in his examination-in-chief, or which concern state- 
 ments in writing made previously by him and the writing is 
 not produced, and the like, objections are proper and should be 
 made. 
 
 §63. Same. The re-examination. — The scope of the re-ex- 
 amination is limited to that of the cross-examination; and its 
 purpose is to afford an opportunity to the witness to explain any 
 of his statements made upon that examination. One of its ad- 
 vantages is, it sometimes affords an opportunity to bring out 
 matters which cannot be brought out on the examination in- 
 chief. Thus, on the cross-examination the witness may be asked 
 concerning statements made by him in a certain conversation; 
 and this will entitle counsel to bring out on the re-examination 
 the whole of the conversation in explanation of such statements. 
 Counsel, however, must form an opinion beforehand as to the 
 advantage or disadvantage to his client of such explanation ; and 
 should he be in doubt in regard to this point, it is usually ad- 
 visable to let the matter rest, as the explanation may result in 
 making matters worse. 
 
ILLUSTRATIONS 
 
 388 
 
JtTDIClAL NOTICE. 389 
 
 ILLUSTRATIONS ON JUDICIAL NOTICE. 
 
 1. The fact in issue is, whether a certain patented machine, 
 the novelty of which is denied, involves any new principle ; and 
 the question is, whether the court will take judicial notice of 
 the principle long applied in the common ice cream freezer. 
 
 The court will take judicial notice of this principle owing 
 to its universal notoriety .^ 
 
 2. The fact in issue is, at what time, on a certain night, 
 the moon rose ; and the question is, whether the court will take 
 judicial notice of this fact. 
 
 The court will take judicial notice of this ultimate fact, and 
 also that Gruber's Almanac, a book of universal notoriety, is 
 admissible in evidence as a proper medium of proof of such 
 ultimate fact.^ 
 
 3. The fact in issue is, whether Central America is a sover- 
 eign and independent state, recognized and treated as such by 
 the King of England; and the question is, whether the court 
 will take judicial notice that it is not. 
 
 The court will take judicial notice that it is not, although 
 the declaration alleges the contrary, and the defendant has 
 demurred to the declaration.* 
 
 4. The facts in issue are, whether an unoccupied building 
 is more exposed to danger from fire than an occupied one, and 
 whether an ordinarily prudent man, having under his control 
 a large manufacturing establishment, will keep the premises 
 insured against loss by fire, to an amount approximating its 
 value; and the question is, whether the court will take judicial 
 notice that the answer to each question is in the affirmative. 
 
 The court will take judicial notice that the answer to each 
 question is in the affirmative.* 
 
 5. The question is, whether the courts of Illinois will take 
 
 1— Brown v. Piper, 91 U. S., 37. 213; State v. Jarrett, 17 Md., 309. 
 
 2 — Moonshower v. State, 55 Md., 4 — White v. Phoenix Ins. Co., 83 
 
 11. Me., 279; Hill v. Am. Surety Co.. 
 
 3— Taylor v. Barclay, 2 Sim.. 107 Wis., 19, 81 N. W. R., 1024. 
 
390 PEELIMINAEY TOPICS. 
 
 judicial notice that the city of Chicago is within Cook county, 
 and that Cook county is within the State of Illinois. 
 
 The courts of Illinois will take judicial notice of both these 
 facts.5 
 
 6. The question is, whether the Circuit Court of the United 
 States, for the district of Maryland, will take judicial notice 
 that a public law of Louisiana requires that the original con- 
 tract of sale, of certain slaves, shall be kept in the possession 
 of the notary who records the sale. 
 
 The Circuit Court of the United States will take judicial 
 notice of the public laws of Louisiana, and thereby render it 
 unnecessary for the party, who seeks to prove the contract of 
 sale, and who offers in evidence a copy of the contract, to ac- 
 count for the nonproduetion of the original.^ 
 
 7. The question is, whether the Supreme Court of the 
 United States, in a suit brought up by writ of error to the 
 Maryland Court of Appeals, will take judicial notice of the 
 public laws of Pennsylvania. 
 
 The Supreme Court of the United States will not take judi- 
 cial notice of the public laws of Pennsylvania. If, however, 
 the suit had been brought up from a federal court, or, from the 
 highest court of Pennsylvania, it would.^ 
 
 8. The'' question is, whether a court of the state of Illinois 
 will take judicial notice of the public laws of the State of Mi«h- 
 igan. 
 
 As the two states, in this respect, are foreign to each other, 
 a state court of the one will not take judicial notice of the pub- 
 lic laws of the other.^ 
 
 9. The question is, whether the court will take judicial no- 
 tice that the letters "B. & 0.," on a railroad engine, mean 
 Baltimore & Ohio Eailroad Co. 
 
 The court, in determining the ownership of the engine, will 
 take judicial notice that the letters "B. & 0." mean Baltimore 
 
 5— Sullivan v. People, 122 111., 7— Hanley v. Donoghue, 116 U. 
 
 385; SaukvlUe v. State, 69 Wis., S., 1. 
 
 178. 8— Horton v. Critchford, 18 III, 
 
 6— Owings et al. v. Hull, 9 Pet., 133. 
 607. 
 
JUDICIAL NOTICE. 391 
 
 & Ohio Railroad Co., although the engine is upon the tracks 
 of another railway company .^ 
 
 10. The question is, whether the courts of one country will 
 tal*e judicial notice of a state of war between that country and 
 a foreign one. 
 
 Courts will take judicial notice of the existence of a war 
 between their country and a foreign one, and also of the facts 
 of public history relating to its origin, progress and conclu- 
 sion; but they will not, as a rule, take judicial notice of a 
 war between foreign countries.^" 
 
 11. The question is, whether jurors will take judicial notice 
 that gin is intoxicating liquor. 
 
 Jurors will take judicial notice that gin is intoxicating liquor, 
 and proof that a person sold gin is proof that he sold intosf^ 
 eating liquor .11 
 
 12. The question is, whether the court will take judicial 
 notice of the difference of time in different longitudes. 
 
 The court will take judicial notice of this fact.^^ 
 
 13. The question is, whether the court will take judicial no- 
 tice of the distance between two well-known cities of the United 
 States, the ordinary speed of railway trains running between 
 them, and the ordinary time of travel, by train, from one to 
 the other. 
 
 Some courts hold that such facts will not be judicially no- 
 ticed ;i* but the better view is to the contrary.^* 
 
 14. The question is, whether an Admiralty Court of the 
 United States will take judicial notice that certain text-books 
 and statute books, of admitted authority, are a proper medium 
 by which the law of England may be proved. 
 
 The Admiralty Court will take judicial notice that such 
 books are a proper medium of proof. i^ 
 
 9— Ryan v. B. & 0. R. R. Co., 13 — Wiggins v. Burkham, 10 
 
 60 III. App., 615. Wall. (U. S.), 129. 
 
 10-r-Dolder v. Huntingfield, 11 14— Pierce v. Langfit, 101 Pa. St., 
 
 Ves. Jr., 292. 507. 
 
 11 — Com. V. Peckham, 2 Gray, 15 — The Pawashlek, 2 Lowell, 
 
 514. 142. 
 
 12 — Curtis V. March, 4 Jur., N. 
 S., 112. 
 
392 PBELIMINAET TOPICS. 
 
 15. The question is, whether a state court will take judicial 
 notice of the general elections held within the state, the officers 
 to be elected thereat, and the dates of holding them. 
 
 The court will take judicial notice of all of these facts.i* 
 
 16. The question is, whether, in an action against a city 
 street railway company, for damages to property, the court 
 will take judicial notice that extreme popular ill will existed 
 against the company, and, but a few weeks before the trial, 
 had culminated in mob violence. 
 
 The court will take judicial notice of both these facts.i'' 
 
 17. The question is, whether the courts of the United States 
 will take judicial notice of the ports and waters of the United 
 States in which the tide ebbs and flows; also, of the location of 
 a foreign port, the existence of impediments at its entrance, 
 and whether vessels of a certain draft can enter it. 
 
 The courts of the United States will take judicial notice of 
 all these facts.^* 
 
 18. The question is, whether the court will take judicial 
 notice of the manner in which ordinary railroad business is 
 conducted, and of the ordinary, practical operation of the road. 
 
 The court will take judicial notice of these facts.i^ 
 
 19. The question is, whether the Supreme Court of liliaois 
 will take judicial notice that, in Illinois, many unincorporated 
 religious societies have existed. 
 
 On the ground of common notoriety, the Supreme Court of 
 Illinois will take judicial notice of this fact.^" 
 
 20. The question is, whether an English court, in an action 
 against the acceptor of a bill of exchange, where the declara- 
 tion alleges that the bill was drawn at Dublin, will take judicial 
 notice that the Dublin alleged is Dublin, Ireland. 
 
 The court will not take judicial notice that a bill drawn at 
 Dublin was drawn at Dublin, Ireland; because, to do so, would, 
 
 16— Andrews v. Knox Co., 70 111., v. M. & W. Plank-Road Co., 31 Ala., 
 65. 79. 
 
 17— Geist V. Detroit City Ry. 19— C, C. C. & St. L. Ry, Co. v. 
 Co., 91 Mich., 446. Jenkins, 174 III.. 398. 
 
 18 — City Council of Montgomery 20 — Alden v. St. Peters ParlBh. 
 
 158 111., 631. 
 
JUDICIAL NOTICE. 393 
 
 in effect, be taking judicial notice that there is but one Dublin 
 in the world.^i 
 
 21. The question is, whether the court will take judicial 
 notice that carrying on the barber business on Sunday is not 
 a work of necessity. 
 
 The court will take judicial notice of the fact that carrying 
 on the barber business on Sunday is not a work of necessity.^^ 
 
 22. The question is, whether the court will take judicial no- 
 tice of the meaning of the abbreviations, — "C. 0. D.," "A. 
 M." and "P. M." 
 
 The court will take judicial notice of the meaning of these 
 ordinary abbreviations.^^ 
 
 23. The question is, whether the court, in an action in 
 ejectment, in which a deed by the Governor of the state is 
 offered in evidence, will take judicial notice that the seal of 
 the state is what it purports to be. 
 
 The court will take judicial notice that the seal of the state 
 is what it purports to be. It is universally recognized that 
 the courts of a state take judicial notice of its seal, and also 
 of the signatures of heads of departments.^* 
 
 24. The question is, whether a state court will take judicial 
 notice of the boundary of the state, and of the division of the 
 state into counties. 
 
 The court will take judicial notice of the boundary of the 
 .state,25 and also of the division of the state into counties j^^ but 
 it will not take judicial notice of the precise boundaries of local 
 divisions, except in so far as such boundaries are disclosed in 
 the public statutes.^^ 
 
 25. The question is, whether the United States courts will 
 take judicial notice of the boundary lines between the several 
 states of the Union. 
 
 21— Kearney v. King, 2 B. & Aid., 24— Com. v. Dunlop, 89 Va., 431. 
 
 301; Woodward v. Ry. Co., 21 25— State v. Pennington, 124 
 
 Wis., 309. Mo., 388. 
 
 22 — State. V. Frederick, 45 Ark., 26 — Dickenson v. Breeden, 30 
 
 347. 111., 279. 
 
 23— Paris v. Lewis, 85 111., 597; 27— Boston v. State, 32 Am. 
 
 Hedderich v. State, 101 Ind., 564. Rep., 575. 
 
394 PEEIJMINAEY TOPICS. 
 
 The United States courts will take judicial notice of the 
 boundary lines of the several states of the Union.^* 
 
 26. The question is, whether the court will take judicial 
 notice that natural gas is, "in a high degree, inflammable and 
 explosive"; that gin and turpentine are inflammable liquids, 
 within the meaning of that term as used in an insurance policy 
 prohibiting the keeping of inflammable liquids for sale on 
 the premises; that kerosene is inflammable, and that alcohol 
 is an explosive, within the meaning of those terms as used in 
 insurance policies. 
 
 The court will take judicial notice that natural gas is "in a 
 high degree inflammable and explosive " ;29 but it will not, in 
 the cases stated, take judicial notice that kerosene is inflamma- 
 ble,^" nor that alcohol is explosive.^^ Some ' courts, however, 
 wiU take judicial notice that kerosene is inflammable.^* 
 
 27. The question is, whether the court will take judicial 
 notice of the number of newspapers published in the coimty, 
 or whether any newspaper is published therein. 
 
 The court will not take judicial notice of either of these 
 facts.3* 
 
 28. The question is, whether the court will take judicial no- 
 tice of the custom of merchants as regards protests and notice 
 of non-payment of negotiable paper. 
 
 The court will take judicial notice of this custom.^* 
 
 29. The question is, whether the courts of Kansas will take 
 judicial notice of the common law of Illinois. 
 
 The courts of Kansas will not take judicial notice of the 
 common law of Illinois.^'' 
 
 30. The question is, whether the court, where a libel charged 
 that the friends of the plaintiff had "realized the fable of the 
 frozen snake," will take judicial notice that knowledge of that 
 fable exists generally in society. 
 
 28— Coffee v. Groover, 123 U. S., 32— State v. Hayes, 78 Mo., 307. 
 
 11- 33— Atkinson v. Lay, 115 Mo., 
 
 29 — Jamieson v. Ind. etc. Co., 538. 
 
 128 Ind., 658. 34— Fleming v. McClure, 2 Am. 
 
 30— Wood V. N. "W. Ins. Co., 46 Dec, 671. 
 
 N. Y.. 421. 35— St. Louis Ry. Co. r. Weaver, 
 
 31 — Willis v. Germania Ins. Co., 35 Kan., 412. 
 79 N. C, 285, 
 
JUDICIAL NOTICE. 395 
 
 The court will take judicial notice that knowledge of the 
 fable does exist generally in society.^* 
 
 31. The question is, whether the court will take judicial 
 notice of the contents of the bible; also of the fact that the 
 religious world is divided into sects, and of the general doc- 
 trine of each sect. 
 
 The court will take judicial notice of all of these facts.'^ 
 
 32. The question is, whether the court will take judicial 
 notice that the average height of men is less than six feet; and, 
 that a person, the top of whose head is four feet and seven 
 inches above a seat upon which he is sitting, must have a 
 frame at least nine feet high. 
 
 The court will take judicial notice of both of these faets.^^ 
 
 33. The question is, whether the court will take judicial 
 notice of the meaning of the following abbreviations: "St. 
 Louis, Mo."; "New Orleans, La."; "C, B. & Q. R. R. Co." 
 
 As a general rule, courts will take judicial notice of these 
 common abbreviations. Some courts, however, without any 
 apparent reason, have declined to do so.^^ 
 
 34. The question is, whether the court, in an action on au 
 alleged promissory note, executed in New York City, and made 
 payable at Kankakee, 111., for a definite amount, "with cur- 
 rent rate of exchange on New York," will take judicial notice 
 of the current rate of exchange between those two cities. 
 
 The current rate of exchange, between commercial points, is 
 as subject to fluctuation as the value of labor, or the price of 
 grain, cattle, or other articles of property, and courts will 
 not judicially notice it. Moreover, as the clause within the quo- 
 tation marks renders the amount to be paid uncertain, the 
 instrument is not a promissory note, and therefore a consid- 
 eration for the promise will not be presumed, but must be 
 alleged and proved.*" 
 
 36— Hoare V. Sllverlock, 12 Adol. 39— Ellis v. Park, 8 Tex., 205; 
 
 & Ell., N. S., 624. Accola v. Chic, B. & Q. Ry. Co., 70 
 
 37 — Weiss v. Edgerton School la., 185. 
 
 Board, 41 Albany L. J., 452. 40 — Lowe v. Bliss et al., 24 111., 
 
 38— Hunter v. N. Y., 0. & W. 168. 
 Ry. Co., 116 N. Y., 615. 
 
396 PEBLIMINABY TOPICS. 
 
 ILLUSTRATIONS ON PRESUMPTIONS. 
 
 1. The question is, whether baggage, which has had pas- 
 sage over, six connecting lines of railroads, and which was in 
 perfect condition when given in charge of the employees of 
 the first road, but which is found damaged when it reaches its 
 destination, is presumed to have received the damage while in 
 charge of the employees of the last road. 
 
 By the weight of authority, and, on the ground perhaps of 
 public policy or necessity, there is a presumption that the dam- 
 age to the baggage was received while in charge of the em- 
 ployees of the last road.^ 
 
 2. The question is, whether an error, or misconception, on 
 the part of the vendee, which results in his written order for 
 the purchase of certain goods being much larger than he in- 
 tended, will, in the absence of fraud, or mutual mistake, justify 
 a reformation of the order, or constitute a defence in an action 
 for the purchase price. 
 
 In the absence of fraud, or mutual mistake, the vendee is 
 conclusively presumed to know the contents, and the legal ef- 
 fect, of his written order. It follows, therefore, that the order 
 as given is binding upon the vendee.^ 
 
 3. A bequeathed a legacy to B, who disappeared from his 
 home in 1853, and was last heard of in June, 1860. A died ia 
 1861. C, who was B's next of kin, brought suit in 1869 to 
 recover A's legacy to B. The burden of proof was upon C 
 to establish the fact that A survived B. The question is, 
 whether any presumption existed sufficient to make a prima 
 facie case on this point. 
 
 There is no presiimption of law that B continued to live 
 until after A's death. At most, there is only a presumption 
 of fact; and such a presumption is not sufficient to establish 
 a prima facie case.* 
 
 4. A claims curtesy in the lands of his deceased wife. The 
 
 1— Moore v. N. Y., etc. Ry. Co., Wis., 128; Straker v. Ins. Co., 101 
 173 Mass., dt,5. Wis., 413. 
 
 2 — Coates & Sons v. Buck, 93 3 — In re Phene's Trusts, L. R,, 6 
 
 Ch., 139. 
 
PRESUMPTIONS. 397 
 
 statute allows him curtesy, provided his wife left no issue by 
 any former husband. His wife was divorced from a former 
 husband, B, in Nov., 1884, and was married to A, in Feb., 1885. 
 In July, 1885, a child was born. This child contests A's claim. 
 The question is, whether the child is conclusively presumed to 
 be A's child.* 
 
 At the old common law, if the husband was within the four 
 seas, and not impotent, when the child was begotten, the child 
 was conclusively presumed legitimate. The modern rule is 
 less rigorous. It excludes evidence, by the husband or wife, of 
 non-access; but it allows evidence of extrinsic facts to rebut 
 the presumption. In this case, the facts conclusively rebut the 
 presumption that the child is A's, and conclusively establish 
 that its father is B.'' 
 
 5. In 1876, A married B, in Sweden. In 1884, he came to 
 the United States, leaving B at home. In 1887, he heard of B 
 for the last time. She was then living, and in good health. 
 In 1889, A married C; and, soon afterward, he was prosecuted 
 for bigamy. The question is, whether any presumption exists 
 that B was still living when A married C. 
 
 The burden of proof is upon the state to establish A's gailt 
 beyond a reasonable doubt. He is presumed to be innocent. 
 An essential element of his guilt is the fact that B was living 
 when A married C. There is no presumption, of law that such 
 was the case. Hence, there is no prima facie ease of this fact. 
 
 4 — In Hargrave v. Hargrave, 9 at the period during which the 
 Beav., 552, Lord Langdale, M. R., child must, in the course of nature, 
 states the modern rule very clear- have heen begotten; or (4) only 
 ly, in these words: "A child born present under such circumstances 
 of a married woman is, in the first as afford clear and satisfactory 
 instance, presumed to be legiti- proof that there was no sexual in- 
 mate. The presumption thus es- tercourse. 
 
 tablished by law is not to be re- Stephen says, in a note to article 
 
 butted by circumstances which 98, in his Digest of Evidence, "I 
 
 only create doubt and suspicion, am not aware of any decision as 
 
 but it may be wholly removed by to the paternity of a child born 
 
 proper and sufficient evidence, say six months after the death of 
 
 showing that the husband was (1) one husband, and three months 
 
 incompetent; (2) entirely absent, after the mother's marriage to an- 
 
 so as to have no intercourse or other." 
 
 communication of any kind with 5 — Shuman v. Shuman, 83 "Wis., 
 
 the mother; (3) entirely absent 250. 
 
398 PRELIMINARY TOPICS. 
 
 The jury, however, may find, as a presumption of fact, that 
 this element of guilt did exist.® 
 
 6. In the appalling and disastrous Johnstown flood. A, his 
 wife, and two children were swept away and perished. There 
 was no direct evidence as to the order in which they died. The 
 question is, whether there is any presumption of survivorship 
 in such a ease. 
 
 At common law, no presumption at all exists in this case. 
 Title to property descends as if all died at the same time; but 
 this is not owing to the fact of any presumption that all died 
 at the same time, but because the party who alleges the con- 
 trary must prove it by affirmative evidence, to succeed, and 
 he is unable to do so. 
 
 According to the civil law, a person between the ages of fif- 
 teen and sixty is presumed to survive one less than fifteen or 
 more than sixty; and a male person is presumed to survive a 
 female.''^ 
 
 7. In 1864, A married B. In 1868, he married C. In 
 1879, he married D. In 1880, he married E. In 1881, he 
 was prosecuted for bigamy for marrying E while his wife D 
 was still living and not divorced. The prosecution proved A's 
 marriage to D, and his marriage to E while D was still living 
 and not divorced. A's defence was that his marriage to D 
 was void because his first wife B was living at that time and 
 not divorced. To establish this, he proved by the court records 
 that he had been convicted of bigamy for marrying C while B 
 was living and not divorced; and, as there was no evidence to 
 show that B was dead when he married D, he contended that 
 B was presumed to be living at that time. The question is, 
 whether any presumption exists that B was still living when 
 A married D, sufficient to establish a prima facie ease that A's 
 marriage to D was void. 
 
 There is no presumption of law that B continued to live 
 from the time of A's marriage to C to the time of his marriage 
 to D. At most, there is only a presumption of fact, to be 
 found, if at all, by the jury.* 
 
 6— state V. Plym, 43 Minn., 3S5. 8— Regina v. Wlllshire, 6 Q. B. 
 
 7 — Cowman v. Rogers, 73 Md., D., 366. 
 403; Newell v. Nichols, 75 N. Y., 
 78. 
 
PRESUMPTIONS. 399 
 
 8. A girl, between the ages of eleven and twelve years, is 
 indicted for the unauthorized sale of intoxicating liquors. The 
 question is, whether a presumption exists that she was doli 
 capax when the sale was made. 
 
 At common law, there is no presumption that she was capable 
 of committing any crime. The question is one for the juxy to 
 determine from the evidence in the case, and, in view of all 
 the circumstances surrounding the transaction.^ 
 
 9. A boy, between the ages of eleven and twelve years, is 
 indicted for murder. The question is, whether a presumption 
 of law exists that he was doli incapax when he killed the de- 
 ceased. 
 
 At common law, there is a prima facie presumption that he 
 was incapable of committing murder, or any other crime. In 
 Illinois, sec. 283, of the Criminal Code, provides that an infant 
 under ten years of aga shall not be found guilty of any crime 
 or misdemeanor.io 
 
 10. A and his wife are jointly indicted for arson, com- 
 mitted by both in the presence of ea'ch other. The question is, 
 whether a presumption of law exists that the wife was coerced 
 by her husband. 
 
 The law presumes that A coerced his wife ; but, to entitle her 
 to the benefit of this presumption, her coverture must be clearly 
 proved, and the presumption must not be overturned by evi- 
 dence to the contrary.! 1 
 
 11. A owed B $1,000 for services rendered. This debt was 
 due. A bequeathed to B a legacy of $500 in money, and house- 
 hold goods worth about $500. This legacy was to be given to 
 B one year after A's death. A's executor now claims that the 
 legacy to B is not a gift, but a satisfaction of the debt. The 
 question is, whether any presumption exists in favor of this 
 claim. 
 
 There is no presumption of law that the legacy is not a gift. 
 But, in equity, a presumption sometimes exists whereby a leg- 
 acy operates to extinguish a debt. • The requisites of such 
 
 9— Com. T. Mead, 92 Mass., 398. 11— Davis v. State, 15 Ohio, 72. 
 10— Angelo v. The People, 96 111., 
 209. 
 
400 PKBLIMINART TOPICS. 
 
 eases are as follows: (1) The legacy must be equal to, or greater 
 than, the debt due; (2) The debt and the legacy must be of 
 the same nature; (3) The debt must be certain and not con- 
 tingent; (4) There must be no particular motive assigned in 
 the will for the legacy; (5) The time of payment of the legacy 
 must be the same as that of the debt. In the case given, sev- 
 eral of these requisites are wanting. There is, therefore, no 
 presumption at all that the legacy is a satisfaction of the 
 debt.i2 
 
 12. A, who kept a general store, gave B, an employee, in 
 settlement of their accounts, a due bill for $2,100. Subse- 
 quently it appeared that B was indebted to A for a consider- 
 able sum, and, in pursuance of an arrangement between them, 
 the due bill was surrendered to A. B now claims that it was 
 surrendered to A merely for him to hold until the amount of 
 B's debt to A should be determined, while A claims that it was 
 surrendered in payment of that debt. The question is, whether 
 any presumption exists in favor of A's claim sufficient to es- 
 tablish a prima facie case on that point. 
 
 Possession by the debtor of the evidence of a d.ebt raises 
 the presuraption that the debt is paid. A presumption exists, 
 in favor of A 's claim, which puts the burden ■ of proof upon 
 B to overcome it by a preponderance of the evidence.^* 
 
 13. In 1854, A, a woman of mature years, executed a deed 
 to B. In 1861, it became material to determine whether A was 
 married when she executed the deed. There was evidnce to 
 show that she was a married woman in 1860. The question is, 
 whether any presumption arises from her married condition in 
 1860 that she was married when she executed the deed in 1854. 
 
 There is no presumption of any kind that A was a married 
 woman in 1854. The presumption of coverture is prospective 
 from the time it is shown to exist, and never retrospective.^* 
 
 14. A, for more than 20 years, has enjoyed, from a deep 
 well on his own premises, water which percolated through un- 
 derground, undefined channels in B's land. The question is, 
 
 12 — Cloud V. Clinklnbeard's Ex- 13 — Tedens et al. v. Schumers, 
 ecutors, 8 B. Monroe, 397; 48 Am. 112 111., 263. 
 Dec, 397. 14— Erskine v. Davis, 25 111., 228. 
 
PRESUMPTIONS. 401 
 
 whether any presumption exists of a grant of this right of en- 
 joyment to A. 
 
 There is no presumption whatever of such a grant ; nor would 
 continued enjoyment for any length of time create one.i^ 
 
 15. A certain mill-dam has been in use continuously for 
 more than 60 years. The question is, whether any presumption 
 exists that all the upper proprietors, whose rights have been 
 injuriously effected by it, granted a right to erect it. 
 
 There is a conclusive presumption of law that such a grant 
 exists.!® 
 
 16. A has a windmill on his farm near B's land. For more 
 than 30 years he has enjoyed a free current of air over B's 
 land, as of right, for propelling it. The question is, whether 
 any presumption exists of a grant by B of this right of enjoy- 
 ment. 
 
 As it would not be natural for B to interrupt the current of air, 
 no presumption exists of a grant. At the old common law, a 
 right to the use of light and air might be acquired by prescrip- 
 tion; but this doctrine has not been followed in the United 
 States.i^ 
 
 17. A posted a prepaid letter at Carterville, III., addressed 
 to B, at St. Louis, Mo. The question is, whether a presump- 
 tion of law exists that it reached its destination and was duly 
 received by B. 
 
 No presumption of law exists to establish a prima facie case. 
 There is, however, a presumption of fact, amounting to a 
 probability. The assumption is that what ordinarily results 
 from the transmission of a letter through the postoffice prob- 
 ably resulted in this case.i* 
 
 18. A is tried for burglariously entering B's house and 
 stealing his watch. The evidence proves that the burglary and 
 the larceny were committed at the same time. The question 
 is, whether a presumption of law is raised, as to A's guilt, 
 
 15 — Chasemore v. Richards, 7 H. 17— Webb v. Bird, 13 C. B. (N. 
 
 L. C, 349. S.), 841. 
 
 16 — Leconfield v. Lonsdale, L. R., 18 — Henderson v. Carbondale 
 
 5 C. P., 657. Coal & Coke Co., 140 U. S., 37. 
 
402 
 
 PRELIMINABT TOPICS. 
 
 based upon the fact that soon after the crimes were committed 
 the watch was found in his possession. 
 
 There is no presumption of law raised, of A's guilt; but, a 
 presumption of fact maj'- be raised sufficient to warrant his 
 conviction of either crime.^^ 
 
 19. In 1841, A married B, in Kentucky. In 1842, he de- 
 serted her and came to Illinois. In 1843, he formally married 
 C and cohabited with her until his death in 1868. In 1846, B 
 obtained a divorce from A on the ground of desertion. A 
 never learned of this divorce. C had no knowledge of A's 
 marriage to B until after his death. A and were reputed to 
 be husband and wife. The question is, whether any presump- 
 tion exists that, from 1846 to 1868, A and C were husband and 
 wife.^" 
 
 As^B was living, and not divorced, when A married C, the 
 cohabitation' of A and C was meretricious in its inception. In 
 the absence of any evidence to the contrary, a presumption of 
 fact exists that it continued meretricious. The removal of the 
 
 19— Magee v. The People, 139 
 111., 138. 
 
 20 — The following propositions, 
 upon this subject, are believed to 
 be In accord with the weight of 
 authority : 
 
 1. A cohabitation, illicit in its 
 inception, is presumed to continue 
 illicit, unless rebutted by evidence 
 to the contrary. 
 
 2. When evidence is given to re- 
 but the presumption of illicit co- 
 habitation, the question of mar- 
 riage is then a question of fact for 
 the jury. 
 
 3. In the absence of any evidence 
 to rebut the presumption of con- 
 tinued Illicit cohabitation, the 
 court is bound to decide against a 
 marriage. 
 
 4. When, owing to some impedi- 
 ment to a valid marriage, an Illicit 
 cohabitation In its inception is 
 proved, mere continued oohabita- 
 tion, after the impediment has 
 
 been removed, is insufficient to re- 
 but the presumption of continued 
 illicit cohabitation. 
 
 5. Proof of a desire to form a 
 matrimonial union, manifested by 
 the parties while competent to con- 
 tract a valid marriage, and, of con- 
 tinued cohabitation thereafter, 
 raises a presumption of fact, in re- 
 buttal of the presumption of con- 
 tinued illicit cohabitation, which 
 binds the court to submit the ques- 
 tion of marriage to the jury. 
 
 6. When the circumstances are 
 such as to render a mutual desire 
 for marriage improbable, as, where 
 a negro cohabits with a white 
 person, or a man with a prostitute, 
 or a countess with her footman, 
 the presumption of marriage is 
 correspondingly weakened. 
 
 See the valuable note, by Irving 
 Browne, to Ins. & Trust Company's 
 Appeal, 57 Am. Rep., 448. 
 
PRESUMPTIONS. 403 
 
 impediment, which rendered the cohabitation meretricious, did 
 not, of itself, change the nature of the cohabitation. A formal 
 marriage, however, was not essential to do this. Consent of 
 the parties to assume the marriage relation, and an actual as- 
 sumption of such relation by them, would have been sufficient. 
 A presumption of fact of marriage is raised, based upon the 
 cohabitation; but this presumption is rebutted and overcome by 
 proof that it was meretricious in its inception.^i 
 
 20. A sues B on a policy of insurance to recover the amount 
 of the policy. B defends on the ground that the assured com- 
 mitted suicide. The question is, whether any presumption ex- 
 ists that the assured 's death resulted from natural causes. 
 
 In the absence of evidence upon this point, or, when the evi- 
 dence is equally balanced, a presumption exists that the death 
 resulted from natural causes. The question, however, should 
 be fairly submitted to the jury and be decided by them upon 
 a preponderance of the evidence. An instruction by the court 
 to the jury that "in case of death, and the evidence leaves the 
 matter in doubt whether the deceased came to his death by an 
 act of self-destruction or by accident, the law presumes the 
 death to have occurred from accident," is erroneous. It binds 
 the jury to find that the death resulted from accident, if 
 they have any doubt at all that the deceased committed sui- 
 cide.''^ 
 
 21. In an action by A against B, involving the validity of 
 a mortgage, there is evidence that the mortgage is fraudulent. 
 The court instructs the jury that, if they "believe, from the 
 evidence, that said chattel mortgage was duly executed and 
 recorded according to law, and that the same purports a con- 
 sideration, then the presumption of law is, that the same is 
 bona fide and valid. ' ' The question is, whether this instruction 
 is correct. 
 
 The instruction is objectionable, and may mislead the jury. 
 It should explain to the jury that the presumption of law is 
 disputable and not conclusive.^s 
 
 22. A is indicted and tried for murder. The evidence shows 
 
 21— Cartwright v. McGown, 121 22— Ins. Co. v. Hogan, 80 111., 35. 
 111., 388; In re Ins. & Tr. Co., 57 23— Garrettson v. Pegg, 64 111., 
 Am. Rep., 448. 111. 
 
404 PKELIMIKARY TOPICS. 
 
 that, immediately after the murder occurred, he fled. The 
 question is, whether the presumption of guilt, arising from 
 his flight, is a presumption of law, or a presumption of fact. 
 
 "The wicked flee, when no man pursueth, but the innocent 
 are as bold as a lion," is a familiar maxim. At the old com- 
 mon law, a person who fled to avoid being tried for felony for- 
 feited his goods, even when acquitted. The presumption of 
 guilt, arising from flight, is sometimes incorrectly treated as a 
 presumption of law. In no case, however, is it anything more 
 than a presumption of fact. Its weight may be great or small, 
 depending upon the circumstances of the particular case.^^ 
 
 23. A and B, two full-blooded Cherokee Indians, are in- 
 dicted for the murder of C, a white man. The Cherokee Na- 
 tion claims jurisdiction over the defendants on the ground that 
 C had been adopted. The United States Circuit Court denies 
 this claim. The Cherokee statutes provide that all white men 
 legally married to Cherokee women, and residing within the 
 Nation, are adopted citizens. C had obtained a license to 
 marry D, a citizen of the Cherokee Nation. The question is, 
 whether the fact that a marriage license has been issued raises 
 a presumption of law, or a presumption of fact, that all satu- 
 tory prerequisites thereto have been complied with. 
 
 The fact that a marriage license has been issued carries with 
 it a presumption of law that all statutory prerequisites thereto 
 have been complied with, and one who claims the contrary 
 must affirmatively show that faet.*^ 
 
 24. A, the holder of a negotiable promissory note, sues C, a 
 third party, whose name is indorsed in blank on the note, and 
 seeks to hold him liable as a guarantor. The question is, 
 whether a presumption of law exists that C's liability on the 
 note is that of a guarantor. 
 
 In some states, including Illinois, the placing of the name of 
 a third party on the back of a promissory note is prima facie 
 evidence that the liability intended to be assumed is that of 
 guarantor. Evidence is admissible, however, to rebut this dis- 
 putable presumption of law, and show that the liability as- 
 sumed is that of merely an indorser.^^ 
 
 24— Hickory v. United States, 26— De Witt County Nt. Bank v. 
 160 U. S.J 408. Nixon et al., 125 111., 615. 
 
 25— Nofire v. United States, 164 
 U. S., 667. 
 
BUEDEN OF PROOF. 405 
 
 ILLUSTRATIONS ON BURDEN OF PROOF. 
 
 1. A gave B a deed of a piece of land, and took back a 
 mortgage for support. C claims that B, upon the same day 
 he got his deed, gave him a second mortgage on the said 
 piece of land, and he now files a bill against A to redeem. A 
 denies that B gave C a second miortgage on said lands. Issue 
 joined on this point. The question is, upon whom is the 
 burden of proof. 
 
 The burden of proof is upon C to prove his claim.i 
 
 2. A sues B for the value of certain services rendered by 
 him to B. B claims that the services were to be gratuitous. 
 The question is, upon whom is the burden of proof. 
 
 The burden of proof is upon A to establish not only the 
 services, but also the fact that he was to receive pay for, them.^ 
 
 3. A brings an action against B for malicious prosecution. 
 B defends on the ground that his action against A was based 
 upon probable cause. The question is, upon whom is the bur- 
 den of proof. 
 
 Want of probable cause is an essential element of A's case, 
 and although this element is a negative one, the burden of 
 proof is upon A to establish it.* 
 
 4. A sues B for the reasonable value of certain services 
 which he rendered to B. B defends upon the ground that 
 the services were rendered under a contract for a specified 
 sum, and that the amount agreed upon has been paid to A. 
 The question is, upon whom is the burden of proof. 
 
 A claims that he was to receive the reasonable value of his 
 services. B, in effect, denies this. The burden of proof, upon 
 all the evidence in the case, is upon A to prove his claim.* 
 
 5. A, C's executor, seeks to probate C's will. B, C's heir, 
 contests it on the ground that C, at the time he executed the 
 
 1— Powers V. Russell, 13 Pick., 3— Abrath v. N. B. Ry. Co., 11 Q. 
 69. B. D., 440; Ames v. Snider, 69 111., 
 
 2— Hingeston v. Kelly, 18 L. J. 376. 
 (Exch.), 360. 4 — Phlpps v. Mahon, 141 Mass., 
 
 471. 
 
406 PEELIMINABT TOPICS. 
 
 will, was mentally ineompetent. The question is, upon whom 
 is the burden of proof. 
 
 The burden of proof is upon A. To entitle B to win, after 
 A has made a prima facie ease, B must overcome or neutral- 
 ize not only A's evidence but also the presumption in favor 
 of C's sanity.'' 
 
 6. In a contest between A and B, A claims under a will 
 executed by C on Nov. 7th, and B claims under a will executed 
 by C two days later. A alleges that C's signature to the will 
 of Nov. 9th was obtained through B's fraud. The circum- 
 stances connected with the execution of this will arouse grave 
 suspicions. The question is, upon whom is the burden of 
 proof, as regards the alleged fraud connected with the will 
 of Nov. 9th. 
 
 The burden of proof is upon B to remove the suspicious 
 circumstances connected with the execution of that will, and 
 to establish its validity.® 
 
 7. A is on trial for the murder of B. He admits killing 
 B, but claims that his act was justifiable. The question is, 
 upon whom is the burden of proof. 
 
 The burden of proof is upon the state to establish A's guilt 
 beyond a reasonable doubt.'' 
 
 8. A is on trial on the charge of murder. His defense is 
 insanity. The qiiestion is, upon whom is the burden of proof.* 
 
 An essential element of A's guilt is his sanity, at the time 
 he did the act. The burden of proof is upon the state to 
 prove A's guilt beyond a reasonable doubt. To do this, it 
 must prove, beyond a reasonable doubt, that A, at the time 
 he did the act, was legally capable of entertaining criminal in; 
 tent. The presumption of sanity is sufficient to meet this 
 
 5 — Carpenter v. Calvert, 83 111., 8 — "Every person is presumed to 
 
 62; Wilbur v. Wilbur, 129 111., 392; be sane and to be responsible for 
 
 Egbers v. Egbers, 177 111., 82; his acts. The burden of proving 
 
 Johnson v. Johnson, 187 111., 86. that he is irresponsible is upon 
 
 6 — Tyrrell v. Painton, (1894) the accused person; but the jury 
 
 Probate, 151. may have regard to his appear- 
 
 7 — People V. Downs, 123 N. Y., ance and behavior in court." Ste- 
 
 558. phen Dig. Crim. Law, art 28. 
 
BUBDEN OF PROOF. 407 
 
 requirement, provided contradictory evidence is not given suf- 
 ficient to east a reasonable doubt upon the presumption.^ 
 
 9. A hired B for a definite term, but discharged him, with- 
 out cause, before the end of the term. B sued A for breach 
 of the contract, and the court gave the jury the following in- 
 struction: "The court instructs the jury that before the 
 plaintiff can recover in this case an amount of damages com- 
 mensurate or equal to the wages agreed upon, the plaintiff 
 must prove that he tried to obtain work during the period 
 of hiring and failed to do so after making reasonable effort." 
 The question is, whether this instruction is prejudicial error. 
 
 The burden of proving that other work was, or could have 
 been, obtained by B, was upon A. The instruction given 
 states the law to be exactly opposite of what it is, is calcu- 
 lated to mislead the jury, and is, therefore, prejudicial error.i" 
 
 10. A sued B on a promissory note. B pleaded the general 
 issue, payment, and a set-off. A made a prima facie case 
 by putting the note in evidence. B gave some evidence tend- 
 ing to prove payment and a set-off. The court instructed the 
 jury that "unless the plaintiff proves by a preponderance of 
 the evidence that the defendant is indebted to the plaintiff 
 on the note sued on, the jury should find for the defendant." 
 The question is, whether this instruction was prejudicial error. 
 
 Payment and set-off' are affirmative defenses, and the burden 
 of proving them was upon the defendant. The instruction, 
 therefore, was prejudicial error.i^ 
 
 11. A sues the receiver of a Ey. Co. for damages caused 
 by the Co. negligently killing his dog. Defendant admits the 
 killing, but insists that it was unavoidable. The statute pro- 
 vides that "In all actions against railroad companies for 
 damage done to persons or property, proof of injury inflicted 
 by the running of the locomotives or cars of such company 
 shall be prima facie evidence of the want of reasonable skill 
 and care upon the part of the servants of such company in 
 
 9 — Davis V. United States, 160 10 — Brown v. Board of Educa- 
 
 U. S., 469; Hopps v. People, 31 tion, 29 111. App., 572. 
 
 111., 385; Dacey v. People, 116 111., 11— Whitely v. Clark, 29 111. 
 
 555. App., 36. 
 
408 PEELIMINAKT TOPICS. 
 
 reference to such injury." The question is upon whom is 
 the burden of proof. 
 
 The statute determines what shall constitute a prima facie 
 case of negligence on the part of the Co., but it does not affect 
 the question of burden of proof. The burden of proof is upon 
 the plaintiff to establish his case. Prima facie presumptions 
 take the place of evidence, but they do not change the burden 
 of proof.12 
 
 12. A sues the T. Ins. Co. on a policy of insurance on a 
 cargo of rice on board a ship. The Co. defends upon the 
 ground that the ship was unseaworthy when she left port. 
 The question is, upon whom is the burden of proof. 
 
 According to the English rule, the burden of proof is upon 
 the defendant. Some American courts follow the English 
 rule and some do not.^' 
 
 13. A is indicted and tried for practicing medicine with- 
 out a license. The question is, upon whom is the burden of 
 proof, as regards his authority to practice medicine. 
 
 The burden of proof is upon A. The case falls within a 
 well-recognized exception to the general rule. As given in 
 Greenleaf on Evidence (Vol. I., Sec. 79) this exception is as 
 follows: "Put where the subject matter of a negative aver- 
 ment lies peculiarly within the knowledge of the other party, 
 the averment is taken as true, unless disproved by that party. 
 Such is the case in civil or criminal prosecutions for a pen- 
 alty for doing an act which the statutes do not permit to be 
 done by any persons except those who are duly licensed there- 
 for, as, for selling liquors, exercising a trade or profession, 
 and the Uke."" 
 
 14. A, a justice of the peace, and who was also B's general 
 legal adviser, although not an attorney, induced B to execute 
 to him a bond and mortgage to secure an indebtedness which 
 B's son owed A. B now sues A to have the bond and mort- 
 
 12 — Jones v. Bond, 40 Fed. Rep., v. "Wash. etc. Ins. Co., 4 Mason, 439. 
 
 281. 14— Williams v. People, 121 111., 
 
 13— Pickup V. Thames Ins. Co., 84; Gt. West. Ry. Co. v. Bacon, 30 
 
 3 Q. B. D., 594; Deshon v. Merch. 111. 347; Harhaugh v. City of Mon- 
 
 Ins. Co., 11 Mete, 199; Tidmarsh mouth, 74 III., 367. 
 
BUEDEN OP PEOOF. 409 
 
 gage cancelled on the grounds of duress and undue influence. 
 The question is, upon whom is the burden of proof. 
 
 The burden of proof is upon A. A fiduciary relation existed 
 between him and B. When such relation is shown to exist, 
 the burden is upon the party taking securities or contracts 
 inuring to his benefit, to show that the transaction is just 
 and fair. The rule is not limited to cases between attorney 
 and client, guardian and ward, trustee and cestui que trust, 
 or other similar relations, but holds good wherever fiduciary 
 relations exist, and there has been a confidence reposed which 
 invests the person trusted with an advantage in treating with 
 the person so confiding.i^ 
 
 15. A, the county treasurer, in an action against him for 
 misappropriating county funds, pleads the Statute of Limita- 
 tions. The question is, upon whom is the burden of proof. 
 
 The Statute of Limitations is an affirmative defense, and A's 
 plea is in the nature of a confession and avoidance. The bur- 
 den of proof is, therefore, upon him, to show that the money 
 was misappropriated more than the statutory period before 
 the commencement of the action.^® 
 
 16. A sues B on a contract of warranty of the genuineness 
 of an indorsement on a promissory note, sold by B to A. 
 The indorsement is proved, a forgery. B's defense is, that in' 
 selling A the note and warranting the genuineness of the in- 
 dorsement he was acting as the agent of C, and that A knew 
 this at the time of the transaction. The court instructs the 
 jury as follows: "The plaintiff is bound to show that he was 
 ignorant that the defendant was dealing for a third party, 
 and if he fails to do so, or, if the jury are unable to say on 
 the whole how this was, the plaintiff is not entitled to re- 
 cover." The question is, whether the instruction is preju- 
 dicial error. 
 
 The burden of proof is upon A to establish a contract of 
 warranty by B; ahd, if the jury are left in doubt upon all 
 the evidence, A must fail. A, however, is not bound to dis- 
 prove any of the facts from which a contract with C might 
 
 15 — Fisher v. Bishop et al., 108 16 — Kllbourne v. Supervisors, 
 N. Y., 25. etc., 137 N. Y., 170. 
 
410 PEELIMINAEY TOPICS. 
 
 be inferred; and, as the instruction is misleading upon this 
 point, it is prejudicial error.i'^ 
 
 17. A is indicted and tried for maliciously burning B's 
 barn. In defense, he sets up an alibi, and offers evidence tend- 
 ing to show that at the time the barn was set on fire he was 
 so situated that he could not have committed the crime. The 
 question is, upon whom is the burden of proof. 
 
 As regards the fact of the alibi the burden of proof is upon 
 A; but, upon the whole case, the burden of proof is upon the 
 state to establish A's guilt beyond a reasonable doubt; and if, 
 upon the whole evidence the jury entertain a reasonable doubt 
 as regards A's presence at the fire they are bound to acquit 
 him.18 
 
 18. A, a commercial traveller, upon arriving at the rail-, 
 way station of a certain city, delivers his baggage to the por- 
 ter of B's hotel, and rides in B's omnibus to the hotel, where 
 he remains over night in a bedroom in which he locks the door 
 upon retiring. On the way to the hotel A's baggage is lost 
 or stolen, and during the night $400 surreptitiously disappears 
 from his pockets. He now sues B^or the value of the bag- 
 gage and the money taken from his pockets. The question is, 
 upon whom is the burden of proof. 
 
 The burden of proof is upon B, both as regards the bag- 
 gage and the money. He can absolve himself from liability, 
 only by showing that the loss occurred without fault on his 
 part, or that of his servants; or, by the fault of A, or, by 
 superior force.^® 
 
 19. A sues the I. C. Ry. Co. for the value of a warehouse, 
 which was located near defendant's tracks, and which is 
 alleged to have been destroyed by fire caused by sparks from 
 defendant's engine.. The question is, upon whom is the bur- 
 den of proof. 
 
 A must prove that the destruction of his warehouse was 
 caused by sparks from defendant's engine. This is sufficient 
 to establish a prima facie ease of negligence against the com- 
 
 17 — Wilder v. Cowles, 100 Mass., 19 — Johnson v. Richardson, 17 
 
 487. 111., 302; Coskery v. Nagle, 83 Ga., 
 
 18— Com. v. Choate, 105 Mass., 696 (20 Am. St. Rep., 333). 
 451. 
 
BUEDEN OP PROOF. 411 
 
 pany. The burden is then upon the company to prove by 
 affirmative evidence that the engine, at the time of the fire, 
 was equipped with the necessary and most effective appliances 
 to prevent the escape of fire, and that the engine was in good 
 repair, and was properly, carefully and skillfully handled by 
 a competent engineer. ^o 
 
 20. A sues B to recover damages for the loss and injury of 
 certain articles of household furniture, stored by A with B, 
 some of which are alleged to have been lost, and others dam- 
 aged, while in B's care. The question is, upon whom is the 
 burden of proof, as regards B's negligence, in respect to the 
 loss and damage of the goods. 
 
 Upon this question, the cases are in conflict. According 
 to the lUinfiis rule, which seems to be the more reasonable 
 one, if the goods, when placed in the hands of the bailee, are 
 shown to have been in good condition, and, when returned, are 
 in a damaged condition, or are not returned at all, the law pre- 
 sumes negligence on the part of the bailee, and imposes upon 
 him the burden of proving that he exercised such care as 
 was reasonably required by the nature of the bailment; and 
 it matters not whether the bailment is one for hire, or, merely 
 gratuitous.21 
 
 21. A delivers a telegraphic message to the W. U. Tel. Co. 
 in Chicago, directing his banking house in New York to sell 
 100 shares of certain stock. The message, as delivered in New 
 York, directs the banking house to sell 1,000 shares, and there- 
 upon it sells that amount to a customer, having to go into 
 the market to purchase the residue of 900 shares. The error, 
 in transmitting the message, occasions loss to A, and he sues 
 the company to make the loss good. The question is, upon 
 whom is the burden of proof. 
 
 The burden of proof is upon the defendant company. Such 
 a company is bound to exercise a very high degree of care 
 and skill in its efforts to transmit messages correctly. Even 
 when it attempts, by special contract, to exempt itself from 
 liability, it is still liable for mistakes occurring owing to its 
 
 20— Ry. Co. V. Quaintance, 58 111., 21— Cumins v. Wood, 44 111., 
 389; Ry. Co. v. Campbell, 86 111., 416; Bennett v. O'Brien, 37 III., 250. 
 443; Ry. Co. v. Larmon, 67 111., 68. 
 
412 PEELIMINAEY TOPICS. 
 
 own fault. To permit telegraph companies to secure, by- 
 special contract, exemption from the consequences of their 
 own gross negligence is against public policy.^^ 
 
 22. A is on trial for rape. His defense is that he was 
 under fourteen years of age when the act was committed. The 
 question is, upon whom is the burden of proof. 
 
 The defense set up by A is in the nature of a plea of con- 
 fession and avoidance, and the burden of proof is upon him. 
 If he establishes his plea, the question will then arise as to 
 whether he knew right from wrong as to the act done, and 
 perhaps as to his physical ability to commit the crime.^* 
 
 23. A sues the I. C. Ry. Co. for loss of freight consigned 
 to a point where there was no depot or agent. The facts 
 show that the car containing the freight reached the destina- 
 tion, and was left there on a side track. The question is, upon 
 whom is the burden to show when the loss occurred. 
 
 As no one was at the place, to which the freight was eon- 
 signed, to receive it, or expected to be there for that pur- 
 pose, the burden is upon the plaintiff to show that the loss 
 occurred before it arrived at its destination.^* 
 
 24. A sues B for the value of a horse, which he loaned to 
 B without compensation, and which sickened and died while 
 in B's possession. The question is, upon whom is the burden 
 of proof. 
 
 B was a gratuitous bailee; and, for this reason, was required 
 to exercise extraordinary care. The burden, in the first in- 
 stance, is upon A to show the character of the bailment and 
 the death of the horse while in B's possession. It then de- 
 volves upon B to show that he exercised that degree of care 
 which is required of a gratuitous bailee.^s 
 
 25. C files a bill in chancery t& set aside B's will on the 
 ground of undue influence. A seeks to sustain the will. The 
 question is, upon whom is the burden of proof. 
 
 Assuming that A has established, prima facie, the validity 
 
 22— Tyler v. Ulman & Co. v. W. 25 — Bennett v. O'Brien, 37 111., 
 
 U. T. Co., 60 111., 421. 250; Howard v. Babcock, 21 111., 
 
 23— Sutton V. People, 145 111., 279. 259; Hagebush v. Ragiand, 78 111., 
 
 24— S. & N. Ala. Ry. Co. v. Wood, 40. 
 71 Ala., 215 (46 Am. R., 309); 
 Woodbury v. Frink, 14 111., 279. 
 
BUEDEN OF PROOF. 413 
 
 of the will, by proving its due execution and the mental 
 capacity of the testator, the burden of proof is upon C to 
 establish undue influence.^* 
 
 26. A sues B on his promissory note. B defends on the 
 ground that the consideration for the note was illegal, as it 
 was founded upon a gambling contract. The question is, 
 upon whom is the burden of proof. 
 
 Where the maker of a promissory note seeks to avoid it on 
 the ground that its consideration is illegal, the burden of proof 
 is upon him to show that fact by a clear preponderance of 
 the evidence.*''' 
 
 26 — Thompson v. Thompson, 194 27 — Pixley et al. v. Boynton et 
 lU., 57. al., 79 111., 351. 
 
414 PEELIMINAEY TOPICS. 
 
 ILLUSTRATIONS ON ADMISSIONS. 
 
 1. A and his wife sue the town of C for injuries to A's 
 wife, caused by a defect in the highway. The question is, 
 whether an admission by A, who was not present when his 
 wife was injured, that "if the driver of the team had not 
 struck the off horse and made him jump against the near one, 
 the injury would not have happened," is admissible against A. 
 
 A's admission, though based upon hearsay, is admissible in 
 evidence against him. The source of his information, upon 
 which the admission is based, is immaterial. The ground of 
 its admissibility is A's adverse interest.^ 
 
 2. A sues B for breach of his contract in failing to dis- 
 continue a suit which B had commenced against A, and which 
 B had expressly agreed to discontinue. The question is, 
 whether an admission of B that he had continued the suit 
 against A and obtained a judgment against him, is admissible 
 in this action against B. 
 
 B's admission is admissible in this action against him. The 
 so-called parol evidence rule has no application to admissions. 
 The ground of their admissibility is the adverse interest. The 
 fact that B's judgment against A, in the former suit, is a 
 matter of record, is no bar to the admissibility of B's admis- 
 sion in this action.2 
 
 3. A, the owner of a vessel, is indicted and prosecuted for 
 carrying on the slave-trade. The question is, whether an ad- 
 mission of B, the master of the vessel, and, as such, A's agent, 
 is admissible against A. 
 
 B's admission, as to acts within the scope of his agency, is 
 binding upon A. The rule is applicable to both criminal and 
 civil cases.* 
 
 4. A sues B for breaking and entering his close. B claims 
 that the land in question is a common. The question is, 
 whether an admission of a former owner of the estate, now 
 
 1 — Shaddock et ux. v. Town of 2 — Smith v. Palmer, 6 Cush., 513. 
 
 Clifton, 22 Wis., 110; Reed v. Mc- 3— United States v. Gooding, 12 
 
 Cord, 18 N. Y., Supreme Court, Wheat., 460. 
 App. Div., 381. 
 
ADMISSIONS. 415 
 
 owned by A, that he had only a right of common in the land 
 in question, is admissible against A, the former owner being 
 in court. 
 
 The admission of the former owner is admissible against A 
 owing to the privity of estate between them. The fact that 
 the former owner may be called as a witness in the case is 
 immaterial.* 
 
 5. A sues B on his negotiable promissory note. C, the 
 original payee, transferred the note to A, after maturity. 
 The question is, whether an admission of C, while owner of 
 the npte, that B had paid him a certain sum on it, is binding 
 upon A. 
 
 C's admission, according to the better view, is binding upon 
 A owing to the privity of interest between them. Some courts, 
 including those of New York, and the federal courts, hold the 
 contrary.^ 
 
 6. A sues B in replevin to recover possession of certain 
 personal property. B claims the right of possession as mort- 
 gagee. A claims that he purchased the property from C 
 before C gave B a chattel mortgage on it. The question is, 
 whether admissions of C, made before he executed the mort- 
 gage to B, that he had sold the property to A, are admis- 
 sible against B. 
 
 B's interest in the property is co-extensive with that of O's 
 at the time C executed the mortgage to B. Owing to the 
 identity of interest between C and B, C's admissions, made 
 before he executed the mortgage to B, are binding upon B. 
 Had they been made after the execution of the mortgage to B 
 they would not have been binding upon B, unless made in his 
 presence and not contradicted by him.* ' 
 
 7. A as principal, and B as his surety, are sued jointly on 
 their bond of indemnity against loss by the misconduct of A. 
 The question is, whether an admission of A, of his own default, 
 within the scope of the bond, is binding upon B. 
 
 4— Woolway v. Rowe, 1 A. & B., 7 Hill (N. Y.), 361; Dodge v.. 
 
 114. Freedman's Co., 93 U. S., 379. 
 
 5— Anderson v. So. Chic. Co., 173 6— Tynes v. Kennedy, 126 Ind., 
 
 111., 213; Contra, Paige v. Cagwin, 523. 
 
416 PRELIMINARY TOPICS, 
 
 A and B are jointly liable on the bond, and therefore A's 
 admission is binding upon BJ 
 
 8. A made a deed of a certain tract of land to his daughter 
 B. Since A's death, his other heirs claim that the grant to 
 B was an advancement. B denies this claim. The question is, 
 whether admissions of A, made after the grant to B, that he 
 had given all his children equal amounts of property, are 
 admissible against the heirs who claim that the grant to B 
 was an advancement. 
 
 Admissions of a grantor, made after parting with the title, 
 are not admissible, against his grantee; but they are admis- 
 sible against his heirs, claiming adversely to his grantee. 
 Hence A's admissions are admissible.^ 
 
 9. A devised his real estate to seven devisees. The pro- 
 bate of his will is contested on the ground of testamentary 
 incapacity. The question is, whether the admissions of one of 
 the devisees, that A was mentally incompetent when he made 
 his will, are admissible. 
 
 As the interests of the devisees are several and not joint, 
 the admissions of one devisee are not binding upon the others; 
 and, as it would be impossible, upon the issue raised, to limit 
 the effect of the admissions so as to restrict it to the devisee 
 who made them, they are inadmissible even against him. But, 
 in the case of a sole devisee, or legatee, his admissions are bind- 
 ing upon him.® 
 
 10. A, during a controversy with B, offered, by way of 
 compromise, to pay him a certain sum to balance their ac- 
 counts. B refused A's offer, and brings suit against him. 
 The question is, whether A'^ offer of compromise is binding 
 upon him as an admission of the amount he owes B. 
 
 A's offer to pay B, by way of compromise, is not binding 
 upon A. An offer to pay a sum of money, by way of com- 
 promise, is inadmissible ; but any independent facts, admitted 
 during the negotiations to effect the ■compromise, are binding, 
 
 7 — Singer Manuf. Co. v. Rey- 111., 563; Long et oZ. v. Long et ol., 
 nolds, 168 Mass., 588. 19 111. App., 383. 
 
 8 — Cline et al v. Jones et al., Ill 9— McMillan et al. v. McDlU et 
 
 al, 110 111., 47. 
 
ADMISSIONS. 417 
 
 unless made for the purpose of the negotiations, and it is 
 fairly to be implied from the circumstances that they were 
 not to be used to the prejudice of the party who made them.i" 
 
 11. A files a bill to contest the validity of B's will, which 
 was duly probated, upon the grounds of mental incapacity of 
 B, and undue influence. The question is, whether the admis- 
 sions of C, a deceased devisee, are admissible against D, a 
 co-devisee, and who has succeeded by devise to the interest 
 of C. 
 
 The admissions of one devisee are not, as a general rule, 
 admissible against his co-devisees ; but, as the admissions of 
 privies in estate, made before parting with their interest, are 
 admissible against the parties succeeding to their estate, the 
 admissions of C, in so far as that part of the estate which C 
 devised to D is involved, are binding upon D.^^ 
 
 12. A sues B on his promissory note, against which the 
 statute of limitations had run for more than the statutory 
 period. A, several months before, wrote B demanding pay- 
 ment; and B's wife sent A, by mail, $25 in part payment. 
 The question is, whether the part payment by B's wife took 
 the note out of the ban of the statute. 
 
 The admissions of a wife are not, on the ground of the 
 marital relation, binding upon her husband. To make them 
 binding she must have express or implied authority from her 
 husband to make them as his agent. The mere fact that B's 
 wife sent A $25 by mail, in part payment of the note, is not 
 sufficient evidence that B authorized the payment, or the let- 
 ter, so as to make its contents admissible against him.^^ 
 
 13. A files a bill against B to restrain him from selling 
 certain real estate, under a trust deed given to secure the 
 paj^ment of money loaned to A. A claims that a large por- 
 tion of the debt consists of usury, and also that a portion of 
 the sum claimed to be due was never received by her. Before 
 the hearing, A's attorney, C, stipulates and agrees in writing, 
 on behalf of A, that a decree of the court be entered of ree- 
 
 10 — Gerrish v. Sweetzer, 21 11 — Mueller v. Rebhan, 94 111., 
 Mass., 373; White v. Old Dom. Co., 142. 
 
 102 N. Y., 660. 12— Butler v. Price, 115 Mass., 
 
 578. 
 
418 PRELIMINARY TOPICS. 
 
 ord in favor of B for the whole amount of B's claim, and a 
 decree is entered accordingly. The question is, whether the 
 admission contained in C's agreement, as to the amount due 
 B, is binding upon A. 
 
 The admissions of an attorney, acting within the scope of 
 his authority, are binding upon his client. As C's admission 
 is solemnly made of record, within the scope of his authority 
 as attorney, it precludes A from questioning the amount for 
 which consent is given to render the decree.^* 
 
 14. A sues B in trespass for cutting down, and carrying 
 away, certain pine trees. B claims that the trees were cut 
 on his own land. The location of the boundary line between 
 A's and B's Jand is material to the issue. B oaers, against 
 objection, evidence by "W, that W requested A to show him 
 the location of the north-east corner of his land; that A told 
 him that T could show him where the corner was; and that 
 T went and showed him. The question is, whether the admis- 
 sions of T, as to the location of the corner, are binding 
 upon A. 
 
 T's admissions are binding upon A. When one party refers 
 another to a third party for information in regard to an 
 uncertain or disputed fact in issue, the admissions of the third 
 party are binding upon the first party to the same extent as 
 if they had been made by himself. i* 
 
 15. B, a surety on A's bond, is sued by C for damages 
 caused by the misconduct of A. The question is, whether ad- 
 missions of A, relating to such misconduct, and made after 
 the relation of principal and surety between A and B had 
 terminated, are binding upon B. 
 
 The admissions of a principal, when made within the scope 
 of the relation of principal and surety, so as to be a part of 
 the res gestae, are binding upon the surety; but, as A's ad- 
 missions were made after the relation had ceased, they are 
 not binding upon B.^^ 
 
 IS^Haas v. Chicago BId'g. So- (U. S.), 480; 1 Greenleaf's Evid., 
 ciety, 80 111., 248. Sec. 182. 
 
 14— Chapman v. Twitchell, 37 15— Chelmsford Co. v. Demarest, 
 Me., 59; Allen v. Killinger, 8 Wall. 73 Mass., 1; Blair v. Ins. Co., 10 
 
 Mo., 559 (47 Am. Dec, 129). 
 
ADMISSIONS. 419 
 
 16. A and B were partners. C seeks to recover from B 
 a claim wMch he has against the firm, but which has become 
 barred by the statute of limitations. The question is, whether 
 an admission of the debt, and a promise to pay it, made by 
 A after the dissolution of the firm, are binding upon B. 
 
 One partner, after the dissolution of the firm, has no im- 
 plied authority to make new contracts, binding upon the firm, 
 nor to make admissions, relating to such contracts. A's prom- 
 ise to pay the firm debt created a new contract, springing out 
 of, and supported by, the original consideration, and was not 
 a mere continuation of the original promise. It follows, there- 
 fore, that A's admission of the debt is not binding upon B, 
 nor his promise to pay it.^® 
 
 16— Bell V. Morrison, 26 U. S., 351. 
 
420 PEELIMINAEY TOPICS. 
 
 ILLUSTRATIONS ON LAW AND FACT. 
 
 1. A, the indorsee of a bill of exchange, which purports to 
 have been drawn in London but which was drawn in Dublin, 
 sues B, the drawer, in assumpsit; and, against objection on the 
 ground that the bill is an inland bill and for this reason in- 
 sufficiently stamped, offers the bill in evidence. The court, 
 against objection, admits evidence to show that the bill was 
 drawn in Dublin, and then leaves it to the jury to decide 
 whether the bill was drawn in London or in Dublin. The ques- 
 tion is, whether the court, in leaving such a matter to the 
 jury to decide, commits prejudicial error. 
 
 The admissibility of the bill of exchange in evidence is a 
 preliminary question of fact for the court to decide; and, in 
 leaving it to the jury to decide, the court eomanits prejudicial 
 error.i 
 
 2. A is on trial for criminal assault. He objects to the 
 complaining witness testifying against him on the ground of 
 her. youthfulness. The court believes her incompetent, but al- 
 lows her to testify under oath, and instructs the jury that her 
 competency is left to them to decide; that they are to consider 
 her evidence if they find her competent, but are to wholly dis- 
 regard it if they find her incompetent. A is convicted. The 
 question is, whether the court, in leaving the competency of the 
 complaining witness to the jury commits prejudicial error. 
 
 The competency of the complaining witness is a preliminary 
 question of fact for the court to decide; and, in leaving 
 it to the jury, the court commits prejudicial error.^ 
 
 3. A, who claims ownership in a certain meeting-house, 
 sues B in trespass for tearing down a pew in it. In defence, 
 B offers in evidence, against objection, the records of a cer- 
 tain meeting, which the court admits. The objection to the 
 records is, that the application to call the meeting was not 
 signed by five of the proprietors, as required by law. The 
 question is, whether the records are improperly admitted. 
 
 The admissibility of the records offered in evidence depends 
 
 1— Bartlett v. Smith, 11 M. and 2— Com. v. Reagan, 175 Mass., 
 W., 483. 335. 
 
LAW AND FACT. 421 
 
 upon the fact whether the meeting had been called by a proper 
 application, and this is a preliminary question of fact for the 
 court to decide.* 
 
 4. A is on trial for the murder of B. To show A's motive 
 for killing B, the government offers in evidence, against objec- 
 tion, facts tending to prove the death of C by arsenic, know- 
 ingly administered by A. The question is, whether this evi- 
 dence is admissible, and by whom its admissibility is to be 
 decided. 
 
 The admissibility of the evidence depends upon the suffi- 
 ciency of the proof offered to connect the two crimes; and this 
 is a preliminary question of fact for the court to determine. 
 The jury, however, in case the evidence is admitted, may decide 
 that the proof offered to connect the two crimes, is insufficient, 
 and for this reason give no weight to the evidence.* 
 
 5. A sues B for malicious prosecution. The question is, 
 who must decide the matter of want of probable cause, the 
 court or the jury. 
 
 It is the function of the jury to decide what facts are proved, 
 both directly and by inference ; and then it is the function of 
 the court, based upon public policy rather than upon prin- 
 ciple, to decide whether those facts are sufficient to constitute 
 want of probable cause."* 
 
 6. A sues B, a minor, for the value of goods purchased on 
 credit. B defends on the ground of infancy. A replies that 
 the goods were necessaries. The question is, whether the fact 
 in issue is to be decided by the court or by the jury. 
 
 It is the function of the court in the first instance, to decide 
 whether the goods might, in any case, reasonably be necessaries. 
 Then, if the answer is in the affirmative, it is the function of 
 the jury to decide whether, in the particular case, they are 
 necessaries.® 
 
 7. A sues the P. & Q. Ry. Co. for damages caused by the 
 
 3— Gorton v. Hadsell, 63 Mass., D., 169; Stewart v. Sonneborn, 93 
 
 508. U. S., 187; Lister v. Ferryman, 4 
 
 4 — Com. V. Robinson, 146 Mass., H. L., 521. 
 571. 6— Ryder v. Wombwell, L. R., 4 
 
 5— Panton v. Williams, 2 Q. B. Exch., 32. 
 
422 PRELIMINAEY TOPICS. 
 
 alleged negligence of defendant. The company denies its own 
 negligence and sets up contributory negligence on the part of 
 the plaintiff. Evidence is submitted by the plaintiff to show 
 defendant's negligence, and by the defendant to show plain- 
 tiff's contributory negligence. The question is, what is matter 
 for the court to decide, and what matter for the jury. 
 
 As regards defendant's negligence, the court is to decide 
 whether there is evidence upon which the jury could reasonably 
 find negligence. Assuming that there is, and that it is not un- 
 disputed, and not conclusive, the jury are to decide whether 
 there was negligence. If the evidence is undisputed and con- 
 elusive on this point, the court decides that negligence ex- 
 isted; but the negligence must be so clearly established that no 
 construction of the evidence, or inference drawn from it, war- 
 rants a contrary decision. If the evidence is at all conflicting, 
 the question is for the jury to decide. If there is no evidence 
 upon which the jury could reasonably find negligence, the court 
 decides that it did not exist, and gives judgment for the de- 
 fendant. As regards plaintiff's contributory negligence, the 
 same rules govern.'^ 
 
 8. A sues the M. & N. Ry. Co. for damages caused by the 
 defendant's negligence in running its engine into A's buggy 
 while A was attempting to cross its tracks. The company de- 
 fends on the ground of A's contributory negligence. It is ad- 
 mitted by A that before he attempted to cross the tracks, he 
 failed to look either way for approaching trains. The question 
 is, whether A's alleged contributory negligence is a matter for 
 the court to decide, or, for the jury. 
 
 In some states, including Michigan, a rule of law exists which 
 requires persons, before attempting to cross railroad tracks, to 
 look both .ways for approaching trains. In some other states, 
 including New York, it has become a postulate, irrespective of 
 any statute upon the subject, that due care requires that such 
 precaution be taken. According to the rule in these states, for 
 the reasons mentioned, A's contributory negligence is estab- 
 lished per se. In some other states, however, including Illinois, 
 
 7— Bridges v. N. L. Ry. Co., 7 H. B. I. Ry. Co. v. O'Conner, 119 111.. 
 
 L., 213; Met. Ry. Co. v. Jackson, 586; Terre Haute, etc., Ry. Co. t. 
 
 3 A pp. Gas., 193; Jones v. B. Tenn., Voelker, 129 111., 540. 
 etc. Ry. Co., 128 U. S., 443; C. & 
 
LAW AND PACT. 423 
 
 no such rule of law, or postulate, exists; and, according to the 
 rule in these states, A's contributory negligence is a matter for 
 the jury to decide.^ 
 
 9. A sues B in assumpsit for breach of a written contract. 
 The question is, what is matter for the court to decide, and 
 what matter for the jury. 
 
 The construction, interpretation, and legal effect of the con- 
 tract are matters for the court to decide. The true meaning 
 of the words in which it is couched, when any doubt exists, 
 and the surrounding circumstances, when material, are matters 
 for the jury.8 
 
 These rules also govern in the case of oral contracts, when 
 their terms are clear and undisputed.^* 
 
 10. A sues the village of M for damages for personal in- 
 juries resulting from a defective sidewalk. Several physicians 
 give expert opinion evidence on behalf of the defendant. The 
 question is, whether the jury are bound to accept as true the 
 expert opinion evidence when opposed to the evidence of other 
 witnesses who claim to have actual knowledge of the facts. 
 
 The credibility of witnesses, and the weight to be given their 
 evidence, are questions of fact for the jury to decide. The 
 fact that the witnesses are experts does not change the rule.^^ 
 
 11. A, the beneficiary in an accident policy on the life of 
 B, who was killed while attempting to cross a railway track in 
 front of an approaching and visible teain, sues the Ins. Co. 
 on the policy. The company defends on the ground that B 
 came to his death in consequence of his failure to observe cer- 
 tain conditions of the policy, viz., "By unnecessary exposure to 
 danger," and by reason of his failure to use, as required by 
 the policy, "all due diligence for personal safety and protec- 
 tion." Evidence is given of the circumstances which sur- 
 rounded B's death, and the court peremptorily instructs the 
 
 8 — Stackus v. N. Y., etc., Ry. Co., 9 — Hutchinson v. Bowker, 5 M. 
 
 79 N. Y., 464; Rodfian v. N. Y. and W., 535; Coupe v. Roger, 155 
 
 etc., Ry. Co., 125 N. Y., 528; Clark U. S., 565. 
 
 V. B. & M. Ry. Co., 164 Mass., 434; 10— Spragins v. White, 108 N. C, 
 
 Chase v. Me. Cent. Ry. Co., 167 449. 
 
 Mass., 383; Pennsylvania Co. v. 11 — Olson v. Vil. of Manlstlque, 
 
 Faana, 112 111., 398. 110 Mich., 656. 
 
424 PRELIMINAEY TOPICS. 
 
 jury to find for the plaintiff. The question is, whether the 
 court commits prejudicial error in not leaving the case to the 
 jury to decide. 
 
 Assuming that there is some evidence upon which the jury 
 , could reasonably find negligence on the part of B, the court 
 commits prejudicial error.i^ 
 
 12. A sues the C. & A. Ry. Co. to recover the value of a 
 hotel which is alleged to have been destroyed by fire owing 
 to defendant's negligence in using wood for fuel in one of its 
 coal-burning engines. Among others^ the court gives the fol- 
 lowing instruction: 
 
 "The use of wood for fuel, in an engine built for and as a 
 coal-burning engine, is negligence, if the jury believe, from the 
 evidence, that the engine was constructed so as to burn coal, 
 and not so constructed as to burn wood with as much safety 
 as coal. But such negligence can not be such as to render 
 defendant liable, (if proven,) unless it is further proven, to the 
 satisfaction of the jury, that the use of such engine, by burning 
 wood therein, caused the injury complained of in the declara- 
 tion.'' The question is, whether this instruction is erroneous 
 on the ground that it takes from the jury a question of fact. 
 
 Negligence is the absence of such conduct as would reason- 
 ably be expected from a person under the particular circum- 
 stances involved. Its definition is a question of law; but the 
 standard to be used in a particular case is a matter of reason, 
 based upon general experience. The court may define negli- 
 gence, but it may not instruct the jury that certain acts con- 
 stitute negligence. Negligence is a fact to be proved like any 
 other fact. The court's instruction is erroneous because it 
 takes from the jury a question of fact which it is their province 
 to determine.!* 
 
 13. A, a watchmaker and jeweler, sues the K. & S. Ey. Co. 
 for the value of lost baggage, which consisted of certain tools 
 used by A in repairing watches. The question is, what is mat- 
 ter for the court to decide, and what matter for the jury. 
 
 12— Columbian Accident Co. v. 13— C. & A. Ry. Co. v. Pennell 
 Sanford, 50 111. App., 424. 94 111., 448. 
 
LAW AND FACT. 425 
 
 What constitutes "baggage," is a mixed question of law and 
 fact, to be determined by the jury under proper instructions 
 by the court. The term has a technical meaning, and its defi- 
 nition is a question of law for the court; but, whether the tools 
 in question come within the definition or not, is a question of 
 fact for the jury to decide.^* 
 
 14. A sues the G. Fire Ins. Co. upon a policy containing 
 a provision that the policy would be void if there was any 
 other existing insurance on the property not assented to by the 
 defendant company. A prior policy, in a different company, 
 is introduced in evidence, and this policy contains a provision 
 that it would become void in case of the vacancy of the prem- 
 ises for ten days without the written consent of the company 
 indorsed thereon. There is conclusive evidence that the prem- 
 ises were vacant for more than ten days, and some evidence 
 tending to show that the company which issued the prior pol- 
 icy, waived its right to avoid it, before the issuance of the 
 policy now sued upon. The court, on behalf of A, instructs the 
 jury that if the premises were vacant for more than ten days 
 prior to the date of the policy sued upon, without the consent 
 of the other company, then the policy first issued became, and 
 was, thenceforth void, and the same no longer constituted in- 
 surance on the building. The question is, whether the court, 
 in giving this instruction, usurps the province of the jury. 
 
 As there is some evidence tending to show that the breach of 
 the condition in the prior policy was waived, and, as the ques- 
 tion of waiver is a question of fact for the jury to decide, 
 the court's instruction is prejudicial error.i" 
 
 15. A, who was the foreman of a section gang of track 
 repairers, was struck by a heavy piece of coal which was 
 thrown, or M-hich fell, from the engine or tender of a rapidly' 
 passing train, and was killed. B, his administrator, now sues 
 the railway company for damages, alleging that A's death was 
 caused by the negligence of defendant's fireman who was on 
 the engine. The company defends on the ground that A and 
 the fireman were fellow-servants. The court instructs the jury 
 
 14 — K. C, F. S. & Gr. Ry. Co. v. 15 — Germania Fire Ins. Co. t, 
 Morrison, 34 Kan., 502 (55 Am. Klewer, 129 111., 599. 
 Rep., 252). 
 
426 PEELIMINAEY TOPICS. 
 
 "that a man employed by a railroad company in the capacity 
 of a section foreman, having charge and oversight of repairs 
 upon a certain portion of its track, is not engaged in the same 
 line of duty with an engineer and fireman running such com- 
 pany's locomotive, engines, and is therefore not within the rule 
 which exempts the common employer from liability to one of 
 its employees for damages resulting from the fault, careless- 
 ness or negligence of a fellow-servant or co-employee." The 
 question is, whether the court usurps the function of the jury. 
 The question, whether A and the fireman were fellow-ser- 
 vants, is one of fact for the jury to decide, and not one of 
 law for the court. The instruction, therefore, is prejudicial 
 error .1® 
 
 16. A sues a railway company for the value of lost bag- 
 gage. The question is, whether A called for his baggage within 
 a reasonable time after it had reached its destination, the an- 
 swer to which determining the degree of care required on the 
 part of the company. 
 
 What constitutes a reasonable time within which a passenger 
 should call for his baggage is a mixed question of law and 
 fact, depending very much upon the peculiar facts of each in- 
 dividual case; but where the facts are undisputed, it is purely 
 a question of law for the court to decide.^'' 
 
 17. A sues B, the indorser of a promissory note. B defends 
 on the ground that proper demand and notice were not made 
 and given. The question is, whether the seasonableness of the 
 demand and notice is a question of law or a question of fact. 
 
 Where the facts, as to the situation of the parties, frequency 
 of communication, etc., are admitted, or established by undis- 
 puted evidence, the seasonableness of the demand and notice is 
 a question for the court to decide; but, if the evidence upon 
 these matters is conflicting, the question is one for the jury.^* 
 
 18. A and B are tried jointly for the murder of C. .The 
 question is, whether it is the duty of the jury to receive from 
 
 16— C. & N. W. Ry. Co. v. Mor- 18— Hadduck v. Murray, 1 N. H., 
 
 anda, Admx., 108 111., 576. 140 (8 Am. Dec, 43), 
 
 17— C. R. I. & P. Ry. C!o. v. 
 Boyce, 73 111., 510. 
 
LAW AND PACT. 427 
 
 the court the law bearing upon the case, and to apply it as 
 given by the court. 
 
 In the federal courts, it is the duty of the jury, in criminal 
 cases, to receive the law from the court, and to apply it as 
 given by the court, subject to the condition that, by a general 
 yerdiet a jury of necessity determines both law and fact as 
 compounded in the issue submitted to them in the particular 
 case.i" This is also the rule in the English courts, and the 
 great weight of authority in our state courts. It is in accord 
 with the fundamental maxims of the common law, and with 
 the spirit and meaning of the United States Constitution. In 
 Illinois, the criminal code provides that juries, in all criminal 
 cases, shall be judges of the law and fact.^o The constitution 
 of Louisiana has a provision to the same effect, but the courts 
 of that state hold that juries are bound to take the law from 
 the court.^* Greenleaf says, "Where the question is mixed, 
 consisting of law and fact, so intimately blended as not to be 
 easily susceptible of separate decision, it is submitted to the 
 jury, who are first instructed by the judge in the principles 
 and rules of law, by which they are to be governed in finding 
 a verdict, and these instructions they are bound to follow. "^^ 
 Starkie says, "Where the jury find a general verdict they are 
 bound to apply the law as delivered by the court, in criminal 
 as well as civil cases. "^^ 
 
 19. A is on trial for an alleged violation of the license laws. 
 A statute provides that, "In all trials for criminal offences, it 
 shall be the duty of the jury * * * ^ after having received 
 the instructions of the court, to decide at their discretion, by a 
 general verdict, both the fact and the law involved in the 
 issue, or to fijid a special verdict, at their election." The ques- 
 tion is, whether counsel of the defendant have a right to ad- 
 dress the jury upon the questions of law involved in the issue. 
 
 It is the duty of the court to instruct the jury on all ques- 
 tions of law pertaining to the case, and the duty of the jury 
 
 19 — Sparf and Hansen v. United 21 — State v. Tisdale, 41 La. An., 
 States, 156 U. S., 1. 338. 
 
 20— Rev. Stat. (1903), Kurd, 22— Greenl. Ev., Vol. I, Sec. 49, 
 Chap. 38, Div. XIII., Sec. 11. 157. 
 
 23— Starkie on Bvid., p. 816. 
 
428 PEELIMINAET TOPICS. 
 
 to receive the law from the court, and to conform their judg- 
 ment and decision to such instructions, as far as they under- 
 stand them, in applying the law to the facts. The jury have 
 no legitimate right to contravert such instructions, nor to de- 
 cide the case contrary to them. But, as they have a legitimate 
 power to return a general verdict, in which case they must 
 pass upon the whole issue, counsel for the defendant, under 
 the general superintendence of the court, have a right to ad- 
 dress the jury upon the questions of law involved in the 
 issue.2* 
 
 24 — Com. V. Porter, 10 Mete., 263; Com. v. Anthes, 5 Gray, 185. 
 
DEMUEEERS TO EVIDENCE. 429 
 
 , ILLUSTRATIONS ON DEMURRERS TO EVIDENCE. 
 
 1. A sues B for rent, and seeks to establish his right by 
 prescription. He puts in evidence a deed dated 1842, whereby 
 a former prior of Caldwell granted an annual rent of 20s. to 
 A's predecessor. B demurs to A's evidence, but A refuses to 
 join, and the question is, whether the court will compel him 
 to do so. 
 
 Formerly the court would not compel a joinder in demurrer ; 
 but, according to the later rule, if the facts are clear and 
 definite, it will.i 
 
 2. A, the indorsee of a bill of exchange, sues B, the ac- 
 ceptor. A's evidence is partly real and circumstantial. B 
 demurs to it. The question is, whether A is obliged to join in 
 the demurrer. 
 
 When the evidence is a matter of record, or other matter in 
 writing, the demurree must join, or waive the evidence. When 
 the evidence is real, and the facts numerous, vague and un- 
 certain, the demurree is not obliged to join, unless the demur- 
 rant distinctly admits upon the record every fact, and every 
 conclusion which the evidence offered conduces to prove; but, 
 when the facts are clear, certain and definite, he is obliged to 
 join. As A's evidence is partly circumstantial, he is not 
 obliged to join in B's demurrer, unless B admits upon the rec- 
 ord every fact and every conclusion which the evidence con- 
 duces to prove.^ 
 
 3. A sues the K. Ry. Co. to recover the value of three mares 
 which were killed owing to the alleged negligence of the de- 
 fendant. He introduces direct and circumstantial evidence 
 sufficient to prove all the material facts of the case prima facie, 
 and also the direct evidence of one witness which contradicts 
 some of the circumstantial evidence. The defendant demurs to 
 this evidence, and the court overrules the demurrer. The ease 
 is then given to the jury, who return a verdict in favor of the 
 
 1— The Prior of Tlkeford v. The 2— Gibson v. Hunter, H. L. 
 Prior of Caldwell, Com. Pleas (1793), 2 H. Bl., 187. 
 (1456), 34 Hen. VI. 
 
430 PBELIMINABY TOPICS. 
 
 plaintiff. The question is, whether the court s action, in over- 
 ruling the demurrer, is ground for reversal. 
 
 Where a plaintiff introduces evidence sufficient to prove aU 
 the material facts of his case prima facie, some of which facts, 
 however, are proved only by circumstantial evidence, and also 
 introduces the direct evidence of one witness which contradicts 
 some of the facts proved by the circumstantial evidence, and 
 no other evidence is introduced in the case, the court may 
 rightfully overrule a demurrer to the evidence, and may also 
 rightfully sustain a verdict found by the jury in favor of the 
 plaintiff.* 
 
 4. A sues B on a lost promissory note. After A submits 
 his evidence, which is oral, and partly circumstantial, B de- 
 murs to it. The demurrer states and admits A's evidence, but 
 fails to admit conclusions which it conduces to prove. A is 
 compelled to join in the demurrer, and the court sustains it. 
 The question is, whether the court's ruling, in compelling A 
 to join in the demurrer, is ground for reversal. 
 
 Where the evidence is oral, and indeterminate and circum- 
 stantial, and the demurrant does not admit upon the record 
 the facts and the conclusions which the evidence tends to 
 prove, and the court compels a joinder, a judgment in favor of 
 the demurrant will be reversed.* 
 
 5. A sues the 0. & M. Ry. Co. to recover damages for a 
 personal injury caused by defendant's negligence. After A 
 puts in his evidence and rests, the defendant demurs to it. The 
 demurrer admits the truth of A's evidence, but not the facts 
 which it conduces to prove. A voluntarily joins in the de- 
 murrer, and judgment is given in favor of the defendant. The 
 question is, whether the failure of the demurrer to admit facts 
 which the evidence conduces to prove is ground for a reversal 
 of the judgment. 
 
 Since A's joinder in the demurrer is voluntary, he cannot 
 raise the objection that the demurrer admits the evidence, and 
 not the facts which the evidence conduces to prove.® 
 
 3— The Kan. City, etc., Ry. Co. v. 5— Valtez v. 0. & M. Ry. Co., 85 
 
 Poster, 39 Kan., 329. 111., 500. 
 
 4 — Dormandy v. State Bank, 2 
 Scam. (111.), 236. 
 
DEMUERERS TO EVIDENCE. 431 
 
 6. A sues the I. & S. L. Ry. Co. for damages to Ms property 
 owing to defendant's negligence. After A rests, the defend- 
 ant demurs to his evidence, and A voluntarily joins in the 
 demurrer. The demurrer is so badly drawn as to leave the 
 rights of the parties doubtful. The court, however, overrules 
 the demurrer, and enters judgment for the plaintifE. The de- 
 fendant appeals, and the question is, what ruling should be 
 made by the appellate court. 
 
 When the demurrer to evidence is insufficient to bring the 
 facts in the case before the court for its judgment, it will be 
 treated as a nullity, the judgment reversed, and the cause re- 
 manded with directions to the court below to award a venire 
 de novo. The fact that the plaintifE voluntarily joins in the 
 demurrer will not justify the court in passing upon the merits 
 of the case if the demurrer is so badly drawn as to leave the 
 rights of the parties doubtful. The office of a demurrer to 
 evidence is to withdraw the case on trial from the jury, and 
 present to the court, in a formal manner, such facts as are 
 actually established, and such other facts as the evidence of- 
 fered conduces to establish, for the purpose of obtaining the 
 judgment of 'the court as to their legal sufficiency. If the 
 merits of the ease are substantially presented by the demurrer, 
 the court may properly decide the ease; but, if it is so inartifi- 
 cially drawn, and the facts or evidence so improperly stated 
 as to leave the rights of the parties doubtful, then the court 
 should not pass upon the merits of the case, and to do so would 
 be ground for a reversal of the judgment. A demurrer to evi- 
 dence should state facts, and not the evidence which tends to 
 prove these facts; and where the evidence is oral, and merely 
 tends to prove or disprove some material fact or facts in issue, 
 the demurrer should not set out the evidence, but the fact or 
 facts it tends to establish; and if it does not, it is informal 
 and insufficient, and the plaintiff is not bound to join in it.* 
 
 7. The plaintiff, which is a state bank, and the indorsee and 
 holder of G's promissory note, sues G on the note, in assumpsit. 
 After the bank rests, 6 demurs to its evidence, and the bank 
 joins in the demurrer. The court overrules the demurrer and 
 
 6—1. & St. L.. Ry. Co. v. Link, 10 111. App., 292; Crowe v. People, 
 92 111., 231. 
 
432 PEELIMINAEY TOPICS. 
 
 enters judgment for the plaintiff, the jury assessing the dam- 
 ages. 6 appeals on the ground that the evidence of the plain- 
 tiff fails to prove the act of its incorporation. Assuming that 
 it does not, and that proof of such fact is an essential element 
 of the plaintiff's case, the question is, what order should be 
 made by the higher court. 
 
 The objection made by G cannot be raised on a demurrer to 
 evidence. Instead of demurring to the evidence, he should ap- 
 ply for a nonsuit. The practice of resorting to a demurrer to 
 evidence, when the defendant discovers some inadvertence or 
 oversight of the plaintiff, is not encouraged. If the defendant 
 applies for a nonsuit, it is discretionary with the court to 
 allow the plaintiff to introduce further evidence. The court 
 usually grants such permission, unless it occasions surprise or 
 injury to the opposite party. If such permission is granted, 
 and the party fails to supply the defect in his evidence, and 
 the nonsuit is granted, the plaintiff will not lose his debt, but 
 merely be liable for the costs of the suit. Whereas, if a judg- 
 ment is entered upon the demurrer to evidence, against the 
 plaintiff, he loses his debt. The rules of law for the regula- 
 tion of trials are designed to facilitate and promote justice, 
 and not to ensnare the unwary. For the reasons stated, the 
 appellate court will affirm the judgment.'^ 
 
 8. A sues the N. E. Ins. Co. on a policy of marine insur- 
 ance. He introduces a mass of circumstantial, loose and inde- 
 terminate evidence. The defendant company files an inartifi- 
 cially drawn demurrer to this evidence, and A joins in the 
 demurrer. Judgment is entered upon the demurrer, and the 
 case is reviewed by a higher court. The question is, should 
 the judgment on the demurrer be allowed to stand. 
 
 What is usually called a demurrer to evidence is, in reality, 
 a demurrer to the facts established by the evidence. The true 
 purpose of the demurrer is to refer to the court the application 
 of the law to ascertained and admitted facts. The sole func- 
 tion of the court is to apply the law to the facts. It is not 
 concerned in investigating disputed facts, or, in weighing the 
 force of testimony, or presumptions arising from the evidence. 
 Its duty is to determine the legal sufficiency of the facts 
 
 7— Gillham v. State Bank, 3 III., 246. 
 
DEMURRERS TO EVIDENCE. 433 
 
 which the evidence- tends to prove, and which are admitted to 
 be true. A demurrer to evidence admits not only all the facts 
 directly stated in it, but also all which the evidence legally 
 conduces to prove. The demurrant cannot avail himself of 
 any facts which the evidence tends to prove in his own favor. 
 Such facts he is deemed to have waived. If the evidence is 
 circumstantial, or uncertain, demurring to the evidence gen- 
 erally is not sufficient. The facts which the evidence tends to 
 prove in favor of the demurrer should be stated with certainty, 
 and admitted. Before a judgment can be entered on the de- 
 murrer, joinder is always essential; and so long as any matter 
 of fact in controversy exists between the parties, no issue can 
 be joined on the demurrer. If, in such respects the demurrer 
 is defective, and judgment is entered upon it notwithstanding, 
 a higher court, upon reviewing the case, will reverse the judg- 
 ment and award a new trial. 
 
 Since, in the present case, the demurrer to the evidence is so 
 informally framed, and the facts stated in it are so uncertain, 
 the judgment entered upon it should be reversed, and a venire 
 facias de novo awarded.* 
 
 9. A is on trial for criminal libel. After the people rest, 
 A declines to oifer any evidence, and files in the case a certain 
 paper which is marked "demurrer to evidence," and which 
 consists of a manifestly imperfect and partial statement of the 
 evidence, to which is subjoined a formal demurrer to the facts 
 therein stated. The people join in the demurrer, and the court 
 thereupon withdraws the case from the jury, and the jury are 
 discharged. Subsequently, judgment is entered upon the de- 
 murrer to the evidence against A, and he appeals. The ques- 
 tion is, what order should be made by the higher court. 
 
 A demurrer to evidence should state facts, and not the evi- 
 dence which tends to prove those facts. If the evidence is oral, 
 and merely tends to prove or disprove some important fact or 
 facts in issue, the demurrer should not set out the evidence, but 
 the fact or facts which it tends to prove; and if it does the 
 former, it is informal and insufficient. If* upon examining the 
 evidence set out in the demurrer, it appears that the merits of 
 
 8 — Copeland v. New Eng. Ins. Com. Council of Alexandria, 24 U. 
 Co., 39 Mass., 135; J., A. & N. Ry. S., 319. 
 Co. V. Velie, 140 111., 59; Fowle v. 
 
434 PRELIMINAET TOPICS. 
 
 the controversy are substantially presented by it, the court, may 
 properly decide the case; but, if the demurrer is so informally 
 drawn, and the facts so improperly stated as to leave the rights 
 of the parties doubtful, it is error for the court to pass upon 
 the merits of the case. Its sole duty is to apply the law to the 
 facts. 
 
 In the present case, the demurrer to the evidence is so inarti- 
 ficially drawn, and the facts set forth in it so incomplete, as 
 to render it a nullity. The judgment upon it, therefore, should 
 be reversed, and a venire facias de novo awarded.^ 
 
 10. A sues B in equity to compel -him to specifically per- 
 form a certain written agreement. After A rests, B demurs to 
 his evidence, and A joins in the demurrer. The court sustains 
 the demurrer and renders judgment upon it in favor of B. A 
 appeals. The question is, what office does a demurrer to evi- 
 dence perform in a suit in equity; and should the judgment 
 upon B's demurrer to the evidence be allowed to stand. 
 
 Since, according to the English rule, a verdict by a jury in 
 a suit in equity is merely advisory, and not conclusive upon 
 the chancellor, the purpose of a demurrer to evidence is diffi- 
 cult to perceive. Its effect, however, upon joinder by the de- 
 murree, is the same as in an action at law. The facts set forth 
 in the demurrer, and those which such facts conduce to prove, 
 are admitted to be true. 
 
 In the present case, if the facts set out in the demurrer, 
 and those which such facts conduce to prove, are sufficient to 
 establish A's case prima facie, the judgment should be reversed. 
 If they are not, the judgment should stand.^" 
 
 9— Crowe v. People, 92 111., 231. 10— Healey v. Simpson, 113 Mo., 
 
 340. 
 
PACTS EXCLUDED ALTHOUGH LOfflCALLY RELEVANT. 435 
 
 ILLUSTRATIONS ON FACTS EXCLUDED ALTHOUGH LOGICALLY 
 
 RELEVANT. 
 
 1. A sues B for damages for injuries caused to him by de- 
 fendant's negligence in providing an unsafe and defective ma- 
 chine, whereby one of the pulleys, over which ran the belt which 
 transmitted power to a saw A was operating, fell upon and 
 seriously injured him. The question is, whether a subsequent 
 alteration or repair of the machine by B is competent evidence 
 of negligence in its original construction. 
 
 Such evidence is incompetent. It has no legitimate tendency 
 to show that B had been negligent before the accident, tends 
 to create against B a prejudice in the minds of the jury, and 
 is calculated to distract their minds from the real issue.^ 
 
 2. A sues B for damages for injuries caused to him by de- 
 fendant's negligence in providing an unsafe and defective eleva- 
 tor, which fell five stories and seriously injured A. Shortly 
 after the happening of the accident, B had an air-cushion put 
 in the elevator shaft, and the question is, whether such fact 
 is competent evidence. 
 
 The question of negligence should be determined by what 
 occurred before, and at the time of, the accident. New measures 
 or devices, adopted after the accident, do not necessarily imply 
 that all previous devices or measures were insufficient. Evidence 
 of precautions taken after an accident is liable to be misinter- 
 preted by the jury as an admission of negligence. A person 
 operating a passenger elevator, however, is bound to avail him- 
 self of all new inventions and improvements known to him, 
 which will contribute materially to the safety of his passengers, 
 whenever the utility of such has been thoroughly tested and 
 demonstrated, and their adoption is within his power, so as to 
 be reasonably practicable. Evidence that a valuable device for 
 securing safety was known to A, and its use neglected by him, 
 before the accident, would be competent ; but the mere fact that 
 
 1— The Columbia, etc., Ry. Co. T. H. & I. Ry. Co. v. Clem, 123 
 V. Hawthorn, 144 U. S., 202; Cor- Ind.. 15. 
 coran v. Peekskill, 108 N. V., 151; 
 
436 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 after the accident he had an approved device put in, is ineom- 
 petent.2 
 
 3. A sues the village of B for damages for injuries caused 
 to her by a defective plank in the village sidewalk. The question 
 is, whether evidence that, shortly after the accident, the defect- 
 ive plank was replaced by a new one by the village authorities, 
 is competent ; whether, assuming it to be incompetent, its admis- 
 sion is ground for reversal, provided there is abundant proof 
 of the existence of the defect prior to the accident ; and, whether 
 evidence that other persons had stepped into the same hole in 
 the walk, prior to A's injury, is competent. 
 
 Evidence that the defective plank was replaced shortly after 
 the injury, is incompetent ; but its admission, in view of the fact 
 that abundant proof is given of the existence of the defect prior 
 to the accident, is error without prejudice, and therefore not 
 ground for reversal. Evidence that other persons had stepped 
 into the same hole prior to the accident is competent owing to 
 its bearing upon the existence and character of the defect.' 
 
 4. A sues the T. Electric Ey. Co. for damages for causing the 
 death of his infant son by negligently running over him with one 
 of its cars. The question is, whether the fact that the defendant 
 company, shortly after the accident, virtually discharged from 
 his regular employment the motorman who was in charge of 
 the car at the time of the accident, is competent evidence to 
 prove by implication that the company considered that he had 
 been careless or was incompetent. 
 
 Taking additional precautions, after an accident, to prevent 
 other accidents, is not admissible in evidence for the purpose of 
 proving the existence of negligence at the time of the accident. 
 To admit such evidence would tend to discourage the adoption 
 of additional safeguards by improving the quality and raising 
 the standard of such service. Besides, such evidence has a strong 
 tendency to unduly prejudice the minds of the jury against the 
 defendant.* 
 
 5. A sues B in assumpsit for breach of his agreement to pur- 
 s—Hodges V. Perclval, 132 111., 3 — Lombar v. The Village of 
 
 53; Shinners v. Prop, of L. & C, East Tawas, 86 Mich., 14. 
 154 Mass., 168. 4— Hewitt v. Taunton Street Ry. 
 
 Co., 167 Mass., 484. 
 
FACTS EXCLUDED ALTHOUGH LOGICALLY EBLEVANT. 437 
 
 chase from A all the beer he would need in his business. B 
 defends on the ground that the beer which he refused to buy 
 from A was not of a fair merchantable quality. To prove that 
 it was, A offers evidence of the good quality of the beer he 
 furnished other publicans at the time B refused the beer offered 
 to him. The question is, whether such evidence is legally rele- 
 vant. 
 
 The evidence offered by A is too conjectural, and strongly 
 liable to mislead the jury. For this reason it is inadmissible. 
 If it had been established that the beer B refused, and that 
 furnished by A to the other publicans, had been taken from 
 the same vat of beer, the evidence would be admissable. Again., 
 as this is a civil case, and as A's reputation for supplying good 
 beer is not in issue, the fact that A has such a reputation is 
 legally irrelevant.** 
 
 6. A sues the L. Gas Light Co. for damages for injuries to her 
 health caused by the inhalation of gas which escaped from de- 
 fendant's pipe. The question is, whether evidence is admis- 
 sible that wherever the gas, which escaped from a defect in de- 
 fendant's pipe, entered any dwelling house in the neighborhood, 
 sickness followed. 
 
 Such evidence is too conjectual and tends to mislead the jury. 
 It also tends to complicate the issue and thus confuse the jury. 
 The attending circumstances in the various cases may be quite 
 different. The evidence, therefore, is inadmissible.* 
 
 7. A, while visiting for several days at B's house, became 
 ill from inhaling gas which had escaped from a defective pipe 
 of the gas company. He went home where he continued ill for 
 several weeks. He now sues the gas company for damages for his 
 injuries. The question is, whether evidence is admissible, that 
 B and his family had been in perfect health up to the time when 
 the gas began to escape into their house, and that immediately, or 
 soon after, every member of the family became seriously sick. 
 
 The mere sickness of B and his family is a collateral fact ; but 
 the circumstances attending its inception are the same as those 
 attending that of B 's sickness. Hence the jury are not liable to 
 be mislead or confused by the evidence in question^ It is admis- 
 sible, however, merely for the purpose of showing the nature of 
 
 5 — Holcombe v. Hewson, 2 6 — Emerson v. Lowell Gas Co., 3 
 Camp., 391. Allen, 410. 
 
438 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 the gas which came into the house, to the influence of which all 
 the inmates were subjected alike, and should be limited to the 
 effect of the gas upon those who in common and under similar 
 circumstances inhaled itJ 
 
 8. A, while leaving a lecture hall on a dark night, and in a 
 large crowd, fell into an area or passageway leading to a cellar 
 under the hall, and was seriously injured. She sues the owners 
 of the hall for damages, alleging negligence in failing to have 
 the area properly lighted. The defendant offers to prove that 
 more than ten thousand persons had passed and repassed the 
 area every year since the hall was built without accident. The 
 question is, whether such evidence is legally relevant. 
 
 The evidence tendered is evidence of collateral facts. If it is 
 incapable of affording any reasonable inference as to the fact in 
 issue, it should be excluded. If, however, it is capable of afford- 
 ing such inference, and is not too conjectural, and liable on this 
 ground to mislead the jury, nor apt to confuse the jury unduly 
 by complicating the issue, it should be admitted. The more con- 
 servative courts usually exclude this class of evidence;^ while 
 the more liberal ones usually admit it.^ 
 
 9. A sues B to recover the value of a certain piece of land. 
 To prove the value of this land A offers evidence of recent sales 
 of several pieces of land in the vicinity, and the prices realized. 
 The question is, whether such evidence is legally relevant. 
 
 According to the better view, such evidence is excluded.^" It 
 is conjectural, and also tends to complicate the issue and thus 
 confuse the minds of the jury. Then again, better evidence is 
 usually available, viz., the opinions of persons competent to judge 
 of such value. In some jurisdictions, however, including Illi- 
 nois^i and Massachusetts,!^ such evidence is held admissible. 
 
 10. A sues B, a drover, for the value of two steers which A 
 intrusted to him, and which escaped from B 's drove of cattle and 
 
 7— Hunt V. Lowell Gas Co., 8 463; Penn. S. V. R. Co. v. Ziemer, 
 
 Allen, 169. 124 Pa. St., 560. 
 
 8 — Temperance Hall Assoc, v. 11 — Peoria G. & C. Co. v. Peoria 
 
 Giles, 33 N. J. L., 260. Term. Ry. Co., 146 111., 372. 
 
 9 — Crafter v. Metrop. Ry. Co., 12 — Paine v. Boston, 4 Allen, 
 
 L. R., 1 C. P., 300. 168; Gardner v. Inhab. of Brook- 
 
 10— In re Thompson, 127 N. T., line, 127 Mass., 358. 
 
FACTS EXCLUDED ALTHOUGH LOGICALLY EELEVANT. 4:39 
 
 were lost. A alleges that the loss was occasioned by B's negli- 
 gence in delaying, after discovering their escape, to search for 
 them. B requests the court to instruct the jury that, "if he did 
 do the things that drovers of common prudence, engaged in the 
 same business, ordinarily do, he was not guilty of such negligence 
 as will make him liable in this action. ' ' The court refuses to give 
 this instruction, and the question is, whether such refusal is 
 ground for reversal. 
 
 B was bound to exercise reasonable care. The usual practice of 
 other drovers of common prudence might fall short of this. Such 
 practice, therefore, is not a rule of law to govern the jury. 
 Hence the instruction requested was properly refused. Evi- 
 dence, however, of the usual practice of others, in the same line 
 of business and in the same locality, is generally held admissible. 
 Its weight, of course, is a question of fact for the jury.^^ 
 
 11. A sues the H. Ry. Co. to recover the value of a building 
 and its contents, which he alleges were destroyed by fire owing to 
 defendant's negligence in carelessly and unskillfully operating 
 an imperfect locomotive engine. There is no evidence of any other 
 cause or circumstance of suspicion. He offers to prove by a 
 witness who lived close to the railroad, and about one-fourth of 
 a mile from the building, that shortly before it was burned he 
 had seen sparks and fire thrown, from the engines used by the 
 defendants' trains in passing through witness' premises, a 
 greater distance than this building stood from the track of the 
 railroad; and that he had picked up from the track, after the 
 passage of the trains, lighted coals more than two inches in 
 length. This evidence is objected to and the objection is sus- 
 tained. A also offers evidence which tends to prove that the en- 
 gines used by the defendants lacked some apparatus which was in 
 use upon some other locomotive engines, and which rendered the 
 latter less liable to communicate fire to substances at the side of 
 the road than those which were without such apparatus. This 
 evidence is admitted, but the court finally nonsuits the plaintiff. 
 The question is, whether the court's ruling, in excluding the 
 former evidence, is prejudicial error, and whether the latter 
 evidence is legally relevant. 
 
 13— Maynard v. Buck, 100 Mass., 107 U. S., 454; Grand Trunk Ry. 
 40; Wabash Ry. Co. v. McDanlels, Co, v. Rjch^rdsou, 91 U. 8., 454. 
 
440 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 The court's ruling, in excluding the former evidence, is preju- 
 dicial error. Aiter the plaintiff refutes every other probable 
 cause of the fire, he establishes a prima facie case by showing 
 that, about the time the fire occurred, the company's trains, 
 which ran past the location of the fire, were so negligently man- 
 aged as to be likely to set on fire objects not more remote than 
 the property burned. The latter evidence is legally relevant. 
 The fire is alleged to have been caused by carelessly and imskill- 
 fully operating an imperfect engine. Owing to the hazardous 
 nature of the business, an essential of due care is the use of the 
 most approved methods and appliances. Hence, evidence that 
 safer and better appliances were used by others, in the same line 
 of business, of which fact defendant was reasonably charged with 
 notice, and that such appliances were available, is admissible to 
 show defendant's negligence.^* 
 
 12. A sues the L. E. & W. Ry. Co. to recover the value of an 
 elevator destroyed by fire owing to the alleged negligence of de- 
 fendant in operating a certain engine. He offers rebuttal evi- 
 dence, that other fires had been caused by defendant's engines, 
 in the immediate vicinity of the elevator destroyed, both before 
 and after it was destroyed, but the court excludes this evidence, 
 and the question is, whether the court's ruling is prejudicial 
 error. 
 
 Since the engine which is alleged to have caused the fire is 
 identified, evidence of defects in other engines, or of other fires 
 caused by other engines, before or after the fire complained of, 
 is legally irrelevant. The court's ruling, therefore, in excluding 
 the evidence offered, is correct. Where, however, there is no 
 proof as to what engine caused the fire, but sufficient circum- 
 stantial evidence to establish a strong probability that it was 
 caused by one of defendants' engines, evidence that sparks and 
 burning coals were frequently dropped by defendants' engines, 
 on the same line, at other times and places, and also that defend- 
 ants' engines were not equipped with the most approved appli- 
 ances conducive to safety, is legally relevant to prove habitual 
 negligence.^" 
 
 13. A is on trial for feloniously receiving fifty yards of clo.th, 
 
 14— Sheldon v. The H, R. Ry. 15— First Nat Bank v. L. E. & 
 Co., 14 N. Y., 218. W. Ry. Co., 174 111., 36. 
 
PACTS EXCLUDED ALTHOUGH LOGICALLY KELEVANT. 4-11 
 
 stolen from B in March. The prosecution offers evidence that 
 a week after the cloth was stolen it was found in A's possession) 
 and that within an hour afterward his house was searched and 
 that two pieces of cloth, stolen from C, in December next pre- 
 ceding, were found in the house ; and also that during that month 
 A had been in possession of two other pieces of cloth, which were 
 stolen from C when the other two pieces were stolen from him. 
 The question is, whether evidence of the possession by A of the 
 four pieces of cloth stolen from C is legally relevant. 
 
 Since the purpose, in offering this evidence, is to show A's 
 guilty knowledge, upon principle it should be held admissible. 
 In this class of cases, however, courts usiially exclude such evi- 
 dence on the ground that it is too conjectural, and also because it 
 complicates the issue; but in England, by statute, it is made 
 legally relevant for the specific purpose stated, viz., to show 
 guilty knowledge.i^ 
 
 14. A sues the District of C. for damages for injuries re- 
 ceived from a fall occasioned by the alleged negligence of the 
 defendant in maintaining a dangerous sidewalk. He offers evi- 
 dence that other persons stumbled and fell at the same place 
 where he was injured, and the question is, whether this evidence 
 is legally relevant. 
 
 Evidence of the mere fact that others fell at the same place 
 where A fell is not too conjectural to render it legally irrelevant ; 
 nor is it objectionable because it complicates the issue. The par- 
 ticulars of the other cases, however, would complicate the issue 
 to such an extent as to be liable to confuse the jury, and for this 
 reason such evidence would be inadmissible.^^ 
 
 15. A sues the city of C. for damages for negligently causing 
 the death of B by failing to keep properly lighted the approach 
 to a certain swing-bridge. He offers to prove that another per- 
 son, at the same place and under similar circumstances had met 
 with a similar accident. The question is, whether this evidence 
 is legally relevant. 
 
 The answer to question 14 is applicable to this one.*^ 
 
 .16— R. V. Oddy, 2 Den. C. C, 18— City of Chicago v. Powers, 
 
 264; 34 and 35 Vict., 0. 112 (1871). 42 111., 169. 
 
 17 — District of Columbia v. 
 Armes. 107 U. S., 519. 
 
442 LEADING PEINCIPLES AND RULES OF EXCLUSION. 
 
 16. A is on trial for an attempt to obtain money from B by 
 false pretenses, by trying to pledge to him a worthless ring as a 
 diamond ring. For the purpose of showing A 's knowledge of thy 
 quality of the ring, the prosecution offers evidence that, two days 
 before, A tried, on two separate occasions, to obtain from C and 
 D, respectively, money, by making similar misrepresentations as 
 to the same or a similar ring ; and that, on the same day that he 
 tried to obtain money from B, he obtained money from E by 
 pledging, as a gold chain, one which was only gilt. The ques- 
 tion is, whether the evidence, in each of these cases, is legally 
 relevant. 
 
 As a general rule, similar acts of a party which cause injuries 
 to third persons, are not admissible; but when the purpose of 
 introducing such acts in evidence is to show that the act charged 
 was intentional, they are held to be legally relevant.!^ 
 
 17. A is on trial for obtaining money from B by falsely rep- 
 resenting to B that C had authorized him to obtain it. The 
 prosecution oflEers evidence that A, upon another occasion, ob- 
 tained money from D by a similar false pretense. The question 
 is, whether this evidence is legally relevant. 
 
 The evidence is not legally relevant, because A's knowledge 
 of his lack of authority in the one case is not connected at all 
 with his knowledge of his lack of authority in the other ease.^" 
 
 18. A sues B for damages for injuries caused by B's dog 
 biting him. A alleges that B had knowledge of the ferocity of 
 the dog, and to prove this he offers evidence that the dog had 
 previously bitten C, D and E, and that they had complained 
 to A about it. The question is, whether this evidence is legally 
 relevant. 
 
 Since the purpose of the evidence is to show A's knowledge of 
 the dog's ferocity, it is legally relevant to show that fact. But, 
 as evidence of the particulars of those cases would unduly com- 
 plicate the case, such evidence would be inadmissible.^^ 
 
 19. A is on trial for feloniously setting fire to his own house 
 to obtain the insurance on it. The prosecution offers evidence 
 that A had previously lived in two other houses, each of which 
 
 19— R. V. Francis, L. R., 2 C. C. 20— R. v. Holt, Bell C. C, 288. 
 E., 128. 21— Roscoe's Nisi Prius, 739. 
 
PACTS EXCLUDED ALTHOUGH LOGICALLY EELBVANT. 443 
 
 he had insured in a different company, each of which wa,9 
 burned while occupied by him, and that, upon the policy on each 
 he obtained the insurance. The question is, whether the evidence 
 offered is legally relevant. 
 
 As the purpose of this evidence is merely to show that the 
 offence charged was intentional and not accidental, it is ad- 
 missible to show that fact. Evidence of the particulars of the 
 two former fires, however, is inadmissible as it would unduly com- 
 phcate the case.^^ 
 
 20. A, who was B 's paymaster, and whose duty among others, 
 was to make entries in a book kept for the purpose, showing the 
 various amounts paid by him to B 's employees, is charged with 
 having made a false entry to his own advantage. Evidence is 
 offered against him that, at various times during the two years 
 next preceding, he made other similar false entries, all in his 
 own favor. The question is, whether this evidence is legally 
 relevant. 
 
 The evidence offered relates to different transactions from the 
 one charged, but its purpose is merely to show that the one 
 charged was intentional and not accidental. To show this fact, 
 therefore, the evidence is legally relevant, but not to show facts 
 beyond this.^* 
 
 21. A sues B for damages for an injury occasioned by de- 
 fects in the highway, consisting of a pile of lumber likely to 
 frighten horses, and an insufficient bridge railing. A offers 
 evidence that C's horse, an ordinarily gentle one, while being 
 driven by the pile of lumber, also became frightened at it. The 
 question is, whether this evidence is legally relevant. 
 
 The character of the pile of lumber, as regards its tendency 
 to frighten horses, was a fact in issue. The rule which excludes 
 experimental knowledge, in cases like this, is not an arbitrary 
 and technical one, but rather one of reason. As the evidence 
 offered is not liable to mislead or confuse the jury, and as it is 
 reasonable evidence to show the tendency of the pile of lumber 
 to frighten horses, it is legally relevant.^* 
 
 22— R. V. Gray, 4 F. and P., 1102. 24 — Darling v. Westmoreland, 52 
 23— R. V. Richardson, 2 F. and N. H., 401. 
 F., 343. 
 
444 LEADING PEINCIPLES AND EULES OF EXCLUSION. 
 
 22. A is on trial for the murder of her husband by adminis- 
 tering to him poison while at his meals. To show that the poison 
 was given intentionally and not accidentally, the prosecution of- 
 fers evidence that the same kind of poison was administered by 
 A at various times during the next six months following to her 
 three sons, B, C and D, while at their meals, as a result of which 
 B and C died, and that the meals of all four, in every case, were 
 prepared by A. The question is, whether this evidence is legally 
 relevant. 
 
 Similar acts of a party, which cause injuries to third persons, 
 are, as a general rule, inadmissible ; but when such acts, together 
 with the act charged, form a series, and the question is, whether 
 such acts were intentional, negligent or accidental, evidence of 
 the similar acts of the series are legally relevant. The evidence 
 offered is therefore admissible for the purpose intended, but its 
 application must be limited to this.^^ 
 
 23. A is on trial for the murder of her sister's husband, B. 
 To show motive, the prosecution offers evidence that A, being 
 in debt, formed, and effectually carried into execution, the 
 scheme of first poisoning B 's wife, who was the beneficiary named 
 in a policy of insurance on B's life, then inducing B to make 
 her his beneficiary, and then poisoning B. The question is, 
 whether this evidence is legally relevant. 
 
 When a party is charged with the commission of one crime, 
 evidence that he has committed another crime is usually inad- 
 missible ; but when the crimes are so connected as to form part 
 of the same plan or scheme, such evidence is admissible to show 
 motive. Hence all of A's acts, which formed links in the chain 
 which comprised her scheme, are legally relevant.^® 
 
 25 — R. v. Geering, 18 L. J. M. 26 — Com. v. Robinson, 146 Mass., 
 C, 215; R. T. Garner, 3 F. and P., 571. 
 681. 
 
CHAEACTEE. 445 
 
 ILLUSTRATIONS ON CHARACTER. 
 
 1. A is on trial for murder. His counsel offers evidence as 
 to his general character. The question is, whether such evidence 
 is admissible. 
 
 The evidence offered is legally relevant. Such evidence is 
 competent in all criminal cases.^ 
 
 2. A is on trial for receiving stolen property. He intro- 
 duces evidence of his good character. The court charges the 
 jury that "such evidence is important where the evidence to 
 convict is doubtful, that it should be thrown into the scale in 
 his favor ; but where the evidence is strong, and his guilt is im- 
 pressed on the minds of the jury, it is not of the slightest con- 
 sequence. " A is convicted. The question is, whether the court 's 
 instruction is ground for reversal. 
 
 The court's instruction is ground for reversal. It is not the 
 law that evidence of character can be considered by the jury 
 only in doubtful cases, and that it is not of the slightest con- 
 sequence, where the evidence is strong, and the defendant's 
 guilt is impressed on the minds of the jury.^ 
 
 3. A is on trial for indecent assault. Several of his wit- 
 nesses testify to his previous good character. The prosecution 
 then offers evidence of his bad character to rebut this. The re- 
 butting evidence consists of (1) the personal opinion of the wit- 
 ness; (2) particular facts; (3) rumors; and (4) general repu- 
 tation. The question is, which, if any, of these four classes of 
 character-evidence should be admitted. 
 
 The first three classes should be excluded, and the fourth 
 admitted. Evidence of the personal opinion of the witness is 
 too conjectural. Then again, there is the danger of prejudice 
 on his part. Evidence of particular facts is jalso too conjectural, 
 besides it complicates the case and tends to confuse the minds 
 of the jurors. Evidence of rumors is too vague and uncertain 
 and thus liable to mislead the jury. Evidence of general repu- 
 
 1 — Com. V, Hardy, 2 Mass. 2 — Com. v. Leonard, 140 Mass., 
 (1807). ■ 473; State v. Blue, 17 Utah, 175. 
 
446 LEADING PRINCIPLES AND EXILES OP EXCIiUSION. 
 
 tation is strong circumstantial evidence of character, and js 
 legally relevant.^ 
 
 4. A sues B for libel. B offers evidence of A's bad reputa- 
 tion which the court excludes. A is given the verdict, the dam- 
 ages being assessed at £1500. The question is, whether the 
 court's ruling, in excluding evidence of A's bad reputation, is 
 prejudicial error. 
 
 In civil cases, character evidence is very generally inadmis- 
 sible. There are, however, some exceptions. When the char- 
 acter of a party to the suit is one of the main facts in issue, 
 evidence of his general reputation is admissible. A's character 
 is a main fact in issue, as the injury to it is the gist of the 
 action, and the amount of damages recoverable depends upon it. 
 The court's ruling, therefore, is prejudicial error.* 
 
 5. A sues B for slandering her by imputing to her unchas- 
 tity. In mitigation of damages B offers evidence of A's general 
 reputation for being a quarrelsome person. The question is. 
 whether such evidence is admissible. 
 
 The trait of A's character which is in issue is her chastity. 
 Her general reputation relating to this is admissible, but the 
 evidence offered should be excluded.^ 
 
 6. A is on trial for grand larceny, after a former conviction 
 for the same offense, the statute prescribing a greater penalty 
 for a second offense. The prosecution offers evidence of the 
 former conviction. A objects to this evidence on the ground 
 that it tends to establish his bad character by proof of a specific 
 act; and furthermore, because he has not opened the door for 
 character-evidence by the prosecution, as he has not offered any 
 evidence of his good character. The question is, whether A's 
 objection should be sustained. 
 
 A's objection should not be sustained. The evidence objected 
 to is evidence of a material fact in issue, and merely because 
 it incidentally reflects upon A's character is not a sufiScient 
 reason for excluding it.^ 
 
 3— R. V. Rowton, L«lgh & Cave, Mich., 41; Adams v. Smith, 58 111., 
 520. 417. 
 
 4— Scott V. Sampson, 8 Q. B. D., 5— Hosley v. Brooks, 20 III., 115. 
 491; Proctor v. Houghtaling, 37 6 — Johnson v. People, 55 N. T., 
 
 512. 
 
CHAEACTEB. 
 
 447 
 
 7. A sues B, his employer, for damages for injuries caused 
 to him by a fellow servant, C. After proving that C, at the 
 time the injuries complained of were received, was old and phy- 
 sically weak, with sight and hearing seriously impaired, A- for 
 the purpose of showing that B had not exercised reasonable 
 care in employing such a fellow workman as C, for the class 
 of work he was called upon to do, offers evidence that C ' ' was 
 generally reputed to be infirm in the senses of sight and hearing 
 and in physical strength." The question is whether this char- 
 acter-evidence is admissible. 
 
 In the selection of his servants, a master is bound to exercise 
 reasonable care, and if a fellow servant is incompetent to per- 
 form the work he is employed to do, the fact that he is gen- 
 erally reputed in the community to lack those qualities which 
 are necessary for the proper performance of such work, is com- 
 petent evidence to show that the master failed to exercise rea- 
 sonable care in selecting him. Hence the evidence offered is 
 legally relevant.'' 
 
 8. A sues B for breach of promise to marry her and for se- 
 duction. In defense, B offers evidence of A's general reputa- 
 tion for unehastity after the promise and seduction. The ques- 
 tion is, whether such evidence is admissible, either in. mitigation 
 of damages, or in bar of the action. 
 
 The evidence offered is inadmissible. A's degradation was 
 the result of B's act. To permit B to give evidence of A's gen- 
 eral reputation for unehastity, at a period subsequent to such 
 act would be absurd.^ 
 
 9. A sues B for seduction. The question is, whether A's 
 previous general reputation for unehastity is admissible in evi- 
 dence in mitigation of damages. 
 
 The general character of A for chastity prior to the seduc- 
 tion alleged, is involved in the issue, and evidence of it is 
 legally relevant.^ 
 
 10. A sues B for seduction. The question is, whether spe- 
 cific acts of unehastity of A with other men, prior to the alleged 
 
 7— Monahan v. "Worcester, 150 9— "White v. Murtland, 71 111., 
 Mass., 439. 250. 
 
 8 — Boynton v. Kellogg, 3 Mass., 
 188. 
 
448 LEADING PEINCIPLES AND RULES OF EXCLUSION. 
 
 seduction, such acts having been unknown to B at the time of 
 the alleged seduction, are admissible in evidence in mitigation 
 of damages. 
 
 As in the next preceding question, A's character for chastity 
 is involved in the issue, and evidence of prior specific acts of 
 immoral intercourse by her with other men is admissible.^" 
 
 11. A sues B for malicious prosecution. The question is, 
 whether B may give evidence of A's general bad reputation at 
 the place where he resided at the time of his arrest, for honesty 
 and fair dealing in business, to rebut evidence of want of prob- 
 able cause, and also in mitigation of damages. 
 
 Since A's character is involved in both of these issues, evi- 
 dence of his general bad reputation is admissible, and may be 
 considered as to both of them." 
 
 12. A sues B for malicious prosecution for larceny. The 
 question is, whether A may introduce evidence of his own gen- 
 eral reputation for honesty. 
 
 In civil actions, according to the general rule, evidence by 
 the plaintiff, in the first instance, of his general good reputa- 
 tion is inadmissible. Such evidence, however, is admissible to 
 rebut evidence of the plaintiff's general bad reputation. In 
 actions for malicious prosecution of a criminal action, the 
 plaintiff may, in the first instance, give evidence of his own 
 good character. This class of actions, therefore, forms an ex- 
 ception to the general rule. Evidence of good reputation, how- 
 ever, is not admissible, in the first instance, to show that one is 
 not guilty of a dishonorable or unlawful act which is not pun- 
 ishable as a crime.i2 
 
 13. A sues B for slander, in imputing to her acts of un- 
 chastity. The question is, whether A, in the first instance, may 
 introduce evidence of her good character. 
 
 Some cases hold that, in actions for slander and libel, the 
 plaintiff's character is put in issue by the very nature of the 
 
 10 — Love V. Masoner, 6 Baxt. 12 — Mclntire v. Levering, 148 
 
 (Tenn.), 24 (32 Am. Rep., 522); Mass., 546; Israel v. Brooks, 23 
 
 Berry v. Watkins, 7 C. & P. 308; 111., 526; Blizzard v. Hays, 46 Ind., 
 
 2 Greenl. Evid., Sec. 577. 166. 
 
 11 — Rosenkrans v. Barker, 115 
 111., 331. 
 
CHARACTER. 449 
 
 proceeding, and therefore, the plaintiff may give, in the fiiot 
 instance, evidence of his good character .1* The weight of au- 
 thority, however, and perhaps the better reasoning, are to the 
 contrary.!* g^t, whenever the truth of a charge of crime is 
 pleaded in justification, the plaintiff may give evidence, in the 
 first instance, of his good character, to rebut the charge.** 
 
 14. A sues B to recover damages for the alleged willfully 
 and maliciously setting fire to and causing to be burned certain 
 stacks of wheat which belonged to A. The question is, whether 
 B, in the first instance, may introduce evidence of his good char- 
 acter, as a bar to the action, or in mitigation of damages. 
 
 Since B's character is not in issue, evidence of his good char- 
 acter is not admissible for either purpose.*^ 
 
 15. A sues the B Ins. Co. on a policy of fire insurance. The 
 company defends on the ground that A intentionally set fire 
 to the buildings insured, to recover the insurance. The ques- 
 tion is, whether A, in the first instance, may introduce evidence 
 of his good character to rebut defendant's plea. 
 
 The question in this case is a close one. Some courts answer 
 it in the negative, on the ground that this is a civil action, in 
 which the question of plaintiff's character is not in issue.*'^ 
 Other courts hold the contrary, on the ground that, although 
 the action is a civil one, the plaintiff's character is put in issue 
 by the defendant imputing to him the commission of an act 
 which constitutes a crime, and therefore has the right to rebut it 
 by introducing evidence of his good character .1* The weight 
 of authority, and the better opinion favor the former view. 
 
 16. A sues B to recover money belonging to A, and which A 
 alleges B has wrongfully converted. B pleads that the money 
 has been stolen from him, and offers evidence of his general 
 good character to rebut the presumption of such fraudulent con- 
 version. The question is, whether such evidence is admissible. 
 
 13 — Lamed v. BuflSnton, 3 Mass., 15 — Downey v. Dillon, 52 Ind., 
 
 54B; Adams v. Lawson, 17 Grat. 442. 
 
 (Va.), 250; Burnett v. Slmpkins, 16 — Barton v. Thompson, 56 la., 
 
 24 111., 265. 571; Thayer v. Boyle, 30 Me., 475. 
 
 14— Fahey v. Crotty, 63 Mich., 17— Am. Fire Ins. Co. v. Hazen, 
 
 383; Miles v. Vanhorn, 17 Ind., 110 Pa. St., 530-537. 
 
 245. 18— Mosley v. Ins. Co., 55 Vt., 
 
 142-152. 
 
450 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 B's character is not a fact in issue, and the evidence offered 
 is inadmissible.^* 
 
 17. A sues the E Fire Ins. Co. on a policy to recover for loss 
 sustained by fire. The company defends on the ground that 
 the policy is rendered void owing to the fraudulent conceal- 
 ment by A of the state of the property insured, in that, the 
 goods insured were alleged in the policy to be in a "Frame 
 House Filled in with Brick," whereas, they were in a frame 
 house in which the walls were not filled in with brick. Thu 
 court, against objection, allows A to introduce evidence of his 
 general good character. The question is, whether the court's 
 ruling is ground for a new trial. 
 
 Where a party is charged with a specific fraud, in a civil 
 action, his character not being in issue, the evidence of fraud 
 cannot be rebutted by evidence of general good character. The 
 court's ruling, therefore, assuming that the verdict is in A's 
 favor, is ground for a new trial.^** 
 
 18. A sues B to recover damages for an assault and battery. 
 The question is, whether B may introduce evidence of his good 
 character as a peaceable citizen, either in bar of the action, or 
 in mitigation of damages. 
 
 Assuming that B's plea is not self-defense, his character is 
 not in issue; and such evidence is inadmissible for either pur- 
 pose. However good his reputation may be as a peaceable citi- 
 zen, it does not materially tend to show that he did not commit 
 the offence charged, nor concern the question of damages. Where 
 the plea is self-defense, however, the character of the defendant 
 is material, and evidence pertaining to it is admissible, in bar 
 of the action.21 
 
 19. A is on trial for bastardy. The question is, whether evi- 
 dence is admissible to show (1) the general bad reputation for 
 chastity of the complaining witness: (2) that she has had sex- 
 ual intercourse with men other than the accused; and that (3) 
 
 19 — Morris v. Hazlewood, 1 Bush 21 — Fahey v. Grotty, 63 Mich., 
 
 (Ky.), 208. 382; Givens v. Bradley, 3 Bibb 
 
 20— Fowler v. ^tna Fire Ins. (Ky.), 192 (6 Am. Dec, 646). 
 Co., 6 Cowen (N. Y.), 673 (16 
 Am. Dec, 460). 
 
CHARACTER. 451 
 
 since the birth of her child she has lived the life of a common 
 prostitute. 
 
 In bastardy cases, the character of the complaining witness 
 is not in issue. Hence, the evidence, in all three cases, is in- 
 admissible.'^* 
 
 20. A sues B for assault and battery. A and her daughters 
 testify in her behalf. B offers evidence that A and her daugh- 
 ters had, at various times and places, committed adultery, and 
 that they had also been guilty of selling intoxicating liquors in 
 violation of law. The question is, whether the evidence is ad- 
 missible (1) in bar of the action, (2) in mitigation of the dam- 
 ages, or (3) to impeach the credibility of the witnesses. 
 
 The evidence is inadmissible for any of these purposes. Ad- 
 mitting the acts charged to have been done, they did not even 
 tend to mitigate the conduct of B in assaulting A. Nor did such 
 acts withdraw from A the protection of the law against physi- 
 cal violenee.2* For the purpose of impeaching the credibility 
 of a witness, evidence of particular acts is inadmissible. The 
 usual method is to introduce evidence of the general reputation 
 of the witness; and such general reputation, according to the 
 better view, should be confined to general reputation for truth 
 and veracity.^* 
 
 21. A sues B for criminal conversation. The question is, 
 whether evidence is admissible (1) of the adulterous conduct 
 of A, in bar of the action, or in mitigation of the damages ; or, 
 
 22 — Duffies V. The State, 7 "Wis., and associations, and want of 
 
 567; Rawles v. The State, 56 Ind., moral worth; but there is no prin- 
 
 433; Com. v. Churchill, 11 Mete, ciple of law or ethics on which, 
 
 538 (overruling Com. v. Murphy, for such a cause, immunity is to 
 
 14 Mass., 387) ; The State v. Read, be granted to those who inflict in- 
 
 45 la., 469. juries upon another, or full in- 
 
 23 — "The fact that a man bears demnlty to be denied to a party 
 
 a bad character, or keeps company for a violation of the sanctity of 
 
 with persons of evil repute, fur- his person." Waterman on Tres- 
 
 nishes no just provocation or pal- pass, vol. 2, § 272, p. 244. 
 
 liation for doing violence to his 24 — Dimiok v. Downs, 82 111., 
 
 person. He may forfeit the good 570; Prye v. Bank of 111., 11 111., 
 
 opinion of his fellow men, and be- 373; GifEord v. People, 87 111., 210; 
 
 come an object of pity or con- Com. v. Grose, 99 Mass. 424. 
 tempt, by reason of his evil habits 
 
452 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 (2) of the adulterous conduct of A's wife, in bar of the action, 
 or in mitigation of the damages. 
 
 The evidence, in both cases, is admissible for the purpose of 
 mitigating the damages ; but, in neither case is it admissible in 
 bar of the action. Evidence is also admissible of the condition 
 in life and pecuniary abilty of both A and B.^^ 
 
 22. A sues the C. E,y. Co. to recover damages for the deatlj 
 of her husband, B, who lost his life while coupling cars. There 
 were no eye-witnesses of the accident. A offers evidence (1) of 
 B's general reputation for being a careful, prudent and sober 
 man; and also, (2) of the usual mode of coupling and un. 
 coupling ears at the switch where B was killed. The court, 
 against objection, admits the evidence in both cases, and A 
 recovers a verdict. The question is, whether the court's ruling 
 in either case is ground for reversal. 
 
 As regards the evidence of B's general reputation for being 
 a careful, prudent and sober man, many courts hold, includ- 
 ing those of Illinois, in view of the fact that there were no eye« 
 witnesses, that such evidence is admissible. All courts, how- 
 ever, hold that such evidence is inadmissible, provided evidence 
 of eye-witnesses of the accident is available. It seems there- 
 fore, that the admissibility of the evidence in the former case is 
 based upon necessity rather than upon principle. 
 
 As regards the evidence of the usual mode of coupling and 
 uncoupling cars at the switch where B was killed, the court's 
 ruling is ground for reversal. "What others did, or were in the 
 habit of doing, does not tend to prove the issue as to due care 
 on the part of B.^^ 
 
 25— Rea v. Tucker, 51 111., 110; 26— C. R. I. & P. Ry. Co. v. 
 Grable v. Margrave, 4 111., 372, 2 Clark, 108 111., 113; St. Ry. Co. t. 
 Greenl. Evid., sec. 56. Robblns, 43 Kan., 145. 
 
CONFESSIONS. 453 
 
 ILLUSTRATIONS ON CONFESSIONS. 
 
 1. A, who is on trial for the murder of X, offers in evidence 
 a confession made by B on his deathbed, when in extremis, and 
 with all hope of living gone, that he (B) alone, was guilty of 
 X's murder. The question is, whether B's confession is admis- 
 sible. 
 
 B's confession is not admissible, either as a confession, as a 
 dying declaration, or, as a declaration against interest by a 
 person since deceased. 
 
 2. A is on trial for the murder of B. The prosecution offers 
 in evidence a confession by A, made to the chaplain of the 
 prison, and induced by an exhortation of the chaplain to confess 
 his sins "to God," and to confess to man "to repair any injury 
 done to the laws of his country." The question is, whether the 
 confession is a voluntary one. 
 
 As the chaplain was not a person in authority, the confession 
 is voluntary .2 
 
 3. A is on trial for larceny. While in jail, he was induced, 
 by the jailor's promise to allow him to see his wife, to make a 
 statement as to the location of the stolen goods. The question 
 is, whether this statement is admissible in evidence against him. 
 
 The statement is admissible for several reasons. It was not 
 induced by a person in authority. The inducement was imma- 
 terial. Moreover, the statement is not a confession of guilt, but 
 merely a criminating statement of fact.^ 
 
 4. A, who is on trial for receiving stolen goods, made an 
 involuntary confession in which she disclosed the location of 
 the goods. The question is, whether evidence that the goods 
 were found in her lodgings, concealed between the sackings of 
 her bed, and that they were so found as a result of her involun- 
 tary confession, is admissible against her. 
 
 ' As the reason for excluding the involuntary confession, viz., 
 unreliability owing to the inducement made, does not apply to 
 the evidence offered, it is admissible as to both facts.* 
 
 1— Davis v. Com., 95 Ky., 19 (23 3— R. v. Lloyd, 6 C. and P., 393. 
 
 S. W. R., 585). 4— The King v. Jane Warick- 
 
 2— R. v. Gilham, 1 Moo. C. C, shall, Leach (4th edit), 263. 
 186. 
 
454 LEADING PRINCIPLES AND RIFLES OP EXCLUSION. 
 
 5. A is on trial for administering poison to his wife with 
 intent to murder her. The question is, whether the words, "he 
 need not say anything to criminate himself; what he did say 
 would be taken down and used as evidence against him," made 
 by the constable in A's presence, amount either to a promise 
 or threat, sufficient to render a confession by A as a result, 
 involuntary. 
 
 The purport of the words used by the constable was not such 
 as to amount either to a promise or threat, sufficient to make 
 A's confession involuntary.^ If, however, the constable had 
 said to A, "you had better tell the truth," or "you had better 
 tell about it," A's confession would have been involuntary.* 
 
 6. A is on trial for murdering his wife. "While in jail, he 
 was permitted by the sheriff, at his own request, to interview 
 a girl who was implicated with him, and who was in another 
 cell of the jail. The conversation between A and the girl was 
 overheard by two of the sheriff's deputies, who were secretly 
 stationed so as to hear it. The question is, whether statements 
 by A to the girl, amounting to a confession of guilt, and over- 
 heard by the deputies are admissible in evidence by them. 
 
 The artifice resorted to by the officers was not calculated to 
 produce an untrue confession, and therefore it is voluntary, and 
 the statements by A admissible.'^ 
 
 7. A is on trial for murder. The magistrate informed .A! 
 that, if he would make a confession of guilt, he would try to 
 obtain a pardon for him. Subsequently the magistrate was 
 informed by the secretary of state that no pardon would be 
 granted; and, after A learned of this, he confessed his guilt. 
 The question is, whether the confession is voluntary. 
 
 As the hope of reward was withdrawn before the confession 
 was made, the confession is voluntary and admissible.* 
 
 8. A, who is on trial for arson, made a confession of guilt. 
 The evidence is conflicting as to whether the confession is 
 voluntary or not, but the court admits it. The question is, 
 whether the court may instruct the jury that they should ex- 
 
 5— R. V. Baldry, 2 Den. C. C. R., 7 — Com. v. Goodwin, 186 Pa., 
 430. 218. 
 
 6— Com. V. Nott, 135 Mass., 269. 8— R. v. Clewes, 4 0. and P., 
 
 221. 
 
CONFESSIONS. 455 
 
 elude the confession, if, upon the whole evidence they are satis- 
 fled that it was not the voluntary act of the accused. 
 
 Not only may the court so instruct the jury, but to do so is 
 in harmony with the better practice.^ 
 
 9. A, a colored boy, about fourteen years of age, is on trial 
 for murder. Two officers, without a warrant, arrested him on 
 suspicion, and, after searching him, stripped him of his cloth- 
 ing, and put him into a cell at the police station. Late at night 
 they took him from the cell and questioned him for two hours, 
 without warning him of his right not to answer, or offering him 
 an opportunity to consult friends or counsel. During this inter- 
 view he confessed his guilt. The question is, whether the pro- 
 ceedings of the officers, under such circumstances, rendered the 
 confession involuntary. 
 
 In the absence of threats or promises, the confession is admis- 
 sible.io 
 
 10. A, a girl, fourteen years of age, is on trial for burning a 
 dwelling house. While in the custody of officers, and in re- 
 sponse to questions by them, she confessed her guilt. The 
 question is, whether the fact that she was under arrest when 
 she made the confession, or, that she made it in response to 
 questions by the officers, or, from fear induced by some cause 
 other than threats or promises made to her, renders the confes- 
 sion involuntary and inadmissible. 
 
 None of the facts stated is sufficient to render the confession 
 involuntary.il 
 
 11. A, B and C were indicted for the murder of X. A 
 confessed to M, on the promise of M that he would try to get 
 him admitted as a witness for the prosecution. M applied to 
 the attorney general, who thereupon accepted A as a witness for 
 the state, and promised complete protection for A, provided he 
 made a full disclosure, upon the trial of his accomplices. A 
 then made a full written confession. Before the time set for 
 O's trial, he committed suicide in his cell. When B was tried, 
 
 9— Com. V. Preece, 140 Mass., 10 — Com. v. Cuffee, 108 Mass.. 
 276; People v. Howes, 81 Mich., 305. 
 
 33S. 11— Ctom. V. Smith, 119 Mass.. 
 
 305. 
 
456 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 A absolutely refused to keep his promise to testify against Mm, 
 and make a full disclosure; but B was convicted. A is now 
 upon trial, and the question is, whether his written confessions 
 are admissible against him. 
 
 A's written confessions are admissible against him. By his 
 refusal to testify, and make a full disclosure as he agreed to do, 
 he forfeited all claim to protection by the government. This 
 protection he had solicited, and he was free to accept it upon 
 the terms offered, or stand upon his defence. Both in England' 
 and in this country, the law upon this point is well settled.'^ 
 
 12. A was on trial for breaking and entering a shop with 
 intent to steal. The prosecution offered in evidence a confes- 
 sion by A, which A objected to on the ground that it was mad5 
 in consequence of offers of favor made to him by the ofSeer who 
 arrested him. The officer testified that he made no offers o^ 
 favor to A, nor caused any to be made. A then offered to 
 prove, by five witnesses, the truth of his claim, but the court 
 refused to hear any of these witnesses, and the confession was" 
 admitted, and A convicted. The question is, whether the court 
 erred in refusing to hear A's witnesses before admitting the 
 confession offered. 
 
 The court erred in refusing to hear A's witnesses. The 
 admissibility of the confession was a preliminary question of 
 fact for the court to pass upon, but it was its duty to deter- 
 mine it upon hearing competent evidence upon it which was 
 tendered by either party.^^ 
 
 13. A is on trial for murder. The prosecution offers in 
 evidence a confession by A to which A objects on the ground 
 that it is not a voluntary one. The question is, upon whom is 
 the burden of proof. 
 
 The burden of proof, according to the better view, is upon 
 the prosecution to show that the confession is voluntary .i* Some 
 courts, including those of Massachusetts, put the burden upon 
 the defendant, to prove the contrary.i^ In England, the better 
 view obtains.i^ 
 
 12— Com. V. Knapp, 10 Pick., 15— Com. v. Knapp, 10 Pick., 
 
 477. 477. 
 
 13— Com. V. Culver, 126 Mass., 16 — R. v. Thompson, 2 Q. B. D., 
 
 464. 12. 
 
 14— Roesel v. State, 62 N. J. L., 
 216. 
 
CONFESSIONS. 457 
 
 14. A. is on trial for adultery. While in the custody of the 
 officer who arrested him, he solicited his advice as to the advisa- 
 bility of pleading guilty, and the officer replied that, he "did 
 not wish to advise him one way or the other for fear it might 
 not suit him"; and then added that, "as a general thing it was 
 better for a man who was guilty to plead guilty, for he got a 
 lighter sentence." A thereupon made a confession to the officer 
 of his guilt. The question is, whether the confession is admis- 
 sible against A. 
 
 As the hope of a lighter sentence was expressly held out to 
 A, as a result of his pleading guilty, his confession is involun- 
 tary. The fact that the officer's remarks related to pleading 
 guilty when A was put upon trial, and not to the making of a 
 confession in. pais, is immaterial.!^ ' ' Saying to the prisoner that 
 it will be worse for him if he does not confess, or that it will 
 be better for him if he does, is sufficient to exclude the confes- 
 sion, according to constant experience. "^^ 
 
 15. A, a boy sixteen years of age, is on trial for burning a 
 bam. Before his arrest, he went to the office of the Fire 
 Marshal, in response to a request to do so, and was interviewed 
 by that official in regard to his connection with the fire. Among* 
 the questions and answers were the following: Boy: "Do you 
 think that I set the fire?" Marshal: "Yes." Boy: "Why?" 
 Marshal: "No matter." Boy: "I had nothing to do with the 
 Chaffee fire." Marshal: "Go on and tell me about the Ger- 
 main fire." Boy: "What will they do with me, will they send 
 me away?" No reply. Marshal: " How many matches did you 
 use?" Boy: "One." Marshal: "Where did you get it?" 
 Boy: "At Germain's kitchen." Marshal: "Now I want to call 
 in some witnesses, and this evidence may be used against you. ' ' 
 The officer then called in a stenographer, who took down on 
 paper the boy's confession, which purported to be made of his 
 own free will without hope of favor and after having been duly 
 warned, and which was wholly dictated by -the official and 
 acquiesced in from time to time by the boy, and which was 
 finally subscribed and sworn to by the boy and signed by two 
 witnesses. The qilestion is, whether this written confession is 
 admissible against A. 
 
 17— Com. V. Curtis, 97 Mass., 574. 18—2 East P. C. 659; 1 QieeaL 
 
 Bt., sep. m. 
 
458 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 As every word of the confession was put into A's mouth, by 
 one in whose power he probably thought himself to be, the man- 
 ner in which it was prepared is deserving of criticism; yet, as 
 it purports on its face to have been made of A's own free will, 
 without hope of favor, it is not, as a matter of law, inadmis- 
 sible.i* 
 
 16. A is on trial for the murder of her child. Her mistress 
 held out an inducement to her, as a result of which she made a 
 confession of her guilt. The question is, whether A's confession 
 is admissible against her. 
 
 The confession is admissible because A's mistress was not a 
 person in authority .^o 
 
 17. A is on trial for burglary. He made an involuntary 
 confession to a policeman, part of which was that he threw a 
 lantern into a certain pond. As a result of the confession, the 
 lantern was subsequently found in the pond ; and the question is, 
 whether the fact of the finding it in the pond, and also the fact 
 that such finding was a result of A's statement that he threw 
 the lantern in the pond, are admissible in evidence against him. 
 
 Both of these facts are admissible, notwithstanding the fact 
 that A's confession was involuntary and for this reason inad- 
 missible.^i 
 
 18. A is on trial for murder. While in the custody of a 
 police officer, the officer, for the purpose of inducing A to make 
 a confession, falsely assured him that an alleged accomplice had 
 "blowed uponl him," and would testify to his guilt. A there- 
 upon made a confession to the officer. The question is, whether 
 the confession is admissible against A. 
 
 As the deception used by the officer to induce the confession 
 did not amount to a threat of punishment or hope of reward, the 
 confession is admissible.^^ 
 
 19. A is on trial for breaking and entering shops and steal- 
 ing shoe stock therein. "While in a state of intoxication he made 
 a confession of his guilt to B. The court instructs the jury, 
 "that the evidence of intoxication was only to be considered by 
 
 19— Com. V. Bond, 170 Mass., 41. 21— R. v. Gould, 9 C. and P.. 364. 
 20— R. V. Moore, 2 Den. C. C, 22— Price v. State of Ohio, 18 
 522. Ohio St., 419. 
 
CbNFESSIONS. 459 
 
 the jury, in determining what weight was to be given to the 
 confession of the defendant as evidence; that if they found he 
 was so much under the influence of liquor as not to understand 
 what he was confessing, they ought to disregard the confession 
 as evidence altogether; and that the burden was upon the gov- 
 ernment to show the confession was voluntary. ' ' The court also 
 rejects evidence by A's witnesses to show that the confession was 
 not true; that the facts, as stated in the confession, did not 
 occur. The question is, whether the court's instructions to the 
 jury, and its ruling on the question of evidence, are correct. 
 
 The instructions are wholly correct ;23 but the ruling on the 
 question of evidence is prejudicial error. A's confession is not 
 conclusive. He has the right to show by competent evidence 
 that the confession is false.^* 
 
 20. A is on trial for murder. The question is, whether a 
 confession by him, made before his arrest, and, while testifying 
 under oath as a witness at the coroner's inquest, is admissible 
 against him. 
 
 A 's confession is not inadmissible merely because it was made 
 under oath; nor because the proceeding in which it was given 
 had reference to the same subject matter as the proceeding in 
 which it is now offered in evidence. If, however, he was com- 
 pelled to give it, after refusing to do so on the ground that his 
 answer would tend to criminate him, and the circumstances jus- 
 tified his refusal, the confession is inadmissible.^^ 
 
 21. A seeks a divorce from his wife B, on the ground of her 
 adultery with C. The only evidence A offers in support of his 
 case is a certain confession of guilt made by B. The question 
 is, whether B's confession is admissible against the co-re- 
 spondent C, and, if not, whether the suit against B must neces- 
 sarily fail. 
 
 B's confession is admissible only against herself.^* In 
 criminal cases, owing to a technical rule of the criminal law, 
 when two persons are tried jointly for an offence which requires 
 
 23— Com. V. Howe, 75 Mass., 110. v. Clifford, 86 la., 553; Teaohout 
 
 24— R. v. Spilsbury, 7 C. and P., v. People, 41 N. Y., 7. 
 
 187. 26 — Robinson v. Robinson, 1 Sw. 
 
 25— R. V. Paul, 25 Q. B. D., 202; & Tr.. 362. 
 
 State V. Gilman. 51 Me., 209; State 
 
460 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 the joint act of both to commit, and one is acquitted, the other 
 must be acquitted also.^^ Upon principle, however, this tech- 
 nical rule is wrong.^s In civU cases it is not applied f^ and, in 
 a few states it has been repudiated in criminal cases.^" As A's 
 suit against B is a civil one, the fact of no evidence against the 
 co-respondent, C, is not a sufficient reason to cause it to fail. 
 
 22. A and B are jointly indicted for the murder of C. A 
 makes a voluntary confession in the presence of B, under such 
 circumstances that B would naturally contradict it if he does not 
 assent. The question is, whether A's confession is admissible 
 against B. 
 
 B's tacit acquiescence, under the circumstances stated, makes 
 the confession his also, and it is admissible in evidence against 
 both.3i 
 
 27 — State v. Rinehart, 106 N. C, 30— Alonzo v. State, 15 Tex. 
 
 787. App., 378. 
 
 28 — Harvard Law Review, vol. 31 — Sparf and Hansen v. United 
 
 16, p. 142. States, 156 U. S., 51. 
 
 29 — Robinson v. Robinson, svr 
 pro. 
 
HEAESAY EVIDENCE. 461 
 
 ILLUSTRATIONS ON HEARSAY EVIDENCE. 
 
 1. A, a slave woman, petitions for her freedom, on the ground 
 that the ancestor from whom she claims is free. The question is, 
 whether the deposition of B, to a fact which he had heard his 
 mother say she had frequently heard from her father, and the 
 deposition of C, that he had heard A's ancestor say that A's 
 plabe of birth and residence were at X, are admissible in 
 evidence, on A's behalf. 
 
 The depositions offered are mere hearsay and inadmissible. 
 Hearsay evidence is incompetent to establish any specific fact, 
 which is in its nature susceptible of being proved by vdtnesses 
 who speak from their own knowledge.^ 
 
 2. A is on trial for murder. He offers in evidence state- 
 ments of other persons that they killed the deceased. The 
 question is, whether such statements are admissible. 
 
 The statements offered are mere hearsay and inadmissible; 
 and, had they been made under oath, the rule would exclude 
 them.2 
 
 3. A is on trial for robbing B. The question is, whether 
 statements by B to third parties, descriptive of the person who 
 robbed him, are admissible on A's behalf, to show that he is not 
 the party thus described. 
 
 These statements are mere hearsay, and for this reason inad- 
 missible.* 
 
 4. A sues the tovm of X for damages for injuries caused 
 to her owing to a defective sidewalk. The question is, whether 
 statements relating to the question in issue, made to A at the 
 time of the accident by a party who accompanied her, are 
 admissible on A's behalf. 
 
 The statements in question are mere hearsay, and legally 
 irrelevant.* 
 
 5. In an action to determine who is the owner of certain 
 
 1— Mima Queen v. Hepburn, 11 3— People v. McCrea, 32 Cal., 98. 
 U. S., 290. 4 — Armstrong v. The Town of 
 
 2~State T. Haynes, 71 N. C, 79. Ackley, 71 la., 76. 
 
462 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 real estate, the question is, whether certain letters addressed to 
 a testator, since deceased, indicating that the writers thought 
 him sane, but which were not acted upon by him, are admis- 
 sible to prove his sanity, where such fact is material to the 
 issue. 
 
 The statements contained in the letters are mere hearsay, and 
 the letters are inadmissible. If, however, the letters had been 
 acted upon by the testator, that fact would have rendered them 
 legally relevant.^ 
 
 6. A's administrator, B, sues C, in assumpsit, for money 
 loaned by A to C. The court, against objection, allows A's 
 daughter, H, to testify that, about a week before her father's 
 death, she heard him tell her brother S' that C owed him two 
 hundred and twenty dollars for money which he had loaned 
 C. The question is, whether the court's ruling is prejudicial 
 error, judgment being rendered in A's favor. 
 
 The evidence objected to is pure hearsay, and the court's 
 ruling is prejudicial error.^ 
 
 7. A is on trial for unlawfully running a faro-bank. The 
 court, against objection, permits a witness on behalf of the 
 state to testify that he had understood "from others, that the 
 defendant" and another "were the owners of the faro-bank," 
 and that he knew its ownership only "by hearsay." A is 
 convicted. The question is, whether the court 's ruling is prejm- 
 dicial error. 
 
 The evidence in question is only hearsay, and for this reascn 
 should have been excluded. The court's ruling is prejudicidl 
 error.'^ 
 
 8. A sues B in replevin. B calls the assessor, as a witness 
 on his behalf, and the court, against objection, allows him to 
 testify that he assessed the property in issue to C. B recovers 
 a verdict. The question is, whether the court's ruling is preju- 
 dicial error. ' 
 
 Evidence that property is assessed to a certain person is not 
 
 5 — Wright V. Doe de Tatham, 7 7 — Schooler v. State, 57 Ind., 
 Adol. & Ell., 313. 127. 
 
 6 — Treadway v. Treadway, 5 111. 
 App., 478. 
 
HEABSAT EVIDENCE. 463 
 
 competent to prove his ownership thereof. The court's ruling 
 is prejudicial error.^ 
 
 9. A sues B to recover the value of certain property unlaw- 
 fully sold under an execution. To prove the value of the prop- 
 erty sold, A offers in evidence the appraisement attached to 
 the sheriff's execution. The court, against objection, allows the 
 appraisement to be read in evidence, and A recovers a judg- 
 ment for this amount. The question is, whether the court's 
 ruling is prejudicial error. 
 
 The appraisement is mere hearsay, and not competent evi- 
 dence to prove the value of the property. The court's ruling 
 is prejudicial error.^ 
 
 10. A files a bill against B to redeem. The question is, 
 whether a statement Ijy A to a third party, that she (A) had 
 made an agreement with B, after he entered to foreclose, that 
 he should occupy the premises as her tenant, is legally relevant 
 to prove (1) that the alleged agreement was made; or, (2) to 
 corroborate A's testimony; or, (3) to rebut a statement made 
 by B's counsel in his opening address, to the effect that A's 
 story of the agreement is a fabrication. 
 
 The statement was made after the alleged agreement, and 
 was not a part of it. It is, therefore, mere hearsay, and not 
 legally relevant for any of the three purposes stated.^*' 
 
 11. A seeks to probate B's will. C contests it on the ground 
 of B's mental incapacity. The question is, whether the fol- 
 lowing testimony is legally relevant: (1) Statements by one 
 of the legatees, prior to B's death, that B was crazy; (2) The 
 statement of a party, who, shortly before B's death was sent 
 for to draft his will and who declined to go, that his reason 
 for declining was that he did not consider B capable of making 
 a will; and, (3) Acts or statements of B tending rather to 
 show that he was irritable than incompetent. 
 
 All of these three classes of testimony are mere hearsay, and 
 legally irrelevant.!^ 
 
 8— Adams & Co. v. Hickox. 55 10 — Wallace v. Story, 139 Maes., 
 
 la,., 632. 115. 
 
 9 — Flar.uigan v. Althouse, 11 — In re Estate of Lefevre, 102 
 
 Wheelei a Co., 56 la., 513. Mich., 568. 
 
464 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 12. A sues B to recover possession of a quantity of liquors 
 which he had purchased from C. B had levied upon the prop- 
 erty under, and by virtue of, two attachments against C, under 
 which he justified, claiming that the sale by C to A was fraudu- 
 lent and void as to C's creditors. To show fraud on the part 
 of C, B offers in evidence, against objection, some fifteen attach- 
 ments against him, for a large amount, on the ground of frauds 
 alleged to have been committed by him, and the court admits 
 the evidence. B obtains judgment. The question is, whether 
 the court's ruling is prejudicial error. 
 
 The fifteen attachments are pure hearsay, and should have 
 been excluded. The court's ruling is prejudicial error. A 
 conclusion reached by a judicial officer upon ex parte affidavits, 
 to the effect that they contain sufficient evidence to prove an 
 indebtedness from one party to another, and the perpetration 
 of frauds on the part of the debtor in incurring it, is not 
 competent evidence in an action between third parties to estab- 
 lish either the indebtedness or the frauds.^^ 
 
 12 — Bookman v. Stegman, 105 N. Y., 621. 
 
APPARENT EXCEPTIONS TO EULE AGAINST HEARSAY. 465 
 
 ILLUSTRATIONS ON APPARENT EXCEPTIONS TO THE RULE 
 AGAINST HEARSAY. 
 
 1. A sues B for malicious prosecution. B, to show that he 
 had probable cause for prosecuting A, in the former action, and 
 to rebut malice, offers evidence that C and D communicated 
 to B, with a request that B tell B, the fact that C and D saw 
 A do the criminal act of which he was accused by B, and that 
 such information was communicated to B, before the com- 
 plaint against A was made. This evidence is objected to as 
 mere hearsay, and the court sustains the objection. The ques- 
 tion is, whether the court's ruling is prejudicial error, judg- 
 ment being entered for A. 
 
 The evidence offered by B is legally relevant ; and the court 's 
 ruling is prejudicial error. The statements by C and D to E 
 are not offered as testimonial evidence, but merely to show the 
 information upon which B acted in accusing A.^ 
 
 2. A is on trial for stealing horses. To show A's knowl- 
 edge of the brand on the horses stolen, evidence is offered by 
 the state of a statement made in A's presence, prior to the 
 larceny, concerning the matter. This evidence is objected to 
 as mere hearsay; but the court overrules the objection. A is 
 convicted. The question is, whether the court's ruling is preju- 
 dicial error. 
 
 As the statement was made in A's presence, it is admissible 
 in evidence against him, and the court's ruling is correct.^ 
 
 3. A sues the B church society for his salary as a clergy- 
 man. To prove his contract, he is permitted, against objection, 
 to put in evidence part of a sermon preached by him, at the 
 beginning of the alleged term, to the usual congregation of 
 the society, in which he spoke of their meeting "at the begin- 
 ning of a year to us of united Christian labor. ' ' The question 
 is, whether the court's ruling, judgment being entered for A, is 
 prejudicial error. 
 
 1 — Bacon v. Towne, 58 Mass., 2 — Shackelford v. State, 53 S. 
 217; Gallaway v. Burr, 32 Mich., W. R. (Tex.), 884. 
 331. 
 
466 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 The court's ruling is prejudicial error. The extract from 
 the sermon is merely a declaration of a fact in A's favor, not- 
 communicated to the defendants in their corporate capacity, 
 and made under such circumstances as not to admit' of contra- 
 diction. That the congregation heard it and did not deny it, 
 had no tendency to prove that the defendants assented to it.^ 
 
 4. A is on trial for committing an abortion on B and thereby 
 causing her death. The state proves by C, through an inter- 
 preter, that, on a certain night, C went with B to A's house; 
 that when they had entered the house, a conversation in the 
 French and English languages took place between A and B, in 
 the presence of A's wife, who acted as interpreter for them, as 
 she could converse in both French and English, while A could 
 converse only in English and B only in French. For the pur- 
 pose of showing that B went to A's house to have an abortion 
 performed on her, and that A agreed to perform the abortion, 
 the court, against objection, allows C, who understands only 
 French, to state in detail the conversation between A and B. 
 A is convicted. The question is, whether the court's ruling is 
 prejudicial error. 
 
 The court's ruling is correct. What was said in A's pres- 
 ence, and not contradicted by him, is admissible in evidence 
 against him. The fact that the conversation was carried on 
 through an interpreter may affect the weight of the evidence, 
 but not its competency* 
 
 5. A sues B in replevin to recover an omnibus, which had 
 been sold on execution to B while in the possession of C under 
 an oral agreement between him and A for the purchase of it. 
 A offers to prove by D, who was present when the agreement 
 between A and C was made, the terms of the agreement. B' 
 objects to this evidence as hearsay, as he was not present when 
 the agreement was made. The question is, whether D's evi- 
 dence is legally relevant. 
 
 D's evidence is not hearsay, but evidence of a fact. It is 
 not offered as testimonial evidence. The agreement depended 
 upon what the parties to it said, and not upon the truth or 
 
 3 — Johnson v. Trinity Churcli 4 — Com. v. Vose, 157 Mass., 393. 
 Society, 93 Mass., 123. 
 
APPARENT EXCEPTIONS TO RULE AGAINST HEARSAY. 467 
 
 falsity of what they said. They might have agreed that certain 
 things were true for the purposes of their contract, though 
 both knew at the time that they were false. D's evidence i.s 
 original evidence, and legally relevant as such.'* 
 
 6. A sues B for breach of a contract to purchase corn. To 
 prove the market value of the corn, at the time of the alleged 
 breach, evidence is offered by A, against objection, of market 
 quotations contained in a morning paper, which quotations 
 were given as the prices of the day before when the alleged 
 breach occurred. The question is, whether the evidence offered 
 is legally relevant. 
 
 This evidence, though based upon hearsay, is, in a sense, orig- 
 inal evidence, and legally relevant. Courts take judicial notice 
 of the usual manner in which commercial business is carried on ; 
 and that, in the purchase of grain or other commodities, the 
 purchaser, as a rule, is governed by the latest available quota- 
 tions.* 
 
 7. A sues B for the value of a painting which B intention- 
 ally destroyed. B defends on the ground that the painting was 
 a libel on his sister and her husband. To prove this, he offers 
 in evidence declarations of spectators, made while looking at the- 
 painting when it was on exhibition. The question is, whether 
 this evidence is legally relevant. 
 
 This evidence may well be treated as original evidence. The 
 evidentiary fact is, what was said, and not its truth or falsity. 
 It is a verbal act, and legally relevant, whether it be treated as 
 original evidence, or, as an exception to the rule against hear- 
 say.T 
 
 8. A sues the city of L, for damages for personal injuries 
 caused by a shade tree in the street falling on him. To 
 show that the city was charged with notice of the dangerous 
 condition of the tree, A offers in evidence, against objection, 
 declarations of such dangerous condition, by persons passing 
 along the street. The question is, whether such statements are 
 legally relevant. 
 
 5— Blanchard v. Child, 73 Mass., Sisson v. Cleve. & Tol. Ry. Co., 14 
 166. Mich., 489. 
 
 6— Nash V. Classen, 163 111., 409; 7— Du Bost v. Beresford, 2 
 
 Camp., 511. 
 
468 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 The answer to question 7 is applicable to this one.* 
 
 9. A sues the D Street Ry. Co. for damages for personal 
 injuries received while riding in a street-ear. The question 
 is, whether evidence of the general bad reputation of one of the 
 horses attached to the car, among the drivers and other em- 
 ployes of the company, for being unsafe and unreliable, is 
 legally relevant to show negligence on the part of the company 
 in providing such an animal, and using it after the company 
 knew, or should have known, the imfitness of the horse for such 
 work. 
 
 General reputation, though based upon hearsay, is itself a 
 fact. Evidence of the general bad reputation of the horse is 
 original evidence, and legally relevant.^ 
 
 10. A is on trial for murdering B by drowning her. In his 
 defence, A claims that B committed suicide. To prove this, he 
 offers evidence by C, that, the day before B 's death, B, who was 
 five months pregnant with child, came to C and told her that 
 she was going to drown herself. This evidence is objected to, 
 and the court excludes it. A is convicted. The question is, 
 whether the court's ruling is prejudicial error. 
 
 The court's ruling is prejudicial error. B's state of mind and 
 intention, at the time she made the statement, are evidentiary 
 facts material to the fact in issue; and her statement, when 
 introduced in evidence solely to show such state of mind and 
 intentj^on, is legally relevant. Such statement is a verbal act, 
 constituting original circumstantial evidence, from which such 
 state of mind or intention may be inferred in the same manner 
 as from her appearance, or general behavior, at that time.i" 
 
 11. A sues the M Life Ins. Co. to recover the amount of the 
 policy on B's life. The company defends on the ground that 
 B is not dead, and claims that the body found at a certain 
 place, and which A alleges is B 's, is not B 's but C 's. To show 
 that the body is C's, the defendants offer in evidence, against 
 objection, two letters written by C at W, about two weeks before 
 
 8— Chase v. Lowell, 151 Mass., 10 — Com. v. Trefethen, 157 
 
 422. Mass., 180. 
 
 9 — Wormsdorf v. Detroit Ry. 
 Co., 75 Mich., 472. 
 
APPARENT EXCEPTIONS TO RULE AGAINST HEARSAY. 469 
 
 the body was found at L, containing statements of C 's intention 
 to go, within a few days, with B, from W to L. The decision 
 of the case hinges upon the answer to the question, whose body 
 was found at L, B 's or C 's. The court excludes the letters, and 
 A recovers a verdict. The question is, whether the court's 
 ruling is prejudicial error. 
 
 The court's ruling is prejudicial error. C's intention, at the 
 time the letters were written by him, is a material evidentiary 
 fact; and whenever a person's intention is of itself a material 
 fact in a chain of circumstances legally relevant to the fact in 
 issue, contemporaneous oral or written declarations of the party 
 are admissible to prove such intention.*^ 
 
 12. A, and her paramour B, are on trial for the murder of 
 A's husband. In their defence, they claim that the deceased 
 committed suicide. To prove this, they ofiEer in evidence, against 
 objection, declarations by A's husband, made at different times 
 within a year prior to his death, and prior to his last sickness, 
 that he intended to take his own life. The question is, whether 
 such declarations are legally relevant. 
 
 According to the rule which obtains in Illinois, the declara- 
 tions are not legally relevant. This rule requires that the decla- 
 rations, to be admissible, must be contemporaneous with the act 
 done. According to the better view, however, such declarations 
 are legally relevant though not contemporaneous with the act 
 done, provided they are contemporaneous with the intention, 
 and the intention is a material evidentiary fact.'^ 
 
 13. A seeks to probate B 's will. C contests it on the ground 
 of B 's mental incapacity when the will was made ; and, to prove 
 it, he offers in evidence, against objection, certain declarations 
 made by B after the will was executed. The question is, whether 
 the declarations offered are legally relevant. 
 
 Assuming that B 's state of mind, at the time the declarations 
 were made, is a fact not too remote to the fact in issue to be 
 
 11— Mutual Life Ins. Co. v. Hill- 12— Siebert v. The People, 143 
 mon, 145 U. S., 285; contra, Sle- 111., 571; Chic. Ry. Co. v. Chan- 
 bert V. The People, 143 111., 571; cellor, 165 111., 438; contra, Com. 
 Chic Ry. Co. r. Chancellor, 185 v. Trefethen, 157 Mass., 180; Mu- 
 ll!., 438. tual Life Ins. Co. v. Hllimon, 145 
 
 V. 3.. 285. 
 
470 LEADING PEINCIPLES AND RULES OF EXCLUSION. 
 
 legally relevant, the contemporaneous declarations by B are also 
 legally relevant.^^ 
 
 14. A is on trial for the murder of his wife's father. His 
 plea is insanity. His wife, in testifying on his behalf, offers 
 evidence, against objection, that, a few days before the homi- 
 cide was committed, she told A that her father had stolen his 
 potatoes; and that, upon several occasions before her marriage, 
 her father had criminally assaulted and forced her against her 
 will ; and that, since her marriage, and within a very short time, 
 he had come to their house, in A's absence, and similarly 
 assaulted her, and threatened to kill her if she told anyone. 
 A's counsel explains that the purpose of the evidence is not to 
 prove the truth of the statements, but to show that it operated 
 upon A's mind to such an extent as to render him insane when 
 the homicide was committed, as he would show that A believed 
 it. The court excludes this evidence, and A is convicted. The 
 question is, whether the court's ruling is prejudicial error. 
 
 The court's ruling is prejudicial error. The question in issue 
 is A's sanity at the time the homicide was committed. The pur- 
 pose of the evidence offered is to show that the information 
 furnished to A by his wife so operated upon his mind as to 
 render him insane when the act was committed. For this pur- 
 pose, the evidence is material to the fact in issue, and therefore, 
 is legally relevant.^* 
 
 13 — Waterman v. Whitney, 11 Mass., 87; Burns v. Mill, 121 N. 
 N. Y., 157; Herster v. Herster, 122 C, 336. 
 
 Pa. St., 239; Lane v. Moore, 151 14— People v. Wood, 126 N. Y., 
 
 249. 
 
EEPOKTED TESTIMONY — DECLARATIONS. 471 
 
 ILLUSTRATIONS ON REPORTED TESTIMONY, AND OTHER 
 DECLARATIONS UNDER OATH. 
 
 1. A sues B in ejectment. A claims as C's heir-at-law, and 
 B claims under C's will. B, who desires to put C's will in evi- 
 dence, seeks to establish its due execution by means of evidence 
 given at a former trial by W, one of the subscribing witnesses 
 to the will, and who is now dead. The former trial was between 
 the same parties, and related to the same subject matter. A 
 objects to this testimony, on the ground that one of the subscrib- 
 ing witnesses to the will is living, and within the jurisdiction of 
 the court. The question is, whether the testimony given by D, 
 at the former trial, is admissible. 
 
 Since the parties to the two trials, and the subject matter of 
 each, are the same, D's testimony given at the former trial is 
 admissible .1 
 
 2. A sues B in ejectment. A seeks to introduce in evidence 
 the testimony of M, given by him in a former action, in which 
 A's son sued B's father, concerning the same subject matter. M 
 is now dead. In the former action, A's son believed his father 
 dead, and claimed as his heir. B's father is now dead, and, in 
 this action, B claims as his father's heir. The question is, 
 whether the testimony given by M, at the former trial, is ad- 
 missible. 
 
 M's testimony, at the former trial, is inadmissible. The 
 plaintiffs in the two actions are related by blood, but there is no 
 privity of interest between them as regards the subject matter 
 of the actions, since A did not derive his title to it from his son.^ 
 
 3. A sues B in assumpsit on a verbal agreement. At a for- 
 mer trial, between the same parties, and concerning the same 
 subject matter, C testified in the case. He is now called by B 
 to testify, but states that he has no recollection of the matter he 
 testified to at the former trial, but knows that whatever he stated 
 at that time was certainly true. The question is, whether the 
 testimony given by C at the former trial is admissible. 
 
 1— Wright V. Doe de Tatham, 1 2— Morgaij v. Niq&oU, L.. B., 2 
 Adol. & Ell., 3-19. g. P., 117, 
 
472 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 The testimony given by C at the former trial is inadmissible. 
 Mere loss of memory is not sufficient to render it admissible.^ 
 The testimony may, however, be used by C to refresh his mem- 
 ory.* 
 
 4. A sues B for damages for raising the height of a certain 
 dam, as a result of which A's land was overflowed. A derived 
 his title from C, and B derived his title from D. B seeks to 
 introduce in evidence testimony given by S at a. former trial 
 between C and D, concerning the same subject, matter. S is 
 now dead. The question is, whether S's testimony is admis- 
 sible. 
 
 S's testimony is admissible. The parties to the two actions 
 are substantially the same.^ 
 
 5. A, against whom criminal proceedings were instituted for 
 perjury, alleged to have been committed by him in a case to 
 which he was a party, and which was tried before a justice of 
 the peace, sues B for malicious prosecution. The justice of the 
 peace is called as a witness for A, and testifies that he cannot 
 recollect all of A 's testimony, but has a memorandum of it, taken 
 when the evidence was given, and that the statements contained 
 therein are corrct. The question is, whether the memorandum 
 is admissible. 
 
 The memorandum is legally relevant. It is a record of past 
 recollection which is verified by the witness under oath.® 
 
 6. A sues B on a promissory note. The question is, whether 
 the court stenographer's minutes, properly verified, of the testi- 
 mony given upon a former trial, between the same parties and 
 relating to the same subject matter, by a witness who has since 
 left the state, are legally relevant. 
 
 According to the modern rule, in many of the states, includ- 
 ing Michigan, such evidence is held to be legally relevant. As 
 such evidence constitutes a record of past recollection, when its 
 
 3— Drayton v. Wells, 1 N. & Mc. Mich., 81; Ruch v. Rock Island, 
 
 (S. C), 409; Reed v. Orton, 105 97 U. S., 693. 
 
 Pa. St., 294-299; Robinson v. Gil- 5— Yale. v. Comstock, 112 Mass., 
 
 man, 43 N. H., 295. 267. 
 
 4 — Rothrock v. Gallaher, 91 Pa. 6— Spalding y, Lowe, 56 Mich., 
 
 St., 108; Stone v. Ins. Co., 71 366. 
 
REPORTED TESTIMONY — DECLARATIONS. 473 
 
 truth is sworn to by the stenographer, upon principle it should 
 be held admissibleJ 
 
 7. A sues the B Ry. Co. for damages for injuries received 
 by her owing to the defendant's negligence. The ease was tried 
 previously in a justice of the peace court. A, who is now a 
 witness in her own behalf, and who heard C 's evidence upon the 
 former trial, is asked by her counsel to state the substance of 
 C 's evidence upon that occasion. C is now dead. A replies that 
 she can give the substance of part of it, but not of the whole of 
 it. The question is, whether A should be allowed to give the 
 substance of only a part of C's evidence. 
 
 A witness who is called to give the testimony of a witness upon 
 a former trial must be able to state the substance of the whole 
 of such testimony, in so far as it is material to the present ques- 
 tion in issue.* In a few states, including Massachusetts, the sub- 
 stance of the language is essential.* 
 
 8. A is on trial for incest, in having improper relations with 
 his daughter B. At a former trial B testified against A. There 
 is evidence which tends to show that B has been taken out of the 
 state by A to deprive the prosecution of her testimony. The 
 question is, whether B's testimony, given by her at the former 
 trial, is now admisible. ^ 
 
 When a witness is kept away by the connivance of the adverse 
 party, the testimony of such witness, given at a former trial, 
 between the same parties and relating to the same subject mat- 
 ter is, according to the general rule, legally relevant.'® In a few 
 cases, however, such evidence has been improperly excluded.^' 
 
 9. A sues B to recover the price of two oxen. In a former 
 trial between the same parties, concerning the same transaction, 
 A testified in German, and his evidence was interpreted to the 
 jury by C, who is living and within the jurisdiction of the court. 
 D, who was present at the former trial, and heard A's evidence 
 interpreted to the jury in English, but who does not understand 
 
 7— Stewart v. First Nat. Bank, 434; Wilbur v. Selwin, 6 Cowen, 
 43 Mich., 257. 162. 
 
 8— Fell V. The B. C. R. & M. Ry. 10— Cook v. Stout, 47 111., 530; 
 Co., 43 la., 177. Howard v. Patrick, 38 Mich., 795; 
 
 9 — Com. V. Richards, 35 Mass., Radcliffe v. Barton, 161 Mass., 327. 
 
 11— Bergen v. People, 17 111., 426. 
 
474 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 German, is now called upon to testify to A's evidence given at 
 the former trial. The question is, whether such evidence is 
 legally relevant. 
 
 The evidence offered is inadmissible. The interpreter at the 
 former trial was not A's agent, but a witness appointed by the 
 court. Testimony given by an interpreter, on a former trial, 
 cannot be given by one who heard the evidence, unless the in- 
 terpreter is dead, or insane, or out of the jurisdiction of the 
 court, or sick and unable to testify, or, having been summoned, 
 is kept away by the adverse party .^^ 
 
 10. A is on trial for murder. The prosecution offers in evi- 
 dence, against objection, the substance of the testimony given 
 by B against A, in a former action against him for the same of- 
 fence. B is now dead. The court allows the evidence, and A is 
 convicted. The question is, whether the court's ruling is prejudi- 
 cial error. 
 
 The court's ruling is correct. Upon principle the same rules 
 should govern, as regards the admissibilty of this class of evi- 
 dence, in both criminal and civil cases.^* The substance of the 
 
 12 — Schearer v. Harter, 36 Ind., with greater caution, particularly 
 
 636. in regard to the degree or quan- 
 
 "There is no difference as to tity of the evidence necessary to 
 the rules of evidence between a conviction. But whatever indul- 
 crlminal and civil cases. What gence the humanity and tender- 
 may he received in one case may ness of judges may have allowed 
 be received in the other; and in practice in favor of life or lib- 
 what is rejected in the one ought erty, it appears to he well settled 
 to be rejected in the other. A fact that the rules of evidence in civil 
 must be established by the same and in criminal cases are the 
 evidence, whether it is to be fol- same." Hartley, C. J., in Sum- 
 lowed by a criminal or civil con- mons v. State, 5 Ohio St., 325, 
 sequence." Russell on Crimes, vol. 352. (The opinion by Hartley, C. 
 2, page 725. "An opinion appears J., in this case, is a most excel- 
 prevalent with a part of the legal lent exposition of the law upon 
 profession in this country that this branch of evidence.) To the 
 in criminal prosecutions greater same effect are the following: 1 
 strictness of proof is required, Greenleaf on Bvid., sec. 65; Ros- 
 and nicer and closer exceptions coe's Grim. Bvid., 1; Rex. v. Wat- 
 allowed, than in civil cases. It is son, 3 Eng. C. L., 291; Murphy's 
 very true, that in criminal cases, Case, 34 Eng. C. L., 402; United 
 and especially those involving the States v. Britton, 2 Mason, 464, 
 life of the accused, courts proceed 468. 
 
EEPOETED TESTIMONY — DECLAEATIONS. 475 
 
 testimony given at the former trial is sufficient in either case.** 
 The admissibility of such evidence does not violate a provision 
 of the constitution which requires that "In any trial, in any 
 court, the party accused shall be allowed to meet the witnesses 
 face to face." This constitutional guaranty of a fundamental 
 principle well established and long recognized at common law, 
 has reference to the personal presence of the witnesses called to 
 testify, and not the quality or competency of the evidence 
 given.15 
 
 11. A is on trial for larceny. The prosecution, against ob- 
 jection, seeks to prove by B, who was present at A's preliminary 
 examination, the substance of A's testimony given at that exam- 
 ination against A. H is now dead. The question is. whether the 
 testimony offered is legally relevant. 
 
 The testimony offered is legally relevant. As regards the ad- 
 missibility of this class of evidence, no substantial reason exists 
 for making any distinction between criminal and civil cases.*^ 
 
 12. A is on trial for larceny. The prosecution offers in evi- 
 dence, against objection, the testimony of B, since deceased, as 
 taken down by the ofBcial stenographer at a formed trial. The 
 stenographer testifies that the minutes objected to are substan- 
 tially correct, and contain the whole of B's testimony given at 
 the former trial. The question is, whether the stenographer's 
 notes are legally relevant. 
 
 The notes in question are legally rehivant. They are verified 
 by the one who took them, and are adopted as a record of past 
 recollection.'^ 
 
 13. A sues B for the purchase price of certain logs that were 
 burned. The only important question in issue is, whether the 
 title had passed or not. At a former trial, between the same par- 
 ties, and relating to the same transaction, C testified on B 's be- 
 
 14— state V. Able, 65 Mo., 357; 16— The United States v. Ma- 
 Cornell V. Green, 10 Serg. & Rawle comb, 5 McLean (U. S. C. C), 286; 
 (Pa.), 14; Summons v. State, 5 Ruch v. Rock Island, 97 U. S., 693. 
 Ohio St., 325. 17— Jackson v. State, 81 Wis.. 
 
 15— Com. V. Richards, 18 Pick., 127. 
 434; Summons v. State, 5 Ohio 
 St., 325. 
 
476 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 half. The question is, whether, (1) The testimony given by C 
 on the former trial, as contained in the record used in the Su- 
 preme Court, is admissible as impeaching evidence; (2) The min- 
 utes of the court stenographer constitute original evidence, the 
 stenographer being absent, and the jninutes not having been ver- 
 ified. 
 
 The testimony of C, as contained in the record used in the 
 Supreme Court, is not admissible as impeaching evidence. But 
 the evidence, as printed in the record, may be read to C in his 
 cross-examination, and then he may be asked if he did not so 
 testify at the former trial. 
 
 As the minutes of the stenographer are not verified and 
 adopted as a recod of past recollection, they are not original 
 evidence, but mere hearsay ; and, unless made admissible by stat- 
 ute, or rule of court, have no more force than minutes taken by 
 any other person during the progress of the trial.^* 
 
 14. A- sues B on a contract. The question is, whether the 
 testimony given at a former trial of the case, nine years before, 
 by a witness since deceased, may be given by C, who was present 
 at the former trial, and took notes of all the former testimony 
 that was material, and who, upon refreshing his recollection from 
 the notes, can give the substance of the words of the former testi- 
 mony. 
 
 The evidence offered by C, of the substance of the words of 
 the former testimony, is admissible, even in Masachusetts, where 
 the rule, as regards the admissibility of this class of evidence, is 
 more rigid than the general rule, in this country.*^ 
 
 15. A sues B in assumpsit. The statute provides that the 
 death of an adverse party renders the surviving party incom- 
 petent as a witness against the representative of the deceased 
 party. The question is, whether testimony given at a former 
 trial of the case, by the survivor, in the lifetime of the deceased, 
 is legally relevant. 
 
 This question is a peculiar one. The testimony given at the 
 former trial is admissible, however, as it does not come within 
 the purview of the statute.''* 
 
 18 — Toohey v. Plummer, 69 20 — Walbrldge v. Knipper, 96 
 
 Mich., 345. Pa. St., 48. 
 
 19 — Costigan v. Lunt, 127 Mass., 
 354. 
 
REPORTED TESTIMONY — ^DECLARATIONS. 477 
 
 16. A sues B in assumpsit. The question is, whether testi- 
 mony given at a former trial of the case, by a witness whose in- 
 firmity by reason of old age, renders it difficult for him to be 
 present, is legally relevant. 
 
 This is a matter which rests in the sound discretion of the 
 court. Such testimony has been held legally relevant.** 
 
 17. A sues the B Ey. Co. to recover damages for the killing of 
 A's intestate by reason of alleged negligence on the part of the 
 defendant. The question is, whether the deposition of a witness 
 taken before the coroner, upon an inquest upon the body of the 
 deceased, the witness being dead, is legally relevant. 
 
 According to the English rule, which is based upon an Act of 
 Parliament,^* the deposition is admissible. According to the 
 general rule ia this country, it is not. In Illinois, such evidence 
 is excluded.*^ In Alabama, if the evidence was reduced to writ- 
 ing, and the witness is since deceased, it is held admissible.^^ 
 The admissibility of such evidence seems to rest wholly upon 
 statutory enaetment.^'^ The inquest is not a judicial proceed- 
 ing between the same parties, and, upon principle, such evidence, 
 it seems, should be excluded, unless the party against whom it is 
 given has a full opportunity to cross-examine the witness.^^ 
 
 18. A sues B for damages for assault and battery. B, against 
 objection, offers in evidence testimony given on his behalf, in a 
 criminal proceeding in a justice's court, concerning the same 
 offence, by a witness since deceased. The court excludes the 
 testimony, and A recovers a verdict. The question is, whether 
 the court's ruling is prejudicial error. 
 
 Where, by statute, the complainant, in a criminal prosecution 
 in a justice's court for assault and battery, has control of the 
 prosecution, and may examine all witnesses at the trial, in a 
 subsequent civil action by such complainant to recover damages 
 for the same assault and battery, evidence given at the former 
 trial on behalf of the defendant, by a witness since deceased, is 
 admissible, provided the complainant, at the former trial, had 
 
 23— Thornton v. Britton, 144 Pa. 26— Durpree v. State, 33 Ala., 
 
 St., 126 (22 Atl. Rep., 1048). 380 (73 Am. Dec, 422). 
 
 24— Sills V. Brown, 9 C. & P., 27—2 Starkle Evid., 490, Marg. 
 
 601; 7 Geo. IV., ch. 64, sec. 4. 28— Charlesworth v. Tinker, 18 
 
 25— P. C. & St. L. Ry. Co. v. Mc- Wis., 633 (star page); Gavan v. 
 
 Grath, 115 111., 172. Ellsworth, 45 Ga., 283. 
 
478 LEADING PRINCIPLES AND EULES OF EXCLUSION. 
 
 full opportunity to cross-examine sucli witness. Assummg ttat 
 such a statute was in force, the ruling of the trial court is preju- 
 dical error.29 
 
 19. A is on trial, in the Superior Court, for unlawfully keep- 
 ing for sale intoxicating liquors. Evidence given at a former 
 trial of the case, in the lower court, by a witness who is now too 
 ill to attend court, is offered, against objection. The question is, 
 whether such evidence is legally relevant. 
 
 Upon this question, courts do not agree. Some diserimiaate 
 between criminal and civil cases. Some reject such evidence in 
 both classes of cases. Again, some discriminate between the dis- 
 ability of death, and other classes of disabilities. When the two 
 important essentials, — sanction of an oath, and full opportunity 
 to cross-examine the witness, — are present, such evidence, upon 
 principle, should be held admissible, irrespective of the nature 
 of the action, or the nature of the disability.** But, according 
 
 29 — Charlesworth v. Tinker, 18 
 Wis., 633 (star page). 
 
 30 — "The general principle, 
 therefore, should be that in all 
 cases where the party has with- 
 out his own fault or concurrence 
 Irrevocably lost the power of pro- 
 ducing the witness again, he 
 should be dispensed from doing so. 
 If there is at hand his testimony 
 already subjected to cross-examina- 
 tion; and this general notion un- 
 derlies all the cases of dispensa- 
 tion. But it Is not rationally and 
 consistently applied." 1 Greenl. 
 on Evid. (16th ed.), p. 283. 
 
 "Although the sickness of a wit- 
 ness Is generally only ground for 
 the postponement of the trial, the 
 sickness may he of such a charac- 
 ter as to amount to a permanent 
 disability to testify; and in such 
 a case it would be within the rea- 
 son of the rule to admit the testi- 
 mony given on the former trial, 
 and this has been recognized as an 
 exception by the English statutes. 
 
 In criminal cases a stricter rule 
 obtains on this subject than in 
 civil actions. It has been held in 
 a few instances that such testi- 
 mony can not be given in crim- 
 inal cases, even although the wit- 
 ness is dead." The Law of Evid. 
 by Burr W. Jones. 
 
 In support of the last sentence. 
 Professor Jones cites but one case, 
 Finn v. Com., 5 Rand (Va.), 701. 
 In that case, however, the testi- 
 mony offered was not that of a wit- 
 ness since deceased, but of one ad- 
 mitted to be living, but who had 
 removed from the state. More- 
 over, the ruling in that case, in 
 rejecting the evidence given at the 
 former trial, was based upon a 
 statement in Pealt's Evidence, p. 
 60, which rests solely upon the 
 authority of Sir John Fenwick's 
 case, 5 Harg. St. Trials, 62, which 
 was a proceeding in Parliament by 
 bill of attainder on a charge of 
 high treason; in which proceed- 
 ing the evidence offered and re- 
 
EEPOETED TESTIMONY— DECLARATIONS. 
 
 479 
 
 to the Supreme Court of Massachusetts, testimony given at a 
 former trial, by a witness who is too ill to attend the subsequent 
 trial, is, by the weight of authority, inadmissible in criminal 
 cases.'i 
 
 jected was not that of a witness 
 since deceased, nor was it evi- 
 dence given at a former trial be- 
 tween the same parties, where the 
 adverse party had been given an 
 opportunity for cross-examination. 
 The evidence rejected in that case 
 was evidence given by a material 
 witness whom Lady Fenwiclt had 
 spirited away, and who had testi- 
 
 fied, not In a proceeding against 
 Fenwick, but in a proceeding 
 against one Cook for the same 
 treason. 
 
 See the admirable opinion of the 
 court, by Chief Justice Bartley, in 
 Summons v. The State, 5 Ohio St., 
 325 (pp. 343, 344). 
 
 31 — Com. V. McKenna, 158 Mass., 
 207. 
 
480 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 ILLUSTRATIONS ON DYING DECLARATIONS. 
 
 1. A is on trial for perjury. The question is, whether the 
 dying declarations of B, which tend to establish the perjury iu 
 issue, are admissible in evidence against A. 
 
 The dying declarations of B are inadmissible. Such declar- 
 ations are admissible in evidence only in homicide cases; and 
 then, only when the death of the declarant is the subject of the 
 charge, and its cause and attendant circumstances the subject of 
 the dying declaration.^ 
 
 2. A, the next of kin and personal representative of his de- 
 ceased son B, sues the C. Ey. Co. for damages for negligently 
 causing B 's death. The question is, whether B 's dying declara- 
 tions, relating to the cause of his death and the attendant cir- 
 cumstances, are admissible in evidence against the Ry. Co. 
 
 B 's dying declarations are inadmissible. Notwithstanding the 
 fact that they relate to the cause of his death and the attendant 
 circumstances, the action against the Ry. Co. is a civil one for 
 damages, and not a criminal prosecution for B 's homicide.^ 
 
 3. B is on trial for the murder of A. In reply to the ques- 
 tion, "What reason, if any, had the man for shooting you?" A, 
 while in extremis, with all hope of recovery gone, said: "Not 
 any that I know of, he said that he would shoot my damned 
 heart out." The question is, whether A's dying declaration is 
 admissible against B. 
 
 Dying declarations, to be admissible in evidence, must be 
 statements of facts, and not of opinions. In this case, however, 
 A's dying declaration is the statement of a fact, and therefore 
 admissible.^ 
 
 4. B is on trial for the murder of A. The question is, whether 
 A's dying declaration, in substance that A struck B and B was 
 not to blame, is admissible against B. 
 
 A's dying declaration is inadmissible. It "affords no evi- 
 l—King V. Mead, 2 B. & C, 605 2— Marshall v. Chicago, etc., Ry. 
 
 (1824); North v. People, 139 111., Co., 48 111., 479. 
 
 82; Simons v. People, 150 111.. 66; 3— Boyle v. The State, 105 Ind., 
 
 Mattox V. United States, 146 U. S., 469. 
 
 151. 
 
DYING DECLAKAtlONS. 481 
 
 dence of anything more than a truly christian spirit on the part 
 of one who had been unjustly done to death, and who in his dy- 
 ing agonies, was willing to forgive the malefactor. ' '* 
 
 5. B is on trial for the murder of A. The question is, whether 
 . A's dying declaration, "I believed he (the defendant) was going 
 
 after his pistol when he went into the house. I had seen him 
 at the house with a pistol before ' ', is admissible against B. 
 
 A's dying declaration is inadmissible. It does not relate to 
 the act of A's homicide, or to the attendant circumstances which 
 form part of the res gestae, but to previous events. Then again, 
 the former of the two statements is an expression of mere opin- 
 ion, and not the expression of a fact.'" 
 
 6. B is on trial for the murder of A. The court instructs the 
 jury that, "the dying declarations of deceased, given in evi- 
 dence on the part of the state, are to be received and considered 
 by the jury with the same degree of credit as if testified to under 
 oath on examination in this trial. " B is convicted of murder in 
 the second degree, and sentenced to imprisonment, in the peni- 
 tentiary for ten years. The question is, whether the court's in- 
 struction is prejudicial error. 
 
 The court's instruction is incorrect, and is prejudicial error.* 
 
 7. B is on trial for the murder of A. A's dying declarations, 
 imputing to B the commission of the crime, are admitted in evi- 
 dence. The court instructs the jury that dying declarations are 
 "worthy of more credence under such circumstances than if 
 made under the sanctity of an oath duly administered, accord- 
 ing to law." B is convicted. The question is, whether the 
 court's instruction is prejudicial error. 
 
 The court's instruction is clearly erroneous, and prejudicial 
 error.'^ 
 
 8. B is on trial for the murder of A. A's dying declara- 
 tions, imputing to B the commission of the crime, are admitted 
 in evidence. B is convicted. A's wound, at the time he made 
 
 4— Moeck V. The People, 100 6 — The State v. Mathes, 90 Mo., 
 
 111., 242; Adams v. The People, 47 571; People v. Kraft, 148 N. Y., 
 
 111., ^76. 631. 
 
 5— The State v. Vansant, 80 Mo., 7— Walker v. State, 37 Tex.. 368. 
 67. 
 
482 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 the declarations, was a very dangerous one, but not necessarily 
 fatal. His physician had previously stated, in his hearing, that 
 "the chances were against him," and that "his wound was 
 very dangerous"; but A gave no outward manifestation that he 
 had abandoned all hope of recovery. The physician testifies, 
 that he believes that A, at the time he made the declarations, 
 had given up all hope of recovery. The question is, whether the 
 court errs in admitting in evidence A's declarations. 
 
 The court, in admitting A's declarations, commits prejudicial 
 error. The fact that the deceased had given up all hope of 
 recovery, must be determined from facts proved, and not by the 
 mere opinions of witnesses. No weight can be given to the 
 testimony of a witness giving it as his opinion that a wounded 
 person, at the time of making a statement of the facts of the 
 case, believed he was about to die, without giving any facts 
 upon which such opinion is based. The fact, that the deceased 
 had given up all hope of recovery, may be proved by statements 
 made by him, or acts performed; or, it may be inferred from 
 statements made to him by medical or other attendants, or from 
 the manifestly dangerous condition of the party. It must, how- 
 ever, by some mode of proof, affirmatively appear that all hope 
 of recovery had been abandoned.* 
 
 9. B is on trial for the murder of A. The question is, (1) 
 whether the preliminary facts which form the basis of admis- 
 sibility of A's dying declarations should be stated to the court 
 in the presence of the jury; and, (2) whether, assuming that 
 the declaration is admissible, the substance of it may be given 
 if the exact language cannot. 
 
 The preliminary facts should, in the first instance, be given iq 
 the absence of the jury. If the declaration be held admissible, 
 the whole evidence, including the preliminary facts pertaining 
 to the declarant's condition and frame of mind when he made 
 the declaration, should be given in the presence of the jury, in 
 order that they may intelligently pass upon its credibility and' 
 weight. 
 
 If the witness is unable to give the exact language of the 
 dying declaration, he may give the substance. "A conscientious 
 witness will rarely undertake, under oath, to give the exact 
 
 8_Westbrook v. The People, 126 111., 81. » 
 
DYING DECLARATIONS. 48^ 
 
 words of another, spoken at another time, and on a different 
 and remote occasion. The substance of the words, if the exact 
 words cannot be given, is all the law requires."* 
 
 10. B is on trial for the murder of A. The state offers in 
 evidence A's dying declarations. The court, against objection, 
 permits the preliminary evidence, in regard to the admissibility 
 of the dying declarations, to be given in the presence of the 
 jury. The dying declarations are admitted in evidence against 
 B, and he is convicted. The question is, whether the court com- 
 mitted prejudicial error in permitting the preliminary evidence 
 to be given in the presence of the jury. 
 
 Since the dying declarations are admitted, the court's ruling 
 is not prejudicial error. If, however, the dying declarations are 
 excluded, then the jury might be improperly affected by the 
 preliminary evidence; and to avoid the possibility of this, it is 
 held that the jury should always be withdrawn before the pre- 
 liminary evidence is introdueed.^^ 
 
 11. B is on trial for murdering A by administering to her a 
 capsule containing strychnine. About twenty-five minutes be- 
 fore A's death, she stated to her sister that B, to whom she was 
 engaged to be married, had given her a capsule to bring back 
 her monthly courses. She also said to her sister, "I gave way 
 to him." Before making these statements, she threw up her 
 arms and said to one of her sisters, ' ' Don 't leave me any more, ' ' 
 and, at the same time, as the witness expressed it, "grasped 
 around me." She also stated to her two sisters, in speaking 
 about the capsule, "I believe it will kill me." A died in con- 
 vulsions a few hours after taking the capsule. The question is, 
 whether A's statements are admissible against B as dying decla- 
 rations. 
 
 A's statements are admissible. Her declarations and acts 
 show clearly that she fully realized and believed that her death 
 was inevitable and near at hand; and the statements in ques- 
 tion pertain to the cause of her death and the attendant cir- 
 cumstances.il 
 
 9— Starkey v. The People, 17 III., 81; Starkey v. The People, 17 
 
 III., 16; Montgomery v. The State, 111., 23. 
 
 11 Ohio, 424. 11— Simons v. The People, 150 
 
 10— North V. The People, 139 111., 66. 
 
484 LEADING PRINCIPLE^ AND RULES OF EXCLUSION. 
 
 12. B is on trial for the murder of A, by administering to 
 her, repeatedly, large doses of calomel, with intent to produce 
 a criminal abortion, as a result of which A died. Oral dying 
 declarations of A are offered in evidence by the state against 
 B, and objected to on the ground that these oral declarations 
 were repeated by A at different times, and, upon one of these 
 occasions the declarations were reduced to writing, and there- 
 fore the written declarations are the best evidence. The court 
 overrules the objection, and B is convicted. The question is, 
 whether the court's ruling is prejudicial error; and also, 
 whether the people are restricted to proof of declarations made 
 upon one occasion only. 
 
 The court's ruling, in admitting the oral dying declarations 
 of A, is not prejudicial error. When dying declarations are 
 reduced to writing, and signed by the declarant, the writing 
 is the best evidence of the statement made at that time, and 
 must be produced, or its absence accounted for; but the fact 
 that a dying declaration has been reduced to writing will not 
 preclude evidence of unwritten dying declarations made upon 
 other occasions; and such declarations may be proven as made 
 from time to time.^^ 
 
 13. D is indicted for murdering his grandfather, A, his 
 uncle, B, and a third person, D, by giving them whiskey in 
 which he had put strychnine, and which they all drank at the 
 same time, and died from its effects. He is put upon trial for 
 the murder of his grandfather, A; and the question is, whether 
 the dying declarations of his uncle, B, against objection, are 
 admissible in evidence against him. 
 
 Since the three murders grew out of the same act, or transac- 
 tion, B's dying declarations, according to the better view, and 
 which has been recognized both in England and in this coun- 
 try, are admissible in evidence against D, when upon his trial 
 for the murder of A. The decisions, however, upon this ques- 
 tion, are in conflict; and perhaps the weight of authority, in 
 this country, is to the contrary .^^ 
 
 12— Dunn v. The People, 172 111., 13— The State v. Terrell, 12 Rich- 
 
 582 (1898); Bishop on Crim. ardson (S. C), 321; Same case, 
 
 Prac, § 1213; Wharton on Crim. 13 Am. Rep., hot. p. 745; Rex v. 
 
 Bvid., § 295; McClain on Crim. Baker, 2 Mood. & Roh., 53; same 
 
 Law, § 429. case, Thayer's Cases on Evid., 365; 
 
DTING DECLAEATIONS. 485 
 
 14. B is on trial for the murder of A. A was found dead 
 three hundred yards from his house. On the same morning, 
 his wife was found lying across her bed in the house, uncon- 
 scious, and with her face and head terribly beaten and dis- 
 figured, of which wounds she died shortly afterward. The house 
 had the appearance of having been robbed, and there is no 
 doubt that robbery led to the murder, of both A and his wife. 
 After recovering consciousness, A's wife made dying declara- 
 tions charging B with committing the crimes. The court, 
 against objection, admits these dying declarations in evidence, 
 and B is convicted. The question is, whether the court's ruling, 
 in admitting the declarations, is prejudicial error. 
 
 The court's ruling is prejudicial error. The fact that A's 
 body was found three hundred yards from the house, while his 
 wife was discovered terribly mutilated in the house, tends to 
 show that the two murders were different transactions; and 
 therefore, the dying declarations of A's wife are inadmissible 
 against B, when upon his trial for the murder of A.i* 
 
 15. B and C were arrested and indicted for the murder of 
 A. Before their case was called for trial, B was taken from the 
 jail and hanged by a mob. Just before the hanging, he made 
 a confession, which implicated himself as A's murderer and 
 completely exonerated C. C is now upon trial for the murder 
 of A, and the question is, whether B's confession is admissible 
 in evidence in C's behalf, either as a confession, or as a dying 
 declaration. 
 
 B's declaration is inadmissible. As a confession it is inad- 
 missible because it was not made by the person who is being 
 tried. As a dying declaration it is inadmissible because it was 
 not made by the person whose homicide is the subject of the 
 charge against C.^^ 
 
 16. B and C are on trial for the murder of A. To prove 
 
 State V. Wilson, 23 La. Ann., 559. Am. Rep., 90; State v. Fltzhugh, 
 
 Contrary: State v. Westfall, 49 2 Oregon, 233. 
 
 la., 328; Krebs v. State, 3 Tex., 14 — Brown v. Com., 73 Penn. St., 
 
 App., 348; State v. Bohan, 15 321; same case, 13 Am. Rep., 740. 
 
 Kan., 407; Poteete v. State, 9 15— Mitchell v. Com., 12 Ky. L. 
 
 Baxt. (Tenn.), 270; same case, 40 Rep., 458; same case, 14 S. W. 
 
 Rep., 489. 
 
486 LEADING PRINCIPLES AND RULES OF EXCLXISION. 
 
 the identity of B and C, as the murderers of A, the state offers 
 in evidence, against objection, the following dying declaration 
 of A: "I am satisfied that the Roddy boys (the defendants), 
 brought to my house by the ofScers, are the same men that 
 robbed and tortured me." A had previously given a vivid 
 description of the circumstances connected with the transaction, 
 in which he had pointed out that he had had ample opportunity 
 to acquire personal knowledge of a full description of them, so 
 g,s to enable him to readily recognize them again. The question 
 is, whether A's dying declaration is admissible in evidence for 
 the purpose intended. 
 
 Since the identification of the defendants is a circumstance 
 pertaining to A's death, and the dying declaration made by 
 him in regard to it is the statement of a fact, and not the mere 
 expression of an opinion, the declaration is admissible.^® 
 
 17. B is on trial for the murder of his wife, A, who was 
 shot through a window, at night. While in extremis, and after 
 abandoning all hope of her recovery, A stated that her husband 
 shot her ; that he had said that he would shoot her through the 
 window, if she did not sign certain papers concerning some 
 money. She made no pretense, however, of recognizing the 
 person who shot her. The court, against objection, admits A's 
 dying statements in evidence, against B, and he is convicted. 
 The question is, whether the court's ruling, in admitting A's 
 dying statements, is prejudicial error. 
 
 The court's ruling, in admitting A's dying statements in 
 evidence, is prejudicial error. As she had no knowledge as 
 regards who the person was who shot her, her statement that 
 he was her husband was the expression of a mere opinion, and 
 therefore, inadmissible; and her statement of B's previous 
 threat relates to a fact which was not an attendant circum- 
 stance of her homicide, and therefore it is inadmissible.^'' 
 
 18. B is on trial for murdering A, by using instruments on 
 her to effect an abortion, as a result of which she died. A's 
 
 16— Com. V. Roddy, 184 Pa. St., 313; State v. Perlgo, 80 Iowa, 37; 
 
 274; Brotherton v. The People, 75 State v. Draper, 65 Mo., 335; State 
 
 N. Y., 159; McLean v. State, 16 v. Wood, 53 Vt., 560. Contra, on 
 
 Ala., 672. second point, People v. Beverly, 
 
 17— Binns v. The State, 46 Ind., 108 Mich., 509. 
 
DYING DECLAEATIONS. 487 
 
 dying declarations, that, "He is the cause of my death. Oh, 
 those hprrible instruments! Laws, is the cause of my death, 
 he is my murderer. They abused me terribly," are, against 
 objection, admitted in evidence, against B, and he is convicted. 
 The question is, whether the court's ruling, in admitting A's 
 dying declarations, is prejudicial error. 
 
 The court's ruling is prejudicial error. To be admissible in 
 evidence, dying declarations must be definite and clear. Vague 
 and indefinite expressions are inadmissible. A's dying, decla- 
 rations did not expressly charge B with using or procuring the 
 use of the instruments on her, but were such as A might nat- 
 urally have made about her seducer, without intending to 
 charge him with anything more than her seduction.^* 
 
 19. B is on trial for the murder of his wife, A. A's dying 
 declarations against B are offered in evidence by the state, and 
 objected to on the ground that A, at the time she made them, 
 was under the influence of opiates. The court overrules the 
 objection, and B is convicted of murder, in the second degree. 
 The question is, whether the court's ruling, in admitting A's 
 dying declarations, is prejudicial error. 
 
 The court's ruling is not prejudicial error. The fact that A, 
 at the time of making her declarations, was somewhat under the 
 influence of narcotics, may affect the credibility of her declara- 
 tions, but not their admissibility .^^ 
 
 20. B is on trial for the murder of A, a child four years 
 old. The question is, whether A's dying declarations, against 
 objection, are admissible in evidence against B. 
 
 Since A would be an incompetent witness, were he living and 
 upon the witness stand, therefore his dying declarations are 
 inadmissible.*" 
 
 21. B is on trial for the murder of A. A's dying declara- 
 tions are offered in evidence against B, and objected to on the 
 ground that to admit them would be a violation of the consti- 
 tutional provision which secures to the accused the right to be 
 
 18— State V. Baldwin, 79 la., 509; Hays v. Com. (Ky.), 14 S. 
 
 714; People v. Olmstead, 30 Mich., W. Rep., 833. 
 
 431 20— Rex v. Pike, 3 C. and P., 
 
 19— People V. Beverly, 108 Mich., 598; same case, 14 E. C. L., 473. 
 
488 LEADING PRINCIPLES AND EtTLBS OF EXCLUSION. 
 
 confronted with the witnesses against him face to face. The 
 question is, whether the objection should be sustained or over- 
 ruled. 
 
 The objection should be overruled. Magna Charta provides 
 that a person accused of crime shall be tried according to the 
 principles of the common law. It also provides that the wit- 
 nesses against him shall be examined in his presence. At com- 
 mon law dying declarations have always been held admissible: 
 and to admit them has never been considered a violation of any 
 right secured to the subject by Magna Charta. In view of these 
 facts, it follows by analogy that it was not the intention of the 
 framers of the constitutional provision in question to exclude 
 dying declarations; and therefore this provision is to be inter- 
 preted in accordance with that intention.^i 
 
 22. B is on trial for the murder of A. A's dying declara- 
 tions, made upon the day he received the wounds which caused 
 his deatlj, and when he fully expected to die, are offered in 
 evidence, and are objected to because A, at a time subsequent 
 to the making of them, expressed a hope of recovery ; and lived 
 for ten days after they were made. The question is, whether 
 the declarations are admissible. 
 
 The declarations are admissible. The fact that A subse- 
 quently expressed a hope of his recovery does not exclude them, 
 nor the fact that he lived for ten days after he made them.22 
 
 23. B is on trial for the murder of A. A's dying declara- 
 tion is admitted in evidence in behalf of the people. The 
 question is, whether B may introduce evidence that A, at the 
 time he made the declaration, was in a reckless and irreverent 
 state of mind ; that, at or about the same time, he used profane 
 language ; and that, in making the declaration he was influenced 
 by malice and revenge. 
 
 All of these facts are admissible in evidence to impeach A's 
 dying declaration.^^ 
 
 21— State V. Houser, 26 Mo., 22— Swisher v. Com., 26 Grat., 
 431; Com. v. Gratt. (Va.), 607; 963; 21 Amer. Rep., 30; State v. 
 Miller v. State, 25 Wis., 384; Jack- Poll, 1 Hawlcs, 442; 9 Amer. Dec, 
 son V. State, 81 Wis., 127; Com. 655. 
 
 V. Richards, 18 Pick., 434. 23— Tracy v. The People, 97 111., 
 
 101. 
 
DECLARATIONS EBLATINQ TO PEDIGREE. 489 
 
 ILLUSTRATIONS ON DECLARATIONS RELATING TO PEDIGREE. 
 
 1. A sues B in ejectment. A sets up that he is the heir-at- 
 law of C, who died seised of the land. B denies this, and alleges 
 that A is illegitimate. The question is, whether declarations, 
 made by A's father and mother, who are now deceased, that A 
 was born before they were married, are admissible in evidence. 
 
 The declarations are admissible. If, however, A had been 
 bom during lawful wedlock of his father and mother, declara- 
 tions by them that A was illegitimate would not be admissible. 
 The basis of this rule is decency, morality and public policy.' 
 
 2 A sues B in ejectment to recover Black Acre. To prove 
 that he is the legitimate son of X, A offers in evidence, against 
 objection, a deposition made by C, a blood relative of A, in a 
 suit in chancery instituted by A against D, to perpetuate testi- 
 mony to the alleged fact, disputed by D, that A is the legiti- 
 mate son of X, in which character, in the suit by A against D, 
 A claimed an estate in remainder in White Acre, which was 
 also claimed in remainder by D. C is now dead. In the present 
 action, B does not claim title under either A or D. The question 
 is, whether C's deposition, made in the former suit, is admissible. 
 
 The deposition of C is inadmissible. It was made after a 
 dispute had arisen in regard to A's legitimacy. Declarations 
 relating to pedigree, to be admissible in evidence, must have 
 been made ante Utem motam? 
 
 3. A, who claims title to a certain piece of land, files a 
 bill to redeem. A declaration by B, that his wife was illegiti- 
 mate, is offered in evidence, against objection. The declaration 
 is material to the issue, and B is now dead. The question is, 
 whether the declaration is admissible. 
 
 The declaration is admissible. B's knowledge, as regards the 
 illegitimacy of his wife, is likely to have been more intimate, 
 and stronger, than that of many of her blood relatives. His 
 own honor, as well as that of his family, is closely connected 
 with the question of his wife 's legitimacy .^ 
 
 1— Goodrigl<t d. Stephens v. 3— Vowles v. Young, 3 Ves., 140, 
 Moss, Cowper, 592. (1806), 
 
 2 — Berkeley Peerage Case, 4 
 Campbell, 401. 
 
490 LEADING PRINCIPLES AND RUIZES OF EXCLUSION. 
 
 4. A sues B in ejectment. To recover, he must prove tnajt 
 he is the legitimate son of W, who is now dead. To do this, 
 he offers in evidence, against objection, an entry in the family 
 bible of W, Ln Ws handwriting, that A is Ws eldest son, born 
 in lawful wedlock, of G, Ws wife, on May 1st, 1875, and signed 
 by W himself. The question is, whether the entry is admissible. 
 
 Since the declarant was qualified to make the entry, and is 
 now dead, the declaration made ante litem motam, and a 
 question of A's pedigree involved in the issue, the entry- is 
 admissible. Moreover, since the declaration is contained in the 
 family bible, the genuineness of the declaration is presumed.* 
 
 5. A, as the heir of C, a brother of A's father, sues B in eject- 
 ment. B denies that A is C's heir, on the ground that A's par- 
 ents were never married. To prove his heirship, A offers in 
 evidence, against objection, a declaration made by D. since de- 
 ceased, and who was a sister of A's mother to the effect that 
 A's father and mother were legally married before A was born. 
 The question is, whether D's declaration is admissible. 
 
 D's declaration is inadmissible. That the declarant was 
 qualified to make the declaration must first be established by 
 evidence de hors the declaration. To do this, A must prove 
 by independent evidence that his parents were mariied before 
 he was born. Even then^ according to the strict English rule, 
 the declaration, owing to D's disqualification, would be inad- 
 missible.'' 
 
 6. A files a bill for partition of certain real estate, which 
 descended from B, who died intestate. A claims an interest in 
 the land as B's lawful son. The defendants, C and D, deny 
 this. The question is, (1) whether parental recognition of A, 
 by B and his wife, in whose family A was brought up, raises a 
 presumption of parentage ; (2) whether a declaration by B, that 
 A is his lawful son, is admissible; (3) whether suspicions, 
 doubt's and rumors, among B's neighbors, as to A's parentage, 
 are admissible; (4) whether such suspicions, doubts and ru- 
 mors, rise to the dignity of a "controversy" sufficient to ex- 
 clude subsequent declarations of B as regards A's parentage. 
 
 4 — Berkeley Peerage Case, 4 5 — Blackburn v. Crawfords. 3 
 Camp., 401. Wall., 9 ; Dunlop v. Servas, 5 U. C. 
 
 Q. B., 288. 
 
DECLARATIONS RELATmG TO PEDIGREE. 491 
 
 (1) Parental recognition of A, by B and his wife, does raise 
 a presumption of A's parentage, sufficient to establish a prima 
 facie case; (2) B's declaration, that A is his lawful son, is 
 clearly admissible; (3) Suspicions, doubts and rumors, among 
 B's neighbors, are not admissible; (4) nor do such suspicions, 
 doubts and rumors, rise to the dignity of a "controversy" suffi- 
 cient to exclude subsequent declarations of B as regards A's 
 parentage.® 
 
 7. A files a bill for the partition of certain lands which 
 had belonged to one H, and which are now claimed both by 
 H's parents and by her daughter S. The parents claim that 
 S is illegitimate, and therefore cannot take by descent. The 
 question is, whether testimony, offered by two of the nephews 
 of S, that they had heard their father say, when speaking of 
 their aunt, S, upon occasions which they could not fix with any 
 distinctness, and in conversations which they could not recall 
 with any clearness, that H had no husband, and that her 
 daughter was illegitimate, rises to the dignity of that general 
 repute in the family which the law regards as competent evi- 
 dence in respect to pedigree, and sufficient to repel the pre- 
 sumption of marriage. 
 
 The presumption of legitimacy is not lightly to be repelled. 
 Clear and strong evidence is essential to overcome it. The 
 testimony offered by the nephews of H is not general repute 
 in the family at all, but merely the specific hearsay statements 
 of a single member of the family, and is insufficient to repel 
 the presumption of S's legitimacy.'' 
 
 8. A sues B for the price of certain horses. B's defence is 
 the plea of infancy. In support of his plea, B offers in evi- 
 dence, against objection, an affidavit, made by B's father, since 
 deceased, in a suit in chancery, to which suit A was not a 
 party. The affidavit states that B was bom "on or about the 
 20th of May, 1882." The question is, whether the affidavit is 
 admissible. 
 
 The question of infancy is not one of pedigree, hence the 
 affidavit is inadmissible.* 
 
 ft— Metheny v. Bohn, 160 111., 8 — Haines v. Guthrie, 13 Q. B. 
 
 263. D., 818; Conn. Mut. L. Ins. Co. v. 
 
 7— Orthwein v. Thomas, 127 111., Schwenk, 94 U. S., 593. 
 554. 
 
492 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 9. A, who claims title by descent to certain lands, bases his 
 claim upon the ground that he is the natural son of the intes- 
 tate. B, the adverse claimant, denies this, and alleges that A is 
 the legitimate son of the intestate's sister. The question is, (1) 
 whether the declarations of the intestate's sister, since de- 
 cased, that A is the laAvful son of the declarant, are admissible ; 
 and also, (2) whether her declarations that A is the natural 
 son of the intestate, are admissible. 
 
 In the former case, the declarations are clearly admissible. 
 In the latter case, they are not admissible, at common law. 
 Where, however, a statute creates the relation of ancestor and 
 heir between the mother and her illegitimate child, some courts 
 hold that such declarations are admissible.^ 
 
 10. A, who is on trial for murder, pleads insanity. To 
 support his plea, he seeks to show that his great-aunt was 
 insane. To prove this fact, he oifers in evidence, against ob- 
 jection, general repute in the family. The question is, whether 
 this evidence is admissible. 
 
 Insanity is not a question of pedigree, and cannot be proved 
 by general repute in the family.^" 
 
 11. In an action on a lease for lives, a material fact in issue 
 is, whether a certain one of the cestui que vie is living. The 
 question is, whether evidence of general repute in his family, 
 that he is dead, is admissible. 
 
 General repute in the family is admissible where questions 
 of pedigree are involved. In this case, however, the question 
 is not one of pedigree, hence the evidence of general repute 
 is inadmissible.'! 
 
 12. A sues B in ejectment. B pleads non-joinder of parties, 
 claiming that one X, a joint tenant with A, should have been 
 made a party plaintiff. To meet B's plea, A seeks to show 
 that X is dead. To prove this, he offers in evidence, against 
 objection, general repute in the family of X that X was killed 
 in an explosion. The question is, whether this evidence is ad- 
 missible. 
 
 9— Northrop v. Hale, 76 Me., 306. 11— Whittuck v. Walters, 4 C. 
 10 — People V. Koerner, 154 N. and P., 375. 
 Y., 355, 370. 
 
DECLAEATIONS RELATING TO PEDIGREE. 493 
 
 According to some decisions, this evidence is admissible on 
 the theory that the question of death is one of pedigree. Ac- 
 cording to other decisions it is inadmissible.^ ^ 
 
 13. A seeks to recover certain real estate on the ground that 
 he is an illegitimate son of the testator's daughter since de- 
 ceased. The statute provides that, "Bastards shall be capable 
 of inheriting or transmitting inheritance, on the part of their 
 mother, in like manner as if they had been born in lawful wed- 
 lock. And if the mother be dead, the estate of such bastard 
 shall descend to the relatives on the part of the mother as if 
 the intestate had been legitimate. ' ' In support of his claim, A 
 offers in evidence, against objection, a declaration of B, since 
 deceased, and who was a blood relative of A, that A was the 
 illegitimate son of the party claimed. The question is, whether 
 the declaration of B is admissible. 
 
 According to the decisions of the English and the federal 
 courts, and of some of the state courts, B's declaration is inad- 
 missible. These courts hold that "Where a relationship is ac- 
 knowledged as a matter of fact, and its lawfulness only is dis- 
 puted, hearsay from members of the family may be introduced 
 to show that such relationship was lawful or was unlawful. 
 But hearsay cannot be introduced to establish an unlawful re- 
 lationship per se, where a' lawful relationship is not claimed, "i* 
 
 14. A files a bill to establish his claim to certain lands which 
 had belonged to his brother, who A claims is dead. To prove 
 his brother's death, his sister offers evidence, against objection, 
 that the general opinion in the family is, that Moses Miner, the 
 brother in question, was a soldier in the New York troops and 
 was killed at a certain place. The question is, whether the evi- 
 dence is admissible to prove the fact of the brother's death, and 
 the place where he died. 
 
 Since no question of pedigree is involved in this case, the 
 evidence is inadmissible to prove either of these facts.i* 
 
 15. A, as the illegitimate son of B, who died intestate, claims 
 
 12 — Du Pont v. Davis. 30 Wis., 14 — Jaclcson v. Boneham, 15 
 
 170. Johns. (N. Y), 226. 
 
 13 — Flora v. Anderson, 75 Fed. 
 Rep., 217. 
 
494 LEADING PBINCIPLES AND RULES OF EXCLUSION. 
 
 property left by B. C, the defendant, denies that A is the ille- 
 gitimate son of B. To support his claim, A offers in evidence, 
 against objection, declarations of D, a brother of B, which tend 
 to show that A is the illegitimate son of B. D is now dead. 
 The question is, whether the declarations of D are admissible. 
 
 At common law, D 's declarations are inadmissible ; and, even 
 under a statute which creates the relation of ancestor and heir 
 between B and A, his declarations are inadmissible according 
 to the rule which obtains in the English and the Federal courts, 
 and also in many of the State courts. The one reason is, that 
 since A is filius nullius he has no pedigree, and therefore no 
 question of pedigree is involved in the case. Another reason is, 
 that courts refuse to allow hearsay evidence to be introduced 
 to establish illegal relationship, where a lawful relationship 
 is not elaimed.15 
 
 16. A sues B for the value of a dog. To prove its value, he 
 offers evidence of the dog 's pedigree. This evidence is objected 
 to on the ground that the matter involved is attempted to be 
 shown by general reputation, and this is characterized as hear- 
 say. The question is, whether the evidence is admissible. 
 
 The evidence is admissible. "The question of pedigree and 
 ancestry is a matter of common or g,9neral reputation, whether 
 the question concerns horses, cattle, dogs or men. The matter, 
 from the very nature of things, depends upon reputation or 
 common repute. It is shown that certain books are kept, and in 
 them there is a registration of pedigrees, kept up for the infor- 
 mation of the public, not only as to horses, but also as to cattle 
 and dogs. These are shown to be received as satisfactory evi- 
 dence of pedigree in the same manner and upon the same idea 
 as entries in family records of births, deaths and marriages are 
 received with regard to the human family (citing cases). It is 
 true that in family records the entries in the books are usually 
 . made by the relatives and friends of the person, but inasmuch 
 as dogs have no relatives competent to make entries for them, 
 it is allowable for such entries to be made by the owners, 
 friends, and admirers of the dog.''^® 
 
 15 — Crispin v. Doglioni, 3 Swab. 16— Citizens' Co. v. Dew. 100 
 and Tr., 44. Tenn., 317. 
 
DECLARATIONS RELATING TO PEDIGREE. 495 
 
 17. The town of A sues the town of B in an action of con- 
 tract for the support of one C, a pauper. The decision of the 
 case turns upon the legitimacy of C's father, whose parents 
 were married in 1850. A contends that C 's father was born in 
 1851, and therefore legitimate. B, to prove the illegitimacy of 
 C's father, puts a witness upon the stand who testifies that she 
 saw C's father, then an infant, during the lifetime of one S, 
 who, it is alleged, died in 1849. To prove that S died in 1849, 
 B oifers in evidence, against objection, a chart containing a rec- 
 ord of the births, marriages and deaths, kept in the family of 
 S for a long series of years, and handed down by her deceased 
 parent to his sons as containing a true statement of the events 
 recorded therein; and also the inscription on the tombstone 
 erected to her memory in the family burial-ground. The ques- 
 tion is, whether this evidence is admissible. The objection made 
 to it is, that it is not offered to prove a fact in issue, but to prove 
 a collateral fact from which the main fact in issue may be de- 
 duced by inference. 
 
 The evidence is admissible. Some courts, however, limit the 
 admissibility of such evidence to cases where the main subject 
 of inquiry relates to pedigree, and where the incidents of birth, 
 marriage and death, and the times when these events happened, 
 are directly put in issue. But, according to the better view, it is 
 equally admissible to prove an evidentiary fact. The true test is, 
 to inquire whether the evidence is admissible to prove the fact 
 which it is offered to establish, and not whether such fact is 
 directly or only collaterally in issue.^^ 
 
 17— Inhabitants of North Brookfleld v. Inhabitants of Warren, 82 
 Mass., 171. 
 
496 LEADING PEINCIPIiES AND RULES OP EXCLUSION. 
 
 ILLUSTRATIONS ON DECLARATIONS RELATING TO MATTERS OF 
 PUBUC OR GENERAL INTEREST. 
 
 1. A sues B in trespass for breaking and entering A's 
 close. B pleads a prescriptive right of common to the land in 
 question. To prove his plea, B offers reputation-evidence, 
 against objection, of the right claimed. The question is, 
 whether the evidence is admissible. 
 
 The evidence is admissible, even under the English rule. 
 The prescriptive right of common claimed by B is not merely 
 a private right, but a general one at least.^ 
 
 2. A sues B in replevin to recover certain cattle which had 
 been distrained damage-feasant. The material question in issue 
 v\ the location of the boundary dividing the estate which 
 comprised the locus in quo from another estate. Reputation- 
 evidence is offered, against objection, to prove the boundary 
 of a hamlet which boundary is co-incident with the one in 
 issue. The question is, whether the evidence is admissible. 
 
 The evidence is admissible. Reputation-evidence is admis- 
 sible to prove an evidentiary fact, as weU as a main fact, in 
 issue.2 
 
 3. The fact in issue is the location of the boundary of a 
 certain highway, and the question is, whether a declaration 
 by A, since deceased, that he planted a certain willow tree 
 (which is still standing) to show where the boundary of the 
 highway was when he was a boy, is admissible. 
 
 A's declaration is inadmissible. "He does not assert that he 
 has heard old people say what was the public road; but he 
 plants a tree and asserts that the boundary of the road is at 
 that point. It is the mere allegation of a fact by an individ- 
 ual . . . That is, he knew it to be so from what he had 
 himself observed, and not from reputation ".3 
 
 1— Weeks v. Sparke, 1 M. & S. 62, and Sasser v. Herring, 3 Dev. 
 
 679 (King's Bencli). L. 342, where, in the former case, 
 
 2 — Thomas v. Jenkins, 6 A. & B. Tiligman, C. J., says: "Where 
 
 525. boundary is the subject, what has 
 
 3 — Denman, L. C. J., in R. v. been said by a deceased person is 
 
 Bliss, 7 Adol. & E. 550. But see received as evidence," and, in the 
 
 Caufman v. Cedar Spring, 6 Binn. latter one, Henderson, C. J., says: 
 
DECLARATIONS — MATTERS OF PUBUC INTEREST. 
 
 497 
 
 4. The fact in issue is the location of a private boundary, 
 and the question is, whether the declarations of a deceased 
 person, who appeared to have means of knowledge, and no 
 private interest to serve in making them, are, as regards such 
 location, admissible. 
 
 According to the English rule, the declarations &re inad- 
 missible; but, by the weight of authority in this country they 
 are admisible.* 
 
 5. The fact in issue is the location of a certain private 
 boundary, and the question is, whether the declarations of 
 a surveyor, since deceased, of a particular fact respecting the 
 private boundary, and which were not made coincidently with 
 pointing it out, and generally as part of the res gestae, are 
 admissible. 
 
 "We have, in questions of bound- 
 ary, given to the single declara- 
 tions o£ a deceased individual as 
 to a line or corner the weight of 
 common reputation. * * * 
 Whether this is within the spirit 
 and reason of the rule it is now 
 too late to inquire." 
 
 4— Smith V. Powers, 15 N. H. 
 563. In this case, Parker, C. J., 
 says: "It is true that the de- 
 cisions in England seem to restrict 
 the evidence of the declarations of 
 deceased persons respecting bound- 
 aries * * * to what the de- 
 ceased said relative to the public 
 opinion respecting the boundary. 
 But the testimony has not been 
 limited in this country. * * * 
 The declarations of a person de- 
 ceased, who appeared to have had 
 means of knowledge and no in'Eer- 
 est in making the declarations, are 
 competent upon a question of 
 boundary, even in a case of private 
 right." See Morton v. Polger et al., 
 15 Cal. 275, where Field, C. J., 
 says: "In England, the evidence is 
 limited to boundaries of parishes, 
 manors, and the like, which are of 
 public Interest, and is not allowed 
 
 to establish the boundary of a pri- 
 vate estate, unless the latter is 
 identical with that of a public or 
 quasi public nature. * * * in 
 this country the admissibility of 
 this kind of evidence is carried to 
 much greater length than in Eng- 
 land. * * * It is not necessary, 
 however, according to the authori- 
 ties in the majority of the Ameri- 
 can states, that the hearsay, to en- 
 title it to be received, should be 
 general, or relate to boundaries in 
 which the public or numerous per- 
 sons are interested. It may be 
 limited to particular facts em- 
 bracing the declarations of a single 
 individual, provided such individ- 
 ual had, from his situation, the 
 means of knowledge, and was dis- 
 interested in the matter, and may 
 relate only to the boundary of a 
 private estate." After commenting 
 on a number of cases, he adds: 
 "These are sufficient to show the 
 general doctrine which will be 
 found to prevail in the majority 
 of the American states. By them 
 it is clear that the declarations on 
 a question of boundary of a de- 
 ceased person, who was in a situa- 
 
498 
 
 LEADING PEINCIPLES AND RULES OP EXCLUSION. 
 
 The deelaratiens are inadmissible. In questions relating to 
 private boundaries, the declarations of a person since deceased, 
 of particular facts, as distinguished from general reputation of 
 such facts, are not admissible unless it is shown that the 
 declarant had knowledge whereof he spoke, and was then on 
 the land, or in possession of it, and was pointing out and 
 marking the boundary, or discharging some duty in relation 
 thereto. Declarations which merely recite something past 
 are within the rule which excludes hearsay .^ 
 
 6. A sues B in ejectment to fix the boundary between two 
 lots. The fact in issue is, whether the center of a certain 
 street is the south line of the quarter section which contains the 
 
 tion to be acquainted with the 
 matter, and who was at the time 
 free from any interest therein, are 
 admissible, and whether the bound- 
 ary be one of a general or public 
 interest, or be one between the 
 estates of private proprietors." 
 
 See also the valuable note to 
 Coate V. Speer, 3 McCord (S. C.) 
 227, in 15 Am. Dec. 628. 
 
 5— Hunnicut v. Peyton, 102 U. 
 S. 333. In this leading case, Mr. 
 Justice Strong, speaking for the 
 court, says: "They (declarations 
 of particular facts) are, therefore, 
 receivable only when made coinci- 
 dently with pointing out the 
 boundaries and generally as part 
 of the res gestae. * * * in 
 questions of private boundary, dec- 
 larations of particular facts, as 
 distinguished from reputation, 
 made by deceased persons, are not 
 admissible, unless they are made 
 by persons who, it is shown, had 
 knowledge of that whereof they 
 spoke, and who were on the land 
 or in possession of it when the dec- 
 larations were made. To be evi- 
 dence they must have been made 
 when the declarant was pointing 
 out or marking the boundaries or 
 discharging some duties relat;ng 
 
 thereto. A declaration which is a 
 mere recital of something past is 
 not an exception to the rule that 
 excludes hearsay evidence." 
 
 In the celebrated Berkeley Peer- 
 age Case, 4 Camp. 415, Chief Jus- 
 tice Mansfield says: "The witness 
 is only allowed to speak to what 
 he has heard the dead man say re- 
 specting 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 inad- 
 missible." See also, Greenleaf on 
 Evid., vol. I., § 138; Elliott on 
 Bvid., vol. I., § 395; Ellicott v. 
 Pearl, 10 Pet. 412; Long v. Col- 
 ton, 116 Mass. 414. 
 
 The statement found in the 
 books, that reputation as to the 
 existence of particular facts is in- 
 admissible, is somewhat mislead- 
 ing. The location of a certain 
 boundary is a particular fact, and 
 reputation-evidence of such fact is 
 admissible. What is meant by the 
 statement is, that reputation-evi- 
 dence to be admissible must be as 
 to the existence of the particular 
 right in the abstract, and not 
 merely as to particular occasions 
 of itg exercise. 
 
DECLARATIONS — MATTERS OF PUBLIC INTEREST. 499 
 
 lots, and the question is, whether reputation-evidence is ad- 
 missible to prove this fact. 
 
 The evidence is admissible. When the location of a private 
 boundary depends upon showing a public boundary, the latter 
 may be shown by reputation-evidence.® 
 
 7. A is on trial for obstructing a certain highway by in- 
 closing certain land and building thereon. For the purpose of 
 showing that the land was not inclosed at a certain date. 
 The prosecution offers in evidence, against objection, a map, 
 made by a public officer. The question is, whether the map is 
 legally relevant. ,. 
 
 > The map is inadmissible. It is not offered to prove a right 
 in the abstract, but merely to prove the enjoyment of a right 
 at a particular time. To prove the former fact, the map 
 would be admissible.^ 
 
 8. A is indicted for the inon-repair of a certain public 
 bridge. His plea is that residents of the county are bound 
 to repair it. To prove his plea he offers, against objection, 
 reputation-evidence which the court rejects, and he is con- 
 victed. The question is, whether the court's ruling is preju- 
 dicial error. 
 
 The cpurt's ruling is prejudicial error. The repair of the 
 bridge is a matter of general interest. It concerns a private 
 interest, it is true; but it also concerns a general one, — ^viz., 
 whether the county is bound to repair the bridge. The evi- 
 dence offered is therefore admissible.^ 
 
 9. A, the sheriff of a certain county, is on trial for not exe- 
 cuting a certain death-warrant. His plea is, that the duty 
 of executing criminals belongs to the city sheriffs, and the 
 question is, whether traditionary-evidence,- that the sheriffs 
 of the county had always been exempted from the performance 
 of this duty, is admissible. 
 
 This evidence is inadmissible. The subject involved is not 
 
 6— Mullaney v. Duffy, 145 111. proved that the maps were made, 
 
 ^59. or recognized by persons who had 
 
 7— R. V. Berger, 12 B. D. 823. In knowledge of the subject, and who 
 
 England, ancient maps, showing have since died. ' 
 
 public roads, and boundaries be- 8 — Queen v. Bedfordshire, 4 EJ. 
 
 tween counties, parishes, manors, & B. 535. 
 etc., are admissible when it is 
 
500 LEADING PRINCIPLES AND EULES OF EXCLUSION. 
 
 one of public or general interest. It concerns only individuals. 
 The public are interested in the matter of the execution, but not 
 as regards the particular person by whom it is to be performed.^ 
 
 10. The fact in issue is, whether a certain turnpike is within 
 the limits of a certain town; and the question is, whether 
 reputation-evidence is admissible to show that the boundary 
 of the town extends as far as a certain close, and also to show 
 that formerly there were houses where none exist now. 
 
 Reputation-evidence is admissible to show the former fact, 
 but Hot the latter one. The reason is, the former fact is one of 
 public interest, while the later one is not.^" 
 
 11. The fact in issue is, whether a certain place situated 
 on the bank of a navigable river is a public landing place for 
 all the king's subjects; and the question is, whether reputation- 
 evidence is admissible to show that it is not. 
 
 The evidence is admissible. The fact that it is offered to 
 negative the public right claimed, and not to affirm it, is im- 
 materially 
 
 12. A sues B in trespass to try title. A claims that a certain 
 gum tree is the comer of her grant. To prove this she offers 
 in evidence, against objection, declarations of G, a chain-bearer 
 at the time of the original survey, and who is now dead, that 
 the gum tree was the corner then made. G's declarations were 
 made after the action was commenced, but were merely a 
 repetition of others made by him many years before; and 
 the question is, whether the declarations are admissible. 
 
 One of the essentials of admissibility of this class of declara- 
 tions is, they must be made ante litem motam. The reason is, 
 if they are made post litem motam they are apt to be influenced 
 by interest, prejudice, or passion.i^ As G's declarations, how- 
 ever, are merely a repetition of those made by him ante litem 
 motam, the reason for the rule is not applicable, and hence 
 the rule itself cannot apply. G's declarations, therefore, are 
 admissible .1^ 
 
 9— R. V. Antrobus, 2 Adol. & El. 12 — Rex v. Cotton, 3 Camp. 444; 
 
 788, 794. Berkeley Peerage Case, 4 Camp. 
 
 10— Ireland v. Powell, Salop Spr. 401, 416. 
 
 Ass. 1802; Peake's Evld. 13, 14. 13— Coate v. Speer, 3 McCord 
 
 11— Drinkwat.^r v. Porter, 7 C. 227, 15 Am. Dec. 627. 
 & P. 181; Marquis of Anglesey v. 
 Hatherton, 10 M, & W. 218. 
 
PUBLIC DOCUMENTS. 501 
 
 ILLUSTRATIONS ON PUBUC DOCUMENTS. 
 
 1. An application was made by one M for a position as 
 consul in London for the Ligurian Republic. His applica- 
 tion for the consulship was referred to the Giunta, an of- 
 ficial body, and this official body made a report, based upon 
 it, to its government. Facts in issue are, M's place of birth, 
 his age, etc.; and the question is, whether the report made 
 by the Giunta to its government is admissible to prove these 
 facts. 
 
 The report is inadmissible. It is a public document in a 
 sense, but not in the sense in which the term is used in the 
 law of evidence. In the latter sense the term means a docu- 
 ment which relates to a public matter, and is prepared by 
 a public officer in the discharge of his duty for public in- 
 spection and use. The report in question contains private 
 confidential information for use by the government.^ 
 
 2. The fact in issue is, whether a certain steamboat, which 
 had belonged to a citizen of the United States, had been 
 obtained by the so-called Confederate States by capture or 
 purchase; and the question is, whether certain extracts from 
 the Confederate archives, in possession of the United States 
 Government, are admissible in evidence. 
 
 The extracts are admissible. They are public documents, 
 kept for public inspection and use and not merely as private 
 confidential records.^ 
 
 1 — Sturia et at v. Preccia et ah, the doings of that organization as- 
 
 5 App. Cas. 623. suming to act as a government 
 
 2— Oakes v. U. S., 174 U. S. 778. can be found than in papers con- 
 In this case. Gray, J., speaking for temporaneously drawn up by its 
 the court, says: "The government oflScers in the performance of their 
 of the Confederate States, although supposed duties to that govern- 
 in no sense a government de jure ment. 
 
 and never recognized by the "It would be an anomalous con- 
 United States as in all respects a dition of things if records of this 
 government de facto, yet was an kind, collected and preserved by 
 organized and actual government, the government of the United 
 * * * . No better evidence of States in a public office at great 
 
502 LEADING PRINCIPLES AND ELTLES OP EXCLUSION. 
 
 3. 6 sues the village of E for damages for personal in- 
 juries to her owing to defendant's negligence. For the pur- 
 pose of showing the direction and velocity of the wind and 
 the falling of snow on the morning in question and the 
 previous evening, Gr offers in evidence the record made by 
 a person employed at Chicago by the United States Signal 
 Service. B objects to this testimony on the ground that no 
 law authorizes the record to be used in evidence, and the 
 same is not competent testimony. The question is, whether 
 the record is admissible. 
 
 The record is admissible. It is not essential that a statute 
 requires it to be kept. It is sufficient if it is kept by a public 
 officer in the discharge of his public duty. Nor is it essen- 
 tial that it be made by a public officer. It is sufficient if 
 made under his direction by a person authorized by him to 
 make it.* 
 
 4. A sues B and C on their joint agreement. B pleads 
 insolvency and C pleads infancy. A, to prove that C was 
 of age when she made the agreement, offers in evidence, 
 against objection, a book which is admitted to be the church 
 record of baptisms in a Roman Catholic church in L, reg- 
 ularly kept by M, the priest of that church for a series of 
 years, produced' from the custody of 0, the present priest, 
 into whose hands it came upon the death of M, and con- 
 taining the following entry in M's handwriting, and signed 
 by him: "1877, Dec. 17th, Baptized Joanna (C) born 12th, 
 of Michael and Mary Doyle. Sponsors, Jeremiah Kennedy 
 and Bridget Doyle." There was no law which required the 
 record to be kept. The question is, whether it is admissible 
 in evidence. 
 
 As a public document, the baptismal record is inadmissible. 
 No law required it to be kept, nor was it kept by the priest 
 in pursuance of a duty imposed upon him by public au- 
 thority. In England, church registers were required by law 
 
 expense, were wholly inadmissible can hardly be satisfactorily proved 
 
 In a court of justice to show facts in any other manner." 
 
 of which they afford the most dis- 3 — Evanston v. Gunn, 99 U. S. 
 
 tinct and appropriate evidence, 660. 
 
 and which, in the nature of things. 
 
PUBLIC DOCUMENTS. 503 
 
 to be kept by the established church, but not by other 
 churches. Hence those kept by the established church were 
 held admissible, while those kept by the other chruches were 
 held inadmissible.' 
 
 The baptismal record in question, though inadmissible as 
 a public document, is admissible as an entry made in the 
 regular course of duty or business, by a person since de- 
 ceased. This class of evidence is discussed in Chapter XV., 
 Part II. 
 
 5. The question is, whether books known as the "Amer- 
 ican State Papers," containing copies of legislative and ex- 
 ecutive documents, reports, etc., selected and edited by the 
 secretary of the Senate and clerk «f the House, and pub- 
 lished by order of Congress, are admissible in evidence. 
 
 These books are admissible, and are as valid evidence as 
 the originals of the documents copied therein.'' 
 
 6. The question is, whether the "State Register," which 
 is the ofScial organ of the State Government, in which the 
 official acts of the Governor are required by law to be pub- 
 lished, is admissible in evidence to prove facts stated in a 
 proclamation of the Governor published therein. 
 
 The "State Register" is a public document, and as such 
 admissible in evidence to prove the facts therein recited." 
 
 7. Pacts in issue are, whether a harbor exists at a cer- 
 tain place, and, if not, whether the government contemplate 
 constructing a harbor there; and the question is, whether 
 the journals of the United States House of Representatives, 
 together with a letter of the secretary of war, and a report 
 of a topographical engineer, reported to the house in pur- 
 suance of a resolution, and properly authenticated, are ad- 
 missible in evidence to prove the non-existence of a harbor 
 at that point, and that it was practicable, and in contem- 
 plation of the government, to, construct a harbor there. 
 
 The jdurnals, letter and report are public documents, and 
 admissible in evidence.'^ 
 
 4— Kennedy v. Doyle, 10 Allen 6 — Lurton v. Gilliam et al., 1 
 (Mass.) 161. Scammon (111.) 576. 
 
 5— Bryan v. Forsyth, 19 How. 7— Miles v. Stephens, 3 Pa. St. 22. 
 (U. S.) 334. 
 
504 LEADINa PEINCIPLES AND RULES OP EXCLUSION. 
 
 8. In a quo warranto proceeding, a material fact in issue 
 is, the number of votes cast for the defendant in a certain 
 election; and the question is, whether the returns of the 
 inspectors of the election, made by a sworn officer, and 
 coming from the proper custody, are admissible. 
 
 The returns of the inspectors are public documents, and 
 not only admissible, but also sufficient to establish a prima 
 facie case.* 
 
 9. In an appeal from a judgment of the County Court, 
 confirming a special assessment, the question is, whether, in 
 a case in which the ordinances of the city are printed in 
 book or pamphlet form, purporting to be published by au- 
 thority of the city council, such book or pamphlet is ad- 
 missible in evidence to prove the passage and contents 
 of the ordinances therein contained, and their legal publica- 
 tion; and also whether the certificate of the city clerk, 
 under the seal of the corporation, is admissible to prove 
 those facts. 
 
 The book or pamphlet is a public document, and is ad- 
 missible in evidence to prove the facts stated; and the cer- 
 tificate is also admissible to prove those facts.' 
 
 10. In an action on an insurance policy the fact in issue 
 is, whether a certain island is known among merchants and 
 insurers as a guano island, and the question is, whether the 
 defendants may read to the jury an article from Appleton's 
 Cyclopedia to prove that it is. 
 
 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 question, not being 
 shown to have been approved by any public authority, or 
 to be in general use among merchants or underwriters, can- 
 not be read to a jury on the issue whether an island is com- 
 monly called and known as a Guano island in commerce 
 and the business of marine insurance.^'* 
 
 8— People V. Mlnck, 21 N. Y. 539. 10— Whiton v. Albany and Nar- 
 9 — Lindsay v. City of Chicago, ragansett Ip§, Cos., 109 Mass. 24. 
 115 lU. 120. 
 
PUBLIC DOCUMENTS. 505 
 
 11. The question is, whether a plat book kept in the 
 county recorder's office under a law requiring plats to be 
 recorded, but not stating in what office, is admissible ia evi- 
 dence as a public document. 
 
 The plat book is a public document and admissible ia evi- 
 dence as such.i* 
 
 12. The question is, whether a copy of a document, filed 
 in a public office as required by a statute, is a public docu- 
 ment, and whether a copy taken therefrom is inadmissible in 
 evidence because of the fact that it is a copy taken from 
 a copy. 
 
 The copy filed is a public document, and a certified copy 
 taken from it is admissible in evidence.^^ 
 
 13. The question is, whether a certified copy of the record 
 of a mortgage which is not acknowledged, and therefore not 
 entitled to record, is admissible in evidence. 
 
 Since the mortgage is not entitled to record, because not 
 acknowledged, the act of putting it upon record is void. 
 Hence the certified copy of the void record is inadmissible.^* 
 
 14. The question is, whether marine ordinances of foreign 
 countries, promulgated by the President by order of Con- 
 gress, are admissible in evidence as public documents. 
 
 The marine ordinances are public documents, and admissi- 
 ble in evidence as such.^* 
 
 15. The question is, whether an entry made in a docket 
 kept by the court of county commissioners for their con- 
 venience, but not for public inspection, is admissible in evi- 
 dence as a judgment of said court. 
 
 Since the docket is not kept for public inspection it is not 
 a public document, and the entry therein is therefore inad- 
 missible.15 
 
 11 — Miller v. City of Indianapo- 14 — Talbot v. Seeman, 1 Cranch 
 
 lis, 123 Ind. 196. (U. S.) 1. 
 
 12 — Stone Land, &c. Co. v. Boon, 15— Goggans v. Myrick, 131 Ala. 
 
 73 Tex. 548. 286. 
 
 13— Starnes v. Allen, 151 Ind. 
 108. 
 
506 LEADING PRINCIPLES AND BULES OF EXCLUSION. 
 
 16. The question is, whether a sheriff's certificate reciting 
 the performance of acts not within the range of his official 
 duty is admissible. 
 
 As regards the acts not within the range of the sheriff's 
 official duty the certificate is inadmissible.^* 
 
 17. The question is, whether market reports contained in 
 newspapers are admissible in evidence to prove the current 
 prices of cattle at a certain place. 
 
 Such reports are generally held admissible. As said by 
 Cooley, J.: "As a matter of fact, such reports, which are 
 based upon a general survey of the whole market, and are 
 constantly received and acted upon by dealers, are far more 
 satisfactory and reliable than individual entries, or individual 
 sales or inquiries; and courts would justly be the subject of 
 ridicule, if they should deliberately shut their eyes to the 
 sources of information which the rest of the world relies 
 upon, and demand evidence of a less certain and satisfactory 
 character."!^ It has been held, however, that preliminary 
 evidence should be given showing that the prices quoted were 
 drawn from a reliable source.^* 
 
 18. The question is, whether a notice in a newspaper pub- 
 lished in New York, of the death of a certain person in 
 Texas, is admissible in New York to prove the fact of such 
 person 's death. 
 
 The newspaper notice is inadmissible.^^ Nor is a mere 
 newspaper account of an accident admissible in a personal 
 Injury case against a railroad company ;2o nor* a newspaper 
 account of what took place at a meeting of a city council 
 with respect to a certain sewer.^i 
 
 16 — Obermier v. Core, 25 Ark. regularly sworn and testify as 
 
 562. See also Parker v. Cleveland, other witnesses. 
 
 37 Fla. 39, where it is held that the 17— Sisson v. Cleveland, 14 Mich, 
 
 certificate of a clerk of a circuit 489, 497. 
 
 court as to a matter of fact is in- 18 — Whelan v. Lynch, 60 N. Y. 
 
 admissible. That the law as to 469. 
 
 certificates of such officers as cus- 19 — Fosgate v. Herkimer Mfg., 
 
 todians of records only extends to etc., Co., 9 Barb. (N. Y.) 287, 
 
 transcripts of such records, and 20 — Downs v. N. Y. Cent. Ry. 
 
 that, if their testimony is desired Co., 47 N. Y. 83. 
 
 upon other points, they should be 21 — Riley v. St. John, 11 New 
 
 Bruns. 78. 
 
PUBLIC DOCUMENTS. 507 
 
 19. A sues B in ejectment to recover possession of a cer- 
 tain lot in the city of Cincinnati. To prove the date of the 
 survey he offers in evidence, against objection, Dr. Drake's 
 book, called a Picture of Cincinnati. Dr. Drake is living 
 and present in court. The question is, whether the book is 
 admissible. 
 
 According to the general principles of the law of evidence 
 the book is inadmissible. "All evidence of this sort must be 
 co^nsidered as mere hearsay; and certainly, as hearsay, it is 
 of no very satisfactory character. Historical facts, of gen- 
 eral and public notoriety, may, indeed, be proved by reputa- 
 tion; and that reputation may be established by historical 
 works of known character and accuracy. But evidence of 
 this sort is confined in a greater measure to ancient facts, 
 which do not pre-suppose better evidence in existence; and 
 where, from the nature of the transactions, or the remoteness 
 of the period, or the public and general reception of the facts, 
 a just foundation is laid for general confidence. . . . But 
 the work of a living author, who is within the reach of 
 process of the court, can hardly be deemed of this nature. 
 He may be called as a witness. He may be examined as to 
 the sources and accuracy of his information; and especially, 
 if the facts, which he relates are of recent date, and may be 
 fairly presumed to be within the knowledge of many living 
 persons, from whom he has derived his materials, there 
 would seem to be cogent reasons to say, that his book was 
 not, under such circumstances, the best evidence within the 
 reach of the parties. "^^ 
 
 20. Y is on trial for the murder of her husband by ad- 
 miaistering to him poison. The prosecuting attorney is per- 
 
 22 — story, J., speaking for the elusive or Infallible, but carefully 
 
 court, in Morris v. Harmer, 32 U. used as aids and guides, and ac- 
 
 S. 553, 558. See also State v. Wag- cepted as true where their state- 
 
 ner, 61 Me. 178. In this case Bar- ments are uniform and consistent 
 
 rows, J., says: "General histories with the evidence of original rec- 
 
 of painstaking authors long since ords and admitted or well known 
 
 deceased, and of established repu- facts, they will be found of great 
 
 tation, * * * are competent evl- service in arriving at a satiafac- 
 
 dence upon a question of this na- tory conclusion.'' 
 ture. No one claims them as con- 
 14 
 
508 LEADING PRINCIPLES AND EULES OF EXCLUSION. 
 
 mitted, against objection, to read to the jury copious extracts 
 from medical works, which have not been introduced in evi- 
 dence and which have not been proved by any witness to 
 be authority, and to state to the jury that what he read is 
 authority upon the subject of poison by arsenic. He is also 
 permitted, against objection, to read to the jury the evidence 
 of one P, a professor of chemistry, given in another case and 
 in another state, and reported in the Criminal Reports. T is 
 convicted of manslaughter. The question is, whether the 
 rulings of the trial court are prejudicial error. 
 
 The ruling of the court in each case is prejudicial error. 
 As regards the medical works it was the duty of the court to 
 instruct the jury that such books are not evidence, but merely 
 theories of medical men. As regards the reported evidence 
 of P. in the Criminal Reports, no opportunity is given the 
 accused to cross-examine the witness, or to meet his evi- 
 denee.2* 
 
 21. M sues the N. C. R. Mill Co. to recover damages for 
 the loss of a portion of his foot. The question is, whether 
 the trial court errs in refusing to allow the defendant Co. to 
 read in evidence certain extracts from a standard work on 
 mechanics. 
 
 The ruling of the trial court is correct.^* 
 
 22. The question is, whether a village map, filed in the 
 recorder's office by the founder, although not required by 
 law to be recorded, and long regarded as a public document, 
 is admissible in evidence. 
 
 The map is deemed a public decoment, and admissible in 
 evidence although not required by law to be recorded.^s 
 
 23.' W sues the R. L. A., a mutual benefit society, to re- 
 cover $500, on a certificate issued by the defendant Co. to 
 her husband, conditioned that he should comply with all the 
 
 23— Yoe v. The People, 49 111. 25— St. Louis Public Schools v. 
 
 410. Erskine, 31 Mo. 110. See also 
 
 24— North Chicago Rolling Mill Whitehouse v. Bickford, 29 N. H. 
 
 Co. V. Mouka, 107 111. 340. See also 471. 
 Conn. Mut. Life Ins. Co. v. Ellis, 
 89 III. 516. 
 
PUBLIC DOCUMENTS. 509 
 
 laws, rules and requirements of the order. The defendant 
 Co. offers in evidence, against objection, a pamphlet contain- 
 ing the rules and by-laws of the society. The question is, 
 whether the pamphlet is admissible. 
 
 The pamphlet is admissible. The by-laws of a private cor- 
 poration, as well as the entries in its books, are not, strictly 
 speaking, records. A record is a written memorial made by 
 a public officer authorized to perform that function, the 
 memorial being intended to serve as evidence of something 
 said or done. But publications of a mutual insurance com- 
 pany, generally circulated among its members, and purport- 
 ing to contain its rules and by-laws, are admissible as prima 
 facie evidence of such rules and by-laws.^* 
 
 26— Knights and Ladies of bon's Case, 17 How. St. Tr. 810; 
 
 America v. Ida B. Weber, 101 111. Terry v. Birmingham Nat. Bank, 
 
 App. 488. See also Rudd v. Rob- 93 Ala. 599; Fitch v. Pinckard, 5 
 
 inson, 126 N. Y. 113; Marriage v. 111. 69; Ryder v. Alton, etc., Ry. 
 
 Lawrence, 3 B. & Aid. 142; Gib- Co., 13 111. 516. 
 
510 liEADING PRINCIPLES AND EULES OF EXCLUSION. 
 
 ILLUSTRATIONS ON ANCIENT DOCUMENTS. 
 
 1. A sues B in ejectment. To establish his claim, he offers 
 in evidence, against objection, a deed which is more than 
 fifty years old, but which was not acknowledged as required 
 by the law in force when it was executed. It was, however, 
 in the custody of the grantee and his heirs, who claimed the 
 land under it, and paid taxes thereon, for more than fifty 
 years. The court overrules the objection and allows the deed 
 to be read in evidence as an ancient document. Judgment is 
 given in favor of A. The question is, whether the court's 
 ruling is prejudicial error. 
 
 The court's ruling is not prejudicial error. Deeds more 
 than thirty years old are admissible in evidence without proof 
 of execution. It must appear, however, that they are pro- 
 duced from the proper custody so as to raise a reasonable 
 presumption of their authenticity, and facts and circumstances 
 must be proven which will establish the fact that they havCf 
 been in existence the length of time indicated by their dates. 
 It is not essential, however, that the party claiming under them 
 take actual possession of the land to entitle them to be read 
 in evidence as ancient documents. Payment of taxes on the 
 land for many years is sufiEieient corroborative evidence.^ 
 
 2. A sues B in ejectment. In support of his claim he offers 
 in evidence an administrator's deed to him, which is more 
 than thirty years old. B objects to the introduction of this 
 deed in evidence on the following grounds : (1) No authority 
 in the administrator to execute it is shown; (2) It is not prop- 
 erly acknowledged; (3) It does not conform to the statute. 
 The question is, whether, assuming that B's grounds are true, 
 his objection should be sustained. 
 
 B's objection should be sustained. A deed, though more 
 than thirty years old, is not admissible in evidence as an 
 ancient document if it purports to be executed by one acting 
 in a fiduciary character, unless proof is given of his authority 
 
 1— Whitman v. Henneberry, 73 14 N. H., 98; Crane v. Marshall, 
 111., 109, contra, Homer v. Cilley, 16 Me., 29. 
 
ANCIENT DOCUMENTS. 
 
 51] 
 
 to make it. A deed insufficient on its face is not admissible in 
 evidence merely because it is an ancient document.^ 
 
 3. A, who sues B to recover a piece of land, offers in evi- 
 dence, against objection, certain ancient plottings for plans 
 and field notes made by a surveyor, which he obtained from 
 the custody of the surveyor's administrator, to show the loca- 
 tion of a disputed private boundary line. The question is, 
 whether the evidence offered is admissible. 
 
 The plottings and field notes are iaadmissible. They are 
 mere memoranda which may never have been acted upon. 
 They are preparations for a transaction which may never have 
 taken place. But ancient plans and maps are admissible even 
 in a suit between strangers, because ' ' they are of such a char- 
 acter as usually accompany transfers of title or acts of pos- 
 session, and purport to form a part of actual transactions re- 
 ferring to coexisting subjects by which their truth can be 
 tested, and there is deemed to be a presumption that they are 
 not fabricated. ' ' * 
 
 4. The city of B sues R to recover a strip of land. To estab- 
 lish its claim of adverse user, B offers in evidence, against ob- 
 jection, certain ancient licenses which it had granted to erect 
 and maintain certain fish markets on the land in question. The 
 trial court excludes the licenses on the ground that no acts 
 of possession or enjoyment under them are shown. Judgment 
 is entered for R. The question is, whether the court's ruling 
 is prejudicial error. 
 
 The ruling of the trial court is prejudicial error. Acts of 
 possession or enjoyment under the licenses is not essential to 
 their admissibility in evidence.* 
 
 5. A sues B to recover two parcels of land. The question 
 is, whether certain ancient plans and field notes, made by a 
 surveyor, and which pertain to the land in question, are admis- 
 sible in evidence as ancient documents. 
 
 Ancient plans and field notes are admissible in evidence 
 
 2— Fell V. Young, 63 111., 106; 4— City of Boston v. Richardson, 
 
 Boyle V. Graham, 32 Mo., 46. 105 Mass., 351. 
 
 3 — Boston Water Power Co., v. 
 Hanlon, 132 Mass.. 483. 
 
512 liEADING PRINCIPLES AND EULES OF EXCLUSION. 
 
 upon the same principles as ancient deeds. They must be pro- 
 duced from the proper custody, and their appearance generally 
 must be consistent with their genuineness. Assuming that the 
 plans and field notes in question conform to these require- 
 ments, they are admissible.^ 
 
 6. M sues to restrain him from trespassing on eei"tain 
 lands which M holds under a lease from the Mayor and Cor- 
 poration of L. To prove that the Mayor and Corporation of 
 L had authority to make the lease, M offers in evidence, 
 against objection, a certified copy of a bill and answer, filed 
 nearly two hundred years before, and which show that one P 
 had brought suit against the Mayor and Corporation of L, 
 that he had abandoned the litigation and admitted the right 
 of the defendant to the land which is now in question. The 
 certified copy of the bill and answer is objected to on the 
 ground that the facts of that case are res inter alios acta. 
 The question is, whether the copy offered should be excluded. 
 
 The bill and answer are ancient documents. The doctrine of 
 res inter alios acta is not applicable to such instruments. As- 
 suming that the bill and answer are in the proper custody, 
 and are free from suspicion, the certified copy is admissible.^ 
 
 7. M, a vicar, sues B to recover tithes due. B contends 
 that ancient customary payments were made in lieu of tithes, 
 and introduces evidence to prove it. To rebut B's evidence, 
 M, after laying a foundation for the introduction of certain 
 secondary evidence, offers, against objection, an ancient char- 
 tulary containing copies of two ordinances to show that the 
 payments made in lieu of tithes were so large that they could 
 not have been made so far back as the time of legal memory. 
 The chartulary is produced from the muniment room of a cer- 
 tain marquis who owned lands which once belonged to the 
 abbey. The question is, whether the chartulary is admissible. 
 
 Since the chartulary is an ancient document, produced from 
 
 5 — Whitman v. Shaw, 166 Mass., in the trial court. The Queen's 
 
 451. ' Bench sustained It. The Bx- 
 
 6 — Malcomson v. O'Dea et al.. chequer Chamber reversed it 
 
 10 H. L. C. 593. (In this case The House of Lords finally sus- 
 
 the plaintiff recovered a verdict tained it.) 
 
A.NCIENT DOCUMENTS. 513 
 
 the proper custody, and is free from suspicion, it is admissible 
 to prove its contents^ 
 
 8. B sues D to restrain alleged acts of trespass. To prove 
 ownership, B offers in evidence, against objection, an ancient 
 document, produced from the proper custody, and which pur- 
 ports on its face the exercise of ownership. The question is, 
 whether the document is admissible or not. 
 
 The document is admissible. Extrinsic evidence of acts of 
 ownership is not essential to its admissibility. The rule is, 
 "that ancient documents coming out of proper custody and 
 pui-porting upon the face of them to show exercise of owner- 
 ship, such as a lease or a license, may be given in evidence 
 without proof of possession or payment of rent under them, as 
 being in themselves acts of ovraership and proof of posses- 
 sion." The courts are not disposed to narrow the bounds of 
 the' law of evidence with respect to ancient possession.* 
 
 9. A sues B in ejectment. To prove his title, A offers in 
 evidence, against objection, two deeds purporting to have been 
 executed in 1832 and 1839, respectively, but which were not 
 acknowledged according to law. He proves, however, that 
 they were recorded in the proper county 29 years before this 
 action was commenced; that they were in possession of 
 the party in possession of the land before A, and remained 
 with him until his death; and that a deed of later date, and 
 dependent upon them, has been on record for forty years. 
 The question is, whether they are admissible as ancient docu- 
 ments. 
 
 The preliminary proof is sufficient to render the deeds ad- 
 missible as ancient documents.^ 
 
 10. In a suit by A against B, A offers in evidence an un- 
 proved will as an ancient document. B objects to the will on 
 the ground that it comes from the custody of the testator's 
 widow instead of from the custody of his executor. The ques- 
 tion is, whether the will is admissible. 
 
 7— BuUen v. Michel, 4 Dow., 297 9— Quinn v. Eagleston, 108 III., 
 (A. of L., 1816). 248. 
 
 8 — Blaudy-Jenkins v. Dunraven, 
 2 Ch., 121 (1899). 
 
514 LEADING PHINCIPLES AND RULES OF EXCLUSION. 
 
 The will is admissible as an ancient document. It is not 
 essential that the custody from which an ancient document is 
 produced is strictly according to the legal right. It is sufS- 
 cient if it comes from the place of deposit where, in the ordi- 
 nary course of things, such a document, if genuine, might 
 reasonably be expected to be found.^" 
 
 11. A fact iri issue is, whether A is the only son and heir 
 of B; and the question is, whether an ancient deed, contain- 
 ing a recital that the grantor, A, is the only son and heir of 
 a prior owner, B, is admissible in evidence to prove that fact. 
 
 The deed is admissible to prove that fact.^i Ancient docu- 
 ments are admissible to prove identity of persons, identity of 
 lands,^^ to establish boundaries,!^ to disprove an alleged cus- 
 tom,i* to establish pedigree.i^ to prove a settlement/* to prove 
 sufficiency of power to execute a valid deed,i^ to show the 
 amount of rents.^^ etc., etc. 
 
 12. In an action by A against B, A offers in evidence, an 
 ancient mutilated deed. B objects to it owing to the fact of 
 its mutilation. Enough of the deed remains to show that it 
 was executed in conveyance of an estate according to certain 
 articles of agreement already in evidence. The question is, 
 whether the deed is admissible. 
 
 The mere fact that the deed is mutilated is not sufficient 
 to exclude it. The mutilation may affect the weight of the 
 evidence, but not its admissibility .^^ 
 
 13. In an action by A against B, A offers in evidence as 
 an ancient document a certain will. B objects to it on the 
 ground that it is not 30 years old. The will shows that it was 
 executed 40 years ago, and the evidence shows that the testa- 
 
 10 — Doe V. Pearce, 2 M. & Rob., 15 — Doe v. Beynon, L. R. 4 P. & 
 
 240. D., 193. 
 
 11— Fulkerson v. Holmes, 117 U. 16 — Rex v. Long Buckley, 7 East, 
 
 S., 398. 45. 
 
 12— King V. Sears, 91 Ga., 577. 17— Deery v. Cray, 5 "Wall (U. 
 
 13— Plaxton v. Dare, 10 B. £ C, S.), 805. 
 
 17. 18— Roe V. Rawlings, 7 East, 279. 
 
 14 — Anglesey v. Hatherton, 10 19 — Per Lord Tlndal in Trim- 
 
 M. & W., 238. lestown v. Kemmis, 9 CI. & P., 776. 
 
ANCIENT DOCUMENTS. 515 
 
 tor died 25 years ago. The question is, whether the will is 
 admissible. 
 
 Accordiag to the rule which obtains in England, and gen- 
 erally in this country, the will is admissible as an ancient 
 document. According to the rule which has obtained in New 
 York and Pennsylvania the will is inadmissible as aji ancient 
 document. In England, and generally in this country, the age 
 of a will is computed from the date of its execution ; but in New 
 York and Pennsylvania it has been computed frqm the date of 
 the testator's death.^* 
 
 14. R filed a bill against B praying for a setting off to him 
 of dower and homestead, for partition, and for an injunction. 
 B offers in evidence a certain deed as an ancient document. 
 R objects to this deed on the ground that when the suit was 
 commenced the deed Avas less than 30 years old. "When R 
 filed his bill the deed was less than 30 years old, but when he 
 offers it in evidence it is more than 30 years old. The ques- 
 tion is, whether the deed is admissible in evidence as an ancient 
 document. 
 
 The deed is admissible as an ancient document.^! The rule 
 is, that documents which are more than 30 years old at the 
 date they are offered in evidence are "ancient," although less 
 than thirty years old at the date of the commencement of the 
 suit.22 
 
 20— Doe V. Wolley, 8 B. & C,. 22. 21— Reuter v. Stuckart, 181 111., 
 
 In this case Lord Tenterden says: 529. 
 
 "The rule of computing thirty 22— Gardner v. Granniss, 57 Ga., 
 
 years from the date of a deed is 539; Bass v. Sevier, 58 Tex,. 567; 
 
 equally applicable to a will." Star- 1 Am. & Bng. Ency. of Law, 565, 
 
 ingv. Bo wen, 6 Barb. (N. Y.), 109; note 1. 
 Shaller v. Brand, 6 Blnn. (Pa.), 
 439. 
 
516 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 ILLUSTRATIONS ON DECLARATIONS AGAINST INTEREST BY 
 PERSONS SINCE DECEASED. 
 
 1. H sues M to recover damages for the destruction of 
 his buildings by a fire alleged to have been caused by the 
 negligence of M. M contends that H's buildings were de- 
 stroyed owing to the negligence of H's servant S, who was 
 in charge of H's sausage room at the time of the fire. To 
 prove his contention, M offers in evidence a declaration by S, 
 made shortly after the fire, to one L, that when the alarm 
 was given of the mill fire he left the lard kettle boiling and 
 went out to see the mill fire; and that, when he returned, the 
 lard kettle had boiled over and set the room and building on 
 fire. S is now dead. H objects to this evidence as incompe- 
 tent, irrelevant, immaterial and hearsay. The question is,, 
 whether it is admissible. 
 
 The declaration is admissible. "Confessedly the evidence 
 was hearsay, but it falls within a necessary and established 
 exception to the general rule excluding hearsay evidence. 
 The exception is this: Declarations, whether verbal or writ- 
 ten, made by a deceased person, as to facts presumably within 
 his* knowledge, if relevant to the matter of inquiry, are ad- 
 missible in evidence as between third parties, when it appears 
 that: (a) The declarant is dead; (b) the declaration was 
 against his pecuniary interest; (e) the declaration was of a 
 fact in relation to a matter of which he was personally cog- 
 nizant; (d) the declarant had no probable motive to falsify 
 the fact declared." It is not essential that the declaration 
 was made ante litem motam. The true test is, "whether they 
 were made under circumstances justifying the conclusion that 
 there was no probable motive to falsify the facts declared. 
 The existence or nonexistence of a controversy at the time 
 a declaration was made might be a material circumstance to 
 enable the court to determine whether there was any probable 
 motive for the declarant to falsify as to the facts declared. 
 Whether the fact that the declaration was made after a con- 
 
DECLARATIONS AGAINST INTEREST. ' 517 
 
 troversy arose would tend to show such motive would depend 
 upon the character and facts of each particular case."i 
 
 2. B sues T in replevin to recover possession of a colt upon 
 which he holds a chattel mortgage. T denies that B is en- 
 titled to possession of the colt. The facts are, T sold to one 
 D a mare then with foal, reserving the foal, and allowing D 
 $25 to raise it. A few weeks later the colt was born, and D 
 raised it. When it was six weeks old D told T, in the pres- 
 ence of two witnesses, "I would not give you $5 for your 
 colt." Two months later D told a Mrs. T that he did not own 
 the colt; that T had reserved it when he sold him the mare. 
 When the colt was six months old D gave B a chattel mort- 
 gage on the colt to secure a debt. D is now dead. The ques- 
 tion is, whether the declarations made by D to T and Mrs. T 
 are admissible in evidence. 
 
 The declarations are admissible as declarations against in- 
 terest by a person since deceased. They are clearly within 
 all the conditions requisite for the reception of such evidence : 
 (1) The declarant was dead; (2) The declarations were against 
 the pecuniary interest of the declarant at the time they were 
 made; (3) The declarations were concerning a fact of which 
 the declarant was immediately and personally cognizant; and 
 (4) The declarations were made, not only ante litem motam, 
 but also before the chattel mortgage was executed, and when 
 there was no motive on the part of D to falsify.^ 
 
 3. H seeks to reverse a recovery suffered by one F of cer- 
 tain lands. The issue is, "Whether Wm. Fowden (F) 
 
 was an infant within the age of 21 years, to wit, of the age 
 of 20 years and no more. ' ' The question is, whether an entry, 
 by one H, the man-midwife who attended at F's birth, and 
 who is now dead, charging for his services and marked 
 "paid," is admissible to prove the date of F's birth. 
 
 The entry is admissible as a declaration against interest by 
 a person since deceased. The fact that part of the entry is 
 self-serving does not exclude it. The disserving part would 
 
 1 — Halvorsen 
 
 V. 
 
 Moon & 
 
 Kerr 
 
 2— Baker 
 
 V. 
 
 Taylor, 
 
 54 
 
 Minn. 
 
 Lumber 
 
 Co. , 
 
 87 
 
 Minn.. 
 
 18 
 
 71. 
 
 
 
 
 
 (1902). 
 
 
 
 
 
 
 
 
 
 
518 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 be meaningless standing alone; and the entry taken as a 
 whole shows no probable motive to falsify the fact declared. 
 Nor does the fact that the declarant is not identified in in- 
 terest with a party to the suit exclude it. Identity of interest 
 in the subject matter of the suit is essential to the admissi- 
 bility of admissions; but this rule is not applicable to dec- 
 larations against interest by a person since deceased.* 
 
 4. A seeks to have the probate of E's will set aside on tho 
 ground that B was mentally incapable of making a will. The 
 question is, whether a declaration by B, the only beneficiary 
 under the will, made on the morning the will was executed, 
 that E was ' ' just alive and that is all, ' ' is admissible against B. 
 
 The declaration is admissible, since B is the only beneficiary 
 interested in sustaining the will.* 
 
 5. The town of M sues A, a surety on a bond given by B, 
 a deceased collector of taxes, for the faithful performance of 
 his duties. The question is, whether entries, made by B in 
 a private book kept for his own convenience, stating that cer- 
 tain amounts had been paid to him by certain persons as 
 taxes, are admissible in evidence against A. 
 
 The entries were aganist B's pecuniary interest, and he is 
 .now dead. At the time they were made the relation of prin- 
 cipal and surety between B and A still existed. It follows, 
 therefore, that they are admissible in evidence against A.^ 
 
 6. The county of M sues I, the executor of one S, deceased, 
 and the sureties on S's official bond as treasurer. The ques- 
 tion is, whether oral declarations by S, made by him while 
 the bond was still in force, that he was behind with the 
 county of M $2,000, are admissible in evidence against I and 
 the sureties. 
 
 3 — Higham v. Ridgway, 10 a verdict was given against the 
 
 Bast. 109. defendants for |1,000,000 debt, 
 
 4 — Bgters v. Egbers, 177 III. the penalty of the bond, and 
 
 82. upwards of |500,000 idamages, 
 
 5 — Middleton v. Melton, 10 B. upon which judgment was ren- 
 & C. 317 (a leading English dered. This judgment was re- 
 case). See also, the important versed by the Appellate Court, 
 case of City of Chicago v. Gage, but sustained by the Supreme 
 et ah. 95 111., 593, in which case Court. 
 
DECLARATIONS AGAINST INTEREST. 519 
 
 The declarations by S are admissible. The fact that they 
 were made orally does not exclude them.* It has been held, 
 however, that oral declarations against interest are inadmis- 
 sible. Thus, the editors of Phillipps on Evidence say, "We 
 believe not one (ease) has gone the length of saying that the 
 oral declaration of a person, however much it may militate 
 against his interest, shall be received merely upon the ground 
 that he is dead."^ And Chief Justice Shaw says, in an early 
 Massachusetts case,® "It is argued that the evidence was with- 
 in another exception to the rule respecting hearsay, viz., being 
 an admission against his interest at the time. Higham v. 
 Ridgway, 10 East, 109. But we think this has been confined 
 wholly to cases of entries made in books, &c., by a person 
 deceased, in relation to a matter contrary to his interest at 
 the time." The same view was held in another Massachusetts 
 case.^ The ground assigned for this view is "looseness and 
 uncertainty of mere verbal statements" as compared with 
 "clearness and certainty of written memoranda." According 
 to the modern view, however, the fact that the declarations 
 are oral instead of written may affect their weight, but not 
 their admissibility .i" 
 
 6 — The County of Mahaska v. parol statement has in many 
 
 Ingalls, 16 la. 81. cases no weight at all. But 
 
 7 — 3 Phillipps on Evid., Cow- when the fact of a parol state- 
 en & Hill's Notes, 260. ment having been made is sat- 
 
 8 — Lawrence v. Kimball, 1 isfactorily proved, I cannot see 
 
 Mete. (Mass.) 524. any distinction, as regards ad- 
 
 9 — Framingham, D. C, Co. v. missibility, between it and a 
 
 Barnard, 2 Pick. 532. written one, and no such dis- 
 
 10 — Bartlett v. Patton, 33 W. tinction is taken in the cases." 
 Va. 72; Furdson v. Clogg, 10 In the case of the County of 
 M. & W. 572; Marcy v. Stone, 8 Mahaska v. Ingalls, 16 la. 81, 
 Gush. (Mass.) 4; Reg. v. Over- cited in note 6, Dillon J., after 
 seers of Birmingham, 1 Best & a careful examination of the au- 
 S. 763. In the last case cited, thorities, says, "In the case at 
 Blackburn J. says, "Lastly, is bar the declarations were ver- 
 there any distinction in this re- bal, and the question yet re- 
 spect between a written entry mains to be considered whether 
 and an entry proved by parol? I verbal admissions stand upon 
 can see a great difference be- the same footing as written 
 tween them In weight, for a ones. Aside from the superior 
 
620 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 7. A, B and C are joint and several makers of a promis- 
 sory note. A, who paid the holder of the note the whole 
 of the debt and interest, sues B as cosurety for contribution^ 
 and C as principal for the whole amount paid the holder. To 
 show that C is the principal debtor, A offers in evidence, 
 against objection, an indorsement on the note by the payee 
 (since deceased), acknowledging the payment by A of £280, 
 on account of the £300, "the £300 having originally been 
 advanced to Evan Humphreys" (C). The question is, whether 
 the indorsement is admissible to prove the collateral fact em- 
 bodied in the statement within the quotation marks. 
 
 The indorsement as a whole was against the interest of the 
 declarant, who is now dead. The part within the quotation 
 marks is connected with the part against the declarant's 
 interest, and is not self-serving. It is therefore admissible to 
 prove the collateral fact that C was the principal debtor on 
 the note."" 
 
 weight and value due to declara- In addition, tlie court should, upon 
 tions reduced to writing, we did the circumstances of the particu- 
 not suppose any distinction lar case, he satisfied that there was 
 could be justly drawn in prin- no probable motive to falsify the 
 ciple between these and oral fact declared; as where the dec- 
 or parol declarations Prom laration is made ante litem motam, 
 
 the unbroken current of English or at a period so remote as to 
 and the decided preponderance preclude all suspicion that it was 
 of American authority, we think manufactured for the occasion." 
 the present (1864) state of the In the same case, Dillon, J., 
 law is, that verbal declarations after citing and commenting upon 
 are receivable, when accompa- a few cases which reject oral dec- 
 nied by the following prerequi- larations against Interest by per- 
 sites: 1st. The declarant must sons since deceased, says: "In con- 
 be dead. To this we believe the sequence of these statements, so 
 English cases make no excep- deservedly entitled, from their 
 
 tion 2nd. The next pre- source, to great weight and credit, 
 
 requisite is, that the declaration we have been led to explore this 
 
 must have been against the in- question to its foundation, and are 
 
 terest of the declarant at the constrained to the conclusion that 
 
 time, and that Interest must be the cases do not establish any dis- 
 
 a pecuniary one 3rd. tinction in this regard, in princi- 
 
 The declaration must be of a pie, between oral and written ad- 
 fact or facts in relation to a mat- missions." 
 
 ter concerning which the deelar- 11— Davles v. Humphreys, 6 
 
 ant was immediately and person- M. & W. 153. 
 
 ally cognizable 4th. 
 
deojAeations against interest. 521 
 
 8. K appeals against an order of the court for the removal 
 of one D, a female pauper, from the parish of B to the parish 
 of K. Evidence is introduced which shows that the father 
 of the pauper's husband had occupied and paid rent, for a 
 tenement in the parish of K. To prove the amount of the 
 rent paid, evidence is offered by the respondent, against ob- 
 jection, that the father of the pauper's husband, while oc- 
 cupying the tenement, and who is now dead, told his son 
 that he (the father) occupied the same as tenant at a rental 
 of £20 per year. The question is, whether the evidence is ad- 
 missible. 
 
 The' evidence is admissible to prove the collateral fact, the 
 amount of the rent paid. Possession of the tenement raised a 
 presumption of ownership in fee. Hence the statement by the 
 father, that he occupied the premises as tenant, was against 
 his proprietary interest. And since he is now dead, the state- 
 ment is admissible as a declaration against interest by a per- 
 son since deceased, not only to prove the adverse interest, but 
 also the collateral fact connected with it that the amount of 
 the rent was £20 per year. The fact that the declaration 
 was made orally is immaterial, as regards the admissibility of 
 the declaration.! 2 
 
 9. S sues B for money lent, money paid, work done, and 
 on accounts stated. To prove certain, alleged transactions 
 between S and B, S offers in evidence, against objection, a 
 letter, written by S's confidential clerk, who managed a 
 branch business, stating that B had sent three cases to the 
 bfBce, and giving ' details of the transactions connected there- 
 with. The clerk is now dead. The question is, whether the 
 letter is admissible in evidence as a declaration against in- 
 terest by a person since deceased. 
 
 The letter was not against the pecuniary or proprietary in- 
 terest of the clerk, and therefore it is inadmissible. It was 
 merely an ordinary business report from an agent to his prin- 
 cipal concerning the business in which he was engaged. The 
 adverse interest "amounts to no more than an admission that 
 he (the clerk) has the care of the three chests which have 
 
 12— The Queen v. The Parish 763 (Q. B. D.); The BaroE 
 of Birmingham, 1 Best & Sm. Bode's Case, 8 Q. B. D. 208, 244 
 
522 LEADING PBINCIPLES AND RtnLES OF EXCLUSION. 
 
 arrived at the office, and the possibility that this statement 
 might make him liable in the ease of their being lost is an 
 interest of too rtmote a nature to make the statement ad- 
 missible in evidence. "1^ 
 
 10. A sues B and C as partners. C dies and A sues B 
 alone as surviving partner. B denies that he was C's partner, 
 and to prove it he offers in evidence, against objection, dec- 
 larations made by C to the effect that he was not a partner of 
 B. At the time C's declarations were made, the business, in 
 which A claims that B and C were partners, was insolvent. 
 The question is, whether C's declarations are admissible. 
 
 The fact that the business, in which A claims that B and 
 C were partners, was insolvent when C's declarations were 
 made, renders the declarations admissible. "This fact, it 
 must be noticed, is of vital importance, as affecting the ques- 
 tion of interest. In the absence of the fact of insolvency, it 
 is manifest that the converse proposition that Humes (B) 
 was a partner of the declarant would be a declaration against 
 his interest. This is so because, if true, it would entitle 
 Humes (B) to a half interest in the partnership assets. 
 . . . . The assertion, therefore, that Humes (B) was not 
 a partner, Ijaving been made at a time when the partnership 
 business had failed, it was a declaration exonerating him from 
 a pecuniary liability for the partnership debts, and, if trua, 
 to this extent doubled the ultimate amount of Glover's (C'j) 
 liability."!* 
 
 11. A, who owned community property with his wife, 
 died, leaving besides his widow a child who claims to have 
 been adopted by him. Subsequently the widow died leaving a 
 will in which she recognized the child as an heir of A, and 
 stated that the child was an adopted daughter. The child 
 now sues the devisees who claim under the widow's will. The 
 question is, whether the declaration in the will, that the child 
 was an adopted daughter, is admissible to prove the fact 
 of such adoption. 
 
 The declaration was against the widow's interest, and for 
 
 13— Smith V. Blakey, L. R. 2 14— Humes v. O'Sryau, 74 Ala 
 a B. D. 326. 64. 
 
DECLAEATIONS AGAINST INTEREST. 523 
 
 this reason admissible in evidence, and, in the absence of 
 other evidence sufSeient to establish the fact of the adoption.^''' 
 
 12. A, B and C, as some of the children and heirs at law 
 of T, deceased, sue for partition of the real estate of which T 
 died seized. The defendants claim that T, in his lifetime, 
 made advancements to A, B and C of $1,000 each. The 
 plaintiffs admit receiving from T $1,000 each, but aver that 
 the amount received was a gift and not an advancement. To 
 prove this, they offer in evidence, against objection, declara- 
 tions made subsequently by T to the effect that the amount 
 received by A, B and C was an absolute gift to each of tLem 
 and not an advancement. The question is, whether T's dec- 
 larations are admissible. 
 
 Upon this question, the decisions are in hopeless conflict. 
 In a recent Iowa case,i* the court hold that subsequent 
 declarations of the donor, not a part of the res gestae, are 
 inadmissible to show that a conveyance to a son is a gift 
 rather than an advancement. In a recent Missouri case^^ the 
 court hold the contrary. In the latter case, MacFarlane, J., 
 speaking for the court, says: "The presumption is that a 
 parent intends that his children shall share equally in his 
 estate. Hence the further presumption that when he gives 
 property to one of his children, in his lifetime, he intends 
 the same as an advancement to such child with which he is 
 to be charged on final distribution of his estate. Therefore, 
 though the donor parts with all his interest in the property 
 given, he still has an interest in having it charged as an ad- 
 vancement in order that all his heirs may be made equal out 
 of the property remaining at his death. It is therefore to 
 his interest that the donation should be charged as an ad- 
 vancement, and any subsequent admissions of the donor to 
 third persons that it was intended as an absolute gift would 
 be made against his interest and would be admissible, not for 
 the purpose of changing the character of the transaction, or 
 of impeaching the title of the grantee, but of rebutting the 
 
 15— White V. Holman, 25 Tex. 16— Bills v. Newell, 120 la. 
 Civ. App. 152; Govin v. De Mir- 171 (1903). 
 
 anda, 140 N. Y. 474. 17 — Gunn v. Thruston, 130 Mo. 
 
 339, 347 (1895). 
 
524 LEADING PEINCIPLES AND EXILES OF EXCLUSION. 
 
 presumption that it was intended as an advancement." In an 
 earlier Missouri ease,i« Black, J., speaking for the court upon 
 this point, says: "Where a conveyance has been made by 
 the father to a child, the father's subsequent declarations may 
 be received to show that the conveyance was not an advance- 
 ment, but an out and out gift." In the same case he says: 
 "Verbal declarations by a parent to third persons that he 
 had advanced the child are incompetent when offered in the 
 interest of the estate." 
 
 13. T files a bill for partition. The pleadings present the 
 question for decision whether some of the heirs of the dece- 
 dent had not received property from him as an advancement. 
 Declarations by the decedent, made several years after he 
 made conveyances to some of his children, to the effect that 
 the property was made over to the respective recipients as 
 an absolute gift, and not as an advancement, are offered in 
 evidence, against objection, on behalf of the recipients. The 
 question is, whether the declarations are admissible. 
 
 As stated in the answer to the next preceding question, the 
 decisions upon this question are in hopeless conflict. In In- 
 diana, as well as in Iowa and some other states, such declara- 
 tions are held inadmissible. In an Indiana case, decided in 
 1892, Elliott, J., speaking for the court, says: "Nor do we 
 think they are competent upon the ground that they were 
 declarations against the interest of the party by whom they 
 were made, inasmuch as so far as his interest was concerned 
 it was immaterial whether the transfer of the money and 
 property was by way of gift or advancement. "^^ 
 
 14. G, who holds judgments against B, since deceased, files 
 a bill against B's widow to set aside a conveyance made to 
 her by B. The defendant claims that her husband, B, had 
 purchased the land with her money and had held the title as 
 trustee. To prove this, she offers in evidence, against objec- 
 tion, a written declaration made by B before his indebtedness 
 to G was incurred, to the effect that he had used his wife's 
 
 18 — Nelson v. Nelson, 90 Mo. Thlstlewaite et al., 132 lad 
 463. 365. 
 
 19— Thistlewalte et al. v. 
 
DECLARATIONS AGAINST INTEREST. 5L'.> 
 
 money in purchasing the property and that he held the title 
 in trust for her. The question is, whether the declaration is 
 admissible. 
 
 Since the declaration was against B's proprietary interest, 
 and he is now dead, the declaration is admissible.^" 
 
 15. W sues D on his promissory note. D pleads no con- 
 sideration. The note was executed by D in renewal of two 
 other notes executed by D to W's father, which were found 
 in W's possession, but not indorsed to him. D contends that 
 these notes were the property of W's father, and therefore 
 the note sued upon was without consideration. W contends 
 that the two notes, in renewal of which the note sued upon 
 was executed, had been given to him by his father, in a 
 distribution among his children of the notes held by his 
 father. To prove this, W offers in evidence, against objection, 
 declarations made by W's father to third persons, to the 
 effect that he had made a gift to W of the two notes, in 
 consideration of which the note sued upon was executed. W's 
 father is now dead. The question is, whether the declarations 
 are admissible. 
 
 The declarations are admissible. They "were against the in- 
 terests of Thomas Wilkerson (W's father), and related to a 
 fact about which he possessed competent knowledge. This 
 constitutes one of the exceptions to the general rule upon the 
 subject of hearsay evidence, "^i 
 
 16. W and T made an agreement whereby W purported to 
 relinquish all claim to a certain legacy in consideration of 
 T releasing him from all liability to refund £2,000 advanced 
 to him by the testator, T's brother. W subsequently refused 
 to perform the agreement, and T sues him to enforce its per- 
 
 20 — The German Insurance Co. interests is deemed a sufficient 
 
 et al. v. Bartlett et al , 188 111. security, both that the declara- 
 
 165. tions were not made under any 
 
 21 — Dean v. Wilkerson, 126 mistake of fact, or want of in- 
 
 Ind, 338. "The ground, upon formation on the part of the dec- 
 
 ■which this evidence is received, larant, if he had the requisite 
 
 is the extreme improliability of means of knowledge, and that 
 
 its falsehood. The regard which the matter declared is true." 1 
 
 men usually pay to their own Greenleaf on Evid., §148. 
 
526 
 
 LEADING PEINCIPLES AND RXJLES OF EXCLUSION. 
 
 formanoe. T is the testator's residuary legatee. W contends 
 that the £2,000 advanced to him by the testator was a gift 
 in the nature of a marriage portion to his wife, the adopted 
 daughter of the testator. T contends that it was a loan. 
 To prove that it was a loan, T offers in evidence an entry 
 in the testator's private account book as follows: J. Witham 
 paid me three months' interest. . . . £20," giving the 
 date. The question is, whether this entry is admissible. 
 
 The entry is admissible. It is prima facie against the de- 
 clarant's interest, and, upon this point, that is sufiBcient. The 
 fact that a collateral and ultimate object for which it is used 
 is exactly the opposite does not affect the admissibility of 
 the declaration. The ultimate fact which the entry shows is, 
 that the advancement made was a loan and not a gift. As 
 regards this ultimate fact, the entry is in the declarant's 
 favor, but this concerns the weight of the declaration and not 
 its admissibility.^^ 
 
 22 — Taylor v. Witham, 3 Chi. 
 Div. 605. This is a very im- 
 portant case. In the opinion, 
 Jessel, M. R., says: "This ques- 
 tion is one of very great im- 
 portance, not merely in this par- 
 ticular instance, hut in many 
 other cases. The real question 
 is, under what circumstances 
 the entry made by a dead man 
 In his hooks ought to he re- 
 ceived in evidence. It Is no 
 doubt, an established rule in 
 the courts of this country that 
 an entry against the interest of 
 the man who made it is receiv- 
 able in evidence after his death 
 for all purposes. What is the 
 meaning of being against his 
 Interest? .... it must he 
 prima facie against his interest, 
 that is to say, the natural mean- 
 ing of the entry standing alone 
 must be against the interest of 
 the man who made It. Of 
 course, if you can prove aliunde 
 that the man had a particular 
 16 
 
 reason for making it, and that 
 it was for his interest, you may 
 destroy the value of the evi- 
 dence altogether, but the ques' 
 tion of admissibility is not a 
 question of value. The entry 
 may he utterly worthless when 
 you get It, if you show any rea- 
 son to believe that he had a 
 motive for making it, and that 
 though apparently against his 
 interest, yet really it was for 
 it; hut that Is a matter for sub- 
 sequent consideration when you 
 estimate the value of the testi- 
 mony In this particular 
 
 case, therefore, the real value of 
 the entry is as evidence that 
 there was a debt. But that is a 
 collateral circumstance; if I at 
 once admit the entry as being 
 naturally and prima facie against 
 interest, I should say the use 
 which has been made of it is 
 quite immaterial; that is accord- 
 ing to all the authorities." 
 
DECLARATIONS AGAINST INTEREST. 527 
 
 17. The question is, whether an indorsement on a promis- 
 sory note, made by the original payee who has since died, and 
 acknowledging a payment of interest on the note after the 
 statute of limitations had begun to run against it, is admis- 
 sible in evidence as a declaration against interest by a person 
 since deceased. 
 
 The indorsement is prima facie against the pecuniary in- 
 terest of the declarant; but since its effect is to remove the 
 ban of« the statute, it is upon the whole in the declarant's 
 favor. Therefore, in the absence of other evidence, it is in- 
 admissible.23 
 
 23 — Libby v. Brown, 78 Me. Clement, 12 La. Ann. 82; Cham- 
 492; Roseboom v. Bllllngton, 17 berlain v. Chamberlain, 116 111. 
 Johns. (N. Y.) 182; Beatty v. 480. 
 
528 LEADING PEINCIPLES AND RULES OP EXCLUSION. 
 
 ILLUSTRATIONS ON ACCOUNT-BOOK ENTRIES. 
 
 1. A obtained a judgment against B. B took an appeal 
 on the ground that certain account-books were admitted, 
 against objection, which were not books of original entry. The 
 facts show that the entries were originally made on a»slate by 
 C, who was A's foreman; that once a month C would take the 
 slate to A, who would take it home in the evening, copy the 
 entries on the slate into his book and return the slate to C the 
 next morning. The question is, whether A's account-books 
 were properly admitted. 
 
 According to some decisions, including those of Illinois, the 
 books were properly admitted. Where charges are made, in 
 the first instance, upon a slate, and within a reasonable time 
 thereafter transferred by the proprietor or his clerk, and these 
 carefully compared with the entries on the slate, so as to make 
 certain they were correctly copied into the books, the books, 
 on proof of these facts, will be admissible in evidence in behalf 
 of the proprietor,— the minutes upon the slate being regarded 
 as mere memoranda to aid the memory until the items should 
 be transferred to the books. To admit charges on party's 
 books, transferred from minutes originally made upon a slate, 
 as evidence as to the items therein shown, it is sufficient if the 
 entries were transferred within a reasonable time, so that it 
 may appear to have taken place while the memory of the facts 
 was recent, or the source from which a knowledge of the mat- 
 ters was derived was unimpaired, and it is shown the entries 
 on the slate were made when the goods were delivered.* 
 
 1 — Redlich v. Bauerlee, 98 111., the items therein contained; that 
 
 134. the same is a book of original 
 
 The Illinois statute relating to entries, and that the entries 
 
 account-book entries, passed in therein were made by himself, 
 
 1867, provides as follows: "Where and are true and just; or that 
 
 in any civil action, suit or pro- the same were made by a deceased 
 
 ceeding, the claim or defense is person, or by a disinterested per- 
 
 founded on a book account, any son, a non-resident of the state 
 
 party or interested person may at the time of the trial, and were 
 
 testify to his account book, and made by such deceased or non- 
 17 
 
ACCOUNT-BOOKS OF PARTIES TO LITIGATION. 529 
 
 2. A, as the personal representative of B, deceased, sues 
 C, B's son, in assumpsit. A offers in evidence, against objec- 
 tion, entries made by D, another of B's sons, at the request 
 and under the directions of B. The entries comprise state- 
 ments of certain personal property which each of several of 
 B's children had received from him. At the time the entries 
 were made B said that he wanted these matters put down so 
 that all of his children might share equally in his estate. The 
 question is, whether the entries are admissible. 
 
 The entries are inadmissible because they were not made in 
 the usual course of business. They are mere memoranda of 
 advancements made by B.^ 
 
 3. A sues B for services rendered. B, after testifying to 
 the correctness of the entries in his day-books, of the various 
 items of his account against A, is permitted to put his day- 
 books in evidence. He then offers, against objection, to put in 
 evidence his ledger, which he testifies is a correct transcript of 
 his day-books, but the court sustains the objection, and judg- 
 ment is entered for A. The question is, whether the court's 
 ruling is prejudicial error. 
 
 The court's ruling is not prejudicial error. When a party's 
 day-books are admitted in evidence, after he has testified to 
 the correctness of the various entries therein, there is no error 
 in refusing to allow him to give in evidence his ledger, which 
 he testifies is a correct transcript of his day-books.* The 
 ledger is not a book of original entries. 
 
 4. A sues B in assumpsit for services rendered. To show 
 the services rendered, and the amount due him, A offers in 
 evidence, against objection, B 's account-books. The entries in 
 the account-books were made the day after the work was done, 
 from time-slips made by the workmen and marked "ap- 
 proved" by the foremen who testify to their correctness, and 
 the men who made the entries on the books testify that the 
 
 resident person in the usual the cause." L. 1867, p. 184, § 3- 
 
 course of trade, and of his duty Kurd's Revised Statutes (1903) 
 
 or employment to the party so Chap. 51. § 3. 
 
 testifying; and thereupon the 2— Treadway v. Treadway, 5 
 
 said account book and entries 111., App., 478. 
 
 shall be admitted as evidence in 3— Stickle v. Otto, 86 111., 161. 
 
530 LEADING PEINCIPLES AND EXILES OF EXCLUSION. 
 
 slips wre correctly copied. The question, is, whether the ac- 
 count-books are admissible. 
 
 Since the entries are fully verified the account-books are ad- 
 missible to prove them.* 
 
 5. A sues the B Ins. Co. on his policy to recover the value 
 of goods destroyed by fire. He proves that a correct inven- 
 tory of the goods was taken at a certain date ; that the inven- 
 tory was reduced to writing in an inventory book; that the 
 footings were correctly copied upon the fly-leaf of an ex- 
 hausted ledger, and afterwards transferred to the fly-leaf of a 
 new ledger; that the inventory and exhausted ledger had been 
 destroyed and that none of the witnesses could remember the 
 amount of the inventory or footings. The question is whether 
 the entry of the footings on the fly-leaf of the new ledger is 
 competent evidence in connection with the oral testimony. 
 
 The entry, under the circumstances stated, is competent evi- 
 dence.'* 
 
 6. In an action on the case, A sues B to recover from him, 
 as bailee, the value of a package of jewelry sent to B's hotel to 
 be delivered to A's traveling agent. To prove the different 
 articles, prices, etc., he offers in evidence a copy of an original 
 memorandum-book kept by him. The question is, whether the 
 copy of the memorandum-book is admissible. 
 
 The copy is inadmissible. Even the original memorandum- 
 book would be inadmissible. This is owing to the fact that, 
 since this action is for a tort the matter sought to be proved 
 is collateral to the issue of debt and credit between the parties ; 
 in which case account-book entries are inadmissible.^ 
 
 7. A sues B for goods sold and delivered to him. A offers 
 in evidence the book of original entries kept by his intestate, 
 together with his own oath and that of the intestate's clerk. 
 B objects to its admissibility on the ground that no measure, 
 weight or quantity is given in connection with the several 
 
 4 — Chlsholm v. Beaman Ma- is approved in C. & A. R. R. C!o. 
 
 chine Co., 160 111., 101. ' v. Strawboard Co., 190 111., 268. 
 
 5 — Ins. Co. V. Weides, 14 Wall. 6 — Palmer v. Goldsmith, 15 lU. 
 
 (V. S.), 375. The decision in App., 544, 
 this case, upon the point raised, 
 
ACCOUNT-BOOKS OF PARTIES TO LITIGATION. 531 
 
 items charged. The question is, whether the entries are ad- 
 missible. 
 
 The entries are admissible. The omissions stated may aifeet 
 the weight of the entries but not their admissibility.'^ 
 
 8. In the settlement of the estate of a decedent, Dr. M, one 
 of , the claimants, seeks to put in evidence account-book entries 
 contained in a separate book, charging the decedent for pro- 
 fessional services. The question is, whether the entries are ad- 
 missible. 
 
 The entries are inadmissible. A book which shows on its 
 face that it was not one of entries in the regular course of busi- 
 ness, but was a separate book containing no charges except 
 against the defendant is not admissible as a book of original 
 entries. The regularity of the account as to its place in the 
 ordinary books of the business is as necessary as its regularity 
 in other respects, and the book, failing in that requirement, 
 must be rejected altogether.* 
 
 9. A sues B in assumpsit. To prove his claim, he offers in 
 evidence, against objection, his account-books. The only evi- 
 dence given in support of the books is that of A's bookkeeper, 
 who merely transcribed the entries from slips handed him by 
 salesmen, and who had no personal knowledge of the sale and 
 delivery of the goods charged. The question is, whether the 
 account-books are admissible. 
 
 The account-books are inadmissible. It is sometimes proper 
 to admit books of account as evidence of the acts of those who 
 kept them, where the entries were contemporaneous with the 
 acts recorded ; but where the book is, as in this case, the record 
 of the acts of others, not within the personal knowledge of the 
 bookkeeper, but made up from the statements of others, such 
 book is hearsay. From the earliest cases, the admission of 
 entries by third persons has proceeded upon the theory that 
 such persons had personal knowledge of the fact stated in the 
 
 7— Pratt V. "White, 132' Mass., principle, they should be put 
 
 ^'^'^- upon the same plane as the ac- 
 
 &~In re Pulton's Estate, 178 count-hooks of persons engaged 
 
 Pa. St., 78. In some jurisdictions In commercial pursuits, and the 
 
 account-books of professional per- tendency is to do so. 
 sons are held admissible. Upon 
 
532 LEADING PP.INCIPLES AND BULES OP EXCLUSION. 
 
 entry. To render the books admissible, further proof is es- 
 sential.9 
 
 10. A sues B in assumpsit to recover $2,500 loaned him. 
 To prove his claim, A offers in evidence, against objection, an 
 old account-book in which B was debited with this twenty-five 
 hundred dollars. The question is, whether the entry is admis- 
 sible. 
 
 The entry is inadmissible. An account-book to be used as 
 evidence should be one containing an entry of transactions in 
 the store, factory or office, as they occurred in the regular 
 course of business. Where it is an old book, laid aside as a 
 book of accounts, and used only for one entry of a late trans- 
 action, it is not admissible to prove such entry. It has never 
 been held that a single entry makes an account-book, nor has it 
 ever been held that a single entry of cash in a book is compe- 
 tent proof. 1" 
 
 11. A, a blacksmith, sues B in assumpsit for work and 
 labor. According to his habit, A had entered the charges on 
 a slate and subsequently transcribed them in ledger form into 
 an account-book, after which the entries on the slate were 
 rubbed out. He now offers the account-book in evidence and 
 B objects to it on the ground that it is not a book of original 
 entries. The question is, whether the book is admissible. 
 
 The account-book is admissible. The entries on the slate 
 were merely memoranda for temporary use.^^ 
 
 12. A, a merchant, sues B in assumpsit for goods sold and 
 delivered. lie offers in evidence, against objection, his ac- 
 count-books of original entries kept by his clerk. The clerk 
 testifies to the correctness of the books. The question is, 
 whether the books are admissible. 
 
 The books are clearly admissible. It is well settled in this 
 country that entries made by a clerk, in the regular and usual 
 
 9— Swan v. Thurman, 112 and also, Stettaner v. White, 98 
 Mich., 416. See also an exhaustive 111., 72. 
 
 discussion of the subject In a 10 — Kibhe v. Bancroft, 77 111., 
 note to Price v. Barl of Torring- 18. 
 
 ton, 1 Smith's Lead. Cases, 344; 11 — Faxon v. Hollis, 13 Mass., 
 
 427 (1816). 
 
ACCOUNT-BOOKS OF PAETIES TO LITIGATION. 533 
 
 course of business, are admissible in evidence after his death 
 on proof of his handwriting: and during his life, if authenti- 
 cated ly Mm. Such entries form part of the res gestae, and 
 are admissible as original evidence.^^ 
 
 13. A sues B for goods sold and delivered. He offers in evi- 
 dence, against objection, account-books of original entries kept 
 by himself. The question is whether the books are admissible. 
 
 The account-books are admissible. Books of original entries, 
 kept by the party himself, are admissible upon proof being 
 made that some of the articles were delivered at or about the 
 time the entries purport to have been made; that the entries 
 are in the handwriting of the party producing the books; that 
 he kept no clerk at the time ; and that persons having dealings 
 with him had settled by the books, and found them to be fair 
 and correct.^' 
 
 14. A sues the B Ry. Co. for damages for burning stacks 
 of straw. To show the quantity of straw destroyed, A offers 
 in evidence, against objection, eighteen instruments of writing 
 called "stack sheets." These sheets were prepared from scale 
 tickets on which the weight of each load of straw was entered 
 when it was received. The scale tickets were not preserved. 
 The persons who weighed the straw and made the scale tickets 
 and stack sheets testify that the weights were correctly set 
 down on the scale tickets, and correctly transcribed to the 
 stack sheets in each instance. The question is, whether the 
 stack sheets are admissible. 
 
 The stack sheets are admissible as original documents.^* 
 
 15. A sues B in assumpsit for meat sold and delivered. He 
 offers in evidence his account-books, and testifies that they 
 were kept in the conduct of his business; points out in them 
 many items of meat charged to B, which are in A's handwrit- 
 ing ; testifies that the entries were made by him at the time the 
 goods were sold and delivered to B; that they are just ajid 
 
 12— Humphreys v. Spear, 15 111., 412; Klbbe v. Bancroft, 77 
 
 111-. 275. 111., 18. 
 
 13— Boyer v. Sweet, 3 Scam. 14— C. & A. R. R. Co. v. Straw- 
 
 (111.), 120; Ruggles v. Gatton, 50 board Co., 190 111., 268. 
 
534 LEADING PBINCIPLES AND BULBS OF EXCLUSION. 
 
 correct ; that tliey are original entries. B objects to the hooka 
 on the ground of their delapidated condition. Originally, the 
 books had only paper covers, and 'the entries are mostly in pen- 
 cil. They are shop-worn, have been used in several law suits, 
 the outside covers, some outside leaves, and a few interior 
 leaves, are gone. A offers to produce his ledgers, posted from 
 them, to show any credits that might have been on the lost 
 sheets. The question is, whether the books are admissible. 
 
 The books are admissible. The possible loss of credits to B 
 under the circumstances stated is not a sufficient reason for 
 rejecting them, but only a matter affecting their weight.i^ It 
 has been held, however, that the mutilation of books of original 
 entry, by the party in whose custody they were, is such a sus- 
 picious circumstance as to destroy whatever credit might other- 
 wise be attached to the ledger in connection therewith.i^ Whar- 
 ton says: "The book on its face must be regular. Mutilated 
 memoranda can not constitute a book of original entries. The 
 entry must be complete in itself. Sheets of paper however, 
 on which separate entries have been made, have been received. 
 The entries must be fair and free from suspicious altera- 
 ations."iT 
 
 15 — Weigle v. Brantigam, 74 App., 303; same case, 136 111., 
 111. App., 285. 586. 
 
 16 — Delmel v. Brown, 35 111. 17 — 1 Wharton on Evid., § 684. 
 
DECLAKATIONS OF THIRD PERSONS. 535 
 
 ILLUSTRATIONS ON DECLARATIONS MADE IN THE REGULAR 
 COURSE OF BUSINESS. 
 
 1. A sues B to recover for the support of a pauper. A ma- 
 terial fact in issue is the date when one L had his leg broken. 
 To show this fact, entries made in the regular course of busi- 
 ness, in the books of the physician, since deceased, who set the 
 fracture, are oifered in evidence against objection. The break- 
 ing of the limb and the services of the physician are estab- 
 lished by extrinsic evidence. The question is, whether the en- 
 tries are admissible. 
 
 The entries are admissible. They were made in the regular 
 course of business by a party since deceased.^ 
 
 2. A sues B for money had and received. An important 
 fact in issue is, whether A committed an act of bankruptcy, 
 the answer to which hinges upon the place where A was ar- 
 rested. To prove the place of A's arrest, the return of the 
 officer, since deceased, who made the arrest, is offered in evi- 
 dence. The question is, whether the return is admissible. 
 
 Since the officer was under no duty to state in the return 
 the place where the arrest occurred, the entry, according to the 
 English rule, is inadmissible.^ 
 
 3. A sues B in ejectment. An important fact in issue is, 
 whether B had been served with' notice to quit. To prove that 
 he had, one of the duplicate notices to quit, indorsed by a 
 member of the firm of a:ttorneys whose duty it was to have 
 the notice served, is offered in evidence. The attorney who in- 
 dorsed the notice is now dead. The evidence shows that the 
 duty of serving notices to quit rested upon the clerks. The 
 question is, whether the attorney's indorsement of service of the 
 notice is admissible. 
 
 The indorsement, even according to the English rule, is ad- 
 missible. The attorney owed to his client the duty of having 
 
 1— Augusta V, Wiildsor, 19 2 — Chambers v, Bemasconl, 1 
 Me., 317. C. * J„ 451. 
 
536 LEADING PRINCIPLES AND ETHjES OF EXCLUSION 
 
 the notice served. The fact that it was performed by himself 
 instead of by one of his clerks is immaterial.* 
 
 4. A sues B as indorser of a bill of exchange. To show 
 demand and dishonor, A offers in evidence an entry made in 
 the regular course of business by the notary's clerk, since de- 
 ceased, in a book kept by the clerk who presented the bill. 
 The question is, whether the entry is admissible. 
 
 The entry is admissible as one made in the regular course 
 of business.* 
 
 5. A sues B for beer delivered to him by A's drayman, D, 
 who is now dead. It was customary for D to report every 
 evening to A's clerk, C, the deliveries made, when C would 
 enter them in a book kept for that purpose, and both C and D 
 would sign them. C is still living. To prove the delivery to 
 B, A offers in evidence, the entry against B. The question is, 
 whether the entry is admissible. 
 
 The entry is admissible. The fact that it was signed by C, 
 who is still living, is immaterial. It was subscribed by D, and 
 he is now dead.^ 
 
 6. A, a dealer in lumber, sues B, his agent, for the conver- 
 sion of certain funds. To show that B had failed to enter in 
 his cash book all moneys received by him from sales, A calls L 
 as a witness who testifies that he made on a loose sheet of paper 
 memoranda of the sales for eighteen days, and gave the mem- 
 oranda to A. A thereupon testifies that he copied the memo- 
 randa into a book, which he produces, but says that the origi- 
 
 3 — Doe d. Patteshall v. Tur- charge of some duty for which 
 
 ford, 3 B. & Ad., 890. See also he is responslhle." Again, in 
 
 Reg. V. Inhahltants of Worth, 4 Massey v. Allen, L. R., 13 Ch. 
 
 Adol. & B., 132, in which an en- Div., 558, 562, an entry by a 
 
 try made by an employer in broker in a daybook of his 
 
 which he regularly kept mln- transactions with a firm was 
 
 utes of his contracts with his excluded on the same ground, 
 
 employees was offered and re- In this country, however, the 
 
 jected. In this case Lord Den- rule is more liberal, 
 
 man says: "In a case of this 4 — Poole v. Dlcas, 1 Bing. (N. 
 
 kind the entry must be against C.), 649. 
 
 the interest of the party who 5 — Price v. The Earl of Tor- 
 writes it, or made in the dis- rington, 2 Lord Raymond, 873, 
 
DECLARATIONS OF THIRD PERSONS. 537 
 
 nal memoranda are lost. The question is, whether the entries 
 contained in the book are admissible. 
 
 It has been held that such entries are inadmissible.* The 
 reason assigned is, the memoranda from which the entries were 
 copied were only private matter not made in the regular course 
 of business. Other courts hold that, since the entrant and the 
 persons who made the reports to him testify in the ease, no 
 question of a hearsay exception arises: and the entries should 
 be held admissible on the principle of using past recollection. 
 Upon this point, see quotation, in note 7 below, from Professor 
 Wigmore's editorial insertion in Greenleaf on Bvid. See also 
 his editorial insertion in Greenleaf on Evid., 16th edit.. Vol. 1, 
 § 439b. 
 
 7. A sues B for an alleged breach of contract. Owing to 
 the alleged breach, A had the work done by other parties. To 
 show the number of days' work performed, and the quantity 
 of material used, A offers in evidence, against objection, a 
 time-bock kept by one W, the foreman. The entries in the 
 time-book were made by W, based upon oral reports made to 
 him by gang foremen who had personal Imowledge of the work 
 done and the materials furnished. W testifies that the entries 
 accord with Ihe reports furnished him by the gang foremen, 
 and the latter testify that the reports given by them to W 
 were correct. The question is whether the entries are admissi- 
 ble. 
 
 The entries are admissible. Since both parties to the transac- 
 tions testify to them, no question of a hearsay exception arises. 
 The combined testimony of the two parties should suffice to 
 admit the entries upon the principle of using past recollec- 
 tion.'' 
 
 6— Peck V. Valentine. same effect, Chaffee v. U. S., 18 
 
 7— Mayor v. Second Ave. Ry. Wall., 540, 541. In this ease 
 
 Co., 102 N. Y., 572. In distin- Justice Field, speaking for the 
 
 guishing this case from the one court, says: "The books were 
 
 in question 6, the New York not public records; they stood 
 
 court hold that in this case the on the same footing with the 
 
 reports were made to the en- books of the trader or the mer- 
 
 trant in the regular course of chant. . . . Their admissibll- 
 
 buslness, whereas in the other Ity must, therefore, be deter- 
 
 they were not. See also, to the mined by the rule which gov- 
 
538 LEADING PEINCIPLiES AND EULES OP EXCLUSION. 
 
 8. A sues B and C, two sisters, for money borrowed. B 
 pleads insolvency and C infancy. To show that C was of age 
 when the money was borrowed, A offers in evidence, against 
 objection, a book which is admitted to be the church record 
 
 ems the admissibility of entries not appear as a ■witness, the 
 made by private parties in the entry can be received. If at all, 
 ordinary course of business, only under the present excep. 
 And that rule, with some excep- tion. That It should be so re- 
 tions, not including the present^ ceivable seems proper, on prln- 
 case, requires, for the admissi- clple, as well as for reasons of 
 bllity of the entries, not merely practical convenience; for (apart 
 that they shall be contempora- from the English doctrine ad- 
 neous with the facts to which mittlng oral reports) If the 
 they relate, but shall be made salesman, etc., has made a reg- 
 by parties having personal ular report in the course of bus- 
 knowledge of the facts, and be iness, which has not taken writ- 
 corroborated by their testimony, ten shape, it seems not to be es- 
 If living and accessible." sential whether it is he or an- 
 Upon this subject. Professor other who gives it that written 
 Wigmore, in an editorial inser- shape, and accordingly an entry, 
 tion In Greenleaf on Evidence, verified by the person making 
 16th edit.. Vol. 1, p. 206, says: it, of a regular report by a per- 
 "The difficult situation arises, in son not now available would 
 the application of this part of seem admissible. The cases rep- 
 the principle, where two persons resent various attitudes of the 
 have co-operated In the entry, courts. Some courts are will- 
 one having personal knowledge Ing to receive such entries 
 and reporting to the other, and where the person making them 
 the other writing down the verifies their correctness on the 
 transaction thus reported; the stand and the original observ- 
 typical cases being that of a er — salesman, etc. — is dead or 
 salesman and entry-clerk or otherwise unavailable (citing 
 bookkeeper and that of a work- cases). Other courts go even 
 man and a foreman recording further, and admit them with- 
 the work reported. Where both out accounting for the original 
 such persons are brought to the observer, on the sound consid- 
 stand, no question of a hearsay eratlon that It is practically im- 
 exception arises; and it will be possible in mercantile conditions 
 seen later that, upon the prln- to trace and procure every one 
 ciple of using a past recollec- of the many individuals who 
 tion, the combined testimony of reported the transactions (citing 
 the two should suffice to admit cases, including Chlsholm v. 
 the entry. But where one of Machine Co., 160 111., 101). On 
 them— ^usually the salesman, the other hand, some courts re- 
 workman, or other person hav- fuse to receive such entries even 
 ing personal knowledge — does though the original observer is 
 
DECLAEATIONS OF THIED PERSONS. 539 
 
 of baptisms in a certain Eoman Catholic churcli, regularly kept 
 by the priests of that church, and produced from the custody 
 of the present incumbent. The purpose of introducing the 
 book is to show an entry of C's baptism, made by a priest, 
 since deceased. The question is, whether the entry is admissi- 
 ble. 
 
 The entry is admissible for the purpose stated, on the ground 
 that it was made in the regular course of business by a party 
 sdnae deceased.^ 
 
 9. Bank A sues Bank B for damages caused the plaintiff 
 owing to the defendant fraudulently representing to the plain- 
 tiff that .certain parties on paper presented to it for discount 
 were good and solvent, when, as a matter of fact, they were 
 insolvent. The defendant, for the purpose of showing that its 
 opinion, expressed to the plaintiff as to the solvency of those 
 parties, was honestly given, offers in evidence its bank books, 
 which show that the defendant had been treating and dealing 
 with those parties as solvent and reliable customers. The bank 
 books, which are identified by the cashier, are objected to be- 
 cause no preliminary evidence is given by the one who made 
 the entries as to their correctness. The Question is, whether 
 the entries are admissible. • 
 
 It has been held that the entries are admissible without call- 
 ing the bookkeeper. "At most, he could only testify that the 
 entries made by him are true entries of transactions reported 
 to him by others. . It would seem that the cashier, 
 
 whose function it is to overlook all transactions at the counter, 
 and over the books and test each transaction through all its 
 stages, should be the person most competent to produce the 
 books and vouch for their accuracy."* 
 
 10. A sues B for a quantity of coal sold and delivered. To 
 show the quantity sold to him, A offers in evidence, against 
 objection, entries made in a book by one B. It was customary 
 
 dead or otherwise unavailable (citing cases, including Swan v. 
 
 (citing cases, Including Stettaner Thurman, 112 Mich., 416)." 
 
 T. White, 98 III., 77); while 8— Kennedy v. Doyle, 10 Allen 
 
 others merely exclude them in (Mass.), 161. 
 
 a given ease because he is ab- 9 — Continental Nat. Bank v. 
 
 sent and not accounted for First Nat. Bank, 108 Tenn., 374. 
 18 
 
540 LEADING PEINCIPIiES AND RULES OF EXCLUSION. 
 
 for C, a workman in the coal pit, to tell D, the foreman, the 
 sales inade, and for D (who could not write) to have C make 
 the entries accordingly. The question is, whether the entries 
 are admissible. 
 
 The entries, according to the English rule, are inadmissible, 
 because the foreman, for whom they were made, had no per- 
 sonal knowledge that they were true.^"- 
 
 11. A material question in issue is, A's age; and the ques- 
 tion is, whether an entry in a, baptismal register, made by the 
 incumbent (since deceased), that A was baptized on a certain 
 day, and that his birth occurred at a certain time, is admissi- 
 ble in evidence. 
 
 The entry is admissible to show the date of A's baptism, but, 
 according to the English rule, it is inadmissible to show the 
 date of his birth, because it was not the incumbent's duty to 
 make it.i* 
 
 12. A brings suit to carry into execution certain trusts cre- 
 ated by wiU. B, a niece of the testatrix, is the sole defendant. 
 To prove her title as next of kin, B has to establish the mar- 
 riage of her grandfather, C. To do this, she offers in evidence, 
 against objection, an entry in' a book of King's College, Cam- 
 bridge, in which it was the practice to enter the proceedings 
 of the Provost and Fellows, and for the Registrar of the Col- 
 lege, who was a notary public, to sign the entries in that char- 
 acter. The entry in question is in the handwriting of the per- 
 son who made the entries when it was made, but it is nol 
 signed. The question is, whether it is admissible. 
 
 The entry is inadmissible. An unsigned entry is not admis 
 sible in evidence, notwithstanding that it is proved to be ii 
 the handwriting of the person who usually made the entriei 
 at the time it was made.^^ 
 
 13. In an action by A against B, it becomes material to sho^ 
 the date of a certain surgical operation performed by C upoi 
 
 10 — ^Brain v. Preeoe, 11 M. & P., 29; Kennedy v. Doyle, 1 
 W., 773. Allen (Mass.), 161. 
 
 11— R. V. Clapham, 4 C. and 12— Fox v. Bearlock, L. R., 1 
 
 Ch. Div., 429. 
 
DECLABATIONS OF THIRD PERSONS. 541 
 
 D. The question is, whether entries in C's daybook, charging 
 D for the services performed, are admissible in evidence. 
 
 The entries are admissible. According to the English rule, 
 which is followed in some states, an essential of admissibility is 
 C's death. If, however, C were a party to the litigation, the 
 entries would be admissible. The reason for this discrimination 
 is not at all clear. It seems that the death of the entrant 
 should not be an essential in either case.** 
 
 14. A sues the B Ry. Co. to recover damages caused by de- 
 fendant's locomotive engine colliding with his wagon. To show 
 the extent and character of the damages, A oifers in evidence, 
 against objection, entries in the account-book of C, since de- 
 ceased, who repaired the wagon. The question is, whether the 
 entries are admissible. 
 
 The entries are admissible. They were made in the regular 
 course of business, by a person since deceased, and are there- 
 fore admissible in an action between third parties.^* 
 
 1^. The Bank A sues D, a depositor, for $1000, the amount 
 he had overdrawn his account. To prove that he had over- 
 drawn to this extent, the bank offers in evidence, against ob- 
 jection, its books. The daybook was kept by C, who is now 
 insane, and his handwriting is proved. The question is, whether 
 this book is admissible in evidence. 
 
 The book is admissible. The death of the bookkeeper is not 
 essential. His insanity is sufficient to justify proof of his 
 handwriting. Some courts hold that absence from the state is 
 sufficient.!^ An instrument attested by a person who has be- 
 come blind may be proved by first proving his handwriting.^® 
 C's insanity renders him as incapable to testify as his death.i^ 
 
 1-3 — ^Augusta V. Windsor, 19 16 — Pedler v. Paige, 1 Moody 
 
 Me., 317. & Rob., 258. 
 
 14— Lassone v. Boston & L«. R. 17 — Union Bank v. Knapp, 20 
 
 Ry. Co, (N. H.), 24 Atl. Rep., Mass., 96; same case, 15 Am. 
 
 902, In which citation the sub- Dec, 181. For valuable note on 
 
 ject is fully discussed and nu- this subject see 15 Am. Dec, 
 merous cases given. ' 191. 
 
 15 — Elms V. Chevis, 2*McCord, 
 3S0. 
 
542 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 ILLUSTRATIONS ON DECLARATIONS BEARING UPON THE PHYSI- 
 CAL OR MENTAL CONDITION OF THE DECLARANT, 
 OR UPON HIS INTENTION. 
 
 1. A's widow and her paramour are on trial for murdering 
 A by poison. Their plea is that A committed suicide. In sup- 
 port of their plea they offer in evidence, against objection, dec- 
 larations of the deceased, made at different times within a year 
 prior to his death, and prior to his last sickness, that he in- 
 tended to take his own life. The question is, whether the decla- 
 rations are admissible. 
 
 Some courts, including those of Illinois, exclude such decla- 
 rations because they do not accompany and characterise , some 
 act or conduct relevant in the litigation.^ Assuming, however, 
 that A's mental condition, at the various times at which he 
 made the declarations, is relevant in the litigation, the declara- 
 tions, according to the better view, are admissible.^ 
 
 2. A's administrator, B, sues the C Ry. Co. to recover dam- 
 ages for causing A's death. An important fact in issue is, 
 whether A, at the time of the accident which caused her death, 
 sustained the relation of an intended passenger or not. To show 
 that she did, B offers in evidence, against objection, a declara- 
 tion, made to a neighbor woman, by A at her home while get- 
 ting her children ready for school, about an hour before the 
 accident, that she was going on the nine o 'clock train to the city 
 because that would take her near to Siegel & Cooper's. The 
 question is, whether the declaration is admissible. 
 
 The answer to question 1 is also applicable to this one.^ 
 
 3. A is on trial for the murder of B. His plea is that B 
 committed suicide. In support of this plea, A offers in evidence, 
 against objection, a declaration made by B the day before her 
 death to a trance medium, that she was five months pregnant 
 with child, and had come to consult as to what to do, (adding 
 later in the interview) that she was going to drown herself. 
 
 1 — Siebert et al v. The People, 3 — C. & E. I. Ry. Co. v. Chan- 
 
 143 111. 571. cellor, 165 111. 438. 
 
 2 — Com. V. Trefethen, 157 Mass. 
 180. 
 
DECLARATIONS — CONDITION OE INTENTION. 543 
 
 Tlie question is, whether B's declaration is admissible. 
 
 B's declaration is admissible. Her state of mind, at the time 
 she made it, is relevant in the litigation, and her declaration 
 made at that time is relevant to show it.* 
 
 4. A sues the B Ins. Co. to recover $10,000, insurance on 
 her husband's life. The defendant Co. denies that A's husband 
 is dead, and claims that the body (found by the camp-fire on 
 Crooked Creek), which A alleges is that of her husband, is the 
 body of one W. To show this, the Co. ofiCers in evidence, against 
 objection, two letters, written by W about two weeks before the 
 body in issue was found, one to his sister and one to his fiancee, 
 in which he expressed an intention to leave the place he was at 
 and go with A's husband, an intention which if true is relevant 
 to the question of identity of the body in issue. The question is, 
 whether the letters are admissible. 
 
 The letters are admissible to show the intention of W ex- 
 pressed in them. This intention is a material fact in a chain of 
 circumstances which are relevant to the question of identity 
 of the body in issue ; and evidence that he expressed that inten- 
 tion, at the time he entertained it, is as direct evidence of the 
 fact as his own testimony that he then had that intention would 
 be.5 
 
 5. A seeks to probate what purports to be a copy of B's 
 will. The probate is contested by B 's two sons. A alleges that 
 B's will had been deposited in a valise belonging to B, which, 
 after B's death, had been delivered to his two sons, and that 
 thereafter it was claimed that the house in which the valise had 
 been kept was burglariously entered, the valise cut open, and its 
 contents extracted. The only evidence of the contents of the 
 will consists in post-testamentary declarations of B. The ques- 
 tion is, whether these declarations are admissible in evidence, 
 and sufficient to establish the contehts of the will. 
 
 According to some decisions post-testamentary declarations of 
 
 4 — Com. V. Trefethen, 157 Mass. markable case. It has been in llti- 
 
 180 (This decision expressly over- gation for more than 25 years, 
 
 rules the decision in Com. v. There have been 3 inquests and 6 
 
 Felch, 132 Mass. 22). jury trials. See 188 U. S. 208 
 
 5— Mutual Life Ins. Co. v. Hill- (1903). 
 mon, 145 U. S. 285. This is a re- 
 
544 LEADING PEINCIPLBS AND RULES OF EXCLUSION. 
 
 the testator are never admissible to establish the contents of his 
 will. According to other decisions they are admissible as corrob- 
 orative evidence, but are not sufficient in themselves to establish 
 the contents of the will. This rule obtains in England,^ and gener- 
 ally in this country, including Illinois.'^ Chancellor Irvine says, 
 "The importance of interests involved in probate cases in Eng- 
 land is such that the decisions of English courts on such subjects 
 are entitled to great weight, and we may safely say that the result 
 of the English cases is that the contents of a lost wiU cannot be 
 established solely by the declarations of the testator, although 
 such declarations are now deemed admissible for the purpose 
 of corroboration. The American cases relied on to support pro- 
 ponent's theory are, when examined, in strict accordance with 
 the English rule."^ Since B's declarations constitute the sole 
 evidence to prove the will they should be rejected.^ 
 
 6. A sues the B Ins. Co. upon a policy of accident insurance 
 issued to C. The declaration avers that the deceased acci- 
 dentally, severely and fatally strained and injured his body in 
 the abdominal region by lifting a box of ashes and cinders, from 
 which strain he died. The court admits in evidence, against 
 objection, statements made by the deceased to his physician, 
 two or three days after the alleged accident, in regard to the 
 cause of the injury from which he was suffering ; and A recovers 
 a verdict for $2000. The question is, whether the court's ruling 
 is prejudicial error. 
 
 The court's ruling is prejudicial error. Statements made sub- 
 sequently as to the cause of an injury are inadmissible though 
 made to a physician.^" 
 
 7. A sues the B Ry. Co. to recover damages for a personal 
 injury alleged to have been sustained by her owning ta the de- 
 fendant company's negligence, in consequence of which she 
 was confined to her bed for five weeks. A's servant, who testifies 
 in the case, is asked, "What did you notice about her (A) dur- 
 ing the five weeks?" The servant replies, "She complained of 
 pain very much all the time." A motion is made to strike out 
 
 6— Sugden v. St. Leonards, 1 Pr. 8 — Clark v. Turner, 50 Neb. 290. 
 
 Dlv. 154; Woodward v. Gould- 9— Clark v. Turner, 50 Neb. 290^ 
 
 stone, H. of L.., 11 Ap. Cas. 469 10— Globe Accident Ins. Co. v. 
 
 7— 7m re Page, 118 111. 576. Gerisch, 163 111. 625. 
 19 
 
DBCLAEATIONS — CONDITION OR INTENTION. 545 
 
 this answer, but the court allows it to stand. A recovers a ver- 
 dict for $5000. The question is, whether the court's ruling is 
 prejudicial error. 
 
 According to the rule which obtains in Illinois, the court's 
 ruling is prejudicial error. In this state, declarations as to pain 
 and suffering of an injured person are not admissible in an 
 action for damages except when made at the time of the injury, 
 so as to be a part of the res gestae, or to a physician during treat- 
 ment.ii 
 
 (The physician-limitation seems to have originated with Chief 
 Justice Bigelow.12 Professor Wigmore designates it "this pe- 
 euhar doctrine," and says, "The limitation was never heard of 
 imtil Barber v. Merriam, and even in that case the opinion 
 almost certainly meant to enlarge and not to restrict the Excep- 
 tion." He also holds that it is unorthodox and followed only 
 in New Tork and in a few other jurisdictions.^^ On the other 
 hand, Justice Mitchell says, "According to the great weight of 
 modern authorities, the mere descriptive statements of a sick or 
 injured person as to the symptoms and effects of his malady are 
 only admissible under the following circumstances. First. They 
 must have been made to a medical attendant for the purposes 
 of medical treatment. "1* . . . Many courts, however, hold that 
 such declarations are admissible when made to anyone. Upon 
 principle, this view seems sound.) 
 
 8. A sues the B Ry. Co. to recover damages for personal 
 injuries. For the purpose of eliciting proof regarding her in- 
 juries, her counsel asks a witness, who had nursed her, the fol- 
 lowing question: "During that tim.e how did she appear with 
 reference to pain and suffering?" The court permits it to be 
 answered, against objection, and the answer is : " She seemed to 
 be suffering pain and unable to see out of her eye; very ner- 
 vous." A recovers a verdict. The questioL is, whether the 
 court's ruling is prejudicial error. 
 
 The court's ruling is not prejudicial error. In an action for 
 
 11— Lake St. Elev. Ry. Co. v. 13— Wigmore on Evid. Vol. III., 
 
 Shaw, 203 111. 39; Cicero Street §1719. 
 
 Ry. Co. V. Priest, 190 111. 592. 14— Williams v. Gt. Northern 
 
 12— Barber v. Merriam, 11 Allen Ry. Co., 68 Minn. 55. 
 ,(Mass.) 322. 
 
546 LEADING PRINCIPLES AND RULES OF EXCLUSION, v 
 
 personal injury it is proper to permit a witness to be asked the 
 question how the plaintiff appeared with reference to pain and 
 suffering ; and the person who nursed her after the injury may 
 testify whether she appeared to be suffering pain, and may state 
 such natural manifestations of pain as she exhibited in connec- 
 tion with the injury, whether by groans, expressions of the feat- 
 ures or in other ways.^^ 
 
 9. A sues the city of B to recover damages for injuries 
 caused by a defective street. To show the extent of his injuries, 
 the testimony of physicians, called as witnesses by him, as to 
 what he said to them while being examined and treated, in de- 
 scribing his feelings and detailing the nature and location of his 
 pains and sufferings, is admitted against objection. A recovers 
 a verdict. The question is, whether the court's ruling is preju- 
 dicial error. 
 
 The court's ruling is not prejudicial error. The testimony 
 given is not a recital of any past event, but the natural expres- 
 sions of existing pain and suffering. It is therefore admissible 
 under the restricted New York rule, which obtains in a few 
 other jurisdictions including Illinois, and which limits the ad- 
 missibility of this class of declarations to statements made to a 
 physician, except where they form part of the res gestae?-^ 
 
 10. The facts in issue are, (1) whether A, at the time he 
 made his will, was mentally competent to make a will; (2) 
 whether he had been unduly influenced in the making of it; (3) 
 whether fraud or duress had been used upon him to make it. 
 The question is, whether post-testamentary declarations by him 
 are admissible to show these facts. 
 
 As to A's mental capacity to make a will, the declarations are 
 admissible, provided they were not too remote.i^ Such declara- 
 tions, as well as ante-testamentary declarations, if not too re- 
 mote, are admissible because they are material in showing infe- 
 rentially the declarant's mental condition at the time of the 
 testamentary act. 
 
 The declarations are also admissible to show undue influence, 
 
 15— The Cicero, etc., Ry. Co. v. 17— Waterman v. Whitney, 11 
 
 Priest, 190 111. 502. N. Y. 157. 
 
 16 — City of Salem v. Webster, 
 192 111. 369. 
 
DECLAKATIONS — CONDITION OR INTENTION. 547 
 
 owing to the fact that it is so closely connected with, and de- 
 pendent upon, the testator's mental condition.^® Jarman says, 
 "The amount of undue influence which will be sufficient to in- 
 validate a will must of course vary with the strength or weak- 
 ness of the mind of the testator. "i^ Wigmore says, "The exist- 
 ence of undue influence or deception involves incidentally a 
 consideration of the testator's incapacity to resist pressure and 
 his susceptibility to deceit, whether in general or by a particular 
 person. "20 Justice Seldon says, "So the mental strength and 
 condition of the testator is directly in issue in every case of 
 alleged undue influence ; and the same evidence is admissible in 
 every such case, as in cases where insanity or absolute incompe- 
 tency is alleged. ' '^^ 
 
 As to the admissibility of the declarations to show fraud or 
 duress, the decisions are not harmonious. Justice Seldon says, 
 "where the . . . will is disputed on the ground of fraud, dur- 
 ess, mistake, or some similar cause, aside from the mental weak- 
 ness of the testator, I think it equally clear that no declarations 
 of the testator himself can be received in evidence except such 
 as were made at the time of the execution of the will, and are 
 strictly a part of the res gestae. ' '^^ Wigmore says, ' ' The testa- 
 tor 's assertion that a person, named or unnamed, has procured 
 him by fraud or pressure to execute a will or to insert a pro- 
 vision, is plainly obnoxious to the Hearsay rule, if offered as 
 evidence that the fact asserted did occur. . . . For this reason 
 they (such declarations) are by most Courts regarded as inad- 
 missible . . . But these utterances may be nevertheless availed 
 of as evidence of the testator's mental condition, if the latter 
 fact is relevant. "2s It may be said, therefore, that post-testa- 
 mentary declarations of the testator, to show fraud or duress, 
 are obnoxious to the rule against hearsay and hence inadmissible, 
 unless the fraud or duress incidentally involves his susceptibility 
 to deceit or his mental incapacity to resist external pressure. 
 
 11. A seeks to probate B's will. The evidence shows that B 
 made a later will in which she expressly revoked all former wills 
 
 18 — Waterman v. Whitney, su- 21 — Waterman v. Whitney, su- 
 
 pra. pra. 
 
 19—1. Jarman on Wills, S6. 22 — Waterman v. Whitney, su. 
 
 20— Wigmore on Evld., §1738, pra. 
 (2), (a). 
 
548 LEADING PKINCIPLES AND RULES OF EXCLUSION. 
 
 made by her and that she subsequently cancelled the later will. 
 The question is, whether oral declarations by A, made after she 
 cancelled the later will, are admissible to show that in cancelling 
 that will she did not intend to revive the former one. 
 
 A's subsequent oral declarations are admissible. They show 
 the intention which existed in her mind when she made them, 
 and from this intention an inference is drawn as to the intention 
 she had when she cancelled the later will.^* 
 
 12. A seeks to probate B's will. The evidence shows that 
 the will was discovered in a barrel, among some waste papers, 
 and either torn or worn into several pieces, which were loosely 
 scattered among the papers in the barrel, and that when discov- 
 ered it was twenty-five years old. The question is, whether 
 declarations made by B, after the will was torn up, are admis- 
 sible to show whether the tearing was done by her or some other 
 person, and if by her, whether accidentally or intentionally and 
 for the purpose of revoking her will. 
 
 The declarations are admissible for the purposes stated, but 
 they are not admissible as separate and independent evidence of 
 a revocation.25 Their admissibility for the purposes stated is 
 based upon the double process of inferences discussed in § 15 of 
 this chapter. Their inadmissibility to prove an act of revocation 
 is based upon the fact that the statutes require either a written 
 revocation executed with the same formalities as the will itself, 
 or some act amounting to a virtual destruction of the will, such 
 as burning, tearing, obliterating, etc., accompanied by an un- 
 equivocal intention to revoke it. Mere words will in no case 
 amount to a revocation.^^ 
 
 23— Wlgmore on Evid., Vol. III., 25— Lawyer v. Smith, 8 Mich. 
 
 11738. 411. 
 
 24 — Pickens v. Davis, 134 Mass. 26 — Waterman v. Whitney, stt- 
 
 252. pra. 
 
DBCLABATIONS RELATING TO THE RES GESTAE. 549 
 
 ILLUSTRATIONS ON DECLARATIONS RELATING TO OR FORMING 
 PART OF THE RES GESTAE. 
 
 1. A sues B for damages for injuries caused by B's dog 
 biting, her. The question is, whether a declaration, made by 
 A to her mother as she entered her parents' house crying, 
 within five minutes from the time she was injured, that B 's dog 
 had bitten her, is admissible in evidence. 
 
 The declaration is inadmissible. ' ' Proof of the fact that she 
 was crying or complaining of pain, would have been admis- 
 sible to show that she was then suffering, but not her statement 
 of the cause of the pain. To render such a declaration admis- 
 sible as a part of the res gestae it must characterize or explain 
 some material act or occurrence which it accompanies. The 
 res gestae, the occurrence, which was material, was the act by 
 which the plaintiff was injured. Her declarations made while 
 the injuries were being inflicted, were a part of that occur- 
 rence, and if they characterized or explained it would have 
 been admissible. If not made during the continuance of the 
 act, but after the act by which she was injured had been com- 
 pleted, they were but a narrative of a past event; and evi- 
 dence of such declarations was objectionable as hearsay."^ 
 
 2. A, the administratrix of B, a deck hand on a steamboat, 
 sues C for damages for negligently causing B's death by 
 drowning. B, together with other deck hands, was ordered by 
 the mate of the boat to go on a plank extending over the water 
 from the floor of the boat to the wheel, and the plank broke 
 thereby causing B's death. The question is, whether the dec- 
 laration of a bystander, made in the heariag of the mate, as 
 he was ordering the men to hurry up, "Look out! that plank 
 is cracked," is admissible in evidence as a part of the res 
 
 The declaration constituted a part of the transaction and 
 was admissible as part of the res gestae. Declarations of by- 
 standers may be so connected with a transaction as to consti- 
 
 1— McCarrlck v. Kealy, 70 Conn., 642, 645; Elliott on Bvld., VoL I., 
 
 §543. 
 
550 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 tute a part of it. In such cases they are held admissible on the 
 same theory as when made by one of the actors.^ 
 
 3. A, a negro, is on trial for assault with intent to kill. He 
 pleads self-defense. He offers in evidence, against objection, 
 declarations of bystanders, "Kill him! Kill him! Don't let 
 that nigger get back to the bottom. ' ' The question is, whether 
 the declaration is admissible. 
 
 The declaration is admissible. The answer to question 2 is 
 applicable to this one also.^ 
 
 4. A sues the G. Ry. Co. for damages for injuries caused 
 him by the company's negligence. The company pleads con- 
 tributory negligence. A, who was a passenger on defendant's 
 train, which comprised two passenger coaches, besides the 
 baggage car and the engine, jumped from the baggage car to 
 the ground and was injured. He was induced through fear to 
 jump, owing to the fact that the hind trucks of one coach and 
 the front trucks of the other were thrown from the track. For 
 the purpose of showing that he was justified in jumping, A 
 offers in evidence, against objection, declarations made at the 
 same time by passengers in one of the coaches, which show 
 that they also were very much frightened. The question is, 
 whether the declarations are admissible. 
 
 The declarations are admissible. It is not essential that 
 such declarations be made in the presence of the injured party. 
 Involuntary declarations caused by appearances of imminent 
 peril may be regarded as a part of the res gestae.* 
 
 5. L is! on trial for rape. A and B, two women, saw L at 
 the time of the act. The next day, A called B to the window 
 of her house, and pointing her finger towards L, who was 
 going down the railroad track, said to B, "There goes the 
 man." B replied, "Yes, there he goes." Neither A nor B 
 ever saw L before the rape was committed. They both testify 
 to L's identity. The court, against objection, permits A and B 
 to give in evidence the declarations made by them to each 
 other the day after the crime was committed, and L is con- 
 
 2 — Louisville &c. Packet Co. v. 4 — Galena &c. Ry. Co. v. Fay, 16 
 Samuel's Adm'x., 22 Ky., L. R. 979. 111., 558, 568. 
 3— Morton v. State, 91 Tenn., 437. 
 
DECLARATIONS RELATING TO THE RES GESTAE. 551 
 
 victed and sentenced to twenty-five years in penitentiary. The 
 question is, whether the court's ruling is prejudicial error. 
 
 The court's ruling is not prejudicial error. "It is a well 
 settled principle in the law of evidence, that whenever it be- 
 comes important to show, upon the trial of a cause, the occur- 
 rence of any fact or event, it is competent and proper to also 
 show any accompanying act, declaration or exclamation which 
 relates to, or is explanatory of, such fact or event. Such acts, 
 declarations or exclamations are known to the law as res 
 gestae. It is not questioned that it was perfectly competent 
 to show that the witnesses saw and readily recognized the ac- 
 cused near the scene of the transaction, on the foUovsdng day, 
 as testified by them, and it must be admitted the spontaneous 
 exclamation, "There goes the man," with the response, "Yes, 
 there he goes," is highly characteristic of the fact of their 
 recognition. The true test, in all cases, by which the admissi- 
 bility of such testimony is determined, is, the act, declaration 
 or exclamation must be so intimately interwoven or connected 
 with the principE^l fact or event which it characterizes, as to 
 be regarded a part of the transaction itself, and also to clearly 
 negative any premeditation or purpose to manufacture testi- 
 mony. ' '" 
 
 6. A is on trial for the larceny of a watch. The prosecution 
 shows that A was in possession of the watch shortly after it 
 was stolen; that he met a pawnbroker' away from the latter 's 
 place of business, and proposed to pledge the watch as security 
 for a loan of money ; that the parties thereupon went together 
 to the pawnbroker's shop where A received the money and 
 placed the watch in pawn. A then offered to show by the 
 pawnbroker that when he applied to him for a loan he told 
 him that he did not ovra the watch, but wanted the money for 
 one B, with whom he had just been conversing; that it was 
 just handed to him to raise the money, and that B heard these 
 statements. The court, however, excludes this testimony, and 
 A is convicted. The question is, whether the court's ruling is 
 prejudicial error. 
 
 The court's ruling is prejudicial error for two reasons, viz.: 
 (1) The evidence rejected is part of the res gestae, and admis- 
 
 5— Lander v. Tlie People, 104 111., 248, 256. 
 
552 LEADING PBINCIPLES AND EULES OF EXCaLUSION. 
 
 sible as such; (2) Since the prosecution has brought out part 
 of the conversation between A and the pawnbroker, A is en- 
 titled to have the rest brought out." 
 
 7. A is on trial for committing upon B, a boy 14 years of 
 age, a crime against nature. The question is, whether B's 
 delay of more than a year before making complaint against 
 A easts a doubt upon the truth of the charge. 
 
 Since both consented to the act, both would naturally desire 
 to keep it secret. The delay, therefore, does not cast a doubt 
 upon the truth of the charge. In rape eases, however, an early 
 complaint is naturally expected and usually made, and in such 
 eases delay would cast doubt upon the truth of the charge.^ 
 
 8. A sues B, the sheriff, in replevin. B claims that A does 
 not own the property seized, that it belongs to C To prove 
 ownership in C, B offers in evidence declarations of owner- 
 ship made by C while in possession of the property. The ques- 
 tion is, whether the declarations are admissible. 
 
 The declarations are verbal acts and admissible as original 
 evidence. They accompanied the act of possession and con- 
 stituted a part of the res gestae.^ 
 
 9. A claims a perpetual easement, (or profit a prendre,) to 
 take gravel from B's farm. B denies A's claim. When B 
 sold A the adjoining fatrm he gave A a written permit to take 
 gravel from B's other farm. The question is, whether declara- 
 tions by B to the scrivener, at the time the permit was writ- 
 ten, that J;he permission was personal to the grantee and that 
 he would not put it in the deed, are admissible to show that 
 the written permit is only a license. 
 
 The declarations are verbal acts explanatory of B's motives, 
 made contemporaneously with the transaction which they ac- 
 companied, and are admissible as original evidence.' 
 
 10. A sues the B. Ry. Co. for damages for causing the death 
 of C, A's intestate, by one of its conductors pushing him' off 
 a street car as a result of which he was run over. Immediately 
 
 6 — Comfort v. The People, 54 111., 8— Amlck v. Young, 69 111., 542. 
 
 404. , 9 — Lambe v. Manning, 171 111., 
 
 7— Houselman v. The People, 16S 612. 
 111., 172. 
 
DECLARATIONS RELATING TO THE RES GESTAE. 553l 
 
 after the accident C got up, walked over to the sidewalk and 
 sat down. In response to a question, when the car he was on 
 and which was running at good speed had gone about a block, 
 he made declarations that the conductor threw him off the car. 
 The trial court admits this declaration, against objection, and 
 a verdict is returned for the plaintiff. The question is, whether 
 the court's ruling is prejudicial error. 
 
 The court's ruling is prejudicial error. "The declarations 
 were not part of the res gestae. They were not made at the 
 time of the accident, nor did they explain or characterize the 
 manner in which the accident occurred. They were not con- 
 current with the injury, nor uttered contemporaneously with 
 it so as to be regarded as a part of the principal transaction. 
 They were made after the injury was received and were merely 
 narrative of what had taken place. ' '^" 
 
 11. C is on trial for unlawfully abusing a female child un- 
 der the age of sixteen years. The question is, whether the 
 fact, that the child made complaint to her mother the next 
 morning after the occurrence as to what had been done to her 
 by C the night before, is admissible, against him. 
 
 Assuming that the child has testified in the case, the fact 
 that she made complaint next morning is admissible. It is not 
 essential to its admissibility that the complaint constitute a 
 part of the res gestae. "The test is whether, according to the 
 principles of the exception, her .having made the complaint 
 tends to corroborate testimony given by the child at the trial." 
 "The evidence is not admitted as a part of the res gestae, or 
 as evidence of the things alleged, or solely for the purpose of 
 disproving consent, but for the more general purpose of eon- 
 firming the testimony of the ravished woman. "^^ Some eases 
 hold that lapse of time before making complaint goes only to 
 its weight, not to its eompetency.^^ If the lapse of time is too 
 great, however, the fact of the complaint will be excluded.^' 
 
 12. A sues the B. E.y. Co. to recover damages sustained in 
 consequence of personal injuries received by his wife while a 
 
 10— Chicago W. D. Ey. Co. v. 12— State v. Mulkern, 85 Me., 
 
 Becker, 128 111., 545. 106; State v. Niles, 47 Vt., 82, 86, 
 
 11— Com. v. Cleary, 172 Mass., 13— People v. O'Sullivan, 104 N. 
 
 175. Y., 481, 490, 
 
554 LEADING PRINCIPLES AND RULES OP EXCLUSION. 
 
 passenger on defendant's train. A material fact in issue is 
 the speed of the train at the time of the injury. 
 
 The eourtj against objection, admits in evidence a declara^ 
 tion by the engineer of the train, made between ten and thirty 
 minutes after the accident occurred, that the train was mov- 
 ing at the rate of eighteen miles an hour. A recovers a ver- 
 dict for $9,000. The question is, whether the court's ruling is 
 prejudicial error. 
 
 The court's ruling is prejudicial error, and the judgment 
 should be reversed and the case remanded for a new trial, 
 "His (the engineer's) declaration, after the accident had be- 
 come a completed fact, and when he was not performing the 
 duties of engineer, that the train, at the moment the plaintiff 
 was injured, was being run at the rate of eighteen miles an 
 hour, was not explanatory of anything in which he was then 
 engaged. It did not accompany the act from which the in- 
 juries arose. It was in its essence, the mere narration of a 
 past occurrence, not a part of the res gestae, — simply an asser- 
 tion or representation, in the course of conversation, as to a 
 matter not then pending, and in respect to which his authority 
 as engineer had been fully exerted."" 
 
 13. A sues the B. By. Co. for damages for personal injuries 
 received by her in a collision between a street car of defendant 
 company and a cab of the transfer company in which she was 
 being conveyed as a passenger. The question is, whether a 
 declaration of the cab driver, just after the accident, that it 
 was all his fault, is admissible in evidence in favor of the de- 
 fendant company. 
 
 The declaration is inadmissible. ' ' The event had fully transr 
 pired, and what was said was purely narrative of a past trans- 
 action fully ended, and did not characterize or in any way 
 relate to a transaction then taking place. '"^'' 
 
 14. A is on trial for the murder of his wife, B. On the day 
 of the homicide A had a long interview with B, in which he 
 sought for leave to return and live with her, which B refused. 
 At the close of the interview, A left B, but recumed within 
 
 14— Vlcksburg, etc. Ry. Co. v. 15— Springfield, etc., Ry. Co. v- 
 O'Brien, 119 U. S., 99. Puntenney, 200 111., 9. 
 
DECLABATIONS BEILATING TO THE EES GESTAE. 555 
 
 half-an-hour and shot her, and then himself. A recovered but 
 B died. The court allows C, a witness, against objection, to 
 testify to a conversation with B about ten minutes after A 
 left her, and fifteen minutes before he returned and shot her, 
 to the effect that B told C that A warjied her (B) that if he 
 could not come and see her that night he would kill her. A 
 is convicted. The question is, whether the court commits 
 prejudicial error in admitting the conversation between B 
 and C. 
 
 In admitting the conversation between B and- C in evidence 
 the court commits prejudicial error.^" It did not take place 
 in the presence of A, nor did it constitute a part of the res 
 gestae. "Declarations, to become a part of the res gestae, must 
 have been made at the time of the act done which they are 
 supposed to characterize, and have been well calculated to 
 uafold the nature and quality of the facts they were intended 
 to explain, and to so harmonize with them as obviously to con- 
 stitute one transaction."^^ "It is quite well settled that what 
 occurs before or after the act has been done does not consti- 
 tute a part of the res gestae, although the interval of separa- 
 tion may be very brief. "^' 
 
 15. A sues the B. Ry. Co. to recover damages for the death 
 of her husband, C, who was run over and killed by defendants' 
 street car. Immediately before the accident, a lineman, in the 
 employ of the company, who had been riding on the front 
 platform jumped off the car and ran ahead. After the car 
 had passed he was seen to have hold of the body of C, which 
 was still on the railroad track. Declarations of the lineman, 
 made immediately after the accident, and before the body of 
 the deceased had been removed from the tracks, to the effect 
 that he had run ahead to pull the deceased off the track and 
 did not have time to do it, are offered in evidence, against 
 objection; and also declarations of the motorman, made within 
 two minutes of the occurrence of the accident, and while he 
 and other employees of the company were in charge of the 
 
 16 — Montag v. The People, 141 sec. 108, note; Rockwell v. Taylor, 
 III., 75, 83. 41 Conn., 55. 
 
 17 — Greenleaf on Evld., Vol. I., 18 — Montgomery v. The State, 80 
 
 Ind., 338. 
 2L 
 
556 LEADING PEINCIPLES AND RULES OF EXCLUSION. 
 
 body, to the effect that he could have stopped the car in time, 
 but that he supposed that a lineman, who had jumped from 
 the car and run ahead, would have had the deceased removed 
 from the track before the car reached him. The question is, 
 whether the declarations of the lineman and of the motorman 
 are admissible against the company. 
 
 The declarations of both parties are admissible as a part of 
 the res gestae. The lineman's declarations, made at the time 
 of his acts which were part of the occurrence, ' ' explained the 
 nature of his acts which were part of the occurrence under in- 
 vestigation. The declaration of the motorman, of which proof 
 was offered, was separated in time two minutes only from the 
 infliction of the injuries. It emanated from the act it was 
 unconsciously associated with and stood in immediate causal 
 relation to it. The occurrence had not ended. He was not 
 speaking as the narrator of a past event, but as a participant in 
 an uncompleted one. "^^ "The res gestae may therefore be 
 defined as those circumstances which are the undesigned inci- 
 dents of a particular litigated act and which are admissible 
 when illustrative of such act. These incidents may be sepa- 
 rated from the act by a lapse of time more or less appreciable. 
 They may consist of speeches of any one concerned, whether 
 participant or bystander; they may comprise things left un- 
 done as well as things done. Their sole distinguishing feature 
 is that they should be necessary incidents 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 pro- 
 moted by the calculated policy of the actors.'""' 
 
 16. A is on trial for the murder of B. The question is, 
 whether a declaration of B, to the effect that A had cut her 
 throat, made while the blood was gushing in great quantities 
 from the cut which had just been made across her throat, and 
 while she was in the act of fleeing from A, who himself was in 
 the act of fleeing from pursuit, is admissible in evidence as a 
 part of the res gestae. 
 
 19 — Coll V. Easton Transit Co., 20 — Wharton on Evid., sec. 259 
 ,180 Pa. St., 618. (2nd ed.). 
 
DBCLAEATIONS RELATING TO THE RES GESTAE. 557 
 
 The declaration is admissible as a part of the res gestaeP 
 It was near enough in point of time with the principal trans- 
 action to clearly appear to be spontaneous and unpremedi- 
 tated, and free from sinister motives, and to afford a reliable 
 explanation of the principal transaction.^'' A celebrated Eng- 
 lish case," however, holds the contrary; but it is undoubtedly 
 unsound.^* 
 
 17. A is on trial for the murder of B by shooting. C, who 
 heard the shot, ran a distance of two or three hundred yards 
 and arrived at the place where the shooting was done within 
 a minute and a half after B was wounded, when she (B) im- 
 mediately accused A of having shot her. The question is, 
 whether B's declaration is admissible against A. 
 
 B's declaration is inadmissible. It did not constitute a part 
 of the res gestae?^ It seems, however, that it might well be 
 held admissible as a spontaneous declaration. The nervous 
 excitement produced by the shooting probably still continued 
 when the declaration was made so that at that time the reflect- 
 ive faculties of the declarant were still dormant. 
 
 18. A is on trial for the murder of B by shooting him. 
 About two minutes after C heard the report of the gun, he 
 heard B say to a woman near him "if you had not taken the 
 guuifrom me it would have been different." The court rejects 
 B 's declaration, and he is convicted. The question is, whether 
 the court's ruling is prejudicial error. 
 
 The ruling of the trial court is prejudicial error. "Prom it 
 the jury might have drawn one of two inferences. . . But 
 whatever the inference, it was one which the jury in weighing 
 all the complicated facts should have been permitted to draw, 
 and in our opinion it was a part of the res gestae, an unde- 
 signed incident of the homicide which the jury were consider- 
 ing, and the circuit court erred in excluding it.'"'° 
 
 21— Oom. V. Van Horn, 188 Pa. Law Review. In these volumes the 
 
 St., 143. late Professor Thayer gives a com- 
 
 22 — Keyes v. City of Cedar Palls, plete review of Beddingfield's case, 
 
 107 la., 509. and questions the soundness of the 
 
 23 — Regina v. Beddingfield 14 decision. 
 Cox. Cr. Ca., 341. 25— Binns v. State, 57 Ind., 46. 
 
 24 — Vols. 14 and 15 American 
 
558 LEADING PEINCIPLBS AND EXILES OF EXCLUSION. 
 
 19. A sues the B. Ry. Co. for damages for causing C's 
 death. D, the conductor of the train on which C was em- 
 ployed as a brakeman, was on the "caboose" when he received 
 notice that C had been injured while coupling cars, and he 
 immediately ran forward and found C under the rear end of 
 the second ear from the engine. D immediately took him from 
 under the car, and while doing so, asked him, "How did this 
 happen?" C replied, fully describing the cause of the accident. 
 The question is, whether C 's declarations to D are admissible. 
 
 C's declarations are admissible. "It Is not always easy to 
 determine when declarations having relation to an act or trans- 
 action should be received as part of the res gestae, and much 
 difficulty has been experienced in the effort to formulate gen- 
 eral rules_ applicable to the subject. This much may, how- 
 ever, be safely said, that declarations which were the natural 
 emanations or outgrowths of the act or occurrence in litiga- 
 tion, although not precisely concurrent in point of time, if they 
 were yet voluntarily and spontaneously made so nearly con- 
 temporaneous as to be in the presence of the transaction which 
 they illustrate and explain, and were made under such circum- 
 stances as necessarily to exclude the idea of design or delib- 
 eration, must, upon the clearest principles of justice, be admis- 
 sible as part of the act or transaction itself (citing many 
 cases). "^' It seems, however, that, upon principle, the ad- 
 missibility of the declarations should be founded upon the 
 doctrine of spontaneous declarations rather than upon the doc- 
 trine of verbal acts. 
 
 20. A is on trial for having taken indecent and improper 
 liberties with the person of a female child under the age of 
 fourteen years. Immediately after the alleged offense, the 
 child made complaint to her mother. The mother, against ob- 
 jection, is permitted by the court to state upon the stand the 
 full details of the complaint, and A is convicted. The ques- 
 tion is, whether the court's ruling is prejudicial error. 
 
 The court's ruling is prejudicial error, and the verdict and 
 judgment must be set aside and a new trial granted."* A is 
 
 26— state v. Hudspeth, 150 Mo., v. Buck, 116 Ind., 566, 576. 
 12, 28. 28— People v. Hicks, 98 Mich., 86. 
 
 27— The Louisville, etc., Ry. Co. 
 
DECLARATIONS RELATING TO THE RES GESTAE. 559 
 
 not on trial for rape. In rape cases, third parties are sometimes 
 allowed to give in evidence the details of the complaint. This 
 is the modern English rule. In this eoimtry, however, the 
 weight of authority is to the contrary. In Michigan such evi- 
 dence is allowed.^* Greenleaf says, "Though the prosecutrix 
 may be asked whether she made complaint of the injury, and 
 when and to whom, and the person to whom she complained is 
 usually called to prove that fact, yet the particular facts 
 which she stated are not admissible in evidence, except when 
 elicited in cross-examination, or by way of confirming her tes- 
 timony after it has been impeached. On the direct examina- 
 tion, the practice has been merely to ask whether she made 
 complaint that such an outrage had been perpetrated upon 
 her, and receive only a simple yes or no. Indeed, the com- 
 plaint constitutes no part of the res gestae; it is only a fact 
 corroborative of the testimony of the complainant, and where 
 she is not a witness in the case it is wholly inadmissible. ' ''" 
 
 29— People V. Gage, 62 Mich., 30 — 3 Greenleaf on Evld., § 213. 
 271. 
 
560 LEADING PEINCIPLES AND EULES OP EXCLUSION. 
 
 ILLUSTRATIONS ON OPINION EVIDENCE. 
 
 1. A is on trial for robbery. The state offers, against ob- 
 jection, evidence by the wife and daughter of the person 
 robbed, that they recognized A by his voice, and are positive 
 as to his identification. The question is, whether the evidence 
 offered is admissible. 
 
 The evidence offered is evidence of a fact, ascertained 
 through the sense of hearing, and not the statement of a mere 
 matter of opinion. It is a conclusion resulting directly and 
 primarily from an operation of the sense of hearing, and is 
 admissible.^ 
 
 2. A is on trial for murder. His defense is that when he 
 struck the blow he was suffering from the disease of delirium 
 tremens. The question is, whether opinion evidence, by phy- 
 sicians particularly experienced ia the observation of this dis- 
 ease, based upon hypothetical questions, is admissible. 
 
 The opinion evidence is admissible, provided the hypothetical 
 question is within the scope of the facts proved; otherwise not.* 
 
 3. The probate of A's will is contested on the ground of 
 A's mental incapacity at the time he executed his will. The 
 question is, whether letters, sent to A's house about the time 
 the will was executed, by persons since deceased, and indi- 
 cating the opinion of the writers that A was a rational person, 
 capable of doing acts of ordinary business, are admissible. 
 
 The opinion expressed in tbe letters was not made under 
 oath, and for this reason is inadmissible.* 
 
 4. A, the beneficiary in two policies of insurance upon the 
 life of her husband, sues the insurance company on the pol- 
 icies. The company defends on the ground that the assured 
 committed suicide. A admits this, but contends that when he 
 committed the deed he "was not in possession of his mental 
 faculties, and was not responsible for said act. ' ' The question 
 
 1— Ogden V. People, 134 111., 599; 2— United States v. McGlue, 1 
 Copi. V. Scott, 123 Mass., 224; Wll- Curtis, 1. 
 
 bur V. Hubtard, 35 Barb., 303. 3 — ^Wright v. Doe de Tatham, 5 
 
 CI. & F., 670. 
 
OPINION EVIDENCE. 561 
 
 is whether the opinions of non-professional witnesses, as to 
 deceased's sanity at the time he killed himself, are admissible.* 
 The opinions of the non-professional witnesses, predicated 
 upon facts detailed by others, are inadmissible; but the con- 
 clusions of such witnesses, based upon personal knowledge of 
 the circumstances involved in such inquiry, are admissible. 
 The facts, however, upon which such conclusions are predi- 
 cated, must first be stated to the jury.^ 
 
 5. A sues B in trespass for cutting down a bank which 
 had been erected to prevent the sea from overflowing A's land. 
 B pleads justification on the ground that the bank contributes 
 to the choking and filling up of the harbor. To controvert 
 B's plea, A offers iu evidence the opinion of S, based upon 
 facts within his personal knowledge, and admitted to be true, 
 that the bank is not the cause of the mischief, and that cutting 
 it down will not remove it. S is an eminent engineer, who 
 understands the construction of harbors, the causes of their 
 destruction, and how remedied. The question is whether the 
 opinion of S should be admitted in evidence. 
 
 The question in issue involves a matter of science. S is 
 specially qualified to give an opinion upon such a question. 
 His opinion is based upon facts within his personal knowledge, 
 and which are admitted to be true. It follows, therefore, that 
 his opinion should be admitted.^ 
 
 6. A sues B, in trespass upon the case to recover damages 
 for injuries to his fruit trees, caused by smoke, heat and gas, 
 from B's brick kilns. To prove the amount of damage caused, 
 A offers in evidence the opinions of C and D, two gardeners, 
 who have had practical experience in the cultivation of fruit 
 trees, and who have stated to the jury, in detail, the nature 
 and extent of the injuries caused. The question is, whether 
 the opinions of C and D, as to the amount of damage caused, are 
 admissible. 
 
 As a general rule, witnesses are to testify to facts, and the 
 jury are to draw inferences and form opinions. If, however, 
 
 4— Upstone v. The People, 109 6— Folkes v. Chadd, 3 Doug. (K. 
 
 111., 169. B.), 157. 
 
 5 — Connecticut, etc. Life Ins. 
 Co. V. Lathrop, 111 U. S., 612. 
 
562 LEADING PRINCIPLES AND EXILES OF EXCa^USION. ^ 
 
 the facts cannot be palpably described to the jury, the wit- 
 nesses may state their opinions. Assuming that the deseriptiye 
 evidence of C and D falls short of enabling the jury to esti- 
 mate the amount of damage done, as well as C and D are able 
 to do, their opinions are admissible^ 
 
 • 7. A sues the B. Ry. Co. for damages caused by the negli- 
 gence of the defendant Co., whereby A's leg was broken. The 
 question is, whether the opinions of physicians, as to the eon- 
 sequences of a hypothetical second fracture of A's leg, and 
 the opinions of merchants, in the same line of business as A, 
 as to the amount of damages he has sustained in consequence 
 of his absence from his business, are admissible in evidence. 
 
 The opinions, in both cases, are inadmissible, because they 
 are too conjectural and likely to mislead the jury. The opin- 
 ions of the physicians relate to a matter too remote, and are 
 "calculated to draw the minds of the jury into fanciful con- 
 jectures." As regards the opinions of the merchants, "There 
 may be a tolerable conjecture of the amount of damage, and 
 merchants in the same line of business with the plaintiff, and 
 residing in his vicinity, might carry it nearer the truth than 
 others; but their opinions can rise no higher than mere con- 
 jecture. "^ 
 
 8. A sues B for damages for breach of his contract. It is 
 material to the issue to prove the value, at a particular date, 
 of certain gunny bags. The question is, whether evidence by 
 expert brokers, whose information, as to the value of said 
 gunny bags at the particular date, was obtained from "daily 
 price current lists and returns of sales daily furnished them in 
 Boston from their New York houses," is admissible. 
 
 The experts are competent witnesses to testify to the fact 
 in issue, and the source of their information justifies the ad- 
 mission of their evidence.^ 
 
 9. A sues B in trespass on the case for an injury caused 
 by a pile of stones placed by B in a public highway. The 
 
 7 — Vandine v. Burpee, 13 Mete, 9 — Whitney v. Thacher, 117 
 288. Mass., 523. 
 
 8 — Lincoln v. The Saratoga, etc. 
 Ry. Co., 23 Wend., 425. 
 22 
 
OPINION EVIDENCE. 
 
 563 
 
 question is, whether a witness, who is accustomed to the use 
 of horses, knows their characteristics, has observed, the effect 
 produced upon them by the sight of piles of stones and other 
 objects, and who has stated to the jury his knowledge upon 
 these points, and given the dimensions and location of the pile 
 of stones in issue, should be allowed to answer the question, 
 "Whether an object like this pile of stones would be likely to 
 make an ordinarily gentle horse shy." 
 
 As the descriptive evidence of the witness, as to the pile of 
 stones, would necessarily fall short of enabling the jury to 
 see the situation as the witness saw it, his opinion is admis- 
 sible. "The fright is the result of a combination of form, 
 color, and relative position, which would elude the effort of 
 any witness clearly and fully to describe."^" 
 
 10. A sues B in trespass on the case for an injury caused 
 by A's horse becoming frightened at B's four-horse wagon 
 loaded with wood. The question is, whether a witness, who 
 has not seen B's four-horse wagon loaded with wood, may 
 state his opinion, based upon descriptive evidence given by 
 other witnesses, as to whether there was anything about B's 
 wagon and horses calculated to frighten an ordinarily quiet 
 and well-broken horse. 
 
 The fact elicited does not call for expert opinion evidence. 
 Non-expert opinion evidence can be based only upon personal 
 knowledge. Therefore, the opinion of the witness is inadmis- 
 sible." 
 
 11. A sues the B. Ry. Co. to recover damages for personal 
 injuries received, shortly after alighting from defendant's 
 train, in passing from a raised platfoj-m to one having a lower 
 level.12 The question is, whether the personal opinions of eye 
 witnesses "that the platform, from the way it is built, is not 
 only not safe, but it is actually a trap, from the very fact that 
 
 10 — Clinton v. Howard, 42 Conn.j States, and those of last resort of 
 
 294. nearly all of the states, allow this 
 
 11 — Baltimore Turnpike Co. v. class of evidence; hut those of 
 
 Statey 71 Md., 573. New York, Massachusetts and 
 
 12— The courts of the United Pennsylvania exclude it. 
 
564 LEAJJING PRINCIPLES AND RULES OF EXCLUSION. 
 
 it is raised nine inches above tlie level of the ground, without 
 any side protection," is admissible.^* 
 
 As the facts in issue come within the range of ordinary ex- 
 perience, and are such that they can be fully and palpably 
 described to the jury, the opinions of the witnesses are inad- 
 missible .^^ 
 
 12. A sues the 0. & M. Ry. Co. to recover damages for 
 injury to his crops, which, he alleges, was caused by defendant 
 company building an embankment across a certain watercourse, 
 as a result of which A's lands were overflowed. The question 
 is, whether the defendant company may show by expert opiaion 
 evidence that the injury to A's crops was the result of an over- 
 flow produced by natural causes and not by the embankment. 
 
 "Where the subject matter of inquiry is of such a character 
 that it may be presumed to be within the knowledge of ordi- 
 nary men, the opinions of experts are inadmissible; but, where 
 the subject matter relates to scientific knowledge, not possessed 
 by men in general, the opinions of persons who have made the 
 subject matter of inquiry the object of particular study are 
 admissible. As the subject matter of the expert opinion evi- 
 dence in question belongs to the latter class, such evidence is 
 admissible.^ ^ 
 
 13. A is on trial for the larceny of cattle which belonged 
 to the D. T. Cattle Company. Fresh hides were found in A's 
 wagon out of which the brands had been cut. In one case, the 
 brand had been only partially removed, and the state offers 
 expert opinion evidence to show that the part of the brand 
 
 13 — "Opinions are never re- scribed to the jury, and are such 
 ceived if all the facts can be ascer- that their bearing on the issue can 
 tained and made intelligible to the be estimated by all men, without 
 jury, or if it is such as men in special knowledge or training, 
 general are capable of compre- opinions of witnesses, expert or 
 bending and understanding. The other, are not admissible." Mitch- 
 ordinary affairs of life cannot be ell, J., in Auberle v. McKeesport, 
 the subject of expert testimony." 179 Pa., 321. 
 
 Am. & Eng. Bncyc. of Law, vol. 7, 14 — Graham v. Penn. R. R. Co., 
 
 p. 493, edition 1. 139 Pa., 149. 
 
 "But where the circumstances 15 — 0. & M. Ry. Co. v. Webb, 142 
 
 can be fully and adequately de- 111., 404. 
 
OPINION EVIDENCE. 565 
 
 remaining was a part of the D. T. brand of the D. T. Cattle 
 Company. The question is, whether such evidence is admissible. 
 Where animals are branded and turned loose upon the public 
 range, as they are in the western country, the brands, which are 
 usually unintelligible to non-experts, may readily and accurately 
 be deciphered by experts. For this reason, the evidence which 
 the state offers is admissible.^® 
 
 14. A is on trial for murder. B, a non-expert witness for 
 the state, is allowed, against objection, to testify that certain 
 hairs which were found adhering to a certain club appeared, 
 to the naked eye, to be human hairs; and C, another non-expert 
 witness for the state, is allowed, against objection, to testify 
 that they resembled the hairs of the deceased. The question is, 
 whether the evidence objected to is admissible. 
 
 The evidence of both witnesses is admissible. The objection 
 to it, in each case, rests upon the general principle that wit- 
 nesses who are not experts cannot testify to their opinions. 
 There is, however, a large class of facts in regard to which only 
 conclusions can be expressed.^'' 
 
 15. A sues B for breach of promise of marriage. C, one of 
 A's witnesses, testifies, against objection, that after B left A 
 for a journey to the western states "the plaintiff acted as if 
 she felt very sad." The question is, whether this evidence is 
 properly admitted. 
 
 The subject matter, to which the evidence relates, cannot be 
 reproduced or described to the jury precisely as it appeared to 
 the witness at the time. The fact, upon which the witness is 
 called to express his conclusion, is such that men in general are 
 capable of comprehending and understanding. For these rea- 
 sons the evidence is properly admitted.^* 
 
 16. A is on trial for murder. B, a witness for the state, 
 who is familiar with blood, and who examined with a lens a 
 certain blood stain on a coat when it was fresh, is permitted, 
 
 16— Askew V. People, 23 Col., 18 — Culver v. Dwight, 72 Mass., 
 446. 444. 
 
 17— Com. V. Dorsey, 103 Mass., 
 412. 
 
566 LEADING PRINCIPLES AND RULES OF EXCLUSION. 
 
 against objection, to testify that its appearance when he exam- 
 ined it indicated that it came from below upward, although R 
 has never experimented with blood, or other fluid, in this 
 respect. The question is, whether B's evidence is properly 
 admitted. 
 
 B 's evidence is properly admitted. The grounds of its admis- 
 sibility are the two reasons given in the answer to question 15.i8 
 
 17. A, a lawyer, sues B, his client, to recover for profes- 
 sional services, such services resulting in a favorable compromise 
 of the litigation for B. The question is, whether (1) Opinions 
 of other lawyers may be received as to the value of the services.! 
 rendered; (2) Opinions may be received as to the benefits of the 
 compromise to B in his future business; (3) A hypothetical; 
 question containing partial statements of facts, and inferences 
 and conclusions drawn from them, may be submitted to wit- 
 nesses. 
 
 The opinions of other lawyers, as to the value of the services 
 rendered, are admissible. The opinions, as to the benefits of 
 the compromise to B, are inadmissible, as they are calculated to 
 mislead the jury to think that the ultimate benefits to be derived 
 by B are the measure of A's compensation. The hypothetical 
 question is objectionable, and should be excluded, because it is 
 a compound of positive assertions of facts and conclusions.^* 
 
 18. A seeks to probate B's will. C contests it on the ground 
 of mental incapacity of the testator. The question is, whether 
 the trial court errs in refusing to allow C to examine another 
 expert witness on the question of B 's mental capacity, after he 
 has examined five expert witnesses on that point. 
 
 The court was quite justified in refusing to allow C to ex- 
 amine another expert witness. "If testamentary cases are ever 
 to be brought to a conclusion, there must be some limit to the 
 reception of expert evidence, and that which was fixed La this 
 case was quite liberal enough, "^i 
 
 19 — Com. V. Sturtivant, 117 21 — ^Praser v. Jennison, 42 Mich., 
 Mass., 122. 206-223. 
 
 20— Haish v. Payson, 107 111., 
 365. 
 
INSPECTION AND VIEW BY COURT AND JXnSY. 567 
 
 ILLUSTRATIONS ON REAL EVIDENCE. 
 
 1. A sues the city of B for an alleged damage to his lot by 
 a change in the grade of the street. The question is, whether 
 the court has authority to allow the jury, in charge of an 
 officer, to go upon and view the premises, although the trial is 
 four months after the completion of the improvement concern- 
 ing which the complaint is made. 
 
 The court has authority to allow the jury to go upon and 
 view the premises. "If the parties had the right to prove, by 
 oral testimony, the condition of the property at the time of 
 the trial, (and upon this point we think there can be no doubt,) 
 upon what principle can it be said the court could not allow the 
 jury, in person, to view the premises, and thus ascertain the 
 condition thereof for themselves? The premises, on view, may 
 be regarded, as it is termed in the books, real evidence, and 
 oral testimony in reference to the premises could not be as 
 satisfactory in its character as the real evidence. "^ 
 
 2. A is on trial for bastardy. The court, for the purpose 
 of showing resemblance between A and the child, allows the 
 jury, against objection, to inspect the child. A is convicted. 
 The question is, whether the court's ruling is prejudicial error. 
 
 Upon this question the decisions are in hopeless conflict. 
 Some courts hold, at least in the case of a mere baby, that such 
 evidence is of "to fanciful and unsatisfactory a character to 
 be received. "2 Many courts, however, hold the contrary. Jus- 
 tice Garrison, in a well considered case, says, "Inspection is 
 like admission in that, while not testimony, it is an instrument 
 for dispensing with the testimony, and, in a doubtful case, 
 the class of testimony it dispenses with might be a controlling 
 circumstance. Thus regarded, and in view of the almost utter 
 worthlessness of the testimony of witnesses adduced in the 
 question of the resemblance of a bastard to an alleged parent, 
 it is obvious that inspection is, on this account, also to be pre- 
 
 1— Springer v. City of Chicago, Harrison t. People, 81 111., App. 
 135 111., 552, 561. 93; State v. Danforth, 48 la., 43; 
 
 Z^Rlsk V. State, 19 -Ind., 152; Cl^rk v, Bradstreet, 80 Me., 456. 
 
568 REAL EVIDENCE. 
 
 ferred.' This, upon the whole, is the better view, and sus- 
 tained by the weight of authority.* 
 
 3. A sues B, in an action ex delicto, for personal injuries. 
 The question is, whether or not the court can compel A to sub- 
 mit his person tO' an examination by experts. 
 
 Upon this question, also, the decisions are not harmonious. 
 The Supreme Court of the United States have answered iti in 
 the negative.^ This decision has been followed in a few states, 
 but the great weight of authority is to the contrary.® 
 
 4. A sues B for damages for personal injuries. The ques- 
 tion is, whether A may voluntarily exhibit his injuries to the 
 jury. 
 
 The courts have frequently decided this question in the af- 
 firmative. Such a proceeding often gives to the jury important 
 information as to the extent and character of the injuries 
 involved, and does not deprive the defendant of any substantial 
 right on appeal, in view of the fact that the appellate court 
 does not weigh the evidence.'^ Spectacular and unfair exhibi- 
 tions, however, should be prohibited.* 
 
 5. A is on trial for selling intoxicating liquor to a minor. 
 The question is, whether the alleged minor may be exhibited 
 to the jury for their inspection in order to determine his age. 
 
 Some courts hold that this should not be allowed.® Accord- 
 ing to the better view, however, as well as the weight of 
 authority, such a proceeding is allowable.^" 
 
 6. The fact in issue is, whether A is a negro or not; and 
 
 3— Gaunt v. State, 50 N. J. L. 519; Ala. etc. Co. v. Hill, 90 Ala., 
 
 490, 495. 71; City of South Bend v. Turner, 
 
 4— Young V. Makepiece, 103 156 Ind., 418. 
 
 Mass., 50, 54; State v. Smith, 54 7 — Disotell v. Henry Luther Co., 
 
 la., 104; State v. Horton, 100 N. C, 90 Wis., 635; Louisville Ry. Co. v. 
 
 443; Jones v. Jones, 45 Md., 144; Wood, 113 Ind., 544; Rice v. Rice, 
 
 Linton v. The State, 88 Ala., 216; 47 N. J. L., 559. 
 
 Com. V. Jordan, 49 Ohio St., 455. 8 — Clark v. Brooklyn Heights 
 
 5— U. P. Ry. Co. V. Botsford, 141 Ry. Co., 177 N. Y., 359. 
 
 U. S., 250; Cole v. Fall Brook, etc. 9— Bird v. Stone, 104 Ind., 384. 
 
 Co., 159 N. Y., 59, 69 (allowed by 10— Com. v. Hollis, 170 Mass., 
 
 statute, however, passed in 1894). 433; Hermann v. State, 7S Wis., 
 
 6— Fullerton V. Fordyce, 144 Mo., 248; WUUam? v, Stone, 98 Ala., 52, 
 
INSPECTION AND VIEW BY COURT AND JURY. 569 
 
 the question is, whether hei may be exhibited to the jury for 
 their inspection. 
 
 The courts very generally hold that such a proceeding is 
 allowable.^^ 
 
 7. A sues the B Co. for damages for personal injuries caused 
 by his clothing being caught in the machinery of the defend- 
 ant company's mill. The question is, whether A's torn cloth- 
 ing may be exhibited for the inspection of the jury. 
 
 A's torn clothing may be exhibited, in the discretion of the 
 ■ trial court.12 The same principle is applicable to injured parts 
 of the body .13 
 
 8. A sues the city of B for damages for personal injuries 
 sustained by reason of her foot going through a rotten plank 
 in a sidewalk. The court, against objection, allows pieces of 
 the rotten plank to be exhibited for inspection by the jurj'. A 
 recovers a verdict. The question is, whether the court's ruling 
 is prejudicial error. 
 
 The court's ruling is not prejudicial error. The admissibility 
 of such evidence rests in the sound discretion of the court.i* 
 
 ^ 
 
 9. A sues the B. Ry. Co. for damages for personal injuries 
 sustained by reason of being struck by a passenger train. The 
 court permits A, against objection, to exhibit for the inspec- 
 tion of the jury four photographs, properly verified, of the 
 immediate locality of the casualty, taken about a month after 
 the accident. Changes which had taken place between the time 
 ofl the accident and the time of taking the photographs were 
 explained by evidence. A recovers a verdict. The question 
 is, whether the court's ruling is prejudicial error. 
 
 The court's ruling is not prejudicial error. The matter 
 rests in the sound discretion of the eourt.^^ In some cases 
 
 11 — Garvin v. State, 52 Miss., Co. v. Emminger, 57 Neb. 240; 
 
 207; Statev. Saldell, 70 N. H., 174; Paivre v. Manderscheld, 117 la., 
 
 Warlick v. White, 76 N. C, 175; 724. 
 
 Clark V. Bradstreet, 80 Me., 454. 14 — Viellesse v. Tbe City of 
 
 12— The Tudor Iron Works v. Green Bay, 110 Wis., 160. 
 
 Weher, 129 111., 535. 15— Wabash Ry. Co. v. Jenkins, 
 
 13— Indiana C. Co. v. Parker, 84 III.' App., 511, 513. 
 100 Ind., 181, 199; Omaha S. Ry. 
 
570 REAL EVIDENCE. 
 
 such evidence has been excluded, and the ruling of the court 
 sustained.! 8 
 
 10. A sues B in ejectment. Expert witnesses testify that an 
 original deed of the premises, which is in evidence, has been 
 altered by erasing the original writing and substituting new 
 matter. The question is, whether enlarged photographs of the 
 deed are admissible, against objection, for inspection by the 
 jury to illustrate the testimony of the witnesses. 
 
 The photographs, if properly verified, are admissible.?^ 
 Greenleaf says that a photograph,— particularly an enlarged' 
 one, — of a writing, is a proper method of exhibiting its con-' 
 tents.is Whete an enlarged photograph is used the method 
 "is not dissimilar to the examination with a magnifying 
 glass. "19 
 
 11. A is on trial for the murder of B by cutting his throat. 
 The court, against objection, admits a photograph of the 
 wound. A is convicted. The question is, whether the court's 
 ruling is prejudicial error. 
 
 The court's ruling is not prejudicial error. "The throat of' 
 deceased was cut; the character of the wound was important 
 to elucidate the issue; the man was killed and buried, and a 
 description of the cut by witnesses must have been resorted to ; 
 we cannot conceive of a more impartial and truthful witness 
 than the sun, as its light stamps and seals the similitude of 
 the wound on the photograph put before the jury ; it would be 
 more accurate than the memory of witnesses, and as the object 
 of all the evidence is to show the truth, why should not this 
 dumb witness show it? Usually the photograph is introduced 
 to prove identity of person, but why not to show the character 
 of the wound? In either case it is evidence; it throws light 
 on the issue. "20 
 
 16— C, C, C. & St. L. Ry. Co. v. 19— Marcy v. Barnes, 16 Gray, 
 
 Monaghan, 140 111., 474, 483. 161. 
 
 17— Howard v. 111. Tr. & Sav. 20— Franklin v. State, 69 Ga., 
 
 Bank, 189 111., 563, 579. 36; 47 Am. Rep., 748. See also 1 
 
 18 — 1 Greenleaf on Evid. (16th Bish. Grim. Proc, 1097; Whart, 
 
 ed.), 439. • Crlm. Evid., 544; and cases cited 
 
 in both texts. 
 
INSPECTION AND VIEW BY COURT AND JURY. 571 
 
 12. A sues the B. Ry. Co. foi" damages for loss of his wife 
 who was killed by a train. The statute limits recovery to "pe- 
 cuniary injuries." A, against objection, is allowed to intro- 
 duce in evidence a photograph of his wife, who was a hand- 
 some woman, and he recovers a verdict. The question is, 
 whether the court's ruling is prejudicial error. 
 
 The court's ruling is prejudicial error. "The action was to 
 recover for pecuniary injuries resulting from decedent's death. 
 Such injuries are to be compensated for on the basis of the 
 monetary value of the services of deceased to her husband and 
 children. Into such a ease the personal element does not enter, 
 for the law does not compensate for grief or sorrow, but only 
 for the actual pecuniary loss. The introduction in evidence of 
 the photograph of a handsome woman could not be expected 
 to accomplish any other result than to introduce the personal 
 element for the consideration of the jury.''^^ 
 
 13. A, a twenty-year-old girl, sues B and C for damages 
 for personal injuries sustained by reason of being struck by 
 a train. The court, against objection, admits in evidence pho- 
 tographs showing rear views of A's person, nude from below 
 the shoulders to mid-thighs. The question is, whether the 
 court's ruling is error. 
 
 The reception in evidence of such photographs is highly im- 
 proper. "Such photographic exposure of the body of a twenty- 
 year-old girl in a court room full of men is . . . grossly im- 
 proper and shocking. . . No such indecency is ever necessary, 
 or should be tolerated in court. If the condition of any private 
 , part of the body of any party, male or female, is material on 
 , any trial, it should be privately examined by experts out of 
 court, and expert testimony be given of it."^^ 
 
 14. A sues B in ejectment. In order to defeat B's title 
 A undertakes to prove that certain deeds are forgeries. The 
 question is, whether photo-lithographic copies of certain sig- 
 natures, the originals of which are proved to be genuine, are 
 admissible in evidence as standards of comparison. 
 
 21— Smith V. Lehigh Valley Ry. 22— Guhl v. Whitcomb et al., 109 
 Co., 177 N. Y., 379, 384. Wis., 69. 
 
572 EEAL EVIDENCE. 
 
 According to the weight of authority photographic repro- 
 ductions of the genuine handwriting of the person whose hand- 
 writing is in controversy cannot be used as standards with 
 which to compare the disputed writing.^^ A photo-lithographic 
 copy of a person's signature, the original of which cannot be 
 produced, is inadmissible to prove the genuineness of a signa- 
 ture to another instrument purporting to be that of the same 
 person, in the absence of proof that the copy is exact and ac- 
 curate in all respects, and the afiSdavit of the officer who has 
 custody of the original as a record, that the copy "is a true 
 and literal exemplif cation of the original," is not sufficient.^* 
 
 15. A files a bill against her husband B for a divorce on 
 the ground of impoteney. The question is, whether the parties 
 to the suit may be compelled by the court to submit to a 
 skilled examination of their persons. 
 
 It is well settled both in England and in this country that, 
 in divorce proceedings on the ground of impoteney, the court 
 may compel the party alleged to be impotent to submit to a 
 skilled examination of his or her person ; and, if the exigencies 
 of the case require it, of the party instituting the proceedings.^^ 
 
 16. A is on trial for committing rape on B, an infant under 
 ten years of age. A motion by A that B be compelled by the 
 court to submit to an examination of her person by a medical 
 expert is denied, and A is convicted and sentenced to im- 
 prisonment, for life. The question is, whether the trial court's 
 ruling is prejudicial error. 
 
 The court's ruling is not prejudicial error. If such right 
 exists, it is a matter of discretion with the trial court, to be 
 exercised only in cases of extreme necessity, and not subject to 
 review on appeal.^* 
 
 23— Am. & Eng. Ency. of Law Devanbagh, 5 Paige (N. Y.), 558. 
 
 (2nd ed.), Vol. 15, p. 274. 28 Am. Dec, 443. For a full dls- 
 
 24 — Geer v. Lumber and Mining cussion of physical incapacity as a 
 
 Co., 134 Mo., 85, 95, 98. See also, ground for divorce, see the ex- 
 
 Hynes v. McDermott, 82 N. Y., 51. tended note to the latter citation. 
 
 25— Anonymous, 89 Ala., 291; 18 26— McGuff v. State, 88 Ala., 147, 
 
 Am. St. Rep., 116; Devanbagh v. 16 Am. St. Rep., 25. 
 
EVIDENCE OF EXPERIMENTS. 573 
 
 ILLUSTRATIONS ON EVIDENCE OF EXPERIMENTS. 
 
 1. A sues the P Coal Co. for damages sustained by reason of 
 defective machinery. The trial court, against objection, per- 
 mits A to experiment in the presence of the jury with a correct 
 model of a coal bucket, with some coal in it, for the purpose of 
 showing how the bucket operated when in use, the court stat- 
 ing, "The jury will have to remember, all the time, that a 
 bucket that was actually used and the material that was ac- 
 tually used would be different from the bucket and material 
 here in court; but I will permit it to go in, simply as an 
 illustration of how the accident could have happened. " A re- 
 covers a verdict. The question is, whether the court's ruling is 
 prejudicial error. 
 
 The court's ruling is not pre judical error. It violates no 
 rule of evidence, nor can the defenda,nt be prejudiced by it. 
 The question of allowing experiments in the presence of the 
 jury is one which rests largely in the sound discretion of the 
 trial court.i 
 
 2. A sues the city of D for damages for personal injuries 
 received by her in falling upon a defective sidewalk, as a result 
 of which she claims that her right side is paralysed. To prove 
 her claim, a doctor, who is not sworn, is permitted against 
 objection, in the presence of the jury, to thrust a pin into the 
 right side of her face, her right arm and right leg, and, from 
 the fact that she fails to wince, the jury are asked to infer 
 that her right side is completely paralyzed. A recovers a ver- 
 dict for $10,000. The question is, whether the experiment with 
 the pin is prejudicial error. 
 
 The experiment with the pin is not prejudicial error. There 
 is no occasion for swearing the doctor for the part taken by 
 him, and in inserting the pin there is nothing to indicate 
 treachery on his part.* 
 
 3. A sues the B Ry. Co. for damages for cattle killed at a 
 railway crossing by being struck by a train. The company de- 
 l—Pennsylvania Coal Co. V. 2 — Osborne v. City of Detroit, 32 
 
 Kelly, 156 111., 9. Fed. Rep., 36. 
 
 24 
 
574 EEAL EVIDENCE. 
 
 fends on the ground of contributory negligence on the part 
 of A's sister who was in charge of the cattle when they were 
 struck. The court, against objection, allows evidence of ex- 
 periments, made by witnesses to determine how far the train 
 could be seen from the highway coming to the crossing. A re- 
 covers a verdict. The question is, whether the court's ruling 
 is prejudicial error. 
 
 The court's ruling is not prejudicial error. The admissibility 
 of the evidence rests in the sound discretion of the court.^ 
 
 4. A is on trial for murder by shooting. The question is, 
 whether evidence of experiments with firearms, of the same 
 pattern and calibre as the one used in committing the homicide, 
 to determine their carrying distance and penetrating force, is 
 admissible. 
 
 The evidence is admissible. "It has been quite a common 
 thing, in cases of homicide, to make experiments with firearms, 
 to determine the carrying distance, the penetrating force, and 
 the distance to which fire will be carried by firearms of cer- 
 tain pattern and calibre, and to prove the results of such ex- 
 periments at the trial, as tending tO' show the guilt or inno- 
 cence of the accused."* 
 
 5. A is on trial for murder. The evidence tends to show 
 that the person who committed the murder wore at the time 
 a certain pair of rubber boots. A testifies thati he cannot get 
 these boots on; and makes apparent attempts, in the presence 
 of the jury, to do so. B, a shoemaker, measures A's feet and 
 the boots, and testifies that a foot of the size of A's can wear 
 the boots. C and D put them on, in the presence of the jury, 
 and B, after measuring their feet, testifies that they are as 
 large as A's. A is convicted. The question is, whether allow- 
 ing the experiments in the presence of the jury, and admitting 
 B's testimony, constitute prejudicial error. 
 
 The experiment and evidence are both proper.^ 
 
 3— Elgin, J. & B. Ry. Co. v. St., 297; State v. Asbell, 57 Kan. 
 
 Reese, 70 111. App., 463. See also 398. 
 
 32 111. App., 196. 5— State v. Nordstrom, 7 Wash. 
 
 4— People V. Levine, 85 Cal. 39. 506. 
 See also SulUvan v. Com., 93 Pa. 
 
EVIDENCE OP BXPEEIMENTS. 575 
 
 6. A is on trial for the murder of B, who was found dead 
 with a bullet hole through her body and a pistol near by. A 
 claims that B committed suicide. There were no powder 
 marks on B's clothing or person. The state, against objection, 
 is permitted to put in evidence the result of experiments made 
 with the pistol found near B 's body, by discharging the pistol, 
 at various distances, into a piece of cloth of the same kind 
 of which the only garment B had on was made (muslin). The 
 witnesses who made the experiments are also allowed, against 
 objection, to express opinions, founded upon the experiments, 
 that B could not have held the pistol herself without some 
 trace of powder stain or burn upon the garment she wore when 
 shot. A is convicted. The question is, whether the rulings 
 of the court are prejudicial error. 
 
 The rulings of the court are not prejudicial error. Evi- 
 dence of the experiments, as well as of the opinions, is admis- 
 sible.® 
 
 7. A is on trial for the murder of B. The evidence tends 
 to show that B was killed with low-mould buckshot. As a cir- 
 cumstance which tends to show that B was shot with a gun be- 
 longing to A, evidence is put in to the effect that this gun seat-' 
 ters low-mould buckshot "badly." A introduces evidence 
 that the gun does not scatter such shot, and requests the per- 
 mission of the court to take the gun out and shoot it off in the 
 presence of a deputy marshal, to test the mater; but the court 
 refuses the request. A is convicted. The question is, whether 
 the court's refusal is prejudicial error. 
 
 The court's refusal is not prejudicial error. "The granting 
 or refusal of such request, first made in the midst of the trial, 
 was clearly within the discretion of the court. "^ 
 
 8. A is indicted under a statute which prohibits the sale 
 of intoxicating liquor, 'and which provides that any beverage, 
 containing more than one per centum of alcohol shall be deemed 
 intoxicating. He offers, against objection, evidence of experi- 
 ments to show that the liquor is not in fact intoxicating, but 
 
 6— Boyd V. State, 14 Lea 7— United States v. Ball, 163 U, 
 (Tenn.), 161. See also Thrawley S. 673. 
 V. State. 153 Ind., 375. 
 
57& REAL EVIDENCE. 
 
 the court excludes it, and he is convicted. The question is, 
 whether the court's ruling is prejudicial error. 
 
 The court's ruling is not prejudicial error. The evidence 
 offered tended to show an immaterial fact. The material ques- 
 tion is, vrhether the liquor contains one per centum of alcohol, 
 and not whether it is in fact intoxicating if taken in small 
 quantities.* 
 
 9. A is indicted tot arson. The court allows evidence of an 
 experiment with candles to ascertain how long they would 
 bum. The question is, whether the court's ruling is error. 
 
 Assuming that the evidence is material to the issue, the 
 court's ruling is correct.^ 
 
 10. A is on trial for maliciously shooting B. B testifies to 
 his position and attitude in the parlor of a tavern the night 
 he was shot at, and to the identity of A as the person who shot 
 at him, as seen through a glass window by the light of the 
 pistol's flash. The state, against objection, is allowed to prove 
 experiments and observations, made subsequently at the same 
 place, by several witnesses who were not present at the shoot- 
 ing, for the purpose of showing that B might or could have 
 seen and recognized A when the alleged crime occurred. A is 
 convicted. The question is, whether the court's ruliug is preju- 
 dicial error. ^ 
 
 The court's ruling is not prejudicial error. The evidence 
 offered is material to the question of A's identity.^" 
 
 11. A is on trial for murder. The court compels him to 
 make footprints in an ash heap. The footprints correspond 
 with tracks discovered at the scene of the crime. A is con- 
 victed. The question is, whether the court's ruling is preju- 
 dicial error. 
 
 Some courts allow this kind of evidence.^i Other courts 
 reject it on the ground that, to admit it the witness is com- 
 pelled to furnish evidence against himself. ^^ 
 
 8— Com. V. Brelsford, 161 Mass. 10— Smith v. State, 2 Ohio St., 
 61. See also Libby v. Scherman, 512. 
 
 146 111., 540; Ulrich v. People, 39 11— Walker v. State, 7 Tex. 
 Mich. 253. App., 245, 32 Am. Rep. 595. 
 
 9— People V. Levine, 85 Cal. 39. 12— Stokes v. State, 5 Baxt. 
 
 (Tenn.), 621, 30 Am. Rep., 72. 
 
EVIDENCE OF EXPERIMENTS. 577 
 
 12. A is on trial for assault with intent to commit rape. 
 Evidence is introduced that he was in a wagon in the rear 
 of three other wagons, and that, after the commission of the 
 alleged offense, he overtook these three wagons. To rebut 
 this evidence, A offers, against objection, evidence of experi- 
 ments by him tending to show that it would have been impos- 
 sible for him to have stopped and committed the offense as 
 shown by the state and then to have overtaken the three 
 wagons; but the court excludes the evidence. A is convicted. 
 The question is, whether the court's ruling is prejudicial error. 
 
 The court's ruling is pre judical error. "Upon principle and 
 authority, this character of testimony, where the experiment 
 appears to 'have beep made under conditions similar, or nearly 
 similar, to those which attended the original transaction, and 
 where such experiments would tend to shed any light upon 
 said original transaction, is admissible."!^ Some cases, how- 
 ever, exclude such evidence.^* 
 
 13— Clark v. State (Tex.), 40 14— Evans v. State, 109 Ala., 11; 
 
 S. W. R. 992, 995. See also Wil- Hooker v. State (Md.) , 56 Atl. 
 
 son V. State (Tex.), 36 S. W. R., Rep. 390; State v. Fletcher, 24 
 
 587; People v. Levine, 85 Cal., 39; Ore., 295. 
 State V. Asbell, 57 Kan., 398; Sul- 
 livan V. Com., 93 Pa. St., 284. 
 
578 WEITINGS. 
 
 ILLUSTRATIONS ON PROOF OF AUTHORSHIP. 
 
 1. A, who holds a mortgage on B's farm, sues him in eject- 
 ment. A offers in evidence the mortgage deed which is attested 
 by C, and having subpoenaed B asks him if he executed the deed. 
 B objects to the question on the ground that C has not been called 
 to testify. The court rules that C must first be called, and non- 
 suits A. The question is, whether the court's ruling is correct. 
 
 According to the English common law the court's ruling is 
 correct. The two reasons which have been assigned for this rule 
 are, (1) The parties to the writing impliedly agree that proof 
 of their signatures shall be made by the subscribing witness ; and 
 (2) Bach of these parties is entitled to have an opportunity to 
 cross-examine this witness if available.^ 
 
 2. A sues B on a bond attested by two witnesses, one of whom 
 is dead and the other beyond the sea. The court rules that the 
 handwriting of the dead witness may be proved, and that it is 
 not essential to prove the handwriting of the obligor. Judgment 
 is entered for A. The question is, whether the court's ruling is 
 correct. 
 
 ■ The court's ruling is correct. The handwriting of the attest- 
 ing witness when proved is evidence of everything on the face of 
 the bond, and the handwriting of the obligor need not be proved.^ 
 
 3. A sues B on an attested indenture or apprenticeship which 
 is in the hands of B. A asks B to produce the indenture but B 
 refuses. A then offers secondary evidence of its contents and B 
 objects to this evidence on the ground that the attesting witness 
 has not been called. The question is, whether or not the second- 
 ary evidence is admissible. 
 
 This evidence is admissible. Since the indenture is in the 
 hands of the defendant, if he wishes to throw on the plaintiff 
 the burden of calling the subscribing witness he must produce 
 the instrument.^ 
 
 4. A seeks to probate B's will. Each of the two attesting 
 witnesses testifies to the genuineness of his signature, but each 
 
 1 — Whyman v. Garth. 8 Bxch. 3 — Cooke v. Tanswell, 8 Taunt. 
 803. 450. 
 
 2— Adam v. Kers, 1 B. & P. 360. 
 
PROOF OF AUTHORSHIP. 579 
 
 testifies that he has no recollection of signing the attestation 
 clause, or of seeing the deceased sign the will, or that the deceased 
 ever acknowledged the same to be his act or deed. The county 
 court refuses probate of the will and an appeal is taken to the 
 circuit court. The question is, whether or not the order of the 
 county court should be sustained. 
 
 The order of the county court should not be sustained. "If 
 the attestation clause is full and the signatures genuine and the 
 circumstances corroborative of due execution, and no evidence 
 disproving a compliance in any particular, the presumption may 
 be lawfully indulged that all the provisions of the statute are 
 complied with, although the witnesses are unable to recollect the 
 execution or what took place at the time."* 
 
 5. A sues B in ejectment. B offers in evidence an attested 
 lease of the premises made by A to C. The attesting witness is 
 not called, but A and C waive their right to insist on producing 
 him, and acknowledge the execution of the lease. The court, 
 however, excludes the lease on the ground that the attesting wit- 
 ness is not called. Judgment is rendered for A. The question is, 
 whether the court's ruling in excluding the lease is prejudicial 
 error. 
 
 The court's ruling is prejudicial error. "The rule which re- 
 quires that the attesting witness to a written instrument shall be 
 called to prove its execution, if within the State, has no applica- 
 tion to a case where both parties to the instrument are in court 
 and waive their right to insist on producing such witness. "^ 
 Some decisions, however, hold the contrary.® 
 
 6. A sues B in tort for the coaversion of certain chattels. He 
 alleges in his declaration that B, by false and fraudulent repre- 
 sentations, induced him to exchange certain chattels for a parcel 
 of land, of which B delivered to him an invalid deed. The ques- 
 
 4 — Thompson v. Owen, 229, 235; pend upon the recollection, or 
 
 Matter of will of Kellum, 52 N. even the veracity, of a subscribing 
 
 Y. 517; Jarman on Wills (6th ed.) witness.") 
 
 123, 124; Abbott v. Abbott, 41 5— Forsythe v. Hardin, 62 111. 
 
 Mich. 540. (In this case Chief 206. 
 
 Justice Campbell says, "But we 6 — Brigham v. Palmer, 3 Allen 
 
 know of no rule of law which (Mass.) 450. 
 makes the probate of a will de- 
 
580 WRITINGS. 
 
 tion is, whether the deed is admissible in e^ddence without prov- 
 ing its execution by the attesting witness. 
 
 Since the deed is not in issue, but comes into the ease collater- 
 ally, it is admissible in evidence without proving its execution by 
 the attesting witness.' 
 
 7. A sues B on a judgment rendered in another state. He 
 offers in evidence a document purporting to be a copy of the 
 record of the court that rendered the judgment, the attestation 
 of which is signed "A. M. Callaghan, Clerk District Court, by 
 J. F. Curtis, Dep. Clerk." It is also signed by the judge of the 
 court, who certifies that A. M. Callaghan is the clerk of the court 
 and keeper of the records and seal thereof at the time of the at- 
 testation, and that the certificate is A. M. Callaghan 's handwrit- 
 ing and that the attestation is in due form and made by the 
 proper officers. The question is, whether the attestation com- 
 plies with the requirements of the act of Congress; and if not, 
 whether the defect is cured by the certificate of the judge that 
 the attestation was made by the proper officers. 
 
 The attestation does not comply with the requirements of the 
 act of Congress since it was not signed by the clerk. Nor is the 
 defect cured by the certificate of the judge that the attestation 
 was made by the proper officers since all he could certify to was 
 that the attestation was in due form.* 
 
 8. A sues B in an action quare clausum fregit. He offers in 
 evidence, against objection, a deed which is not acknowledged, 
 after accounting for the absence of the subscribing witness, and 
 after introducing some evidence tending to show that his hand- 
 writing could not be proved, and evidence establishing the sig- 
 nature of the grantor. The question is, whether the deed is ad- 
 missible. 
 
 At the English common law a technical and artificial rule ob- 
 tained which made proof of the handwriting of a subscribing 
 witness better evidence than that of the parties to the instru- 
 ment. This rule has met with much dissatisfaction. In Eng- 
 
 7— Skinner v. Brlgham, 126 8— Willock v. Wilson, 178 Mass. 
 Mass. 132. See also, Curtis v. 68. 
 Belknap, 21 Vt. 433; Rand v. 
 Dodge, 17 N. H. 343. 
 
PROOF OP AUTHORSHIP. 
 
 581 
 
 land,^ and in some of the states,io it has been modified by stat- 
 utes, and in other states it has been repudiated, except in the 
 case of writings which the law requires to be attested by wit- 
 nesses. Since the deed A offers in evidence did not require to be 
 attested, it is admissible in evidence without proving the hand- 
 writing of the subscribing witness.^i 
 
 9 — The Common Law Procedure 
 Act of 1854 (17 & 18 Vict, chap. 
 125, sec. 26) contains the follow- 
 ing provision: "It shall not be 
 necessary to prove by the attest- 
 ing witness any instrument, to 
 the validity of which attestation 
 is not requisite; and such instru- 
 ment may he proved by admission 
 or otherwise, as if there had been 
 no attesting witness thereto." 
 
 10 — Such statutes have been 
 passed in Hassacbusetts, New 
 
 York, Michigan, Illinois, Pennsyl- 
 vania, Maryland, Rhode Island, 
 and perhaps in other states. The 
 Massachusetts statute, passed in 
 1897, provides as follows: "It 
 shall be competent to prove the 
 signature to any attested instru- 
 ment or writing, except a will, in 
 the same manner as if such in- 
 strument were not attested." 
 
 11 — Newsom v. Luster, 13 111. 
 175; Forsythe v. Hardin, 62 111. 
 206. 
 
582 WEITINGS. 
 
 ILLUSTRATIONS ON ALTERATIONS OF WRITINGS. 
 
 1. A executes and delivers to B a negotiable promissory note 
 for $2,270, with interest at ten per cent. The note also contains 
 a promise to pay an attorney's fee of $3, a power of attorney to 
 confess judgment, and a promise to pay an attorney fee of $3 
 for doing so. After the delivery of the note to B, and while in 
 his possession, it is altered by changing the $3 in each case to 
 $300. Before maturity, B indorses the note to C, a bona fide 
 purchaser; and at maturity judgment by confession is entered 
 against A. The question is, should the judgment be allowed to 
 stand. 
 
 The judgment is absolutely void, and therefore should not be 
 allowed :;o stand. A power of attorney to confess a judgment, 
 which is materially altered while in the hands of the payee of 
 the indebtedness, without any explanation of the alteration, is 
 made void by such alteration, and a judgment entered by con- 
 fession under it is also void. Where a promissory note, con- 
 taining a promise to pay a certain sum as attorney's fee, is al- 
 tered while in the hands of the payee, increasing the amount of 
 such fee, the alteration will be presumed to have been made by 
 him, and the note becomes thereby utterly void even in the hands 
 of a bona fide indorsee.^ 
 
 2. A executes and delivers to B a bond for the future con- 
 veyance to him of a piece of land. There is an oral agreement 
 that B is to have immediate possession of the land, but the bond 
 is silent on this point. B, without the knowledge or consent of 
 A, adds to the bond words which purport that B is to have im- 
 mediate possession of the land. The question is, whether the al- 
 teration avoids the bond. 
 
 The alteration is material and avoids the bond, even though it 
 expresses the original intention of the parties. This is owing 
 to the fact that it changes the legal effect of the instrument.^ 
 
 3. A executes and delivers to B a deed of land. B subse- 
 quently discovers that in the description of the land the word 
 "Vermont" is used instead of the word "Illinois," and at his 
 
 1— Burwell v. Orr, 84 111. 465. 2— Kelly v. Trumble, 74 111. 
 
 428. 
 
AliTEBATION OF WRITINGS. 583 
 
 request A strikes out the former word and inserts the latter. The 
 deed refers to another recorded deed for a more particular de- 
 scription which is correct. The question is, whether the altera- 
 tion vitiates the deed. 
 
 The alteration, under the circumstances, is immaterial and 
 does not vitiate the deed.^ 
 
 4. A as principal and B as surety execute and deliver to C a 
 promissory note. Subsequently, C, with A's consent but with- 
 out B's knowledge or consent, alters the note so as to make it 
 draw interest a month sooner than before. The question is, 
 whether B is released. 
 
 The alteration is material, and since the making of it is with- 
 out B's consent he is released.* 
 
 5. A as principal and B as surety execute and deliver to C a 
 promissory note for $500. When G receives the note he insists 
 that it should include interest which has already accrued on the 
 claim for which it is given ; and C, in B 's absence, and without 
 his knowledge or consent, adds, immediately after the words 
 "value received," the following expression: "$10 dollars and 
 fifty interest." The question is, whether this alteration dis- 
 charges B, the surety. 
 
 The alteration is not a material one and therefore it does not 
 discharge B. The expression added would naturally be con- 
 strued to mean that a part of the value received by the makers 
 consists of ten dollars and fifty cents interest.* 
 
 6. A executes and delivers to B a so-eaUed promissory note 
 in payment of some fanning mills. The note is written In ink, 
 except that it contains a condition written in pencil, as follows : 
 "This note is not to be paid until fourteen mills are sold." This 
 condition, while the note is in B's possession, is erased, leaving 
 no trace of a pencil mark, or any indication of alteration. Sub- 
 sequently, and before maturity, the note is assigned to C, an in- 
 nocent purchaser for value. The question is, whether the alter- 
 ation is a good defense in an action against A on the note. 
 
 The alteration, though material, is no defense. A, in signing 
 
 3 — Sanitary District of Chlca- 5 — Gardiner v. Harback, 21 111. 
 go V. Allen, 17& 111. 330, 335. 129. 
 
 4— Benedict v. Miner, 58 111. 19. 
 
584 WRITINGS. 
 
 the note under the circumstances stated, is guilty of gross care- 
 lessness ; and C, an innocent purchaser before maturity takes the 
 note free from any defense arising from the alteration.^ 
 
 7. A and B execute and deliver to C a joint and several note. 
 B, as surety, pays the note, after which his name is cut off, and 
 action on the note is brought in the name of the payee, for the 
 use of B. At A's request the court instructs the jury "that if 
 they believe, from the evidence, that the note has been altered, 
 by cutting off the name of one of the makers since the same 
 was executed, anfl without the knowledge or consent of the de- 
 fendant, that they will find for the defendant." The question 
 is, whether the instruction is correct, and what presumption, if 
 any, arises where an instrument on its face appears to have been 
 altered. 
 
 The instruction is correct. Where an instrument on its face 
 appears to have been altered, the law presumes nothing; but 
 leaves the question of the time when it was done, as well as that 
 of the person by whom it was done, and the intent with which 
 it was done, as matters of fact to be found by the jury; and it is 
 incumbent on the party offering the instrument in evidence to 
 explain the alteration.'' 
 
 8. A executes a promissory note for $5,000, payable to B. 
 Before delivery of the note to B, C and D indorse it. After de- 
 livery, B, with A's consent, but without the knowledge or eon- 
 sent of C or D, adds to the note the words "payable at 53 Lake 
 street." The question is, whether the addition to the note dis- 
 charges C and D. 
 
 The alteration is material and discharges the guarantors C 
 and D.8 
 
 9. A sues B for breach of a building contract. The contract 
 was executed in duplicate, and B offers in evidence the docu- 
 ment kept by him. A objects to this document on the ground 
 that after its delivery it was materially altered by changing the 
 date of its performance, the contractual price and the times of 
 payment. There is no dispute as to these alterations. The narr. 
 
 6— Harvey v. Smith, 55 111. 224. 8— Pahlmaa v. Taylor, 75 111. 
 7— Glllett v. Sweat, 1 Gllman 629. 
 (111.) 475. 
 
ALTEKATION OF WEITINGS. 585 
 
 declares on the contract as originally drawn. The question is, 
 what is the effect of these alterations ? 
 
 The effect of the alterations depends upon whether or not they 
 were made with A's consent, and if not, whether or not they 
 were made with fraudulent intent. If a party to a written exec- 
 utory contract makes material alterations in it without the con- 
 sent of the other party to it, he will be precluded from using it 
 as evidence to enforce its provisions against that other party. 
 The unauthorized material alteration of a written instrument by 
 the holder, or with his consent, vitiates it as to non-consenting 
 parties. Where a material alteration is made by the holder with 
 fraudulent intent his act justly deprives him of all rights by 
 virtue of it. The identity of the instrument is thereby destroyed, 
 and courts will not assist persons who have been guilty of a 
 fraud to carry out the transaction wherein it was perpetrated. 
 A party who fraudulently destroys the evidene of a debt agreed 
 upon by the parties, should not be allowed to supply its place by 
 other evidence.* 
 
 10. A sues B in ejectment. He offers in evidence, against 
 objection, a deed which contains several material interlineations, 
 and erasures. The question is, what presumptions, if any, exist 
 in regard to them. 
 
 The mere fact of an interlineation or erasure appearing in an 
 instrument does not, of itself, raise any presumption of law 
 either for or against the validity of the writing. The question 
 when, by whom, and with what intent, it was made, is one of fact 
 for the jury to determine. This rule also obtains where any 
 ground of suspicion is apparent upon the face of the instru- 
 ment.!'* 
 
 11. A sues B on B 's promissory note. While the note was in 
 A's possession, the blank space left for the rate of interest was 
 filled in with the figure "8," making the note read "with inter- 
 est at the rate of 8 per cent per annum from date until paid." 
 The question is, whether B is liable on the note. 
 
 B is not liable on the note. The alteration is material and 
 avoids it in the hands of any person but a bona fide purchaser." 
 
 9— Hayes v. Wagner, 89 111. 180 111. 398, 405. See also, Glllett 
 App. 390. V. Sweat, 1 Gilman (111.) 475. 
 
 10 — Catlin Coal Co. v. Lloyd, 11 — Yost v. Minneapolis Har- 
 
 yester Works, 41 III. App. 556, 
 
586 WBITINQS. 
 
 12. !A files a bill against B to foreclose a mortgage. B de- 
 fends upon the ground that the notes secured by the mortgage 
 were altered^ without his knowledge or consent, by adding to the 
 name of the payee, the term, "& Co." The question is, whether 
 such an alteration is a good defense. 
 
 Assuming that the alteration is material, whether or not it 
 constitutes a good defense to A's bill depends upon the intent 
 with which it was made. If it was made innocently it is no de- 
 fense. If it was made fraudulently it is a good defense. A 
 fraudulent alteration not only avoids the note, but prevents a 
 recovery upon the original consideration. Adding the term "& 
 Co." to the name of the payee was prejudicial to him, 
 and did not change the liability of the maker of the 
 notes. It is fairly inferable, therefore, that the alteration 
 was not fraudulently made. It follows, therefore, that B's de- 
 fense is not good. On the other hand, if the action were on 
 the notes, assuming that the alteration is material the notes 
 
 would be inadmissible, and the defense, therefore, would be 
 good.i2 
 
 13. A, the assignee of a promissory note, sues B, the maker, 
 on it. B defends on the ground that after delivery of the note 
 to the payee it was changed by raising the amount from $60.08 
 to $60.84. The face of the note bears unmistakable evidence of 
 a change. The court refuses to instruct the jury "that when 
 an instrument offered in evidence has the appearance of having 
 been altered, the law raises no presumption as to when the 
 change was made or by whom. These are questions of fact to 
 be found by the jury; and in determining these questions the 
 jury should look at the instrument itself, as well as to all the 
 circumstances in evidence, for an explanation, and thus deter- 
 mine whether the alteration was made before or after the execu- 
 tion of the instrument, and whether such alteration was made 
 with or without the consent of the defendant." The question 
 is, whether the court's ruling is correct. 
 
 12— Elliott V. Blair, 47 111. 342. Am. Rep. 255; Draper v. Wood, 
 
 See also, First Nat. Bank of 17 Am. Rep. 92. (The note to this 
 
 Springfield v. Ryan, 31 111. App. case contains a useful collection 
 
 271; Vogel v. Ripper, 34 111. 100; of authorities upon the subject in 
 
 Horst V. Wagner, 43 la. 373, 22 general.) 
 
ALTERATION OF WRITINGS. 587 
 
 The instruction as requested ia correct, and the court's ruling 
 prejudicial error.^^ 
 
 14. A and B executed a promissory note for $4200, payable 
 to the order of the First Nat. Bank. The makers and C agreed 
 that the note was to be discounted by the bank, and the pro- 
 ceeds, plus the cost of discounting the note, turned over to 
 in payment of certain personal property purchased from him. 
 The bank insisted that C guarantee the payment of the note 
 and he signed his name just below the signatures of A and B, 
 and the note was delivered to the bank and the money paid. 
 Subsequently C went to the bank and had the cashier erase his 
 signature on the face of the note as one of the makers, and had 
 his name written in the note as payee. At the same time the 
 cashier placed the bank's guarantee stamp on the back of the 
 note which C signed. The bank now sues A and B on the note, 
 and they defend upon the ground that the note was so altered 
 after its execution, without their knowledge or consent, that they 
 are discharged from all liability upon it. The question is 
 whether their defense is good. 
 
 The answer to this question depends upon whether or not the 
 alterations are material. To be material they must affect the 
 legal rights of the parties. "And in no case is a change in the 
 phraseology of the instrument material when it does not es- 
 sentially change its legal effect. "'* As the note stood before the 
 alterations were made, A and B were liable to the bank on the 
 note. C's guaranty neither enlarged nor diminished the rights 
 of the bank against them. The bank's rights and duties, as 
 between it and them, were precisely the same after the altera- 
 tions were made as before. Their defense, therefore, is of no 
 avaiLi** 
 
 15. A, the indorsee of a biU of exchange, intentionally makes 
 a material alteraton in it. The question is whether his act ex- 
 tinguishes the debt owing to him by the indorser. 
 
 The alteration not only avoids the security as against all 
 prior parties, but it also extinguishes the debt owing by the 
 
 13— DeLong v. Soucie, 45 111. ing Holland v. Hatch, 15 Ohio St. 
 
 App. 234. See also MiUlken v. 464. 
 
 Marlln, 66 111. 13. 15— Ryan v. First Nat. Bank, 
 
 14— Daniels on Neg. Instr., clt- 148 111. 349. 
 
588 WRITINGS. 
 
 indorser.16 The reason for this rule is, "It would oe unjust 
 that the indorsee should compel the indorser to pay his debt 
 when the indorsee has destroyed the instrument on which alone, 
 in some eases, and on which preferably in all cases, the indorser 
 should sue. To make the indorser liable on the consideration 
 and give him a cross-action against the indorsee for the altera- 
 tion, would be to oblige him to rely on the indorsee instead of 
 the antecedent parties, and to prove a fact of which he might 
 have no evidence. It would, besideSj introduce a needless cir- 
 cuity of action."!^ 
 
 16. A, the assignee of a certificate of deposit, delivered to 
 B by C, a banker, sues C upon the certificate. The certificate, 
 as issued, contained the following words: "Payable thirty 
 
 days after date, with per cent per annum." At the time 
 
 the certificate was assigned to A, D, with B's consent, and in 
 A's presence, fraudulently fiUed the blank by inserting the 
 figures "10," thereby making the instrument on its face draw 
 ten per cent interest instead of six per cent, the legal rate, B 
 stating that C understood that the certificate should bear ten 
 per cent interest, but that he neglected to insert it. The question 
 is, whether C is liable. 
 
 Since the alteration is not only material but also fraudulent 
 no action will lie against C either upon the certificate itself, or 
 upon the original consideration for which it was given. "The 
 original cause of action upon the account was lost by merger, 
 and the circumstances under which the certificate became void 
 were not such as to justify a court in holding that the original 
 cause of action was revived by reason of the fact that the 
 certificate became void."i* 
 
 17. A brings ejectment against B relying upon a sheriff's 
 deed. After receiving the deed A fraudulently changed the 
 description of one of the parcels of land covered by it, but not 
 the one he seeks to recover in this action. The court holds that 
 the alteration vitiates the whole deed and rejects the deed as 
 evidence. The question is, whether the court's ruling is prejudi- 
 cial error. 
 
 16 — Alderson v. Langdale, 3 B. Notes 328. See also Chitty on 
 & Ad. 660, 23 E. C. L. 155. Bills 221. 
 
 17 — Wood's Bylaws on Bills and IS — Woodworth v. Anderson, 63 
 
 la. 503. 
 
ALTERATION OP WEITINGS. 589 
 
 The court's ruling is prejudicial error. The alteration in the 
 deed does not effect the parcel of land sued upon, and therefore, 
 as to this parcel the alteration is immaterial. Moreover, an 
 alteration in a deed after delivery does not operate to reconvey 
 the title to the grantor even when made fraudulently. The 
 title passes by the deed, and its continued existence or integrity 
 is not essential thereto, although a fraudulent and material al- 
 teration may disable the grantee from bringing an action upon 
 its covenants.!® 
 
 18. A, the payee of a negotiable promissory note, forges it 
 before maturity by inserting the words "ten" and "date" 
 whereby it is made to draw ten per cent interest from date. 
 The question is, whether the forgery impairs the liability of a 
 subsequent indorser to an innocent holder for value. 
 
 The alterations discharge the maker, but they do not affect 
 the liability of a subsequent indorser to an innocent holder for 
 value.^o 
 
 19. A, on April 20th, drew his check on the W. S. Bank, 
 dated April 22nd, payable to his clerk, C, and left it with C 
 with directions to draw the money on the 22nd, if he did not 
 return before noon, and give it to the foreman to pay off em- 
 ployees. C altered the date to the 21st, drew the money on 
 that date and absconded. A did aot return until after the time 
 appointed. The question is, who has to stand the loss, A or 
 the bank. 
 
 The bank has to stand the loss. The alteration was fraud- 
 ulent and material. As originally drawn the check conferred 
 no authority on the bank to pay it before the 22nd. The fraud- 
 ulent alteration vitiated it before it had any inception. It was 
 not, therefore, a legal obligation enforceable against the drawer 
 by its holder. By reason of the unauthorized act of the bank 
 ill paying it, and thereby enabling the fraudulent holder to 
 abscond with its proceeds, its object had wholly failed before the 
 legally appointed time for its payment. "The relation existing 
 between a bank and its depositor is, in a strict sense, that of 
 debtor and creditor ; but in discharging its obligation as a debtor 
 
 19 — Woods V. Hilderbrand, 46 20 — ^Washington Savings Bank 
 Mo. 284. T. Ecky, 51 Mo. 272. 
 
590 WRITINGS. 
 
 the bank must do so subject to the rules obtaining between prin- 
 cipal and agent. "21 
 
 20. A files a bill to set aside a deed of 400 acres of land to 
 his father, B. The bill alleges that A's mother executed the 
 deed to him, that B took it to be recorded, and that while it 
 was in B's possession he fraudulently erased A's name and in- 
 serted his own as grantee, and then had it recorded, after which 
 it was lost. The question is, upon whom does the burden of 
 proof rest? 
 
 The burden of proof rests upon A to establish the forgery by 
 clear and convincing proof .^^ 
 
 21. A devised to B forty acres of land. A few weeks later 
 he informed K, the executor named in the will, that he wished 
 to alter the will so that C would take the forty acres instead 
 of B. K, at A's request, thereupon cancelled B's name in the 
 will by drawing lines through it with a pen, leaving the name 
 still legible, and interlined over it C's name, so as to make the 
 will read as a devise of the forty acres to C. The two witnesses 
 who attested the will as it originally read were not present when 
 the alteration was made, nor was the will ever republished. The 
 question is, who is entitled to the forty acres of land devised? 
 
 The land devised goes to B. The will as altered should have 
 been republished and attested by two witnesses in A's presence. 
 Every act of cancellation imports prima facie that it is done 
 with intent to revoke, but accompanying circumstances may 
 rebut this presumption. A's intent was not merely to revoke 
 the devise to B, but also to substitute in her stead C. The can- 
 cellation was but a means to an end, viz: the substitution of C; 
 and the ultimate end having failed the means to that end also 
 failed. "It is well settled by the authorities, that where the 
 testator makes an alteration in his will, by erasure and in- 
 terlineation, or in any other mode, without authenticat- 
 ing such alteration by a new attestation in the presence of 
 witnesses, or other form required by statute, it is presumed 
 that the erasure was intended to be dependent upon the altera- 
 tion going into effect as a substitute; and such alteration not 
 
 21— Crawford v. West Side 22— Oliver v. Oliver, 110 111. 119. 
 Bank, 100 N. Y. 50, 53 Am. Rep. See also to the same effect Blasey 
 152. V. DeliuS; 86 111. 55&. 
 
ALTEEATION OP 'WEITINGS. 591 
 
 being so made as to take effect, the will, therefore, stands in 
 legal force, the same as it did before, so far as it is legible after 
 the attempted alteration, "^s 
 
 22. A ezeeutes his will in which certain legacies are be- 
 queathed to B and various other persons. After the will is 
 executed, some person, other than A, makes a change in the 
 will by which one of the legacies to B is materially modified. 
 The question is, what is the legal effect of the alteration ? 
 
 The legal eifect of the alteration depends upon who makes it. 
 If made by a stranger it has no legal effect. If made by B it 
 avoids that particular bequest, but not others made to B. In 
 any ease the legal effect of the alteration is confined to the 
 bequest to which it relates. As said by Justice Story, "If the 
 interlineation, etc., be made by a stranger, and the original 
 legacy be known, it will have no legal effect, and the legacy will 
 be still recoverable, and ought to be proved as it originally stood. 
 If made by the legatee himself, at most in odium spoUatoris it 
 will only avoid the legacy so altered, but it cannot destroy 
 other bequests in the will, either to the legatee himself or to 
 others. This is not like the case of a contract where the altera- 
 tion of a security by the obligee himself avoids it. The legatees 
 all take by the bounty of the testator; the object is to carry his 
 will into effect, and not merely to attend to the merits or de- 
 merits of those who claim Tinder it. If any alteration in a will 
 would avoid it, the executor before probate might, by such alter- 
 ation, destroy the rights of all third persons, which would be in 
 the highest degree unreasonable."^* 
 
 23— Wolf V. Bollinger, 62 111. (U. S.) 170 (cited and followed 
 
 368. See also Redfleld on Wills, in Doane v. Hadlock, 42 Me. 72). 
 
 314, 325, 327; Short v. Smith, 4 See also Camp v. Shaw, 52 111. 
 
 East, 417; Laughton v. Atkins, 1 App. 241; Jackson v. Malin, 15 
 
 Pick. (Mass.) 535. Johns. (N. Y.) 293; Grubbs v. 
 
 24— Smith v. Fenner, 1 Gall. McDonald, 91 Pa. St. 236. 
 
592 WEITINGS. 
 
 ILLUSTRATIONS ON PROOF OF CONTENTS AND THE BEST 
 EVIDENCE RULE 
 
 1. A sues B on a contract for the sale of certain bank stock. 
 The contract was executed in duplicate, each taking a counter- 
 part. A makes affidavit "that his impression is that he tore 
 up the same (his counterpart), after the transfer of the stock, 
 believing that the statements upon which the contract had been 
 made were correct, and that he would have no further use for 
 the paper. He is not certain, that he did tear it up, and does 
 not recollect doing so, but such is his impression. If he did 
 not tear it up, it has become lost or mislaid; and that he has 
 searched for it among his papers repeatedly, and cannot find 
 it." B was given due notice to produce his counterpart but 
 declines to do so stating that he has lost it. A thereupon offers 
 oral evidence of the contents of the writing, by C, a subscribing 
 witness. B objects to this evidence and the court sustains the 
 objection; whereupon a verdict and judgment are given in B's 
 favor. The question is, whether the court's ruling is prejudicial 
 error. 
 
 The court's ruling is prejudicial error. "The general rule of 
 evidence is, if a party intend to use a deed, or any other in- 
 strument, in evidence, he ought to produce the original, if he 
 has it in his possession; but if the instrument be in the posses- 
 sion of the other party, who refuses to produce it, after a rea- 
 onable notice, or if the original be lost or destroyed, secondary 
 evidence, which is the best the nature of the case allows, will, 
 in that case be admitted. The party, after proving any of 
 those circumstances, to account for the absence of the original, 
 may read a counterpart, or if there be no counterpart, an ex- 
 amined copy, or, if there should not be an examined copy, he 
 may give parol evidence of the contents. ' ' 
 ' Where a writing has been fraudulently destroyed or lost sec- 
 ondary evidence of its contents is inadmissible; but where the 
 destruction or loss (although voluntary) is occasioned by acci- 
 dent or mistake, such evidence is admissible.^ 
 
 2. A petitions the court for the initial registration of her 
 1— Riggs V. Taylor, 22 V. S. 483. 
 
PROOF OF CONTENTS. 593 
 
 title to a certain lot. She offers in evidence an abstract of title 
 showing the record of conveyances which are indispensable links 
 in her chain of title. This evidence is objected to on the ground 
 that no foundation has been laid for the introduction of such 
 evidence. The objection is overruled, the evidence admitted 
 and the petition granted. The question is, vrhether the court's 
 ruling is prejudicial error. 
 
 The court's ruling is prejudicial error.. The originals of the 
 deeds mentioned in the abstract should have been produced, or 
 their absence properly accounted for.^ 
 
 3. A files k bill to have a certain quitclaim deed declared 
 void and his title quieted. To establish his title, A offers in 
 evidence a letter-press copy of an abstract of title of the prop- 
 erty. This evidence is objected to on the ground that it is 
 secondary evidence and no foundation has been laid for its in- 
 troduction. Under the Burnt Record Act abstracts of title are 
 made admissible. The court overrules the objection and admits 
 in evidence the letter-press copy. The question is, whether the 
 court's ruling is erroneous. 
 
 The court's ruling is erroneous. "A letter-press copy is not 
 an original. It in no wise differs from any other accurate copy 
 than the mode in which it is made; and it can be used in the 
 place of an original in no case where a proved copy, made in 
 another manner, would not be equally admissible. ' '^ 
 
 4. A sues the B Ry. Co. to recover damages for causing C's 
 death. The question is, whether stenographic notes of the tes- 
 timony taken by a person present at the coroner's inquest are 
 admissible to contradict a witness at the trial. 
 
 The stenographic notes are inadmissible. The best evidence 
 of such testimony is the deposition itself.* 
 
 5. A sues B for merchandise sold and delivered. A's book- 
 keeper is allowed, against objection, to give oral evidence of the 
 Contents of A's ledger and judgment is entered for A. The 
 question is, whether the court's ruling is prejudicial error. 
 
 2— Gloss V. Hallowell, 190 111. 161, 163. See also Foote v. Bent- 
 65. ley, 44 N. Y. 169. 
 
 3 — King V. Worthington, 73 111. 4 — Overtoom v. Chicago & E. I. 
 
 Ry. Co., 181111. 323. 
 38 
 
594 WBITINGS. 
 
 The court's ruling is prejudicial error. Assuming that A's 
 ledger is a book of original entry it is the best evidence of its 
 contents, and if available it should be produced.^ 
 
 6. A files a bill against B to quiet title, and to have a certain 
 bond cancelled. The evidence shows that B fraudulently altered 
 the bond after its delivery to him by A, and the question is, 
 whether this fact renders parol evidence of the contents of the 
 bond admissible. 
 
 The fraudulent alteration of the bond by B renders parol 
 evidence of its contents admissible on behalf of A.^ 
 
 7. A, an employee of a sub-contractor, sues the owner of the 
 building in process of construction, the contractor, and the sub- 
 contractor, to recover damages for personal injuries received. 
 For the purpose of showing the relation of the defendants to 
 each other, the contract and specifications between the owner of 
 the building and the contractor are offered in evidence and ad- 
 mitted against objection. The question is, whether the court's 
 ruling is erroneous. 
 
 The court's ruling is correct. The contract and specifica- 
 tions constitute the best evidence of the relation existing between 
 the defendants.^ 
 
 8. A and others file a bill to determine the rights of the 
 parties to certain bonds. The question is, whether a copy of a 
 certain writing, which copy is attached to a written contract 
 in evidence, and which is made a part of that contract, is ad- 
 missible without first accounting for the loss of the original. 
 
 The copy is admissible as original evidence. When two per- 
 sons enter into a written contract, and attach thereto a copy of 
 another writing relating to the subject-matter of the contract, 
 such copy may be regarded as a part of the written contract, 
 and is admissible as original evidence.* 
 
 9. The fact in issue is whether the city council passed a cer- 
 tain ordinance providing for a special assessment; and the 
 
 5— Schotte V. Puschect, 79 III. Co. v. Howell, 189 111. 123. 
 
 APP. 31. 8— Comer v. Comer, 120 111. 420, 
 
 6— Kelly v. Trumble, t4 111. 428. 430. 
 7— The Pioneer Construction 
 
PEOOP OF CONTENTS. 595 
 
 question is, whether the certificate of the city clerk is admissible 
 to prove this fact. 
 
 The certificate is admissible, and constitutes prima facie evi- 
 dence of the fact.* 
 
 10. A sues B for damages for false imprisonment. The ques- 
 tion is, whether parol evidence, by the justice of the peace who 
 issued the warrant for A's arrest, that a written affidavit was 
 made before him upon which the warrant was issued, is admis- 
 sible. 
 
 The parol evidence is admissible to show the fact that an affi' 
 davit was made but not to show its contents }° 
 
 11. The fact in issue is, who is the administrator of a certain 
 estate; an:d the question is, whether parol evidence is admissible 
 to prove this fact. 
 
 Since the fact in issue is a matter of record, the record itself 
 is the best evidence of it. It follows, therefore, that parol evi- 
 dence is inadmissible to show it, unless a proper foundation has 
 been laid for its introduction by accounting for the nonproduc- 
 tion of the original.^^ 
 
 12. A sues B to recover for services rendered. The question 
 is, whether copies of certain telegrams, purporting to have been 
 sent by B to A, and received by A from the telegraph company 
 in the usual course of business, are admissible as primary evi- 
 dence. 
 
 The copies are admissible as primary evidence, provided the 
 telegraph company in transmitting the telegrams acted as the 
 agent of B. If, however, the company acted as the agent of A 
 they are secondary evidence of the messages received by the 
 company from B. When the person to whom a telegram is sent 
 takes the risk of its transmission, or is the employer of the com- 
 pany, the message delivered to the operator is the original, and 
 must be produced as the best evidence; but when the person 
 sending the message takes the initiative, so that the telegraph 
 company is to be regarded as his agent, the original is the mes- 
 
 9— McChesney v. City of Chlca- 11— Williams v. Jarrot, 1 Gilm, 
 go, 159 111. 223. (111.) 120. 
 
 10— Ashley v. Johnson, 74 111. 
 392. 
 
596 WRITINGS. 
 
 sage actually delivered at the end of the line, and it is primary- 
 evidence of the contents of the message sent.i* 
 
 13. A sues B for libel for writing and procuring the publica- 
 tion of a certain article in a newspaper. He offers in evidence, 
 against objection, the printed article taken from the newspaper, 
 and which is admitted to be substantially according to the manu- 
 script furnished the publisher by B. The question is, whether 
 the printed article is admissible. 
 
 The printed article is inadmissible. The original manuscript 
 should be produced, or its non-production accounted for.^^ 
 
 14. A, the payee of B 's promissory note, sues him on the note. 
 A's agent testifies that the note, while in his possession, was 
 either lost or picked from his pocket, and that it was not in- 
 dorsed. The question is, whether this is sufficient evidence to let 
 in secondary evidence of the contents of the note. 
 
 The evidence is not sufficient to render admissible the second- 
 ary evidence.^* 
 
 15. A testifies that he instructed his office porter to destroy 
 certain papers in his office, believing that they would be of no 
 further use; and that' he believes the porter did so, though he 
 did not see him do it. The question is, whether A's evidence is 
 
 sufficient to let in secondary evidence of the contents of one of 
 the instruments directed to be destroyed. 
 
 The evidence is sufficient to let in the secondary evidence.^" 
 
 16. A testifies that B left a certain contract with him for safe 
 keeping, and that he has made diligent search for it among his 
 papers and cannot find it. The question is, whether secondary 
 evidence is admissible. 
 
 A's preliminary evidence is sufficient to render secondary evi- 
 dence of the contents of the contract admissible.^* 
 
 17. A files a bill to establish title in him to a certain farm. 
 
 12 — The Anheuser-Busch Brew- 14 — McMillan v. Bethold, Smith 
 
 ing Assoc. V. Hutmacher, 127 111. & Co., 35 111. 250. 
 
 652. See also Chisholm v. B^aye^ 15 — ^Western Union Tel. Co. t. 
 
 Lake Lumber Co., 18 III. App. 131. Kemp Bros., 55 111. App. 583. 
 
 13— Strader v. Snyder, 67 111. 16— Doyle v. Wiley, 15 111. 576. 
 404. 
 
PBOOP OF CONTENTS. 597 
 
 The question is, whether secondary evidence is admissible to 
 prove the contents of a certain unrecorded deed, upon proof that 
 the deed was executed and delivered to the grantee, who subse- 
 quently handed it with other papers to the grantor to keep in his 
 safe, and that after the latter 's death the deed could not be 
 found though diligent search was made for it among the papers 
 of the deceased. 
 
 The preliminary proof of the loss or destruction of the deed is 
 sufficient to justify the admission of the secondary evidence.i^ 
 
 18. B owned the wire on a certain line fence between his 
 farm and A's, and B accused A of stealing it, using the words: 
 "Tou damn Irishman! You stole my wire. " A now sues B for 
 slander. B offers in evidence, against objection, a copy of a 
 written contract between himself and A's grantor concerning the 
 hne fence, and B testifies that he at one time had the original 
 contract, that his children blurred it with ink, that he put 
 grease on it to bring out the writing, that he made the copy now 
 offered in evidence from it and threw the original away be- 
 lieving that it would be of no further use, and that he had 
 searched for the original but could not find it. The question is, 
 whether the copy is admissible. 
 
 The copy is admissible. The contract is collateral to the issue. 
 A was not a party to it. Moreover, although B threw away the 
 original voluntarily he did not do so with any fraudulent in- 
 tent.is 
 
 19. A is indicted for maliciously killing a dog. The prose- 
 cutiag attorney offers to show by parol evidence that the dog 
 had been listed for taxation. A objects to this evidence on the 
 ground that the tax list returned by the assessor is the best evi- 
 dence of this fact. The question is, whether the parol evidence 
 is admissible. 
 
 The parol evidence is admissible. ' ' The rule which requires the 
 production of written instruments in evidence has no application 
 when the instrument is merely collateral to the issue, and where 
 
 17— Hawley v. Hawley, 187 111. la. 547. See also, Steele v. Lord, 
 351. 70 N. Y. 280. 
 
 18— Murphy v. Olberdlng, 107 
 
598 WKITINGS. 
 
 the fact to be proved relates to a subject distinct to the 
 writing. "19 
 
 20. A sues B for breach of a contract contained in certain 
 written orders and letters which had passed between them. After 
 introducing in evidence the letters he had received from B, A 
 offers to prove by parol evidence the contents of the letters sent 
 by him to B. B objects to this evidence on the ground that no 
 notice had been given him to produce the originals. The question 
 is, whether the parol evidence is admissible. 
 
 The parol evidence is admissible. "Notice to produce is not 
 necessary in ease of a writing directly involved in the cause of 
 action or defense, so that the nature of the action or the contents 
 of the pleadings in effect give notice that it will be required. ' '^o 
 
 21. A sues B for breaking and entering his close. B alleges 
 justification under color of title. A, against objection, is per- 
 mitted to show by parol evidence payment of taxes on the land. 
 The question is, whether the court's ruling is erroneous. 
 
 The court's ruling is not erroneous. Proof of the payment 
 of taxes, like the payment of money in discharge of a debt, may 
 be shown by parol evidence, although a receipt was given.^i 
 
 22. A is indicted for high treason. The crown prosecutor 
 offers in evidence a placard containing the printed words con- 
 stituting the offense. A objects to the contents of the placard 
 being shown, on the ground that no notice had been given him 
 to produce the original manuscript. The question is, whether 
 A's objection should be sustained. 
 
 A's objection should be overruled. The placards are in the 
 nature of duplicate originals, and each is primary evidence of 
 
 19 — Hewitt V. State, 121 Ind. general rule is, that the contents 
 
 245. See also, Coonrod v. Mad- of a written instrument cannot 
 
 den, 126 Ind. 197. be proved without producing it 
 
 20 — Zipp V. Colchester Rubber But, although there may be a 
 
 Co., 80 N. W. Rep. 367 (So. Dak.), written instrument between a 
 
 21 — Hinchman v. Whetstone, 23 landlord and tenant, defining the 
 
 111. 108 (orig. ed. page 185); see terms of the tenancy, the fact of 
 
 also. The King v. Inhab. of Holy tenancy may be proved by parol, 
 
 Trinity, 7 B. & C. 611. (In this without proving the terms of it. 
 
 case Justice Bayley says: "The It was unnecessary In this case 
 
PROOF OF CONTENTS. 599 
 
 the contents of the rest.^* "Where a number of documents are 
 all made by printing, lithography, or photography, or any other 
 process of such a nature as in itself to secure uniformity in the 
 copies, each is primary evidence of the contents of the rest. ' '^^ 
 
 to prove by the written instru- 22 — ^Rex v. Watson, 2 Starkie 
 ment, either the fact of tenancy 116. 
 
 or the value of the premises.") 23 — Stephen on Evidence, p. 
 
 103. 
 
600 -WTMTINGS. 
 
 ILLUSTRATIONS ON THE PAROL EVIDENCE RULE. 
 
 1. A borrows money of the L. Ins. Co. and gives an uncondi- 
 tional promissory note therefor, payable to the order of B, who, 
 at the same time, indorses it to the company for the accommoda- 
 tion of A. B is sued on the note by the company, and B offers 
 in evidence, by way of defence, an oral agreement between him- 
 self, the company and A, made when the note is given and in- 
 dorsed, that such sum as should be found justly due from the 
 company to A, on a certain policy of insurance made by them 
 to him, should be set off and applied in or towards the satisfaction 
 of the note. The company objects to this oral agreement being 
 introduced in evidence, and the question is, whether it is admis- 
 sible or not. 
 
 The oral agreement is inadmissible. "The general principle, 
 that oral testimony is inadmissible to contradict, vary or explain 
 a written contract, is too familiar to require the citation of au- 
 thorities. "^ 
 
 2. The A Bank loans the B. Ry. Co. a large amount of money 
 and takes its promissory note in which the rate of interest speei- 
 i5ed to be paid is six per cent, at maturity, the Ry. Co. pays the 
 note according to its terms. The Bank then sues the Ry. Co. 
 for an additional two and one-half per cent, "commission," 
 based upon an oral contract, made at the same time and upon 
 the same consideration as the note. The question is, whether 
 parol evidence, against objection, is admissible to prove the oral 
 contract. 
 
 The parol evidence is inadmissible. "Where a loan of money 
 and its terms are evidenced by a promissory note which has 
 been paid and satisfied, the payee of the note can not recover a 
 ■ further sum upon a parol contract made at the same time the 
 note was given, and upon the same consideration, for the reason, 
 a recovery would necessarily involve the admission of evidence of 
 a contemporaneous parol contract. "^ 
 
 3. A sells, assigns and delivers to C, for an agreed considera- 
 tion in money, certain notes and mortgages of B, and all his 
 
 1— St. Louis Perpetual Ins. Co. 2 — U. N. Bank of Chicago v. L. 
 V. Homer, 50 Mass. 39, 40. N. A., et<3., Ry, Co., 145 111. 209, 
 
THE PAROL EVIDENCE RULE. 601 
 
 interest in a contract for the sale of certain land by him to B, 
 the assignment being in writing under seal, executed by A alone, 
 and containing a statement of the consideration, and stipulations 
 for the security of A, and as to the effect of a default by B to 
 make the payments therein specified. The question is, whether 
 B can prove a contemporaneous oral agreement, by which, in 
 case the timber on the lands described in the contract should fall 
 short of a certain amount he is to be allowed at a certain rate 
 per M. for the shortage. 
 
 The oral agreement is inadmissible. The written contract is 
 complete, and parol evidence is inadmissible to vary or contra- 
 dict it.» 
 
 4. A sells B a tract of land as containing 140 acres, at a 
 given sum per acre, and delivers to B a deed of the same. B 
 gives A his note, secured by a deed of trust, for the unpaid 
 price, it being verbally agreed, before the executions of the writ- 
 ings, that if the land, on a survey, should contain more than 
 140 acres, B should pay A for such excess, and if it should fall 
 short A should pay B for the deficit at the price per acre at 
 which the land is sold. The tract contains more than 140 acres, 
 and A sues for the value of the excess. The statute of frauds is 
 not pleaded. The question is, whether parol evidence is admis- 
 sible to prove the verbal agreement. 
 
 Parol evidence of the verbal agreement is admissible. "The 
 general rule is well established that antecedent or contempo- 
 raneous parol agreements or declarations can not be received to 
 contradict or vary the terms of a valid written agreement. This, 
 however, does not forbid the contradiction by parol evidence of 
 mere recitals as to the consideration of a deed where the party 
 is not, on other principles, estopped to deny such recitals; nor 
 does this rule forbid the estabFishment by parol of an agreement, 
 although a deed and notes may have been executed in part per- 
 formance of such parol agreement. In such case the verbal 
 agreement remains an integer in full force, and may be proved 
 by parol, unless the parol proofs tend to vary or modify the 
 terms ajid legal effect of the writings which have been made in 
 part fulfillment of the original agreement. And the varying or 
 contradiction of a recital in the writing as to the consideration 
 
 3— Hubbard v. Marshall, 50 Wis. 322. 
 
602 WRITINGS. 
 
 on which it rests, or as to the receipt of the consideration, will 
 not be regarded as varying or contradicting the terms or legal 
 effect of such writing. "^ 
 
 5. A files a bill against B to reform a written contract, and 
 for specific performance. The bill alleges that a written con- 
 tract was entered into for the conveyance of a certain tract of 
 land, in a certain section, township, and range, but that the 
 tract was misdescribed as being in a quarter of the section to 
 which B had no title, but had title to the tract intended to be 
 conveyed, in another quarter of the same section. The question 
 is, whether parol evidence is admissible to show the mistake in 
 the discription of the property. 
 
 Where a bill is filed to reform a written contract by correcting 
 a mutual mistake in describing the property sold, parol evidence 
 is admissible.'' 
 
 6. P and Gr execute a written contract, by the terms of which, 
 P, in consideration of the after-expressed covenants of G, sells 
 his office furniture and the good will of his medical practice to 
 G ; and G, in consideration of the sale and P 's covenants, agrees 
 to pay P $100. P sets up in practice in violation of the contract, 
 and, in answer to G's bill for an injunction, alleges that the 
 real consideration for his covenants is G's undertaking to pur- 
 chase certain real estate at $1,400, and that G has repudiated his 
 agreement. G demurs, and the question is, whether the de- 
 murrer should be sustained. 
 
 The demurrer should be sustained. The consideration alleged 
 in the document is contractual, and for this reason parol evidence 
 is inadmissible to contradict it. As a general rule, however, the 
 consideration expressed in a writing may be varied or contra- 
 dicted by parol evidence. "The reason generally given for the 
 rule is, that the language with reference to the consideration is 
 not contractual; it is merely by way of recital of a fact, viz., 
 the amount of the consideration, and not an agreement to pay it, 
 and hence such recitals may be contradicted." But, "where the 
 contract is complete upon its face, a stipulation as to the con- 
 sideration becomes contractual, and where there is either a direct 
 
 4 — Ludeke v. Sutherland, 87 111. 5 — ^McCornack v. Sage, 87 111. 
 481, 483. 484. 
 
THE PAROL EVIDENCE RULE. 603 
 
 and positive promise to pay the consideration named, or an as- 
 sumption of an encumbrance on the part of a grantee in a deed 
 which becomes binding upon its acceptance, then the ordinary 
 rules with reference to contracts apply; and the consideration 
 expressed can no more be varied by parol than any other portion 
 of the written contract. ' '« 
 
 7. S sues the C. Ry. Co. for damages for personal injuries. 
 The company answers, that for a consideration stated S has re- 
 leased and discharged it from all liability, as set forth in the 
 following contract: "Know all men by these presents, that I, 
 for and in consideration of the sum of thirty-one dollars and 
 fifty cents, to me paid by the Chicago -and Eastern Illinois Rail- 
 road Company, the receipt whereof is hereby acknowledged, do 
 hereby release and forever discharge . . . (the said) rail- 
 road company from any and all liability for . . . (setting 
 forth the claim for damages for personal injuries) ; and I do 
 hereby agree that this release shall operate eis a perpetual bar 
 to any suit at law or otherwise which I or my heirs or . . . 
 personal representatives may or can sustain by reason of the 
 claim aforesaid. ' ' S replies that the alleged release was executed 
 without consideration, and insists that the consideration, stated 
 upon the face of the instrument, may be attacked by parol evi- 
 dence; while the company insists that it may not be so attacked 
 because the consideration so stated is contractual and is pro- 
 tected from attack by the rule that parol evidence can not be 
 heard to contradict, vary or amend the terms of a written con- 
 tract complete upon its face. The question is, whether parol 
 evidence is admissible to show that the release was executed with- 
 out consideration. 
 
 The consideration expressed in the release is not contractual, 
 but constitutes merely a recital of the amount of the considera- 
 tion ; and for this reason parol evidence is admissible to attack it. 
 "It includes no agreement to pay or assume any sum or liability. 
 It may be considered apart from the obligations of the appellant, 
 and its statement was not essential to the validity of such obliga- 
 tions, but it might have been established by parol. "^ 
 
 6 — Pickett v. Green, 120 Ind. 7 — Stewart v. Chicago, etc., Ry. 
 
 584. See also, Conant v. National and C. and I. C. Ry. Co., 141 Ind. 
 
 State Bank, 121 Ind. 323; Rels- 55, 59. See also. Levering v. 
 
 terer v. Carpenter, 124 Ind. 30. Shockey, 100 Ind. 558. 
 
604 WRITINGS. 
 
 8. H sues the I. Ry. Co. for damages for personal injuries. 
 The company pleads a release, and H replies that the release 
 is without consideration. The release obligates the company to 
 pay a certain amount of money, "in addition to all fees and 
 charges payable to physicians and St. Vincent's hospital for 
 services and care rendered to said Houlihan on account of such 
 injuries, which amount of fees and charges said company, as a 
 part of said compromise, agrees to pay." The question is, 
 whether parol evidence is admissible to show that the release is 
 without cousideration. 
 
 Since H's covenants of release were made in consideration 
 of the company's agreement to pay certain fees and charges and 
 a sum in cash, the consideration expressed in the instrument is 
 contractual, and parol evidence, therefore, is inadmissible to vary 
 or contradict it. The consideration on each side was the mutual 
 covenants of the other, and, in the absence of fraud or mutual 
 mistake, parol e^ddence should be excluded.* 
 
 9. A files a bill against B to have a deed absolute on its face 
 declared a mortgage, and for foreclosure. B denies that the deed 
 when given was intended as a mortgage, and claims that it was 
 given upon an unconditional sale of the property and that the 
 deed was intended to be absolute. The question is, whether 
 parol evidence is admissible to show that the deed was intended 
 as a mortgage. 
 
 Parol evidence is admissible. "The doctrine that a deed ab- 
 solute on its face may be shown to be a mortgage is old and well 
 established."* - 
 
 10. A sues B to recover certain rents. The premises are de- 
 scribed in the lease as being in the city of Chicago, "and de- 
 scribed as follows, to-wit: the house known and numbered as 
 
 No , Thirty-second street." The question is, whether parol 
 
 evidence is admissible to remove the uncertainty as to the iden- 
 tity of the property intended to be leased. 
 
 Parol evidence is admissible. "Extrinsic proof is always 
 competent to identify the subject matter of a contract if neces- 
 sary, and to admit it in no way violates the rule that parol testi- 
 
 8— Indianapolis Union Ry. C!o. 9— McMillan v. Bissell, 63 Micli, 
 V. Houlihan, 157 Ind. 494, 508. 66, 69. 
 
THE PAROL EVIDENCE EULE. 605 
 
 mony is never admissible to contradict or vary the terms of a 
 written contract. "i** "If the meaning of an instrument, by 
 itself, is intelligent and certain, extrinsic evidence is admissible 
 to identify its subjects or its objects. ' '^^ 
 
 11. A sues B on a written contract. The contract provides 
 that B was to render certain specified services, and "other serv- 
 ices," to A; but does not indicate what the "other services" 
 were to be. The question is, whether parol evidence is admissible 
 to show what services B was to render A other than those speci- 
 fied. 
 
 Parol evidence is admissible to explain the incomplete con- 
 tract by showing what the parties meant by the term "other 
 services. "1* "Where an agreement in writing is expressed in 
 short incomplete terms, parol evidence is admissible to explain 
 that which is per se unintelligible, such explanation not being 
 inconsistent with the written terms. "^^ 
 
 12. A files a bill in equity to reform a certain bond and to 
 enjoin B from suing him at law for the alleged breach of this 
 bond, in which A had bound himself to convey to B 280 acres 
 of land, to be selected by B from a list of lands described in the 
 bond itself, and which made no reference to any other paper for 
 their identification. The question is, whether parol evidence is 
 admissible to prove an oral contract between A and B that B 
 was to select his land from tracts described in a registered certi- 
 ficate of purchase. 
 
 Parol evidence is not admissible to prove the oral contract. 
 "It is a general rule of law, that when parties have deliberately 
 put their engagements in writing, in such terms as import a legal 
 obligation, without any uncertainty as to the object or extent of 
 such engagement, it is conclusively presumed that the whole en- 
 gagement of the parties and the extent and manner of their 
 undertaking was reduced to writing. "i* "The foundation of the 
 rule in which parol evidence has been holden inadmissible, is in 
 
 10— Bulkley v. Devine, 127 III. 375; 1 Greenleaf on Evid., § 282; 
 
 406, 409. 2 Wharton on Evld., § 1026. 
 
 11—2 Parsons on Contracts, 564. 14 — Emery v. Mohler, 69 111. 
 
 12— Scott V. Schnadt, 70 111. 221, 226; Merchants' Ins. Co. v. 
 
 App. 25. Morrison, 62 111. 242. 
 
 13— Razor v. Razor, 142 111. 
 
606 WKITINGS. 
 
 the general rules of evidence, in whieh writing stands higher in 
 the scale than parol testimony; and when treaties are reduced 
 into writing, such writing is taken to express the ultimate sense 
 of the parties, and is to speak for itself. Indeed, nothing is so 
 familiar as this idea."^'' A party can no more vary the terms 
 of a written parol contract in a court of equity than in a court 
 of law.^^ 
 
 13. A files a bill in equity to correct a mistake in the descrip- 
 tion of the subject-matter of a deed. The scrivener by mistake 
 inserted in the deed, "east half of the north-west quarter of sec- 
 tion 17," when the grantor and grantee intended to insert in 
 the deed, "east half of the north-east quarter of section 17." 
 The question is, whether parol evidence is admissible to show the 
 mistake. 
 
 Parol evidence is admissible to show the intention of the par- 
 ties with the view of correcting the mistake.!'^ "We must there- 
 fore treat the eases in which equity affords relief, and allows 
 parol evidence to vary and reform written contracts and instru- 
 ments upon the ground of accident and mistake, as properly 
 forming, like cases of fraud, exceptions to the general rule, which 
 excludes parbl evidence, and as standing in the same policy as 
 the rule itself, "i* 
 
 14. Co. A, which elaims a patent upon a certain invention, 
 gives Co. B a license to manufacture under the patent upon 
 payment by the latter company of a certain royalty, the contract 
 providing that in case of any subsequent licenses being granted 
 at a less royalty, Co. B should pay such reduced rate. Co. B 
 now files a bill in equity to enforce the contract. The question 
 is, whether parol evidence is admissible to show a subsequent 
 written contract of settlement between Co. A and a third party, 
 which on its face appears to be a grant of a license free of 
 royalty, in pa5Tnent of the price for certain other patents trans- 
 ferred to the licensor, is but a contrivance and device to cover 
 up and conceal the fact of a grant of a license without royalty, 
 or at a reduced rate. 
 
 15 — Lord Chief Baron Eyre In 17 — Ewing v. Sandoval Coal & 
 
 Davis V. Symonds, 1 Cox 402. Mining Co., 110 111. 290, 292. 
 
 16 — Gibbons v. Bressler, 61 111. 18 — Story's Equity Juris., § 156. 
 110. 
 
THE PAROL EVIDENCE EULB. 607 
 
 Parol evidence is admissible for the purpose stated. ' ' Strang- 
 ers to a written instrument, when their rights are concerned, are 
 at liberty to show, by parol evidence, that the contract of the 
 parties is different from what it purports to be on the face of 
 the writing."^* And the rule that parol evidence is not ad- 
 missible to vary the terms of a written contract is not applicable 
 to a suit between one of the parties to it and a third person.^o 
 
 15. A sues B to recover damages for breach of the following 
 agreement : "I have this day bought of Sam. Marshall for John 
 Gridley, from 90 to 100 hogs, to be taken the first of January, 
 at eight dollars per hundred, live weight. I am to take one 
 car the first of December if I like — which he has received one 
 hundred dollars." The agreement is signed and dated. The 
 question is, whether parol evidence is admissible to fix the place 
 of delivery of the hogs, and also to show their identity. 
 
 Parol evidence is admissible for the latter purpose, but not 
 for the former one. "It is a rule of uniform application, that 
 parol or other extrinsic evidence may be resorted to, for the pur- 
 pose of identifying the property sold. Nor does such evidence 
 infringe upon the other rulCj that a written agreement cannot 
 be contradicted, enlarged or varied by parol." But, "in so far 
 as oral evidence was admitted to fix the place of delivery of the 
 hogs, the court erred. "^^ 
 
 16. A sues B on his promissory note. The question is, 
 whether parol evidence is admissible to exonerate B by showing 
 that he signed the note as C's agent with A's knowledge and 
 consent. 
 
 The parol evidence is inadmissible. "On the face of the in- 
 strument signed by defendant, his undertaking is absolute; and 
 to permit him to show by oral testimony that in no event was 
 he to incur any personal liability by the writing, would be to 
 contradict and vary the terms of his positive written agreement." 
 It is to be observed, however, that, "It seems to be settled, so 
 far as there is any well defined rule on this subject, that where 
 a party signs his name as cashier or agent for a banking, railroad 
 
 19— The Wasburn & Moen 20 — Needles v. Hanifan, 11 111. 
 Manuf. Co. v. The Galvan. Wire App. 303. 
 
 Fence Co., 109 111. 71, 79. 21— Marshall v. Gridley, 46 111. 
 
 247. 250. 251. 
 
606 WRITINGS. 
 
 or other corporation, in drawing drafts and bills, or in accepting 
 drafts or other evidences of indebtedness, in its ordinary busi- 
 ness, if it appear it was the obligation of the corporation, and 
 the cashier or agent had authority to bind the corporation, he is 
 not personally liable, and the facts may be shown by extrinsic 
 evidence. Commercial usage regards such paper as the obligation 
 of the corporation, and not of the agent issuing it."^^ 
 
 17. Bank N sues B, the maker, on his prommissory note, of 
 the following tenor: 
 
 "$3500. Boston, Dec. 9,. 1903. 
 
 Five months after date, I promise to pay to the order of 0. 
 C. Hale, Esq., cashier, thirty-five hundred dollars; payable at 
 either bank in Boston, value received. 
 
 (Signed) J. W. Baldwin." 
 
 The note is without any indorsement by Hale, the person 
 named therein as payee, and B contends that the note declared 
 on is not admissible in evidence under the declaration, not hav- 
 ing been indorsed. The question is, whether parol evidence is 
 admissible to show that Hale was in fact cashier of the bank, 
 and that in taking the note he acted as its agent and cashier. 
 
 The parol evidence is admissible. "It is clear that evidence 
 may be received to show that a note given to the cashier of a 
 bank was intended as a promise to the corporation, and that 
 such evidence has no tendency whatever to contradict the terms 
 of the instrument. "23 
 
 18. A and other obligees sue B on his bond. The bond de- 
 scribes the obligees as "Board of Trustees of Township No. 5, 
 Eange No. 9, ' ' omitting the name of the county. B contends that 
 on the face of the bond there is such patent ambiguity as to 
 avoid it, and that this ambiguity cannot be aided by averment. 
 The question is, whether parol evidence is admissible to show 
 the county. 
 
 Parol evidence is admissible to prove the county. "Looking 
 
 22— Hypes v. Griffin, 89 111. 134, bury, 1 "Wall. (U. S.) 234. See 
 
 136. See also. Little v. Bailey, 87 also, La Salle Nat. Bank of La 
 
 111. 239; Trustees, etc. v. Ranten- Salle v. Tolu Rock and Rye Co., 
 
 berg, 88 111. 219 and note. 14 111. App. 141. 
 
 23 — Baldwin t. Bank of New- 
 
THE PAROL EVIDENCE EULE. 609 
 
 at this instrument alone, it cannot be said that it would convey 
 the notion that there is more than one township to which the 
 description given could refer. It is only when we consider in 
 connection with it the map of the state, and note the fact that 
 townships may be north or south of base lines, and east or west 
 of principal meridians, and that the boundaries of Illinois would 
 include several townships, 5, 9, that ambiguity is manifest. It 
 is dehors the deed, is latent, and may be 'holpen by aver- 
 ment.' "2* 
 
 19. A made a devise to "the four boys." At the time of 
 making his will, A had seven sons, four of whom were minors, 
 living with him, the other three being married and having fami- 
 lies of their own. The question is, whether parol evidence is ad- 
 missible to show which four sons were intended. 
 
 The parol evidence, including declarations of intention made 
 by A, is admissible. "It is said this is a patent ambiguity, and 
 it is only latent ambiguities which can be explained by parol 
 proof. We do not think so. Take the will upon its face, and 
 <he inference would naturally be that the testator had but four 
 sons, and there is, therefore, on the face of the will, no ambigu- 
 ity. It is only .from proof aliunde there were seven sons, that 
 any ambiguity is made apparent. In such ease, the circumstances 
 under which the words were used may be proven, to enable us 
 to determine what meaning is to be given to the words, as used. ' '^^ 
 
 20. A devised to his son B "twenty acres off the west half 
 of the north-east quarter of the north-east quarter of section 
 33, township 18 north, range 11 west. ' ' The evidence shows that 
 A never owned the north-east quarter of the north-east quarter 
 of this section 33, or any part of it, but that he did own the 
 north-west quarter of the north-east quarter of this section. The 
 question is, whether parol evidence is admissible to show A's 
 intention to devise to B the latter tract. 
 
 In this case, the maxim, falsa demonstratio non nocet, is ap- 
 plicable. After the false description is excluded^ sufficient re- 
 mains, interpreted in the light of surrounding circumstances 
 
 24— Trustees of Schools v. Rod- 25— Bradley v. Rees, 113 111. 
 
 gers, 7 III. App. 33, 37, 38. See 327, 333. 
 also, 1 Greenleaf on Bvid., § 297. 
 39 
 
610 WBITINQS. 
 
 when the will was made, to identify the premises. The parol 
 evidence, therefore, is admissible.*^ 
 
 21. A, in devising a lot to his brother H, used the following 
 words: "I bequeath and give to my dearly beloved brother, 
 Henry Walker, forever, lot numbered six, in square four hundred 
 and three, together with the improvements thereon erected, and 
 appurtenances thereto belonging." A never owned lot number 
 6, in square 403, but did own lot number 3^ in square 406. The 
 former lot had no improvements, while the latter one had a 
 residence on it. The context of the will shows that A believed 
 that in it he had disposed of all his property. The question is, 
 whether parol evidence is admissible to explain and correct the 
 mistake. 
 
 In this case also the maxim, falsa demonstratio non nocet, is 
 applicable. Where the misdescription can be struck out, and 
 sufficient remain in the will to identify the subject-matter, the 
 court will deal with it in that way.*'' 
 
 26 — Decker v. Decker, 121 111. lard v. Darrah, 168 Mo. 660 
 
 341. See also, Emmert v. Hays, (1902); Allen v. Lyon, 2 Washb. 
 
 89 111. 12; Riggs v. Myers, 20 Mo. C. C. 472; Townsend v. Downer, 
 
 299. 23 Vt. 225; Winkley v. Kaime, 32 
 
 27— Patch V. White, 117 U. S. N. H. 268. 
 210. To the same efeect are, Wil- 
 
COMPETENCY. 611 
 
 ILLUSTRATIONS ON COMPETENCY OF WITNESSES. 
 
 1. The A Manuf. Co. sues the B Ins. Co. on two policies of 
 fire insurance. The question is, whether W, a former stock- 
 holder and a present creditor of the plaintiff company, is a 
 competent witness. 
 
 W is a competent witness even at common law. "A remote 
 contingency, or the mere expectation of a benefit or payment, 
 will not disqualify a witness. To render him incompetent, he 
 must in the general have a legal interest in the event of the suit ; 
 and such interest should be certain, direct and immediate; as 
 otherwise it goes to his credibility, and not to his competency. 
 A general creditor will be competent, although he swears that he 
 expects his prospects for the recovery of his debt will be in- 
 creased by the recovery of a judgment in the particular suit.i 
 
 2. A sues the B. Ey. Co. for damages for killing his ox. 
 The question is, whether P, who has no religious belief, but who 
 acknowledges his amenability to the criminal law if he forswear 
 himself, is a competent witness at common law. 
 
 P is not a competent witness at common law. "A person who 
 has no religious belief, who does not acknowledge a Supreme 
 Being, and who does not feel himself accountable to any moral 
 punishment here or hereafter, but who acknowledges his amena- 
 bility to the criminal law if he forswears himself j cannot become 
 a witness. "2 
 
 3. A is indicted for forgery. The question is, whether the 
 fact that B, a material witness for the state, is a lunatic, excludes 
 him per se as a witness. 
 
 The fact that B is a lunatic does not exclude him per se as a 
 witness. If he is sensible to the obligations of an oath, and sane 
 as to the facts concerning which he is called upon to testify, he 
 is a competent witness.* 
 
 1— 111. Mut. Ins. Co. V. Mar- 3 — Coleman v. Com., 25 Gratt. 
 
 selUes Mfg. Co., 1 GUm. (111.) (Va.) 865, 18 Am. Rep. 711. See 
 
 236, 262. also District of Columbia v. 
 
 2— The Cent. Mil. Tract R. R. Armes, 107 U. S. 519. 
 Co. V. Rockafellow, 17 111. 541. 
 
612 WITNESSES. 
 
 4. A is indicted for murder. The question is, whether B, 
 a boy five years of age, and who is a material witness in behalf of 
 the state, is, as a matter of law, an incompetent witness. 
 
 B is not, as a matter of law, an incompetent witness. "That 
 the boy was not by reason of his youth, as a matter of law, abso- 
 lutely disqualified as a witness is clear. While no one would 
 think of calling as a witness an infant only two or three years 
 old, there is no precise age which determines the question of com-' 
 petency. This depends on the capacity and intelligence of the 
 child, his appreciation of the difference between truth and false- 
 hood, as well as of his duty to tell the former. ' '* The competency 
 of a child to act as a witness can not be measured by mere age. 
 It must be determined by his apparent mental capacity.^ And 
 the fact that the child cannot be convicted of perjury is not 
 decisive against his incompetency.^ 
 
 5. A is on trial for assault with intent to commit rape. The 
 question is, whether B, a deaf and dumb person, is competent 
 to testify. 
 
 B's infirmity does not render him incompetent as a witness. 
 Originally, a deaf and dumb person was presumed incompetent. 
 This presumption, however, was not conclusive. According to 
 the modern rule no such presumption exists. The mode of 
 eliciting his testimony rests in the discretion of the court.' 
 
 6. A is on trial for murder. The question is, whether the 
 intoxication of a witness at the time of the homicide renders 
 him incompetent, or impairs his credibility. 
 
 Intoxication which falls short of stupor does not render a 
 witness incompetent. If he has capacity of observation and 
 powers of memory, he is competent. Such intoxication, however, 
 may impair his credibility. "While it must be admitted that 
 intoxication does not destroy credibility, it undoubtedly impairs 
 it. But, if the evidence of one who was intoxicated at the time 
 of the occurrences of which he testifies is corroborated, or his 
 
 4— Wheeler v. United States, 159 426, 427. See, also, Featherstone 
 
 U. S. 523, 524. v. The People, 194 III. 325. 
 
 5— State V. Prather, 136 Mo. 20, 7— Skaggs v. The State, 108 
 
 25. See, also, McGulre v. People, Ind. 54. See also. State v. How- 
 
 44 Mich. 286. ard, 118 Mo. 127; Ritchey v. Peo- 
 
 6 — Com. V. Robinson, 165 Mass. pie, 23 Colo. 314, 47 Pac. Rep. 272. 
 
COMPETENCY. 613 
 
 recollection of the transactions appears to be distinct and clear, 
 he is entitled to belief. ' '* Confessions made by intoxicated per- 
 sons have frequently been held admissible.^ 
 
 7. A sues B, the executor of A 's father, C, on C 's promissory 
 note to A. The question is. whether A's husband is a competent 
 witness in her behalf. 
 
 A's husband is not a competent witness. "A husband or wife 
 cannot testify for or against each other where the adverse party 
 sues or defends as the executor or administrator of a deceased 
 person, "i*" 
 
 8. A is on trial for murder. The question is, whether B, who 
 is jointly indicted with him for the same offence, but whose trial 
 is severed from that of A's, may be examined as a witness in 
 behalf of the state against his codefendant. 
 
 B is a competent witness. It is to be observed, however, that, 
 "It is familiar knowledge that the old common law carefully ex- 
 cluded from the witness stand parties to the record, and those 
 who were interested in the result; and this rule extended to 
 ^oth civil and criminal cases. Fear of perjury was the reason 
 for the rule. ' ' But the old common law rule has been very much 
 relaxed. "Confessedly, if separately indicted, he would be a 
 competent witness for the government; but a separate trial 
 under a joint indictment makes in fact as independent a pro- 
 ceeding as a trial on a separate indictment."" As said by Chief 
 Justice Beasley, "The only reason for the rejection of such a 
 witness is, that his own accusation of crime is written on the 
 same piece of papv?r instead of on a different piece, with the 
 charge against the culprit whose trial is in progress. It is ob- 
 vious such a rule could only stand, in any system of rational 
 law, on the basis of uniform precedent and ancient usage. I 
 have discovered no such basis. "12 Some American decisions, 
 however,. hold the contrary. The leading case holding this view 
 is The People v. Bill, 10 Johns. (N. T.) 95. In this case the 
 court say, "it appears to 6e a technical rule of evidence, and 
 
 8— state V. Castello, 62 la. i04, 10— Mann v. Forein, 166 111. 
 
 17 N. W. R. 605. 446, 447. 
 
 9— State V. Grear, 28 Minn. 426 r 11 — Benson v. United States, 146 
 
 Com. V. Howe, 9 Gray (Mass.j tJ. S. 325, 335. 
 
 112; State v. Falter, 53 la. 49. 12— State v. Brien, 32 N. J. Law. 
 
614 WITNESSES. 
 
 one well settled, that a party in the same suit or indictment 
 cannot be a witness for his co-defendant until he has been first 
 acquitted, or, at least, convicted." The great weight of author- 
 ity, however, is to the contrary. 
 
 9. A, who is B 's brother, is one of the three subscribing wit- 
 nesses to B's will. The statute provides that three attesting 
 witnesses are essential to the validity of a will. Had B died 
 intestate, A would have been entitled to one-fourth of her estate. 
 Under the will, however, he gets nothing. Most of B's estate is 
 bequeathed and devised to A's son. The question is, whether A 
 is a competent witness in the probate of B's will. 
 
 A is a competent witness even at common law. "It is only 
 when the pecuniary interest of a person will in some way and 
 to some appreciable extent be aided or promoted by a judgiiaent 
 in favor of the party calling him, that he is excluded from testi- 
 fying, according to the rule of the common law.''^^ And Green- 
 leaf says, "it is hardly necessary to observe that when a witness 
 is produced to testify against this interest, the rule that interest 
 disqualifies does not apply, and the witness is competent, "i* 
 The test is an objective one. If the judgment might be used to 
 the pecuniary or proprietary advantage of the witness, at com- 
 mon law he was incompetent. 
 
 10. A is on trial for murder. During the progress of the 
 trial the presiding judge is called as a witness, and, against the 
 objection of the defendant, testifies in behalf of the state. A is 
 convicted. The question is, whether admitting the testimony of 
 the presiding judge is prejudicial error. 
 
 Admitting the testimony of the judge is prejudicial error. Un- 
 der the circumstances he is an incompetent witness.^'' 
 
 11. A is on trial for seduction, fornication and bastardy. For 
 the purpose of impeaching the credibility of the prosecutrix, B, 
 the foreman of the grand jury before whom the prosecutrix testi- 
 fied against A, is called as a witness. The question is, whether 
 B is competent to testify. 
 
 B is a competent witness.^^ "It was at one time supposed 
 
 13— Sparhawk v. Sparhawk, 10 29 S. W. R. 894. See also, Peo- 
 
 Allen (Mass.) 155. pie v. Dohring. 59 N. Y. 374. 
 
 14—1 Greenleaf on Bvid., § 410. 16— Gordon v. Com., 92 Pa. St 
 
 15— Rogers v. State, 60 Ark. 76. 216. 
 
COMPETENCY. 615 
 
 that a grand juror was required, by his oath of secrecy, to be 
 silent as to what transpired in the jury room; but it is now 
 held that such evidence, whenever it is material to explain what 
 was the issue before the grand jury, or what was the testimony 
 of particular witnesses, will be required. "^'^ 
 
 12. A sues B in assumpsit. The question is, whether, in 
 the case of an award, in which it is recited that the arbitrators 
 have disposed of the matter submitted to their arbitrament in 
 the manner required by the agreement for submission, parol 
 evidence of the arbitrators is admissible to show that they dis- 
 posed of such matter in another and different manner. 
 
 The parol evidence of the arbitrators is inadmissible.^ ® Parol 
 evidence of arbitrators is admissible to sustain their award, but 
 not, 35 a general rule, to impeach it. But in cases of fraud and 
 mistake parol evidence of the arbitrators is admissible to impeach 
 their award.^* 
 
 13. A sues B in assumpsit for the price of some coal. On 
 the trial, B offers his attorney, F, as a witness in his behalf, 
 after F has opened the ease for B and examined witnesses in 
 B's behalf. A objects to F acting as a witness on the ground 
 of incompetency, and the court sustains the objection. A verdict 
 is rendered for A and judgment is entered in his favor. The 
 question is, whether the court's ruling is prejudicial error. 
 
 The court's ruling, that F is an incompetent witness, is pre- 
 judicial error.20 
 
 14. A, by his attorney F, sues B on a promissory note. After 
 the action is commenced, the note, which has been in F's hands 
 for collection, is lost. The question is, whether F is a competent 
 witness to prove the loss of the note and the contents thereof. 
 
 F is a competent witness. "There is no objection to the wit- 
 ness pointed out, and he was clearly admissible to show that the 
 note was lostj and to prove its contents. "^^ 
 
 17—1 Wharton on Evid., § 601. 20 — Follansbee v. Walker, 72 Pa. 
 
 See also, Com. v. Mead, 12 Gray St. 228. See also, Cobbett v. Hud- 
 
 (Masa.) 167; Way v. Butterworth, son, 22 L. J. Q. B. D. 11; Frear v. 
 
 106 Mass. 75; State v. Passett, 16 Drinker, 8 Barr 521; Potter v. 
 
 Conn. 457. Inhabitants of Ware, 55 Mass. 
 
 18— Schmidt v. Glade, 126 111. 519. 
 
 485, 492. 21— Abbott v. Striblen, 6 la. 
 
 19— PuUlam v. Pensoneau. 33 190, 195. 
 111. 375. 
 
616 WITNESSES. 
 
 ILLUSTRATIONS ON PRIVILEGED COMMUNICATIONS. 
 
 1. A sues B on his promissory note. The question is, whether 
 C, the attorney in whose hands the note was placed for collec- 
 tioE, can be compelled to testify whether the note was indorsed 
 or not when he received it. 
 
 C is a privileged witness^ and cannot be compelled to disclose 
 whether the note was indorsed or not when he received it. The 
 privilege extends not only to what C heard, but also to what he 
 saw, as an attorney.' As Lord Ellenborough says, "One sense 
 is privileged as well as another. He cannot be said to be privi- 
 leged as to what he hears, but not as to what he sees, where the 
 knowledge acquired as to both has been from his situation as an 
 attorney. "2 The privilege, however, is for the benefit of the 
 client and not for the benefit of the attorney ; and only the client 
 can waive it.^ But no privilege is created unless the relation of 
 attorney and client actually exists.* And the burden of proof 
 is upon the party claiming the privilege to show that the com- 
 munications are privileged.^ Communications made to a law 
 student in an attorney's office are not privileged.^ 
 
 2. A files a bill against B to compel the specific performance 
 of a contract. The question is, whether C, an attorney whom 
 both parties consulted in the presence of each other concerning 
 the subject-matter of the suit, is a competent witness. 
 
 C is a competent witness. The general rule, that communi- 
 cations between attorney and client are privileged, is not ap- 
 plicable to this ease. What A and B said to the attorney was 
 
 1 — ^Dietrich v. Mitchell, 43 111. of the legal profession, and though 
 40. he was a student in an attorney's 
 2— Robson v. Kemp, 5 Esp. 52. office, yet It does not appear that 
 3 — Wood V. Thornly, 58 111. 464. he was either the attorney's agent 
 4 — Granger v. Warrington, 3 or clerk for any purpose. . . . 
 Gilm. (111.) ; Goltra v. Wolcott, 14 If the plaintiff's communication 
 111. 89. was made to the witness in his 
 5 — McLaughlin v. Gilmore, 1 capacity as a student in Mr. Whit- 
 Ill. App. 553. ney's office, it is not privileged"). 
 6 — 1 Mytne v. Keen, 103 (In See also, Barnes v. Harris, 7 Cush. 
 this case Lord Brougham says, (Mass.) 576. 
 "The witness, in this case, was not 
 
PRIVILEGBD COMMUNICATIONS. 617 
 
 also communicated to each other. "The reason for the rule is, 
 that the other party shall not be informed of admissions and 
 facts made known to the attorney, so as to be used against the 
 client. Here no such reason exists."^ 
 
 3. A files a bill against B for an injunction. The subject- 
 matter of the suit comprises a deed conveying property from 
 A to B. The question is, whether 0, the attorney who acted as 
 scrivener in drawing up the deed, is a competent witness to 
 testify to the transaction. 
 
 C is a competent witness and may be compelled to testify. 
 He was not consulted as an attorney, but employed merely as a 
 scrivener.® It has been held, however, that where an attorney 
 is employed to draw up an assignment of certain contracts of 
 a debtor, which assignment is attacked by creditors as fraudu- 
 lent, the attorney is privileged, and cannot be compelled to 
 disclose what is said by the debtor with respect to his intent or 
 purpose in making the assignment.* 
 
 4. B, the personal representative of A, sues the city of C 
 to recover damages for personal injuries to A resulting in her 
 death, and which are alleged to have been caused by C's negli- 
 gence. The question is, whether the testimony of A's physicians 
 regarding her condition, and the information obtained while 
 treating her, are privileged under a statute which provides "that 
 no physician shall be allowed to disclose any confidential com- 
 munication properly intrusted to him in his professional capa- 
 city, and necessary and proper to enable him to discharge the 
 functions of his office according to the usual course of practice. ' ' 
 
 Under the statute the information acquired is privileged; but 
 at common law it is not.i" 
 
 5. A sues B., a physician, for malpractice in che treatment 
 of his wife. A statute provides that information acquired by a 
 physician in rendering professional services shall not be dis- 
 
 7— Lynn v. Lyerle, 113 111. 128, 9— Hollenbacli v. Todd, 119 III. 
 134. See also. Griffin v. Griffin, 543. 
 125 111. 430. 10— Baxter v. City of Cedar 
 
 8— De Wolf V. Strader, 26 III. Rapids, 103 la. 599. See also, 
 225, Kenyon v. City of Mpndovi, 98 
 
 Wis. 50. 
 
618 WITNESSES. 
 
 closed without the consent di the patient. The question is, 
 whether B may testify to information acquired by him while 
 attending A's wife in a professional capacity, which information 
 was essential to enable him to properly treat her, without the 
 consent of A's wife. 
 
 B may testify to the information so acquired notwithstanding 
 the existence of the statute. Such statutes are to be given a lib- 
 eral interpretation. Since no other, person besides B and A's 
 wife has any knowledge of the facts, and proof of such facts is 
 essential to sustain B 's defense, the exigencies of the case require 
 that the statute be not applied.^i 
 
 6. Based upon the statement of facts, in the question next 
 preceding, the question is, whether A's wife is a competent wit- 
 ness in behalf of her husband. 
 
 At common law, a married woman is incompetent to testify in 
 behalf of her husband. But, notithstanding this rule, in an 
 action by a husband against a physician for malpractice in the 
 treatment of his wife professionally, where the facts in the 
 case are known only to the physician and the wife, and without 
 her testimony the remedy afforded the husband by law will fail, 
 the exigencies of the case render the wife a competent witness in 
 behalf of her husband.^^ 
 
 7. A sues the B. Ins. Co. on a policy of insurance on his 
 wife's life. C, the attending physician in her last sickness, is 
 dead. A statute provides that information acquired by a phy- 
 sician while rendering professional services shall not be disclosed 
 without the consent of the patient. The question is, whether a 
 deposition by C, concerning information acquired by him while 
 treating A's wife professionally during her last sickness, but 
 made before the enactment of the statute, is admissible in evi- 
 dence. 
 
 C's deposition is admissible. It is to be observed, however, 
 that if C were living he would not be allowed to disclose the 
 information. But if a person, competent at the time to testify, 
 is examined as a witness in a cause, and subsequently and before 
 the trial becomes incompetent, his testimony taken when he was 
 competent is admissible.^* 
 
 11— Cramer v. Hurt, 154 Mo. 13— Wells v. Ins. Co., 187 Pa. 
 112, 77 Am. St. Rep. 752. St. 166. 
 
 12 — Cramer v. Hunt, supra. 
 
PRIVILEGED COMMUNICATIONS. 619 
 
 8. A is on trial on the criminal charge of robbing B of a 
 watch. After A had committed the robbery he confessed his 
 guilt to C, a Roman Catholic priest, and turned the watch over 
 to him. C turned it over to D, the officer who arrested A. The 
 question is, whether C can be compelled to disclose upon the 
 stand A's confession of guilt. 
 
 At the common law, communications between spiritual advisers 
 and laymen are not privileged. Under this rule, therefore, C is 
 bound to disclose A's confession of guilt. Refusal on his part 
 renders him liable to be adjudged guilty of contempt of court.i* 
 In most jurisdictions, however, statutes have been enacted which 
 render communications between spiritual advisers and laymen 
 privileged. The New York statute is as follows: "A clergy- 
 man or other minister of any religion shall not be allowed to 
 disclose a confession made to him in his professional character in 
 the course of discipline enjoined by the rules or practice of the 
 religious body to which he belongs, "i" 
 
 9. A sues the United States, in the Court of Claims, on a 
 contract for secret service made between the president of the 
 United States and himself. The question is, whether the action 
 can be maintained. 
 
 Upon grounds of public policy, such an action cannot be 
 maintained. As said by Justice Field, "It may be stated as a 
 general principle, that public policy forbids the maintenance of 
 any suit in a court of justice, the trial of which would inevitably 
 lead to the disclosure of matters which the law itself regards 
 as confidential, and respecting which it will not allow the confi- 
 dence to be violated. On this principle, suits cannot be main- 
 tained which would require a disclosure of the confidences of 
 the confessional, or those between husband and wife, or of 
 communications by a client to his council for professional 
 advice, or of a patient to his physician for a similar purpose. 
 Much greater reason exists for the application of the principle 
 to cases of contract for secret services with the government, as 
 the existence of a contract of that kind is itself a fact not to be 
 disclosed. "i« 
 
 14— Regina v. Hay, 2 F. & F. 4 16— Totten v. United States, 92 
 
 (I860). U. S. 105, 107. 
 
 15— New York: C. C. P. 1887, 
 §833. 
 
620 WITNESSES. 
 
 10. A sues B for falsely and maliciously representing to the 
 treasury department of the United States that A was intending 
 to defraud the revenue. The question is, whether B can be com- 
 pelled to answer interrogatories filed by A inquiring whether he 
 did not give or cause to be given to the treasury department 
 information of supposed or alleged frauds on the revenue con- 
 templated by A. 
 
 B cannot be compelled to answer A's interrogatories. The 
 information, if any, furnished by B to the officers of the treas- 
 ury, is privileged, and courts of justice will not compel or permit 
 its disclosure without the assent of the government.i'^ 
 
 11. A is on trial for the crime of counterfeiting. The ques- 
 tion is, whether the officer who arrested A can be compelled to 
 disclose the name of the person from whom he received the infor- 
 mation which led to A's detection and arrest. 
 
 The officer cannot be compelled to disclose such information. 
 As said by Justice Washington, "Such disclosure might be 
 highly prejudicial to the public in the administration of justice 
 by deterring persons from making similar disclosures of crimes 
 which they knew to have been committed, "i* 
 
 12. A sues B in an action of trover, based upon a claim for 
 a quantity of wood cut from trees purchased from B and paid 
 for in work and labor performed by him. B defends on the 
 ground that A had previously brought an action in assumpsit for 
 such work and labor and recovered a judgment in that action, 
 and that therefore the trees and wood cut therefrom was not 
 A's property. The question is, whether B may show by the 
 jurors in the assumpsit case, that in arriving at their verdict, 
 they allowed the plaintiff for the full amount of labor claimed 
 by him. 
 
 The jurors are incompetent witnesses. Jurors are competent 
 to prove what testimony has been given upon a trial in which 
 
 17 — Worthlngton v. Scribner, ness for the government, upon the 
 
 109 Mass. 487. trial of the accused for larceny, 
 
 18 — United States v. Moses, 4 cannot be compelled to disclose the 
 
 Wash. C. C. 726. See also. State name of the party who furnished 
 
 V. Soper, 16 Me. 293 (In this case him with information that led to 
 
 the court holds that the owner of the arrest), 
 stolen goods, when called as a wit- 
 
PRIVILEGED COMMUNICATIONS. 621 
 
 they have served; but they may not disclose the elements of 
 their verdict, nor their deliberations by which it vras reached. 
 The verdict itself is the best evidence of the result of their delib- 
 erations.' ® 
 
 13. A sued B in covenant, and a verdict was rendered for B. 
 The question is, whether the affidavit of one of the jurors is 
 admissible to impeach the verdict, and whether the affidavits of 
 certain other jurors are admissible to sustain it. 
 
 As a general rule, the affidavit of a juror is not admissible to 
 impeach a verdict. On the other hand, it is held that it is 
 admissible to sustain a verdict.^" Upon principle, however, and 
 according to the better view, the affidavit of a juror is admissible 
 to impeach a verdict provided the affidavit does not concern any 
 matter which essentially inheres in the verdict itself .^i 
 
 14. A sues B for fraud. The foreman of the jury, by mistake, 
 announces a verdict different from that agreed to by the jury, 
 and the erroneous verdict is recorded. The question is, whether 
 affidavits of the jurors are admissible to prove the mistake with 
 the view of having the record corrected so as to make it con- 
 form to the actual finding. 
 
 The affidavits of the jurors are admissible. The general rule 
 which prohibits jurors from being heard to impeach their ver- 
 dict is not applicable here. As said by Justice Allen, "It is not 
 an attempt to reverse their action in the jury room but to estab- 
 lish it. It is in the nature of a clerical mistake. Had the jury 
 rendered a sealed verdict, and their clerk or scrivener made a 
 mistake in reducing it to writing, a correction of the writing 
 after it had reached the court and been entered on the minutes 
 would be no impeachment of the verdict or of the integrity, intel- 
 ligence or action of the jury. The jury in furnishing proof of 
 the clerical mistake would stand by their agreement and aid in 
 giving effect to their deliberations and determinations. "^^ 
 
 15. A is on trial for larceny. For the purpose of impeaching 
 the credibility of B, who has testified in the case, C, a grand 
 juror, is called to testify to B's evidence before the grand jury 
 
 19— Hewett v. Cbapman, 49 21— "Wright v. Tel. Co., 20 la. 
 Mich. 4. ■ 195. 
 
 20— Peck v. Brewer, 48 111. 54. 22— Dalrymple v. Williams, 63 
 
 N. Y. 361, 364. 
 
622 WITNESSES. 
 
 upon the same point. The question is, whether C is a competent 
 witness. 
 
 C's testimony upon the matter involved is admissible. Where 
 the ends of justice demand it, there is no reason why evidence 
 given before a grand jury should not be made known and proved. 
 It is solely a question of public policy .^^ Justice Mercur says, 
 "The reasons given at an early day for excluding the kind of 
 evidence offered, and for holding a grand juror incompetent to 
 testify to such facts have lost their force. ... A wise pub- 
 lic policy, and the rights of person and of property, require us 
 to hold the foreman of the grand jury to be a competent witness 
 for the purpose offered. "2* 
 
 16. A files a bill against B to reform an award for an alleged 
 mistake of the arbitrators. The bill alleges that the arbitrators 
 by mistake omitted to allow A a credit of more than five hundred 
 dollars, to which he was entitled, which they intended and sup- 
 posed they had allowed. The question is, whether the arbitra- 
 tors are competent witnesses to prove the mistake. 
 
 As a general rule, arbitratol-s will not be heard to impeach 
 their award; and parol evidence tending to show that the arbi- 
 trators did not intend what their determination on its face 
 declares, is not admissible to contradict or impeach the award.^" 
 To this general rule, however, some courts sometimes make an 
 exception in the case of fraud or mistake. A mistake, however, 
 in either the law or the facts is not usually corrected by the 
 courts. It is only in cases of clear and unquestionable mistake 
 that a court of equity will interpose to reform the award or set 
 it aside. And to entitle a party to such relief it is necessary 
 that the mistake be that of all the arbitrators.^* It is very gen- 
 erally held, however, that arbitrators are competent witnesses 
 to sustain their award.^^ 
 
 17. A files a bill against B to enforce the specific performance 
 of a contract for the conveyance of a tract of land. The ques- 
 tion is, whether B may testify to declarations of his wife con- 
 cerning the subject-matter of the suit. 
 
 23— Bressler v. The People, 117 25— Doki v. James, 4 N. Y. 568. 
 
 111. 422. 26— Pulliam v. Pensoneau, 3S 
 
 24— Gordon v. Com., 92 Pa. St. 111. 375. 
 
 216. 27— Stone v. Atwood, 28 111. 30. 
 
PRIVZLEGED COMMUNICATIONS. 
 
 623 
 
 B is incompetent to testify to his wife's declarations, both at 
 common law and under the statute. "If this action had been 
 one between husband and wife the evidence might have been 
 competent; but the action was not between husband and wife, 
 and the declarations of the wife could not be proven by her hus- 
 band, "^s 
 
 § 18. A and B are on trial on the criminal charge of will- 
 fully driving an ox upon a railroad track. The question is, 
 whether a letter, written by C, a witness for the state, which con- 
 tains an admission in favor of the accused, and which has gotten 
 into the hands of the attorneys for the defendants, is admissible 
 in evidence. 
 
 The letter is not admissible. ' ' The matter that the law pro- 
 hibits either the husband or wife from testifying to as witnesses 
 includes any information obtained by either during the mar- 
 
 ( 
 
 28— Joiner v. Duncan, 174 111. 
 252, 256. See also, Goelz v. Goelz, 
 157 III. 33. 
 
 The Illinois statute provides 
 that "No husband or wife shall, 
 by virtue of section 1 of this act 
 (removing the disqualifications of 
 interest and conviction of an in- 
 famous crime), be rendered com- 
 petent to testify for or against 
 each other as to any transaction 
 or conversation occurring during 
 the marriage,, whether called as a 
 ■witness during the existence of 
 the marriage, or after its dissolu- 
 tion, except in cases where the 
 wife would, if unmarried, be plain- 
 tiff or defendant, or where the 
 cause of action grows out of a per- 
 sonal wrong or injury done by one 
 to the other or grows out of the 
 neglect of the husband to furnish 
 the wife with a suitable support; 
 and except in cases where the liti- 
 gation shall be concerning the sep- 
 arate property of the wife, and 
 suits for divorce; and except also 
 in actions upon policies of insur- 
 
 ance of property, so far as relates 
 to the amount and value of the 
 property alleged to be injured or 
 destroyed, or in actions against 
 carriers, so far as relates to the 
 loss of property and the amount 
 and value thereof, or in all mat- 
 ters of business transactions 
 where the transaction was had 
 and conducted by such married 
 woman as the agent of her hus- 
 band, in all of which cases the 
 husband and wife may testify for 
 or against each other, in the same 
 manner as other parties may, un- 
 der the provisions of this act: 
 Provided, that nothing in this sec- 
 tion contained shall be construed 
 to authorize or permit any such 
 husband or wife to testify to any 
 admissions or conversations of the 
 other, whether made by him to 
 her or by her to him, or by either 
 to third persons, except in suits 
 or causes between such husband 
 and wife." Kurd's Rev. Stats, 
 (1903), chap. 51, sec. 5. 
 
624 WITNESSES. 
 
 riage, and by reason of its existence. It should not be confined to 
 mere statements by one to the other, but embraces all knowledge 
 upon the part of either obtained by reason of the marriage rela- 
 tion, and which, but for the confidence growing out of it, would 
 not have been known. And the same rule prevails in full force 
 after the marital relation has been dissolved by death or divorce. 
 . . . There is a considerable array of authorities to the efEect 
 that when confidential communications between husband and 
 wife, of between attorney and client, get out of the possession 
 and control of the parties to the confidence, and that of their 
 agents and attorneys, and find their way into the possession and 
 control of third persons, regardless of the manner in which the 
 possession thereof may be obtained by such third persons, then 
 such communications lose the protected privilege of the law, and 
 become competent and admissible evidence. We cannot agree to 
 the correctness of this rule thus broadly laid down by these and 
 other authorities, but think the policy of the law, that forms the 
 foundation of the rule, is far more strongly upheld and sub- 
 served by those authorities that recognize and declare certain 
 classes of communications to be privileged from the inherent 
 character of the communication itself, and that in such cases 
 the privilege attaches to the communication itself, and protects 
 it from exposure in evidence, wheresoever or in whosesoever 
 hands it may be."^® 
 
 29— Mercer v. State, 40 Fla. 216, 24 S. Rep. 144, 
 
EXAMINATION OF WITNESSES. 625 
 
 ILLUSTRATIONS ON EXAMINATION OF WITNESSES. 
 
 1. A files a bill against B for a divorce. Before the trial, B 
 makes a motion that the witnesses be examined separately and 
 out of the hearing of each other. The court denies the motion, 
 and a decree is granted. The question is, whether the court's 
 ruling is prejudicial error. 
 
 The court's ruling is not prejudicial error. As said by Chief 
 Justice Caton, "It was matter of discretion with the circuit 
 court, whether the complainant's witnesses should be separated 
 during the examination, and we will not inquire whether that 
 discretion was judiciously exercised or not."i 
 
 2. A is on trial for murder. B and C are accomplice wit- 
 nesses for the state. The court issues an order separating the 
 witnesses. B violates the order. The question is, whether A, as 
 matter of right, may demand that B be excluded from testifying 
 in the case. 
 
 A is not entitled, as matter of right, to have B excluded from 
 testifying. It is a matter which rests in the discretion of the 
 court. As said by Justice Scholfield, "The disregard of this 
 rule might have afforded good grounds for the punishment of 
 the parties for contempt, but it was within the discretion of tho 
 court. ... If witnesses, after an order of separation, upon 
 being spoken to by third parties in violation of an order of 
 court, would become thereby disqualified to testify, a wide door 
 wood be opened to unscrupulous friends of those charged with 
 crime to disqualify all material prosecuting witnesses. ' '^ 
 
 3. A, who sues B in assumpsit for work and materials, testi- 
 fies in his own behalf. For the purpose of refreshing his recol- 
 lection he proposes to examine a copy or memorandum of entries 
 in his books of account. B objects. The question is, whether 
 the objection should be sustained. 
 
 B's objection should be overruled. A is entitled to refresh 
 his memory by examining the copy ; but the copy itself is inad- 
 missible. As said by Justice Sheldon, "The original entries, if 
 
 1 — Errissman v. Errlssman, 25 2 — BulUner v. The People, S5 
 111. 120. 111. 394, 399. 
 
 40 
 
626 WITNESSES. 
 
 shown to have been correctly made, might have been read in evi- 
 dence, but not the copy from th^m. The latter might be used 
 only to refresh the memory. The copy of a writing, as well as 
 the original, may be referred to by a witness, if his memory, 
 refreshed thereby, enables him to testify from his own recollec- 
 tion of the original facts, independent of his confidence in the 
 accuracy of the copy. But he is not, in such case, to read from 
 the copy."* 
 
 4. A, who sues B for rent and board, testifies in her own 
 behalf. The question is, whether she should be allowed to refresh 
 her past recollection by examining an account book kept by her 
 husband, the entries in which she saw him make, and knows them 
 to be correct, although she has no distinct remembrance of the 
 specific items therein contained. 
 
 A is entitled to examine the account-book with the view of 
 testifying to her past recollection, even though she has no pres- 
 ent remembrance of the facts therein recorded. As said by Jus- 
 tice Baker, "A witness may refresh and assist his memory by 
 the use of a memorandum or entry in a book when he recollects 
 having seen the writing before, and while the facts were fresh 
 in his memory, and though he has, at the time of testifying, no 
 independent recollection of the facts mentioned in it, yet remem- 
 bers that at the time he saw it he knew the contents to be cor- 
 rect."* 
 
 It is to be observed, however, that the witness must have either 
 a present or past recollection concerning the matter, and that he 
 will not be permitted to gain his information originally from the 
 memorandum and testify wholly from it.* 
 
 5. A is on trial for grand larceny. The question is whether 
 the following instruction by the court is erroneous : ' ' The court 
 
 3— Bonnet v. Glattfeldt, 120 111. the court say, "It is a well-settled 
 
 166, 173. rule that a witness may refer to 
 
 4— Plynn v. Gardner, 3 111. App. memoranda made by himself or by 
 253, 255, 256. See also, 1 Green- others, for the purpose of refresh- 
 leaf on Evid., §§436, 437. ing his memory, but it must be 
 
 5 — Miller v. Preble, 142 Ind. for the sole purpose of refreshing 
 
 632, 42 N. E. Rep. 220; Erie Pre- his memory, not for the purpose 
 
 serving Co. v. Mlllei', 52 Coirn. of gaining entirely original infor- 
 
 444, 52 Am. Rep. 607 (In this Case mation from them"). 
 
EXAMINATION OF WITNESSES. 627 
 
 instructs the jury that one of the modes recognized by law for 
 impeaching the veracity of a witness is the introduction of per- 
 sons as witnesses who testify that they are acquainted with the 
 general reputation for truth and veracity oi the person sought 
 to be impeached, in the neighborhood in which he resides; and 
 if the jury believe, from the evidence in this case, that the repu- 
 tation for truth and veracity of any party or witness who has 
 testified before you, in the neighborhood where he resides, is bad, 
 then the jury have a right to disregard the whole of such per- 
 son's testimony and treat it as untrue, except so far as it is cor- 
 roborated by other credible evidence or by facts and circum- 
 stances proved on the trial." 
 
 The instruction is correct. As said by Justice Craig, "We 
 think the law is well settled that where the general reputation 
 of a witness for truth and veracity is bad in the neighborhood 
 where he resides, the jury may disregard his evidence, except so 
 far as it is corroborated by other evidence or by the facts and 
 circumstances proven on the trial."* 
 
 6. A sues B, a surgeon, for malpractice. Among others, the 
 court gives the jury the following instruction: "The court 
 instructs the jury that if you believe from the evidence that 
 any witness in this case has sworn falsely to any material fact 
 in issue, then you are at liberty to disregard the whole of such 
 witness' testimony except wherein it is corroborated by other 
 credible evidence in the case." A recovers a verdict for $2,000. 
 The question is, whether the instruction quoted is prejudicially 
 erroneous. 
 
 The instruction is prejudicially erroneous. To entitle the 
 jury to disregard the whole of such witness' testimony he must 
 have sworn falsely willfully. As said by Presiding Justice Har- 
 ker, "The vice of this instruction is that it omits the essential 
 element that the witness had knowingly or willfully sworn 
 falsely. A witness may be honestly mistaken as to some material 
 fact and innocently swear falsely concerning it, and his testi- 
 mony on other points be worthy of belief. The knowledge or 
 willfulness of the untrue statement is the test for his impeach- 
 ment."'' And as said by Justice Scott, "A witness can not be 
 
 6— Hill V. Montgomery, 184 111. 7— Littlejohn v. Arbogast, 95 IlL 
 220, 225. App. 608. 
 
628 WITNESSES. 
 
 discredited simply on the ground of an erroneous statement; it 
 is only where the statements of a witness are willfully and cor- 
 ruptly false in regard to material facts, that the jury are author- 
 ized to discredit the entire testimony. "^ 
 
 7. A, who sues B in ejectment, introduces in evidence C's 
 deposition. B seeks to impeach C's credibility by showing by 
 oral evidence that C was convicted of forgery. The court, how- 
 ever excludes this evidence. The question is, whether the court's 
 ruling is erroneous. 
 
 The credibility of a witness may be impeached by showing that 
 he has been convicted of an infamous crime. As a general rule, 
 this can be done only by producing the record or an authenti- 
 cated copy of it. In Illinois, however, by statute, it may be 
 done by oral evidence. According to the rule in this state, 
 therefore, the court's ruling is erroneous.^ 
 
 It is to be observed, however, that, under the Illinois statute 
 the credibility of a witness cannot be impeached by showing that 
 he has been convicted of a minor offense. As said by Justice 
 Boggs, "The enactment of said section 1 of our statute on evi- 
 dence has no effect to authorize the introduction of proof of 
 the conviction of the witness of an offense that would not have 
 rendered him incompetent to testify in the absence of the 
 statute. "10 
 
 8. A sues B in assumpsit for money loaned. The question 
 is, whether former declarations of a witness, whose credibility 
 is attacked, are admissible in evidence for the purpose of cor- 
 roborating him. 
 
 Upon this question, the decisions are in conflict; but according 
 
 8 — Pope V. Dodson, 58 111. 360. Overtoom v. Chicago, etc., Ry. Co., 
 See also, Mathews v. Granger, 196 181 111. 323 (In this case the court 
 111. 164, 171 (In this case the say, "It is the corrupt motive, or 
 court say, "Moreover, it is only the giving of false testimony 
 where the jury conclude that the knowing it to be false, that au- 
 witness has willfully testified thorizes a jury to disregard the 
 falsely in a matter material to testimony of a witness"), 
 the issue being tried, or that he 9 — Gage v. Eddy, 167 111. 102. 
 has been successfully impeached, 10 — ^Matzenbaugh v. The People, 
 that the jury are authorized to 194 111. 108, 113. See also. Bar- 
 disregard his entire testimony, tholomew v. People, 104 111. 601. 
 where not corroborated") ; and 
 
EXAMINATION OP WITNESSES. 629 
 
 to the decided weight of aiithority the former declarations are 
 inadmissible.il 
 
 9. A sues B in attachment. C testifies in A's behalf. B 
 seeks to impeach C's credibility by showing by several witnesses 
 that his general reputation for truth and veracity is bad. These 
 witnesses testify that they know C's reputation for truth and 
 veracitj', in the neighborhood in which he lives, and that it is 
 bad. They are not asked, however, whether they would believe 
 him on oath or not, and A contends that owing to this omission 
 their evidence does not go far enough to impeach C. The ques- 
 tion is, whether A's contention is correct. 
 
 A's contention is erroneous. In seeking to impeach the credi- 
 bility of a witness by showing that his general reputation for 
 truth and veracity is bad, it is optional with the party seeking 
 his impeachment to ask the opinions of the impeaching witnesses, 
 and in no case compulsory. As said by Justice Craig, "But 
 while the rule we have heretofore established permits the wit- 
 ness, after he has stated that he knows the general reputation of 
 the person for truth and veracity among his neighbors, to go on 
 and state that, judging from such reputation, he would not 
 believe the person upon his oath, yet this court has never held, 
 and we do not understand it to be the law, that the rule is com- 
 pulsory that the opinion of the witness should be asked or 
 stated. "12 On the other hand, if the court should prohibit the 
 impeaching witness from giving his opinion, after he has sworn 
 that he has knowledge of the other's general reputation, and that 
 it is bad, the court's ruling would be erroneous.i^ 
 
 It is also to be observed that, after the impeaching witness has 
 given his testimony, he may be cross-examined by the adverse 
 party as to his means of knowledge and the grounds of his opin- 
 ion.i* But the fact that other persons in the neighborhood had 
 not heard the witness' general reputation discussed is not admis- 
 sible as rebuttal evidence to that given by the impeaching wit- 
 ness.i" 
 
 11— Stolp V. Blair, 68 111. 541, v. Chapman, 21 111. 34; Massey v. 
 543. Bank, 104 111. 327. 
 
 12 — Laclede Bank v. Keeler, 109 13 — Eason v. Chapman, supra. 
 111. 385, 390. See also, Frye v. 14— Dowie v. Black,'90 111. App. 
 Bank of Illinois, 11 111. 367; Eason 167. 
 
 15— Magee v. People, 139 111. 138. 
 
630 WITNESSES. 
 
 10. A sues B in assumpsit for services rendered. The evidence 
 given by the parties themselves is contradictory. For the pur- 
 pose of supporting his evidence, A calls a number of witnesses 
 to prove his general character for truth and veracity. B objects 
 to such evidence on the ground that A's credibility has not been 
 impeached. The court overrules the objection, and A recovers 
 a verdict. The question is, whether the court's ruliug is preju- 
 dicially erroneous. 
 
 The court's ruling is prejudicially erroneous. Merely contra- 
 dictory evidence is not such evidence of impeachment as entitles 
 the party whose witness is thus contradicted to introduce evi- 
 dence of his good character for truth and veracity. To entitle 
 the party to introduce such evidence the character of the wit- 
 ness for truth and veracity must be directly attacked. As said 
 by Justice Walker, "As we understand the rules of evidence, ,3 
 witness can not call witnesses to support his general character 
 for truth and veracity until it is assailed. Mere contradictions, 
 or different versions by witnesses, do not justify the application 
 of the rule that he may call witnesses to support his character 
 for truth. When witnesses are called who say his general char- 
 acter is bad, then he may call witnesses in support of his gen- 
 eral character. Before he can do so his general character must 
 be attacked. If the practice sanctioned the calling of witnesses 
 to prove general character whenever a witness is contradicted, 
 it would render trials interminable. The greater portion of the 
 time of courts would be liable to be engaged in the attack and 
 support of the characters of witnesses. If permitted, each of 
 the contradicting witnesses would have the same right, and not 
 only so, but all of the supporting witnesses on each side contra- 
 dicting each other would be entitled to the same privilege. It 
 is thus seen that the rule must be limited to cases where wit- 
 nesses are called to impeach the general character of a witness, 
 otherwise it, instead of reaching truth by the verdict, would tend 
 to stifle it under a large number of side issues, calculated to 
 obscure and not to elucidate them."i* 
 
 11. A sues B in trespass for assaulting, beating and wound- 
 ing her. A and her daughters testify in her behalf. For the 
 purpose of impeaching these witnesses, B offers to show by other 
 witnesses that A and her daughters had, at various times and 
 
 16— Tedens v. Sohumers, 112 111. 263. 266. 267. 
 
EXAMINATION OF WITNESSES. . 631 
 
 places, Committed adultery, and that they had also been guilty 
 of selling spirituous liquors in violation of law. A objects to this 
 testimony and the court sustains the objection. A recovers a 
 verdict. The question is, whether the court's ruling is preju- 
 dicial error. 
 
 In many jurisdictions, evidence of the general immoral char- 
 acter of a witness is admissible to impeach his credibility. But 
 even in these jurisdictions evidence of particular acts is excluded. 
 In many other jurisdictions, including Illinois, the impeaching 
 evidence is restricted to the general reputation of the witness for 
 truth and veracity. As said by Justice Trumbull, "The com- 
 plainants made an unsuccessful attempt to impeach the gen- 
 eral credibility of this witness, and with that view offered evi- 
 dence of particular facts, and of his general reputation in other 
 respects than for truth and veracity. All evidence of such a 
 character is improper, and should be rejected. The authorities 
 are uniform that it is only the general reputation of a witness 
 that can be inquired into, for the purpose of impeaching his tes- 
 timony; and although there is some conflict in the decisions, as 
 to whether the inquiry should be confined to the general char- 
 acter of the witness for truth and veracity, we think the better 
 rule is, that it should be so confined. "^^ Justice Scholfleld, after 
 quoting Justice Trumbull's view, says, "This doctrine ha,s been 
 frequently referred to with approval in subsequent cases, and 
 in no instance questioned. It is true, in prosecutions for rape, 
 "assault with intent to commit rape, and indecent assault, the 
 character of the prosecutrix for chastity may be inquired into; 
 but evidence of sexual prostitution is not admissible to impeach 
 a witness, or to affect his or her credit, in any other class of 
 cases. "18 And Justice Walker says, "It has never been the 
 practice in this state to permit a witness, in support of his char- 
 acter for veracity, to prove that he has been honest in his deal- 
 ings, or moral and free from vice. It does not follow that 
 because a man deals honestly, and is otherwise moral, he is 
 therefore truthful. Nor is it believed that beqause a man is not 
 fair in his dealings, or is immoral, he is therefore untruthful. "*• 
 
 12. A sues the B. Ey. Co. for damages for negligently caus- 
 
 17— Frye v. Bank of Illinois, 11 18— Dimick v. Downs, 82 111. 
 111. 366, 379. 570, 573. 
 
 19— Tedens t. Schumers, tuprct. 
 
632 WITNESSES. 
 
 ing the death of her husband at a certain crossing. Upon his 
 cross-examination, C, the company's engineer, testifies that he 
 always rang the bell at that crossing. The question is, whether 
 contradictory evidence is admissible for the purpose of impeach- 
 ing C. 
 
 The contradictory evidence is inadmissible. The statement 
 sought to be contradicted is brought out on C's cross-examina- 
 tion, and it relates to a distinct collateral fact. It follows, there- 
 fore, that it is conclusive and may not be contradicted. As said 
 by Justice Sheldon, "A witness is not to be cross-examined as 
 to any distinct collateral fact, for the purpose of afterwards 
 impeaching his testimony by contradicting him. If a question, 
 as to a collateral fact, be put to. a witness for the purpose of 
 discrediting his testimony, his answer must be taken as conclu- 
 sive, and no evidence can be afterwards admitted to contradict 
 it. "20 
 
 13. A sues the B. Ey. Co. for damages for negligently caus- 
 ing C's death. D, one of A's witnesses, is asked upon his cross- 
 examination whether he made the statement, at the time of the 
 accident which caused C's death, that C was in the habit of 
 going home intoxicated; and D answers in the negative. The 
 question is, whether, upon Ihis poiat, evidence is admissible to 
 contradict D. 
 
 Since D 's answer is brought out on his cross-examination^ and 
 relates to a statement which is merely a collateral fact, it is 
 conclusive. As said by Justice Sheldon, ' ' The testimony was not 
 admissible for the purpose of impeaching Meade, as he had given 
 no evidence upon that subject. It is true, he was asked, on 
 cross-examination, whether he had not made such a statement 
 and denied it. But the question was incompetent, as it was dot 
 relevant to any testimony which the witness had given, and his 
 answer, it being as to a collateral matter, had to be taken as 
 conclusive. It was not admissible afterward to contradict him 
 in that respect, and thus introduce into the case his unsworn 
 stat-ements. If defendant sought any statement of Meade upon 
 that subject, it should have examined him as a witness, and got 
 his sworn statement. "^^ 
 
 20— C, B. £ Q. Ry. Co. v. Lfee, 21— C, R. I. & P. Ry. Co. v. 
 60 111. 501, 504. See also, 1 Stark. Bell, 70 111, 102, 105. 
 on Bvld., 189. 
 
EXAMINATION OF WITNESSES. 63.3 
 
 14. A, whose husband has been convicted of grand larceny 
 and sentenced to the penitentiary, employs C to obtain for her a 
 divorce. C falsely and fraudulently represents to her that a 
 decree of divorce has been granted to her, and she marries B. 
 Subsequently she learns that C has deceived her, and she sues 
 him for $10,000 damages for willfully, maliciously, fraudulently 
 and falsely representing to her that she has been granted a 
 divorce. A testifies in her own behalf; and upon her cross- 
 examination C seeks to prove by her that her character for 
 chastity is bad, by showing that she first became acquainted with 
 B in a house of prostitution. The question is, whether A's char- 
 acter for chastity can be impeached in this way, in view of the 
 fact that no evidence pertaining to her character was given by 
 her in her examination-in-chief. 
 
 B's character for chastity cannot be impeached upon her cross- 
 examination. As said by Justice Craig, "The object of this 
 evidence was to prove that the character of the plaintiff for 
 chastity was bad. It may be conceded that in an action of this 
 kind, brought to recover damages sustained by the plaintiff to 
 her good name and character^ it was competent, in mitigation of 
 damages, to prove the character of the plaintiff, and if appellant 
 had offered competent evidence to establish that fact it might 
 have been admitted. But appellant undertook to make proof of 
 bad character on cross-examination of the plaintiff, and the 
 court held that the evidence thus offered was incompetent on 
 cross-examination. The court did not hold that appellant could 
 not prove the fact at the proper time, but merely ruled, and so 
 stated at the time, that tha evidence was not admissible on cross- 
 examination. If the plaintiff, on her direct examination, had 
 given evidence in reference to her character, then, of course, the 
 appellant would have been entitled to cross-examine her fully on 
 this subject. But such was not the case. The plaintiff on her 
 direct examination, was asked nothing and said nothing in 
 regard to ner character, and it was proper to confine the cross- 
 examination to facts called out in chief. "^^ 
 
 22— Hill V. Montgomery, 184 III. 220, 222, 223. 
 
INDEX. 
 
 [BEFEBENCES ABE TO THE PAGES.] 
 
 ACCOMPLICES— 
 
 see Competency of Witnesses. 
 ACCOUNT-BOOK ENTRIES— 
 
 definitions, 104. 
 
 primary idea of account, 104. 
 
 entries made in the regular course of business, 104. 
 
 early English rule, 104. 
 
 modern English rule, 105. 
 
 American rule, 105. 
 
 entries by party or by clerk, 105. 
 
 historical development, 105. 
 
 statutory regulations, 105. 
 
 grounds of admissibility — necessity, trustworthiness, 106. 
 
 influence of habit, false entry easily detected, danger of censure 
 and discharge, 106. 
 
 entries must be original, 106. 
 
 entries must be contemporaneous with acts, 107. 
 
 entrant must hare personal knowledge, 108. 
 
 nature of business, 108. 
 
 nature of the entries, 109. 
 
 inadmissible against guarantor or principal, 110. 
 
 inadmissible to prove terms of special contract, 110. 
 
 inadmissible to prove large amounts, 110. 
 
 inadmissible to prove immoral transactions, 111. 
 
 must be free from suspicion, 111. 
 
 elfect of alterations or erasures. 111. 
 
 entrant may be living and in court. 111. 
 
 entries must be authenticated. 111. 
 
 when secondary evidence admissible, 112. 
 
 effect of statutes which make parties to the suit competent wit- 
 nesses, 112. 
 
 entries secondary evidence under such statutes, 112. 
 
 admissible as records of past recollection, 113. 
 
 statutes which regulate their admissibility, 114. 
 
 functions of court and jury, 114. 
 
 635 
 
636 INDEX. 
 
 [befebe]:^ces abe to the faqes.] 
 
 ADMINISTRATORS— 
 see Admissions. 
 
 ADMISSIONS— 
 
 definition, 21. 
 
 oral or written, 21. 
 
 express or implied, 21. 
 
 upon whom binding, 21. -—"^ 
 
 of an agent, 21. 
 
 of a partner, 21. 
 
 of a prior owner of real estate, 22. 
 
 of a prior owner of personal property, 22. 
 
 the New York rule, 22. 
 
 of a joint owner, 22. 
 
 of a tenant in common, 22. 
 
 of a landlord, 22. 
 
 of an executor or administrator, 23. 
 
 of a devisee or legatee, 23. 
 
 of an heir, 23. 
 
 of an ancestor, 23. 
 
 of a testator or an intestate, 23. ", 
 
 of a tenant for life, 23. 
 
 of a trustee, 23. 
 
 of a cestui que trust, 23. 
 
 of a principal debtor, 23. 
 
 of a joint obligor or joint tort feasor, 23. 
 
 of a husband or wife, 24. 
 
 of an attorney-at-law, 24. 
 
 casual and informal admissions of an attorney-at-law not bind- 
 ing, 24. 
 
 what admitted by a demurrer, 25. 
 
 what admitted by a plea, 25. 
 
 when conclusive, 25. -^ 
 
 basis and effect of admissions, 25. 
 
 may be based on personal knowledge or upon hearsay, 25. 
 
 parol evidence rule not applicable, 25. 
 
 weight of admissions, 25. 
 
 two classes excluded — those made under duress, and those made 
 to effect a compromise, 25. ^ ^ 
 
 ADOPTING A PAST RECOLLECTION— 
 see Examination of Witnesses. 
 
INDEX. 637 
 
 [BETERENCES ABE TO THE PAGES.] 
 
 AGENTS— 
 
 see Admissions; Confessions; Declarations Relating to the 
 Res Gestae. 
 
 ALMANACS— 
 
 see Public Documents. 
 
 ALTERATION OF WRITINGS— 
 definition, 203. 
 
 two senses in which term alteration is used — technical and col- 
 loquial, 203. 
 early rule, 203. 
 modern rule, 203. 
 spoliation, 203. 
 
 fraudulent intent not essential, 204. 
 two reasons for rule. 205. 
 application of the rule, 205. 
 effect upon iona Ude purchasers, 206. 
 certified checks, 207. 
 innocent assignee of a mortgage, 207. 
 effect of filling in blanks, 207. 
 alteration may be ratified, 209. 
 effect of alterations in wills, 209. 
 alterations in codicil to revoke, 209. 
 English statute of frauds, 210. 
 English "Wills Act, 210. 
 accidental alterations, 210. 
 to correct mistakes of expression, 210. 
 immaterial alterations, 211. 
 presumptions and burden of proof, 212. 
 parol evidence rule not applicable, 215. 
 when expert opinion evidence admissible, 215, 
 province of court and jury, 316. 
 
 AMBIGUITIES— 
 
 see Parol Evidence Rule. 
 ANCESTORS— 
 
 see Admissions. 
 ANCIENT DOCUMENTS— 
 
 definition, 91. 
 
 time limit thirty years, 91. 
 
 time computed from date of Instrument to date when offered In 
 evidence, 91. 
 
 ancient documents prove themselves, 92. 
 
638 INDEX. 
 
 [BEFEBEITCES ABIT TO THE PAOEB.] 
 
 ANCIENT DOCUMENTS— Continued. 
 
 attestation and execntlon need not be shown, 92. 
 
 exceptions to this rule, 92. 
 
 suspicious circumstances, Including erasures and Interlineations 
 justify rejection of document, 92, 9iS. 
 
 matter rests in sound discretion of court, 93. 
 
 document must be produced from proper custody, 94. 
 
 rule requiring corroborative evidence of authenticity of docu- 
 ment, 95. 
 
 early English rule, modern English rule, Illinois rule, 95. 
 
 preliminary proof required that document Is at least thirty years 
 old, 95. 
 
 mere fact that document purports to be ancient not sufficient, 95. 
 
 admissible in suit between third parties and for any purpose, 96. 
 
 APPARENT EXCEPTIONS TO RULE AGAINST HEARSAY— 
 statements not used testimonially original evidence, 53. 
 evidence of general reputation not hearsay, 53. 
 commercial reports of market values, 53. 
 statements Indicative of intention, motive, or state of mind, are 
 
 verbal acts, 54. 
 some courts hold that such statements must be contemporaneous 
 
 with the acts done, 54. 
 this view obtains in Illinois and Massachusetts, 54. 
 
 IPPLIANCES USED BY OTHERS— 
 
 see Facts Excluded although Logically Relevant. 
 ATTESTING WITNESSES— 
 
 see Proof of Authorship. 
 ATTORNEY-AT-LAW— 
 
 see Admissions; Competency of Witnesses. 
 ATTORNEY AND CLIENT- 
 
 see Privileged Communications. 
 ATHEISTS— 
 
 see Competency ot Witnesses. 
 AUTOPSIES— 
 
 see Parol Evidence Rule. 
 BOOKS OP GENERAL LITERATURE, SCIENCE AND ART— 
 
 see Public Documents. 
 BONA FIDE PURCHASER— 
 
 see' Alteration of Writings. 
 BREACH OF PROMISE OF MARRIAGE- 
 
 see Character. 
 
INDEX. 639 
 
 [BEFEBENOES ABS XO THE PAOEB.] 
 
 BURDEN OF PROOF— 
 
 double sense of term, 15. 
 
 In primary sense It never shifts, 15. 
 
 upon whom it rests, 15. 
 
 presumptions do not effect it, 15. 
 
 proof required in criminal cases, 16. 
 
 proof required in civil cases, 16. 
 
 the English rule, 16. 
 
 insanity as a defense in criminal cases, 16. 
 
 insanity as a defense in will cases, 16. 
 
 statutory rule in Illipois, 17. 
 
 action for damages caused by negligence, 17. 
 
 negligence of common carriers, 17. 
 
 damages caused by fire from an engine, 17. 
 
 damages for personal injuries, 17. 
 
 damages for failure to transmit a telegram, 18. 
 
 negligence of bailees, 18. 
 
 negligence of innkeepers, 18. 
 
 guests versus permanent boarders, 18. 
 
 rule in quo warranto proceedings, 19. 
 
 statute of limitations pleaded — two views, 19. 
 
 fraud alleged, 19. 
 
 exception to a statute claimed, 19. 
 
 promissory notes, 19. 
 
 statutory provisions, 19. 
 
 legislature authority to prescribe reasonable rules, 20. 
 
 plaintiff the right to open and close, 20. 
 
 wh^n defendant has this right, 20. 
 
 effect of erroneous ruling by trial court, 20. 
 
 not sufficient ground for a reversal, but sufficient for new trial, 
 20. 
 BUSINESS COMMUNICATIONS— 
 
 see Privileged Communications. 
 CERTIFIED CHECKS— 
 
 see Alteration of Writings. 
 CESTUI QUE TRUST— 
 
 see Admissions. 
 CHARACTER— 
 
 definitions, 39. 
 
 general reputation distinguished, 39. 
 
 direct evidence of character excluded, 39. 
 
 character-evidence usually excluded, 39. 
 
640 INDEX. 
 
 [EBFEEENCES ABB TO THE PAGES.] 
 
 CHARACTER— Continued. 
 
 chief reasons for exclusion, 39. 
 
 the rule in criminal cases, 39. 
 
 accused may show good character, 39. 
 
 prosecution may then rebut this, 39. 
 
 weight of character-evidence, 40. 
 
 character-evidence of deceased usually inadmissible In homicide 
 case, 41. 
 
 character-evidence of prosecutrix for chastity admissible in rape 
 case, 41. 
 
 character-evidence of prosecutrix for unchastity admissible In 
 seduction case, 41. 
 
 character-evidence of accused for being a peaceable man admis- 
 sible in assault and battery case, 41. 
 
 in civil cases, especially, character-evidence inadmissible, 41. 
 
 exceptions to the rule — actions for libel, slander, seduction, crim- 
 inal conversation, breach of promise of marriage, malicious 
 prosecution, 41. 
 
 evidence of particular acts usually inadmissible, 42. 
 
 some exceptions to the rule, 42. 
 
 general reputation not hearsay evidence, 42. 
 
 general reputation as -to the act charged inadmissible, 42. 
 
 general reputation as to the trait involved admissible, 42. 
 
 personal opinion of character usually excluded, 43. 
 
 character-evidence of party to the litigation, and character- 
 evidence of a witness for veracity distinguished, 43. 
 CHASTITY— 
 
 see Character. 
 CODICIL— 
 
 see Alteration of Writings. 
 COLLATERAL AGREEMENTS— 
 
 see Parol Evidence Rule. 
 COMPETENCY OP WITNESSES— 
 
 definitions, 265. 
 
 witness presumed competent, 265. 
 
 classes of persons disqualified at common law, 205. 
 
 parties to the record, 266. 
 
 persons pecuniarly interested in the result of the suit, 266. 
 
 the interest legal, certain, direct, present and vested, 267. 
 
 the true test, 267. 
 
 at common law many persons disqualified on ground of Interest, 
 268. 
 
INDEX. 641 
 
 [EEFEBENCES ABE TO THE PAGES.] 
 
 COMPETENCY OF WITNESSES— Continued. 
 
 common law rule generally abolished, 270. 
 
 a witness to a will, or tlie husband or wife of such witness, who 
 is also a beneficiary under the will, incompetent, 270. 
 
 a party in interest, in an action against an executor or adminis- 
 trator, or against the guardian or committee of an insane 
 person, Incompetent, 270. 
 
 an insane person sometimes competent, 270. 
 
 an idiot incompetent, 272. 
 
 a deaf and dumb person competent, 273. 
 
 an intoxicated person competent, 273. 
 
 an infant competent, 274. 
 
 cross-examination of an infant, 275. 
 
 weight of an infant's testimony, 275. 
 
 a person convicted of an infamous crime incompetent at com- 
 mon law, 276. 
 
 meaning of infamous crimes, 276. 
 
 meaning of crim,en falsi, 276. 
 
 a person without religious belief incompetent at common law, 
 276. 
 
 a witness presumed to have the necessary religious belief, 278. 
 
 a husband or wife of a party to the suit incompetent, 278. 
 
 exception to the rule, 279. 
 
 The Illinois statute, 279. 
 
 an accomplice not necssarily Incompetent, 280. 
 
 views of Greenleaf, Wharton and others, 281. 
 
 competency of judges — decisions conflicting, 282. 
 
 petit jurors competent, 282. 
 ■" incompetent to impeach verdict, 282. 
 
 grand jurors competent, 283. 
 
 may testify to admissions and confessions, 283. 
 
 arbitrators competent at the hearing before themselves, 283. 
 
 may sustain, but not impeach their award, 283. 
 
 attorneys competent, 284. 
 
 attorneys who testify should withdraw as counsel, 284. 
 COMPROMISE— 
 
 see Admissions. 
 
 CONFESSIONS— 
 
 definition, 44. 
 
 restricted to criminal acts, 44. 
 
 judicial and extra-judicial, 44. 
 
642 INDEX, 
 
 [EBTBRENCES AEE TO THE l!»AOES.] 
 
 CONFESSIONS— Continued. 
 
 voluntary and involuntary, 44. 
 definitions, 44. 
 burden of proof, 45. 
 
 nature and requisites of inducement, 45. 
 a mere admonition to tell the truth insufficient, 45. 
 a promise of some collateral benefit insufficient, 45. 
 an appeal to the spiritual, hopes or fears of the accused insuffi- 
 cient, 45. 
 artifice or fraud insufficient, 45i. 
 the inducement must be external to render the confession In-' 
 
 voluntary, 43. 
 subsequent confessions, 45. 
 a person in authority, 46. 
 the injured' party a person in authority according to the English 
 
 rule, 46. 
 many state courts follow the English rule; 46. 
 federal courts do not, 46. 
 
 the person in authority may act through ail agent, 46. 
 an officer not connected with the prosecution is not a person in 
 
 authority, 46. 
 nor is a masten or parent of the accused, 46. 
 threats of mob violence render the confession involuntary, 46. 
 a confession is not involuntary merely because it is made; under 
 
 oath, 46. 
 warning essential at common law to render confession voluntary, 
 
 47. 
 in this country, warning not essential unless statute requires 
 
 it, 47. 
 mere criminating statements of facts not confessions, 47. 
 confessions made while party is asleep inadmissible, 47. 
 accused entitled to have whole of confession introduced, 47. 
 may be oral or written, 48. 
 
 a written confession is within the best, evidence rule, 48. 
 generally, &■ confession is admissible only against the party who 
 
 makes it, 48. 
 not admissible against a co-defendant, 48. 
 conviction may be based wholly upon a judicial confession, 49. 
 weight and sufficiency of confession, 49. 
 decisions in hopeless conflict, 49. 
 even an oral confession may be entitled to much weight, 50. 
 
INDEX. 643 
 
 ' [BEFEBENCES ABE TO THE PAGES.] 
 
 CONFESSIONS— Continued. 
 
 facts discovered owing to an involuntary confession may be 
 shown, 50. 
 
 also the fact that the discovery was the result of the confession, 
 showing inferentlally the guilt of accused, 50. 
 COUET RECORDS— 
 
 see Proof of Authorship. 
 COURT STENOGRAPHER'S NOTES— 
 
 see Reported Testimony, etc. 
 CRIMINAL CONVERSATION— 
 
 see Character. 
 CROSS-EXAMINATION— 
 
 see Examination of Witnesses. 
 CUSTOM— 
 
 see Parol Evidence Rule. 
 DEAF AND DUMB PERSONS— 
 
 see Competency of Witnesses. 
 DEBTORS— 
 
 see Admissions. 
 
 DECLARATIONS AGAINST INTEREST BY PERSONS SINCE 
 DECEASED— 
 
 definitions, 97. 
 
 declaration must relate to a pecuniary or proprietary interest, 97. 
 
 grounds of admissibility — adverse interest, necessity, 97. 
 
 the adverse interest must appear, 98. 
 
 the declarant must presumably have had knowledge of the ad- 
 verse interest, 98. 
 
 he must have been free from any probable motive to falsify, 98. 
 
 he must be dead, 98. 
 
 the declaration may be partly self-serving, 98. 
 • the declaration may be admissible though the disserving interest 
 does not preponderate, 98. 
 
 the self-serving part should be excluded if feasible, 99. 
 
 ;admissibie to prove collateral facts, 100. 
 
 admissible in a suit between strangers, 101. 
 
 may be made by an agent, 101. 
 
 other declarations distinguished, 101. 
 
 paay be oral or written, 102. 
 
 inadmissible to prove contracts, or the execution or revocation of 
 a will, 102. 
 
 weight of such declaratioiis, 103. 
 
644 INDEX. 
 
 [KEFEEENCES ABE TO THE PAGES.] 
 
 DECLARATIONS— Continued. 
 
 the three chief reasons for excluding hearsay evidence applicable, 
 
 103. 
 court determines admissibility, 103. 
 DECLARATIONS BEARING UPON THE PHYSICAL OR MENTAL 
 CONDITION OF THE DECLARANT, OR UPON HIS INTENTION— 
 the general rule, 123. 
 
 grounds of admissibility — necessity, trustworthiness, 123. 
 must relate to internal conditions, 124. 
 
 must be natural and spontaneous expressions of pain or suffer- 
 ing, 124. 
 must be contemporaneous with it, 124, 125. 
 may be made to any one, 126. 
 
 in New York, and in a few other jurisdictions, rule more re- 
 stricted, 126. 
 
 the rule in Illinois restricted, 126. 
 
 statutes which permit parties to the suit to testify do not change 
 the rule, 127. 
 
 a few courts hold the contrary, 127. 
 
 declarations bearing upon mental condition, 128. 
 
 must be naturally made and free from suspicion, 128. 
 
 may concern motive, design, intent, feeling, etc., 128. 
 
 misapplication of the res gestae principle, 128. 
 
 testamentary declarations admissible, 130. 
 
 ante-testamentary declarations, 130. 
 
 post-testamentary declarations and theories concerning them, 131, 
 132. 
 
 purposes for which testamentary declarations are admissible — 
 to show mental capacity, fraud, duress, contents of will, in- 
 tention, etc., 132. 
 
 the decisions not harmonious 133. 
 DECLARATIONS OF BYSTANDERS— 
 
 see Declarations Relating to the Res Gestae. 
 DECLARATIONS OF INTENTION— 
 
 see Parol Evidence Rule; Declarations Relating to the Res 
 Gestae. 
 DECLARATIONS IN RAPE CASES— 
 
 see Declarations Relating to the Res Gestae. 
 DECLARATIONS MADE IN THE REGULAR COURSE OP BUSI- 
 NESS— 
 
 the general rule, 117. 
 
 origin and scope of the rule, 117. 
 
INDEX. 645 
 
 [BES-EEENCES ABE TO THE PAGES.] 
 
 DECLARATIONS— Continued. 
 
 wider scope than account-book entries, 117. 
 
 other declarations distinguished, 117. 
 
 grounds of admissibility — necessity, trustworthiness, 118. 
 
 must be made in the discharge of a duty or in the usual course 
 
 of business, 118. 
 an absolute duty to make them not essential, 119. 
 must he substantially contemporaneous, 119. 
 entrant usually must have personal knowledge of transactions, 
 
 119. 
 exceptions to the rule, 120. 
 
 entrant must be dead according to English rule, 120. 
 unavailability sufficient according to American rule, 120, 121. 
 the rule applicable to partnership entries, 121. 
 admissible to prove contents, and also to corroborate or Impeach 
 
 other evidence, 121. 
 oral declarations admissible according to English rule, but not 
 
 according to American rule, 121. 
 mode of proof — differs in the various jurisdictions, 122. 
 
 DECLARATIONS RELATING TO THE RES GESTAE— 
 
 definitions, 134. 
 
 origin of the term "res gestae," 134. 
 
 scope of the term — a vague expression, 135. 
 
 the verbal act doctrine and its misapplication, 135. 
 
 verbal acts not hearsay, 135. 
 
 they comprise part of the issue, part of an act material to the 
 issue, or circumstantial evidence of an existing condition, 
 136. 
 
 the rule against hearsay applicable only to testimonial asser- 
 tions, 136. 
 
 verbal acts not testimonial assertions, 136. 
 
 illustrations of verbal acts, 136, 137. 
 . must be contemporaneous with main act, 138. 
 
 must limit, characterize or explain it, 138. 
 
 the act must be independently material to the issue, 138. 
 
 the act must be equivocal, 138. 
 
 misapplication of this principle, 138. 
 
 declarations made by a party In possession of property, 139. 
 
 rule against hearsay no application, 139. 
 
 declarations by an accused person found in possession of stolen 
 property, 139. 
 
646 INDEX. 
 
 [BEFBBENGES ABB TO THE PAGES.] 
 
 DBCIjARATIONS— Continued. 
 
 must be made at time of arrest or soon after, 140. 
 
 declarations by an alleged bankrupt, ■ 140. 
 
 earliest application of verbal act doctrine, 140. 
 
 declarations by a testator concerning the revocation of 'his will, 
 141. 
 
 must be made animo revooandi, 141. 
 
 declarations concerning domicil, 141. 
 
 admissible wben contemporaneous with act of moving, and also 
 when contemporaneous with intention to move, -141, 142. 
 
 declarations which constitute circumstantial evidence of an exist- 
 ing condition admissible as verbal acts, 142. 
 
 illustrations, 143. 
 
 spontaneous declarations admissible, 144. 
 
 •discrimination between sjfontaneous declarations and verbal acts, 
 144. 
 
 much confusion concerning these two classes of evidence, 144. 
 
 grounds of admissibility of spontaneous declarations — ^trust- 
 worthiness, necessity, 144. 
 
 not essential that spontaneous declarations be strictly contempo- 
 raneous, 145. 
 
 must not, however, be result of reflection and deliberation, 145. 
 
 some marked examples of the misapplication of the .principle, 
 145, 146. 
 
 spontaneous declarations a real exception -to the rule against 
 hearsay, 146. 
 
 a confusing statement by Professor G-reenleaf, 146. 
 
 declarations by agents, 147. 
 
 the res gestae doctrine not usually involved, 147. 
 
 doctrine of admissions usually involved, 147. 
 
 declarations in rape cases, 148. 
 
 three theories of admissibility, 148. 
 
 first theory — to explain a self-contradiction, 148. 
 
 presumption that prosecutrix made complaint, 149. 
 
 details of complaint inadmissible under first theory, 149. 
 
 second theory — to corroborate prosecutrix, 149. 
 
 details of complaint admissible under this theory, 150. 
 third theory — a spontaneous declaration, 150. 
 
 a real exception to the rule against hearsay, 150. 
 
 much conflict in the decisions, 150. 
 
 according to the earlier English rule details of complaint inad- 
 missible. 150. 
 
INDEX. 647 
 
 [EEFEBENCES ABE TO THE PAGES.] 
 
 DECLARATIONS— Continued. 
 
 modern English rule contrary, 150, 151. 
 
 theory of modern English rule — corroboration, 151. 
 
 the American doctrine — cases in hopeless conflict, 151, 
 
 the true doctrine, 151, 152. 
 
 declarations of bystanders admissible, 152. 
 
 the rule in criminal cases, 153. 
 
 narratives of past transactions inadmissible, 153. 
 
 DECLARATIONS RELATING TO PEDIGREE— 
 
 definition, 72. 
 
 primary ground of admissibility — knowledge and interest of dec- 
 larant, and no temptation to falsify, 72. 
 
 secondary ground — necessity, 72. 
 
 requisites of admissibility, 72. 
 
 declarant must be dead, 72, 73. 
 
 a few courts recognize an equivalent disability, 73. 
 
 family reputation, 73. 
 
 declarant must have been qualified by relationship to speak, 73. 
 
 the English rule, 73. 
 
 personal knowledge of the facts not essential, 73. 
 
 relationship of declarant must be established by evidence aliunde, 
 73. 
 
 rille when question is relationship between members of two al- 
 leged branches of same family, 73, 74. 
 
 proof of relationship to one branch sufficient, 74. 
 
 the declaration must have been made ante litem, motam, 74. 
 
 fact that declarant had no knowledge of controversy immaterial, 
 74. 
 
 question of pedigree must be involved in suit according to Eng- 
 lish rule, 7i. 
 
 English rule followed by federal courts and by some state courts, 
 Ti. 
 
 Massachusetts rule contrary, 74. » 
 
 Massachusetts rule correct upon principle, and the weight of 
 authority in this country, 74, 75. 
 
 true test of admissibility is trustworthiness of declaration when 
 made, 74, 75. 
 
 declarations concerning Illegitimacy, 75. 
 
 declarations concerning age, 75. 
 
 declarations by husband or wife admissible, 75. 
 
 declarations relating to particular facts of time and place, 75. 
 
648 INDEX. 
 
 [BEFEEBNCES ABE TO THE PAGES.] 
 
 DECLARATIONS— Continued. 
 
 time and place of birth not questions of pedigree in the strict 
 
 sense, 75. 
 declarations relating to them, however, may be admissible, 75. 
 
 76. 
 declaration may be oral or written, 76. 
 genuineness of declaration must be shown, 76. 
 weight of declarations relating to pedigree, 77. 
 as a general rule they are received with caution, 77. 
 chief reasons for this rule, 77. 
 
 DECLARATIONS RELATING TO MATTERS OP PUBLIC OR GEN- 
 ERAL INTEREST— 
 definitions, 78. 
 
 public interest versus general interest, 78. 
 grounds of admissibility, 78. 
 requisites of admissibility, 79. 
 declarant must be dead, 79. 
 
 he must have had opportunity for knowledge, 79. 
 declaration must be made ante Utem motam^ 79. 
 lis mota means origin of controversy and not necessarily com- 
 mencement of suit, 79. 
 declaration must be community reputation and not merely indi- 
 vidual opinion, 80. 
 tie Interest involved must be a public one according to the Eng- 
 lish rule, 80. 
 declarations relating to private boundaries which are coincident 
 
 with public ones admissible, 80. 
 American rule more liberal, 80. 
 the interest involved, and the reputation offered in evidence must 
 
 be of ancient origin, 81. 
 reputation-evidence inadmissible to prove particular occasions of 
 
 the exercise of the Interest or right, 81. 
 reputation-evidence admissible to prove location of a highway, 
 
 81, 82. 
 early rule required proof of acts of enjoyment within living 
 
 memory, 82. 
 modern rule contrary, 82. 
 
 declaration may affirm or deny existence of interest or right, 82. 
 declaration may be oral or written, 82. 
 
 declaration may be contained in historical treatises or ancient 
 maps, 82. 
 
INDEX. 649 
 
 [BEFEBBNCES ABE TO THE FAQEB.] 
 
 DEMURRERS— 
 
 see Admissions. 
 
 DEMURRERS TO EVIDENCE— 
 definitions, 31. 
 origin and use, 31. 
 in some states not allowed, 31. 
 
 practically unknown \outslde of western and southern states, 31. 
 their purpose and effect, 31. 
 when they should be overruled, 31. 
 how court's erroneous ruling may he cured, 32. 
 when demurrer Is applicable, 32. 
 rule In equity, 32. 
 rule in criminal cases, 32. 
 Joinder in demurrer, 32. 
 effect of, 32, 33. 
 
 when court will compel joinder, 33. 
 rule where the evidence is oral or circumstantial, 33. 
 when demurrant may withdraw his demurrer, 33. 
 form and substance of the demurrer, 33. 
 proceedings in higher court, 33. 
 bill of exceptions not proper mode, 33. 
 Illinois rule contra, 33. 
 venire facias de novo awarded, 33. 
 analogous proceedings, 33, 34. 
 motion to nonsuit, 34. 
 motion that plaintiff cannot recover, 34. 
 motion to exclude evidence, 34. 
 motion to set aside verdict, 34. 
 submitting case to jury on agreed statement of facts, 34. 
 
 DEPOSITIONS— 
 
 see Reported Testimony, etc. 
 
 DYING DECLARATIONS— 
 definition, 62. 
 
 grounds of admissibility — solemnity of the occasion, public neces- 
 sity, 62. 
 constitutionality of this exception to the hearsay rule, 63. 
 three arguments in support of its constitutionality, 63, 64. 
 essentials of admissibility, 64. 
 competency of declarant to testify, 64. 
 declarant in extremis, and conscious thereof, 65. 
 must have been actually at the point of death, 65. 
 
650 INDEX. 
 
 [REFERENCES ABE TO THE PAGES.] 
 
 DYING DECLARATIONS— Continued. 
 
 must have abandoned all hope of living, 65. 
 
 may have lived a considerable length of time after making the 
 
 declaration, 65. 
 mode of proving declarant's consciousness of his Impending 
 
 death, 66. 
 may be shown by direct or Indirect evidence, 66. 
 s nature and scope of dying declarations, 66. 
 rule where two homicides result from same act, 67. 
 decisions conflicting, 67. 
 declarations of opinion inadmissible, 67. 
 
 dying declarations admissible to prove identity of accused, 67. 
 vague and indefinite declarations excluded, 67. 
 declarations favorable to accused admissible as well as those 
 against him, 67. 
 ' may be made in any form, 68. 
 may be spontaneous or in response to leading questions, 68. 
 mode of proving dying declarations, 68. 
 . may be oral or written, 68. 
 if oral, may be proved by any one who heard them, 68. 
 if written, best evidence rule applicable, 68. 
 if oral, substance of declaration sufficient, 69. 
 declarations open to impeachment, 69. 
 if impeached, may be corroborated, 69. 
 weight of dying declarations — general rule, 69. 
 reasons for the rule, 69. 
 modern tendency to restrict them, 69. 
 preliminary evidence essential, 70. 
 mode of Introducing it — presence of jury, 70. 
 the better view, tO. 
 burden of proof, 70. 
 
 other declarations of deceased persons distinguished, 70. 
 EQUIVOCATIONS— 
 
 see Parol Evidence Rule. 
 ERASURES— 
 
 see Alteration of Writings. 
 EXAMINATION OF WITNESSES— 
 swearing the witnesses, 319. 
 purpose to quicken their consciences, '319. 
 form of administering the oath, 319. 
 varies in different jurisdictions, 319. 
 various viewSj 319, 320. 
 
INDEte 651 
 
 [BBfBiBBiTCES'ABi; TO THE PAGES.] 
 
 EXAMINATION OF "WITNESSES— Continued, 
 usual forms at common law, 320. 
 
 the custom of kissing the bible a relie of idolaitry; 321. 
 constitutional and'^statiitGry provisions relating to oaths, 321, 322. 
 use of the oath still obtains in all jurisdictions, 322. 
 constitutional and- statutory provisions in' Illinois; 322. 
 may swear or affirm, 323. 
 
 effect of testifying without being sworn or affirmed, 32^3. 
 Chief Justice Shaw's view; 324. 
 
 effect when an atheist takes the oath and testifiei, 324. 
 Bradlaugh's case, 324, 325. 
 
 person who takes oath estopped from denying its validity, 325. 
 other persons may object, 325. 
 the true purpose of the oath, 325, 326. 
 the early view, 325,-326. 
 its injustice, 325, 326. 
 the modern view, 325, 326. 
 Professor Wigmore's view, 325, 326. 
 capacity of infants to testify, 326, 327. 
 
 oath-capacity and testimonial qualifications distinguished, 328. 
 custom of swearing several witnesses at once a pernicious one, 
 
 328. 
 reasons thereforj 328. 
 
 advantages of publicity of examination, 328, 329. 
 its limitations, 328, 329, 330. 
 sequestration of witnesses, 331, 332. 
 origin of the rule, 331, 332. 
 reason for the rule, 332, 333. 
 matter rests in sound discretion of court, 333. 
 early English rule, 333. 
 modern rule, 333. 
 the better viewj 333, 334. 
 exceptions to the rule, 334, 335. 
 
 witness who violates order of the court liable for contempt, 335. 
 refreshing a present recollection and adopting a past recollection 
 
 distinguished, 336. 
 witness may refresh memory by examining any memoranda, 336, 
 
 337. 
 various views, 337, 338. 
 right Of opposing counsel and jury to inspect memoranda, 338, 
 
 339. 
 various Tiews,' 338, 339, 
 
652 INDEX. 
 
 [EEFEEENCES ABE TO THE PAGES.] 
 
 EXAMINATION OF WITNESSES— Continued. 
 
 witness may adopt a past recollection, 340. 
 
 various views, 340, 341. 
 
 original memorandum must be produced, 341. 
 
 adversary has right to cross-examine on it, 341. 
 
 an unorthodox and fallacious doctrine, 342. 
 
 effect of suspicious circumstances connected with the making of 
 
 the memorandum, 342. 
 witness may be compelled to inspect memorandum, 342. 
 matter rests In sound discretion of court, 342. 
 the right to begin, 343. 
 order of examination, 343. 
 
 the four stages of the examination, 343, 344. 
 
 various views. 344, 345. 
 
 matter rests in sound discretion of court, 345. 
 
 the examination-in-chief, 345. 
 
 should not be needlessly prolonged, 345. 
 
 court may call a witness and question him, 345. 
 
 immaterial and irrelevant questions excluded, 346. 
 
 an impression based upon recollection admissible, 346, 
 
 various views, 346, 347. 
 
 material facts in issue may not be assumed, 346. 
 
 when plaintiff may anticipate the defense, 347. 
 
 rule obtained at common law, 347. 
 
 generally recognized to-day, 347. 
 
 various views, 347, 348. 
 
 the cross-examination — the second stage, 348. 
 
 an exceedingly important right, 348, 349. 
 
 various views, 348, 349, ^(f. 
 
 a dangerous legal engine* 350. 
 
 scope of the cross-examination, 350, 351. 
 
 English rule — right exists if witness intentionally sworn, 351. 
 
 American doctrine contra, 351. 
 
 various views, 351, 352. 
 
 according to English rule witness may be cross-examined on 
 whole case, 352. 
 
 English rule obtains in a few states, 352. 
 
 American doctrine contra, 352. 
 
 Illinois rule, 352, 353. 
 
 leave must be obtained to cross-examine witness called by the 
 trial judge, 354. 
 
 leading questions allowable in cross-examination, 354. 
 
INDEX. 653 
 
 [EEPEKENCES AEE TO THE PAGES.] 
 
 EXAMINATION OF WITNESSES— Continued, 
 preliminary examinations by court, 355. 
 right to cross-examine does not obtain, 355. 
 various views, 355, 356. 
 impeachment of witnesses, 356. 
 an important right, 356. 
 
 party may not directly Impeach his own witness, 356. 
 chief reason for rule, 356, 357. 
 may impeach him Indirectly, 357. 
 various views, 357. 
 when one party calls witness of adverse party the latter may not 
 
 impeach the witness, 357, 358. 
 when party calling witness is surprised he may show previous 
 
 inconsistent statements, 358. 
 some courts hold that such evidence may be brought out on 
 
 cross-examination, 364. 
 Illustration, 364. 
 New York rule, 364, 365. 
 Texas rule, 365. 
 Illinois rule, 365. 
 Illustrations, 365. 
 
 may always show want of religious belief, 365. 
 Hayward's case, 366. 
 prosecutrix in rape case may be Impeached by showing general 
 
 reputation for unchastlty, 366. 
 evidence of her unchastlty acquired subsequently inadmissible, 
 
 366, 367. 
 English rule, 367. 
 Illinois rule, 367. 
 
 impeaching evidence against prosecutrix may be rebutted, 367. 
 Impeachment by showing indictment, arrest or conviction — deci- 
 sions conflicting, 367, 368. 
 weight of authority, 368. 
 record of conviction the best evidence, 368. 
 witness may be compelled to state on cross-examination whether 
 
 he has ever been in penitentiary or in jail, 368. 
 mode of proving general reputation, 368, 369. 
 impeaching witness must have personal knowledge of general 
 
 reputation, 369. 
 personal acquaintance of witness not essential, 369. 
 
654 INDEX. 
 
 [EEFEEBNCES ARE TO THE PAGES.] 
 
 EXAMINATION OF WITNESSES— Continued. 
 
 impeaching witness may state whether or not he would believe 
 the other witness on ■ oath, 369. 
 
 impeaching witness may be rigidly cross-examined, 369. 
 
 weight of impeaching evidence a- matter for the jury to deter- 
 mine, 369. 
 
 Spies' Case, 369, 370; 
 
 a witness may be impeached by showing his bias, hostility, 
 sympathy, etc., 370. ' 
 
 the better view, 371. 
 
 basis of the hostility immaterial, 372. 
 
 usually a proper foundation must be laid, 372. 
 
 illustrations pertaining to bias, 372, 373. 
 
 great latitude allowed in cross-examination, 372. 
 
 witness may be corroborated, 374. 
 
 definition of corroborative evidence, 374. 
 
 when corroborative evidence allowable, 374. 
 
 various views, 375, 376. 
 
 corroboration of prosecutrix in rape case, 376, 377. 
 
 corroboration of complainant in divorce case, 377, 378. 
 
 corroboration of an accomplice, 378. 
 
 various views, 379, 380. 
 
 some practical suggestions on the examination of witnesses,- 381. 
 
 object of the examination-in-chief and mode of conducting it, 381. 
 
 three classes of witnesses, 381. 
 
 mode off -examining an ordinary witness, 382. 
 
 mode of examining a hostile witness, 382. 
 
 mode of examining a rapid witness, 383. 
 
 duties of opposing counsel during the examination-in-chief, 383. 
 
 mode of; conducting: the cross-examination, 384, 385, 386. 
 
 duties; of opposing counsel during the cross-examination, 386. 
 
 mode of conducting the re-examination, 387. 
 
 EXCESSIVE DESCRIPTION— 
 see Parol Evidence Rule. 
 
 EXECUTORS- 
 
 see Admissions. 
 
 EXPERIMENTS— 
 
 see Real Evidence. 
 
 EXPERT WITNESSES— 
 
 see Opinion Evidence. 
 
INDEX. 655 
 
 [BBFKBENOES AXE TO THE PAGES.] 
 
 FACTS EXCLUDED ALTHOUGH LOGICALLY RELEVANT— 
 
 meaning of term "relevant," 35. 
 
 testimony must he legally relevant, 35. 
 
 facts whicli are legally relevant, 35. 
 
 subsequent acts of precaution inadmissible, ,35, 36. 
 
 reasons for exclusion, 36. 
 
 similar acts whicb injure others usually inadmissible, 36. 
 
 exceptions to this rule, 37. 
 
 admissible to show guilty knowledge, motive, intent, mental or 
 physical state, 37. 
 
 injuries caused to others by same act may be shown, 37. 
 
 reason for rule, 37. 
 
 value of land shown by evidence of sales of other similar land 
 In vicinity, 37. 
 
 according to better view such evidence rejected, 37. 
 
 reason for better view, 37. 
 
 Illinois rule contra, 37. 
 
 most appropriate evidence expert opinion, 37. 
 
 methods and appliances adopted by others as a standard of com- 
 parison, 38. 
 
 evidence thereof usually inadmissible, 38. 
 
 some exceptions to general rule, 38. 
 
 FAILURE OF CONSIDERATION — 
 see Parol Evidence Rule. 
 
 FRATERNAL ORGANIZATIONS— 
 
 see Privileged Communications. 
 
 FUNCTIONS OP COURT AND JURY— 
 see Law and Fact. 
 
 GENERAL REPUTATION— 
 
 see Character; Apparent Exceptions to the Rule against Hear- 
 say. 
 
 GUESTS— 
 
 see Burden of Proof. 
 
 HANDWRITING— 
 
 see Opinion Evidence. 
 
 HEARSAY EVIDENCE— 
 definition, 51. 
 
 application of term — limited strictly to testimonial evidence, 5L 
 fact that statement is under oath immaterial, .51. 
 
656 INDEX. 
 
 [BEFEBENCES AEE TO THE FAQEB.] 
 
 HEARSAY EVIDENCE— Continued. 
 
 hearsay generally inadmissible, 51. 
 
 the three chief reasons therefor, 52. 
 
 other reasons, 52. 
 
 Important exceptions to the rule, 52. 
 HEIRS— 
 
 see Admissions. 
 HISTORIES— 
 
 see Public Documents. 
 HUSBANDS— 
 
 see Privileged Communications. 
 HYPOTHETICAL QUESTIONS— 
 
 see Opinion Evidence. 
 IDIOTS— 
 
 see Competency of Witnesses. 
 ILLEGITIMACY— 
 
 see Declarations Relating to Pedigree. 
 IMPEACHMENT OP VERDICTS— 
 
 see Privileged Communications. 
 IMPEACHMENT OF WITNESSES— 
 
 see Examination of Witnesses. 
 INFAMOUS CRIMES— 
 
 see Competency of Witnesses. 
 INFANTS— 
 
 see Competency of Witnesses. 
 INNKEEPERS— 
 
 see Burden of Proof. 
 INSANE PERSONS— 
 
 see Competency of Witnesses. 
 INSPECTION OF THE PERSON— 
 
 see Real Evidence. 
 INTERPRETATION OF WRITINGS— 
 
 see Parol Evidence Rule. 
 INTESTATES— 
 
 see Admissions. 
 JOINT OWNERS— 
 
 see Admissions. 
 JOINT OBLIGORS— 
 
 see Admissions. 
 JOINT TORT FEASORS— 
 
 see Admissions. 
 
INDEX. 657 
 
 [BETEBEITOES ABE TO THE PAQES.] 
 JUDGES— 
 
 see Competency of Witnesses. 
 JUDICIAL NOTICE— 
 
 general rule — facts must be proved by best evidence attainable, 4. 
 
 exceptions to rule — facts judicially noticed, facts admitted, 4. 
 
 scope, 4. 
 
 facts which courts are bound to judicially notice conclusively 
 established, 4. 
 
 fasts judicially noticed need not be alleged in the pleadings, 4. 
 
 doctrine of judicial notice applicable to jurors, 4. 
 
 two classes of facts judicially noticed, 5, 
 
 compulsory judicial notice, 5. 
 
 public laws. 5. 
 
 constitutions, 5. 
 
 treaties, 5. 
 
 federal public statutes, 5. 
 
 state public statutes, 5. 
 
 law of nations, 5. 
 
 law merchant, 6. 
 
 common law, 6. 
 
 Supreme Court of United States, 6. 
 
 foreign public laws, 6. 
 
 municipal charters, 6. 
 
 municipal ordinances, 6. 
 
 charters of railroad corporations and banks, 6. 
 
 private corporations, 6. 
 
 foreign corporations, 7. 
 
 private statutes, 7. 
 
 courts, 7. 
 
 matters of public interest, 7. 
 
 matters peculiarly within the knowledge of the court, 8. 
 
 matters of universal notoriety, 8. 
 
 judicial notice of facts of common notoriety, 8. 
 JUDICIAL WRITINGS— 
 
 see Public Documents; Proof of Authorship. 
 LANDLORDS— 
 
 see Admissions. 
 LAW AND FACT— 
 
 functions of court and jury, 26. 
 
 rule in civil cases, 26. 
 
 rule in criminal cases, 26. 
 
658 INDEX. 
 
 I 
 
 [EBiaKENCES ABE TO THE PAQES.] 
 
 LAW AND PACT— Continued. 
 
 meaning of term "questions of law," 26. 
 
 some principal questions of law, 26, 27. 
 
 witharawal of case (from the duTy, 27. 
 
 case should be a clear one,::27. 
 
 a mere scintilla of evidence not sufficient to prevent a with- 
 drawal, 27. 
 
 question of withdrawal raised by motion for nonsuit, by de- 
 murrer :to evidence, :or by request for instruction to find 
 verdict for particular party, '28. 
 
 matters which constitute questions of fact, ,28. 
 
 all matters of fact for Jury to decide, 28. 
 
 matters which constitute mixed questions ,of law and fact, 28. 
 
 distinction between matters of fact and matters of law and fact, 
 29. 
 
 a pure question of fact requires no linstuuctiona by the -court, 29. 
 
 reason therefor — it has a natural meamng and is not jgoverned 
 by any rule of law, 29. 
 
 illustrations oiE matters of law and fact, 29, 30. 
 LEGATEES— 
 
 see Admissions. 
 LEGISLATIVE JOURNALS— 
 
 see Proof of Authorship. 
 LIBEL— 
 
 see Character. 
 MALICIOUS PROSECUTION— 
 
 see Character. ^ 
 
 MALPRACTICE CASES— 
 
 see Parol Evidence Rule. 
 MAPS AND MODELS— 
 
 see Jteal Evidence. 
 MARKET VALUES— 
 
 see Apparent Exceptions to Hule Against Hearsay. 
 METHODS ADOPTED BY OTHERS— 
 
 see Facts Excluded although Logically Relevant 
 MORTALITY TABLES— 
 
 see Public Documents. 
 MUNICIPAL RECORDS— 
 
 see Proof of Authorshipt 
 iMEGLlGENCE— 
 
 see Burden of Proof. 
 
DTDEX. 659 
 
 [EdSjEBtENOES' ABE TO THE PAGES:] 
 
 NON-EXPERT WITNESSES— 
 
 see OiJinlon Evidence. 
 NON-JUDICIAL WRITINGS— 
 
 see Proof of Authorship. 
 OATH— 
 
 see Examination of Witnesses. 
 OPINION EVIDENCE— 
 
 de&ultion,,155.. 
 
 of ancient origin, 155. 
 
 opinions and facts distingnlBhed;, 155s 
 
 spontaneous conclusions matters of fact,. 155. 
 1 facts upon which they are based must first be stated, 156. 
 
 non-expert witness' may state conclusions, 156. 
 
 real opinion evidence may be given only by an expert, 156.- 
 
 expert opinion evidence- and expert evidence as to. certain facts 
 distinguished, 156; 
 
 the former a real exception to. the rule against hearsay, 156. 
 
 when non-expert may testify as to sanity, 156. 
 
 illustrations of expert evidence as to certain facts, 156, 157. 
 
 witness must be • specially qualified to give expert opinion- evi- 
 dence, 157. 
 
 the question involved must require special knowledge, 157. 
 
 basis of expert opinion evidence-^hypothetical question, personal 
 knowledge, 157. 
 
 may not be based upon hearsay, 157. 
 
 exception to tho rule, 157. 
 
 may not be based upon inferences or conclusions of other wit- 
 nesses, 157. 
 
 must be based upon personal knowledge or facts assumed to be 
 true, 157. 
 
 may notas. a rule be- based upon all the evidence in the case, 157. 
 
 reason for rule, 157. 
 
 when it may be based upon the evidence of one or more wit- 
 nesses, 157. 
 
 when based upon personal knowledge the facts must first be 
 stated, 157, 158. 
 
 reasons for the rule, 158. 
 
 exception to- the rule, 158. 
 
 reasons for the exception, 158. 
 
 an- exipert witness — his. qualifi^ationSi 158. 
 
660 INDEX. 
 
 [EBFBEENCES ABE TO THE PAGES.] 
 
 OPINION EVIDENCE— Continued. 
 
 must be impeached before supported by tbe opinions of other 
 experts, 158. 
 
 the hypothetical question, 159. 
 
 its data must be within the scope of evidence in the case, 159. 
 
 not objectionable merely because it is long, 159. 
 
 hypothetical question in Guiteau's Case, 159, note. 
 
 must be fair and not too complicated, 160. 
 
 its purpose must not be to elicit an answer to a question of law, 
 160. 
 
 compensation of expert witnesses, 160. 
 
 Illinois rule — ^may be required to testify without extra compensa- 
 tion, 160. 
 
 in England extra compensation allowed, 160. 
 
 federal courts follow the English rule, 160. 
 
 medical writers strongly favor the English rule, 160. 
 
 expert may demand extra compensation for making a prelimin- 
 ary or post mortem examination, 161. 
 
 number of expert witnesses allowable rests in sound digcretion 
 of the court, 161. 
 
 by whom expert witnesses are chosen and paid, 161. 
 
 in France chosen by the court, 161. 
 
 in Germany must be specially authorized by the government, 161. 
 
 matter regulated by statutes in ' some states, 161. 
 
 experts must come in for examination one at a time, 162. 
 
 handwriting may be proved by a non-expert, 162. 
 
 he must have seen the party write; or have received a reply- 
 letter from him; or have seen an acknowledged signature; 
 or have had his letters pass through his hands in the ordi- 
 nary course of business, 162. 
 
 an expert may give opinion evidence of handwriting, 162. 
 
 he may give an opinion as to its genuineness; whether it is 
 simulated or not; which of two writings which cross each 
 other was written first; or as to priority in the case of alter- 
 ations or interlineations, 162. 
 
 comparison by juxtaposition not allowable at common law except 
 in the case of ancient documents, 163. 
 
 always allowable in ecclesiastical courts, 163. 
 
 extension of rule by Parliament to common-law courts, 163. 
 
 generally allowable in this country, 163. 
 
 not allowable in Illinois, Pennsylvania and Maryland, 163. 
 
INDEX. 
 
 661 
 
 [BEFBEENCBS ABB TO THE PAGES.] 
 
 OPINION EVIDENCE — Continued. 
 
 comparison by jury allowable in most states, 163. 
 not allowable in Tennessee and Kentucky, 163. 
 comparison with copies objectionable, 163. 
 
 ORAL WARRANTIES— 
 
 see Parol Evidence Rule. 
 
 PAROL EVIDENCE RULE— 
 
 statement of the rule, 235. 
 
 origin and meaning of the term "parol," 235. 
 
 synonymous with the term "verbal" as distinguished from the 
 
 term "oral," 235. 
 these terms often incorrectly used interchangeably, 235. 
 meaning of each, 236. 
 
 origin and development of the "Parol Evidence Rule," 236. 
 misapplication of the rule, 236. 
 vagueness of rule, 237. 
 two chief reasons for rule, 237. 
 various views cdncerning it, 237, 238. 
 
 merger of prior and contemporaneous agreements presumed, 238. 
 various expressions relating to it, 238, 239. 
 limitations of the rule, 239. 
 comprehensive statement by Stephen, 239. 
 Tule not applicable to execution, delivery, acceptance or validity 
 
 of a contract, 240. 
 numerous illustrations, 240, 241. 
 rule not applicable to incomplete documents, 242. 
 a contract party written and partly oral is treated as if wholly 
 
 oral, 242. 
 the rule not applicable to such a contract, 242, 243. 
 two essentials — writing must not be a complete contract. The 
 
 two parts must be consistent, 243. 
 the writing to be construed in the light of attendant circum- 
 stances, 243. 
 various views pertaining thereto, 243, 244. 
 cases in which collateral contemporaneous or prior parol agree- 
 ments are inadmissible, 244. 
 when such agreements are inadmissible, 244. 
 the test, 244. 
 
 oral warranties within the rule, 245. 
 decisions not harmonious, 245. 
 usage and custom not within the rule, 245. 
 
662 INDEX. 
 
 [EEFEKENGES'-ABB TO THE PAGES.] 
 
 PAROL EVIDENCE RULE— Continued. 
 
 not admissible, however, if inconsistent with the written- terms 
 of the writing, 245. 
 
 the rule applicable to releases, but not to receipts',- 246^;- 
 
 reasons therefor, 246. 
 
 rule not applicable where purpose is to show a deed absolute on 
 its face a mortgage, 246. 
 
 reasons therefor, 247. 
 
 rule does not prohibit showing th« object of the parties in execut- 
 ing and receiving the instrument, 248. 
 
 oral evidence admissible to show that deed was made to defraud 
 creditors or give a preference, 248. 
 
 oral evidence admissible to show want or failure of considera- 
 tion, 248. 
 
 oral evidence admissible in some cases to contradict a recital of 
 consideration, 248. 
 
 not admissible when the consideration constitutes an operative 
 part of a contractual act, 248. 
 
 illustrations, 248. 
 
 oral evidence admissible to show true date of instrument, . 249. 
 
 admissible to explain meaning of phrases, words and abbrevia- 
 tions which have ambiguous meanings, 249. 
 
 admissible to identify parties or subjectmatter, 249. 
 
 admissible to aid interpretation, 250. 
 
 illustrations, 250. 
 
 Greenleaf's view, 251. 
 
 an excessive description not inherently fatal, 251. 
 
 illustrations, 251, 252. 
 
 Lord Bacon's three degrees of certainty, 252. 
 maxim applicable, falsa demonstratis non nocet, 252. 
 
 oral evidence admissible to rebut an equity, 252. 
 
 illustrations, 252, 253. 
 
 Greenleaf's view, 253. 
 
 oral evidence admissible to rebut a- disputable presumption of 
 law, but not to rebut a conclusive onoj 253. 
 
 Illustrations, 253. 
 
 after oral evidence is introduced to rebut an equity such evidence 
 
 is admissible to support it, 254. 
 reasons why equity must first be. rebutted, 254. 
 oral evidence admissible to establish a resulting- trust, 255; 
 definition of resulting trust. 255. 
 
INDEX. 663 
 
 [BEFEEENCES ABE TO THE PAQISB.] 
 
 PAROL EVIDENCE RULE— C!ontlnued. 
 
 oral evidence admissible to show alteration of document, fraud, 
 duress, undue influence, accident, mistake. Illegality, in- 
 capacity, 25B. 
 
 oral evidence aldmissible to explain an ambiguity — '10 interpret 
 an equivocation, 257. 
 
 Lord Bacon's view — the two classes Of .ambiguities and the ap- 
 plication of the parol evidence rale, 257. 
 
 Chaplin's view, 258. 
 
 Underbill's view, 258. 
 
 declarations of intention inadmissible except in the case of 
 equivocation, 259. 
 
 meaning of the term "equivocation," 259. 
 
 much conflict in the decisions— cases numerous and irreconcila- 
 ble, 259. 
 
 Schouler's view, 260. 
 
 Underbill's view, 260. 
 
 the much-considered case of Miller v. Travers, 261. 
 
 the paradoxical case of Doe v. 'Hisoocks, 261. 
 
 effect of Doe v. Hiscocks, 262, 263. 
 
 generally followed in England, 262. 
 
 not the American rule, 262. 
 
 Miller v. Travers weight of authority in this country, 262. 
 
 fully approved by courts of Illinois, 263. 
 
 parol evidence rule applicable to the legal import of docu- 
 ment, 263. 
 
 illustrations, 263. 
 
 rule not applicahle to subsequent parol agreements, 263. 
 
 reason therefor, 263. 
 
 -rule -not applicable to Strangers to the document, 263. 
 PARTNERS— 
 
 see Admissions. 
 
 P.E5ACEABLENESS— 
 see Character. 
 
 PHOTOGRAPHS— 
 
 see Real Evidenc'e. 
 
 PHYSICIAN AND PATIENT— 
 
 see Privileged Communications. 
 PLEAS— 
 
 see Admissions. 
 
664 INDEX. 
 
 [betebenctes aeb to the pages.] 
 
 PRESXJMPTIONS— 
 
 scope, 9. 
 
 do not shift burden of proof in true sense, 9. 
 
 origin and development, 9. 
 
 definition, 9. 
 
 classification, 9. 
 
 sub-classification, 10. 
 
 presumptions of law, 10. 
 
 conclusive presumptions of law, 10. 
 
 illustrations, 10. 
 
 disputable presumptions of law, 10, 11. 
 
 Illustrations, 11. 
 
 presumptions of fact, 12. 
 
 merely circumstantial evidence, 12. 
 
 illustrations, 12, 13, 14. 
 PRIOR OWNERS— 
 
 see Admissions. 
 PRISON RECORDS— 
 
 see Proof of Authorship. 
 PROMISSORY NOTES— 
 
 gee Burden of Proof. 
 PRIVILEGED COMMUNICATIONS— 
 
 definition, 286. 
 
 four essential fundamental conditions. 286. 
 
 four general classes, 286. 
 
 professional communications, 287. 
 
 only one class at common law, 287. 
 
 those between attorney and client always privileged, 287. 
 
 reason for the rule, 287. 
 
 rule also applicable to persons whose Intervention is essen- 
 tial, 287. 
 
 not applicable to justices of the peace, 287. 
 
 or to students in an attorney's office, 287. 
 
 or to an attorney who acts merely as a conveyancer or notary 
 public, 288. 
 
 or to third persons who overhear the communications, 288. 
 
 or does the rule apply when the purpose of the communications 
 is illegal, 288. 
 
 the privilege exists for the benefit of the client, 288. 
 
 only the client, or some one who stands in his place, can waive 
 it, 288. 
 
INDEX. 665 
 
 [BEFEEENCES ABB TO THE PAGES.] 
 
 PRIVILEGED COMMUNI CATIONS— Continued. 
 
 rule as to waiver in the case of testamentary dispositions, 
 288, 289. 
 
 attorney may testify as to his employment, and when his ser- 
 vices began and ended, 289, 290. 
 
 as an attesting witness to a will he is not privileged, 290. 
 
 rule as to pleadings, 290. 
 
 communications between physician and patient not privileged 
 at common law, 290. 
 
 common law rule changed by statute in most jurisdictions, 290. 
 
 three essential conditions, 290. 
 
 if no confidence reposed, communications not privileged, 290. 
 
 privilege does not extend to druggists, dentists or veterinary 
 surgeons, 290. 
 
 communications by nurses, etc., privileged, 291. 
 
 employment by patient not essential, 291. 
 
 the fact of the treatment the test, 291. 
 
 physical defects or degrading marks on the patient may not be 
 disclosed by the physician, 292. 
 
 nor may he disclose the nature of the ailment, 292. 
 
 nor are his prescriptions admissible, 292. 
 
 an autopsy is not privileged, 293. 
 
 communications made for an unlawful purpose are not privi- 
 leged, 293. 
 
 nor are they privileged in malpractice cases, 293. 
 
 the privilege is the patient's and he only or his personal repre- 
 sentative or beneficiary may waive it, 293. 
 
 the privilege accruing to infant patients not sui juris may be 
 waived by their parents, 294. 
 
 exceptions to the general rule, 294, 295. 
 
 the rule usually applicable in criminal cases as well as civil, 295. 
 
 some exceptions to the' rule, 295. 
 
 communications between spiritual advisers and laymen, 295. 
 
 such communications not privileged at common law, 295. 
 
 statutory enactments in many jurisdictions, 295. 
 
 provisions of New York statute, 295. 
 
 privilege for benefit of penitent, 296. 
 
 he alone can waive it, 296. 
 
 political communications, 296. 
 
 communications Involving state secrets have always been privi- 
 leged, 296. 
 
666 INDEX. 
 
 [EHFEBBirCEff ABB TO THE PAeES.] 
 
 PRIVILEGED COMMUNICATIONS— Coatinued. 
 
 basis of rule publicr policy, 296. 
 
 two aspects of it, 296. 
 
 two classes of political communications, 287. 
 
 communications which pertain to affairs of stdte, 297. 
 
 who decides whether disclosure injurious to public or not; 297. 
 
 two views upon this question, 297, 298. 
 
 grounds, of these views, 297, 298. 
 
 the better view and reasons therefor, 29S. 
 
 both principle and polity demand that the court should de- 
 cide, 298. 
 
 communications which pertain to the administratibn of penal 
 justice, 298. 
 
 basis of the rule public policy, 298. 
 
 privilege restuifcted' to identity of informant, 299. 
 
 illustrations, 299. 
 
 various views, 298, 299. 
 
 exclusion of testimony not for protection of witness, 300. 
 
 judicial communications privileged, 301. 
 
 four classes,, 301. 
 
 deliberations of jtidges, 301. 
 
 may refuse to disclose what witnesses testified before- thfem; 301. 
 
 may waive the privilege, 301. 
 
 deliberations of petit jurors, 301. 
 
 not competent witnesses to disclose the deliberations by Which 
 their verdict was reached, 302. 
 
 impeaching their verdict^ — three principles involved, 302. 
 
 the first principle, 302. 
 
 the second principle, 302. 
 
 the third principle, 303. 
 
 Chief Justice Holt's view, 303. 
 
 Lord Mansfield's view, 303. 
 
 modem English rule, 304. 
 
 Lordi Mansfield's rule of exclusion firmly established in Eng- 
 land, 304i 
 
 American rule same, 305i. 
 
 more liberal rule in some sta;teSj including Illinois, ZOSl 
 
 in Illinois petit jury may support verdict but not impeach it, 305. 
 
 the Iowa rule the better view, but-- not the weight of author- 
 ity; 305, 
 
INDEX. 667 
 
 ■[REFERENCES ABE TO THE PAGES.] 
 
 PRIVILEGED COMMUNICATIONS— rGontmu^d. 
 
 Mr. Freeman's viewj 305. 
 
 Chief Justice Shaw's view, 306. 
 
 Justice Allea's Tiew, 306. 
 
 reasons why affidavits of petit jurors should not, be received to 
 
 impeach their verdict, 307. 
 ^deliberations of grand jurors privileged, 307. 
 
 reasons for rule, 307. 
 
 rule also applicable to clerk, prosecuting attorney -and wit- 
 nesses, 308. 
 
 reason why rule is applied to witnesses, 308. 
 
 exception to rule, S08. 
 
 affidavit of grand juror admissible to support indictment, 308, 
 
 may testify to evidence given by witness, 309. 
 
 prosecuting attorney may also testify to such evidence, 310. 
 
 deliberations of arbitrators privileged, 310. 
 
 not competent witnesses to impeach award, 310. 
 
 may testify to circumstances under which it was made and when 
 it was made, 310. 
 
 may supportaaward, but not impeach it as a general rule, 310 
 iBocial communications privileged, 311. 
 
 confidential communications between husband and wife have al- 
 ways been privileged, 311. 
 
 basis of the rule sacredness of the njarital relation, 311. 
 
 confusion in the decisions, 311. 
 
 marital disqualifications .and. antirmarital privilege distinguished, 
 311, 312. 
 
 the latter may, be'. waived, the former not, 312. 
 
 valid marriage essential, 312. 
 
 communications must be -confidential in their natures-English 
 rule rand weight of authority, 312. 
 
 more liberal rule in some states, 312. 
 ^Professor Wlgmore's view, ,313. 
 
 letters by one spouse to the other priylleged, ,313. 
 
 documents intrusted by one to the , other privileged, 313. 
 
 privilege obtains -when one .spouse on trial for crime against 
 third party, 313. 
 
 does not obtain .when one is ,on trial for crime against the 
 
 other, 313. 
 'Dor, does it ol^tain in , divorce suits„314. 
 
668 INDEX. 
 
 [EEFBBENCES ABE TO THE PAGES.] 
 
 PRIVILEGED COMMUNICATIONS— Continued. 
 
 privilege lost where conversation overheard — eavesdropper may 
 testify to conversation, 314. 
 
 when letter^ of spouses get Into hands of third parties privilege 
 gone, 314. 
 
 one spouse may testify to dying declarations of the other, 314. 
 
 rule of privilege not applicable where one spouse acts as agent 
 of the other, 315. 
 
 or in business negotiations generally, 315. 
 
 or in certain cases of fraud, 315. 
 
 waiver of privilege, 315. 
 
 business communications not privileged, 316. 
 
 or communications between fraternal organizations, 316. 
 
 or communications to newspaper reporters, 316. 
 
 telegraphic dispatches are not privileged, 316. 
 
 views by Justice Cooley and Baron Bramwell, 316, 317. 
 
 originally in England telegraphic dispatches not privileged, 317. 
 
 contrary view obtained there later, 317. 
 
 modern rule the original one, 317. 
 
 American rule the original English rule, 317. 
 
 upon principle, telegraphic dispatches ehiould not be privi- 
 leged, 318. 
 
 reasons therefor, 318. 
 
 PROOF OP AUTHORSHIP— 
 
 dual character of writings, 185. 
 
 in evidence usually used as expressions of Ideas, 185. 
 
 three general classes — private, public and quasi-puhlic, 185. 
 
 sub-classification — judicial, non-judicial; of record, not of rec- 
 ord, 185. 
 
 kinds of judicial writings, 185. 
 
 definitions — attestations, authentication, exemplification, 186. 
 
 rule at common law concerning attested writings — at least one 
 subscribing witness must be called i£ available, 186. 
 
 rule of ancient origin, 187. 
 
 reasons assigned for the rule, 187. 
 
 criticisms of reasons assigned, 187, 188. 
 
 statutory restrictions of rule, 188. 
 
 meaning of the term "attesting witness," 188. 
 
 mere fact that person's name other than the maker's is on the 
 instrument does not make him an attesting witness, 188. 
 
 sufficiency of extrajudicial admissions, 189. 
 
INDEK. 669 
 
 [BEFEBEirCES ABE TO THE FAOEB.] 
 
 HEOOF OP AUTHORSHIP— Continued. 
 
 English rule, 189. 
 
 American rule, 189. 
 
 effect of denial by attesting witness of execution of instru- 
 ment, 189. 
 
 when attested document is acknowledged under a statute it is 
 not necessary to call attesting witness, 189. 
 
 excuses for not calling attesting witness — death of witness, 
 insanity, absence from state, whereabouts unlinown, phy- 
 sical incapacity, witness unknown, 190. 
 
 blindness will not excuse calling witness, 190. 
 
 some decisions hold the contrary, 190, 191. 
 
 rule when attesting witness is unavailable, 191. 
 
 two reasons for rule, 191. 
 
 rule and both reasons assigned for it unsatisfactory, 191. 
 
 criticisms, 191. 
 
 when proof of handwriting of attesting witness not essential, 192. 
 
 right may be waived by both parties, 192. 
 
 not necessary to call attesting witness in the case of ancient 
 documents, 192. 
 
 nor is rule applicable to collateral writings, 192. 
 
 English rule contrary, 193. 
 
 the two modes of proving a judgment, 193. 
 
 three classes of copies of a judgment, 193. 
 
 provision of United States Constitution concerning judg- 
 ments, 193. ^ 
 
 act of Congress, 193. 
 
 effect and scope of act of Congress, 194. 
 
 common law mode of proof sufficient, 194. 
 
 act of Congress not usually applicable to justice of the peace 
 judgments, 194. 
 
 or to judgments of the federal courts, 194. 
 
 or to judgments of state courts within the same territorial 
 jurisdiction, 195. 
 
 mode of attestation under act of Congress, 195. 
 
 statutory modes in some states, 196. 
 
 three modes at common law — exemplification, certificate of au- 
 thorized officer, sworn copy, 196. 
 
 mode of proving federal court records, 196. 
 
 mode of proving state court records, 197. 
 
 mode of proving the records of a justice of the peace court, 197. 
 
670 INDEX. 
 
 [BEFBBENCES ABE TO THE PAGES.] 
 
 PROOF OF AUTHORSHIP-^ontiQued. 
 
 mode of proving giiosi-judicial records, 198. 
 
 mode of proving unattested Virritings, 198. 
 
 mode of proving public .records, 189. 
 
 essential to show that document is what it purports to be, 199. 
 
 public records not conclusive as to contents, 199. 
 
 state .public statutes judicially noticed, 199. 
 
 private statutes must be pleaded and proved, 200. 
 
 a printed statute book not conclusive, 200. 
 
 journals and enrolled laws stronger proof, 200. 
 
 executive documents, state papers, 200. 
 
 municipal recprds proved by originals or certified copies, 201. 
 
 post office records admissible in evidence, 201. 
 
 school, prison and tax records also admissible, 201. 
 
 weather reports kept by. a person in discharge of a public duty 
 
 admissible, 202. 
 PROOF OP CONTENTS. THE BEST EVIDENCE RULE— 
 the rule, 217. 
 
 Stephen's comprehensive statement of the rule, 217. 
 origin and development of the rule, .217. 
 original principles, 218. 
 
 meaning and scope of secondary evidence, 218. 
 its four classes, 219. 
 
 foundation must be laid for its introduction, 219. 
 when secondary evidence is admissible, 219. 
 degrees of secondary evidence, 220. 
 none according to English rule, 220. 
 American rule contrary, 220. 
 burden of proof, 221. 
 in the case of lost instruments proof of a l>ona fide and diligent 
 
 search essential, 221. 
 rule in Illinois, 221; ,222. 
 ■rule 'When proponent destroys original, 223. 
 controlling element motive with which the act is done, 223. 
 If done fraudulently secondary evidence inadmissible, 223, 224. 
 notice or demand to produce original essential when document 
 
 in hands of adverse party, 224. 
 exceptions to rule, 224. 
 erroneous reasons for rule, 224. 
 true reason for rule, 225. 
 what constitutes reasonable notice, 225. 
 
INDEX. 
 
 671 
 
 [EEFEEENCES ABE TO THE PAGES.] 
 
 PROOF OF CONTENTS— Continued.. 
 
 notice should be in writing, 226. 
 
 when notice to produce is not essential, 227. 
 
 reasons therefor, 227. 
 
 usually a notice to produce, a notice is not essential, 227. 
 
 some exceptions to the rule, 228. 
 
 consequences of refusal to produce documents, — secondary evi- 
 dence admissible; adverse party estopped, fromi introduc- 
 ing original to contradict- the secondary evidence; jury, may 
 draw- unfavorable inferences from, refusal; judgment by de- 
 fault in some cases, 229. 
 
 rule when document is in hands of. third party, 229. 
 
 if document privileged secondary evidence admissible without 
 notice to produce, 230. 
 
 if party is hostile and fraudulently suppresses document notice 
 to produce is not essential, 230. 
 
 rule where party who has document is without the jurisdiction 
 of the court, 230. 
 
 application of best- evidence rule to chattels, 230. 
 
 early view, 231. 
 
 modern view limits rule to writings, 231. 
 
 the true rule and reasons therefor,, 231, 232., 
 
 Professor "Wigmore's view, 233. 
 
 rule restricted to terms of document, 233. 
 
 other facts may be shown by extrinsic evidence, 233. 
 
 illustrations, 234. 
 
 PUBLIC DOCUMENTS— 
 definitions, 83. 
 
 classification— public, Citasi-public, private, 83. 
 public documents — official, unofficial; of record, not of recotd, 
 
 83. 
 definitions, 83, 84. 
 grounds of admissibility, 84. 
 limitations, 84. 
 
 conflaential reports' to government not public documents 84. 
 documents public thought not intended for inspection by whole 
 
 world) 84. 
 state papers are publict documents and admissiblej 85. 
 legislative journals same, 85i. 
 English courts exclude particular facts, 85* 
 American courts do not^ 85. 
 
672 INDEX. 
 
 [BEFEBENCES ABE TO THE PAGES.] 
 
 PUBLIC DOCUMENTS— Continued. 
 
 judicial records are public documents and admissible as such, 85. 
 
 official records and reports by public officers admissible, 86. 
 
 illustrations, 86. 
 
 provisions of United States Revised Statutes — meteorological ob- 
 servations, 86. 
 
 certificates by public officers inadmissible at common law, 87. 
 
 statutory rule in most jurisdictions contra, 87. 
 
 not admissible to show collateral facts, 87. 
 
 municipal records properly authenticated admissible, 87. 
 
 illustrations, 88. 
 
 unofficial public documents, 88. 
 
 newspaper statements usually inadmissible, 88. 
 
 exceptions to rule, 88. 
 , books of general literature usually inadmissible, 88. 
 
 general histories, whose authenticity has been established by 
 reputation, admissible, 88. 
 
 grounds of their admissibility, 88. 
 
 books of science and art usually inadmissible, 88. 
 
 reasons for excluding them, 89. 
 
 acording to English rule scientific books may not be read In 
 argument before jury, 89. 
 
 courts of Illinois follow English rule, 89. 
 
 courts of some states do not, 89. 
 
 almanacs admissible, 89. 
 
 mortality and tide tables admissible, 89. 
 
 mode of proving public documents, 90. 
 QUASI-JUDICIAL RECORDS— 
 
 see Proof of Authorship; Public Documents. 
 QUASI-PUBLIC WRITINGS— 
 
 see Proof of Authorship; Public Documents. 
 REAL EVIDENCE— INSPECTION AND VIEW BY COURT AND JURY. 
 
 classifications and definitions, 165. 
 
 modern use of term, 165. 
 
 three modes by which tribunals acquire knowledge, 166. 
 
 when real evidence admissible, 166. 
 
 the general rule — its origin and development, 166. 
 
 application of rule in civil cases, 167. 
 
 its application in criminal cases, 167. 
 
 illustrations, 167. 
 
 frequent use of photographs, maps and models as real evi- 
 dence, 168. 
 
jmms^ 
 
 673 
 
 [EBTEBENCES ABE TO THE PAOBS.] 
 
 REAL EVIDENCE— Continued. 
 
 illustrations, 168. 
 
 X-ray pliotograplis admissible, 168. 
 
 photographs admissible to prove handwriting, 168. 
 
 essentials of admissibility of maps and models, 168, 169. 
 
 mechanical contrivances and inventions frequently admitted, 169. 
 
 rule when article too bulky to introduce in evidence, 169. 
 
 view by jvfry has always been allowable, 169. 
 
 matter rests in sound discretion of court, 169. 
 
 objection raised to a view by jury, 170. 
 
 erroneous ground assigned for view, 170. 
 
 the true doctrine, 171. 
 
 the objection of undue prejudice, 171. 
 
 not a sufficient ground to exclude a view, 172. 
 
 objection usually overruled, 172. 
 
 the objection of ijidecency or other impropriety, 172, 
 
 tendency of the courts to allow such view — limitations, 173. 
 
 repulsive exhibitions usually prohibited, 173. 
 
 illustrations, 173. 
 
 voluntary exhibition of perspn in personal injury cases quite 
 common, 173. 
 
 compulsory examination of perspn In civil cases — decisions con- 
 flicting, 174, 175. 
 
 by great weight of authority compulsory examination of person 
 allowable, 174. 
 
 application for order to make compulsory examination must be 
 made in due time, 175. 
 
 mode of examination, 175. 
 
 unnecessary exposure to be avoided, 176. 
 
 each party to be represented, 176. 
 
 rule when examination savors strongly of indecency or repul- 
 siveness, 176. 
 
 mode of enforcing order, 176. 
 
 contempt proceedings not usu9.11y a!}op^e4, 176. 
 
 compulsory examination of person of accused in a, criminal case 
 not allowable, 176. 
 
 reason for rule, 176. 
 
 exception to ruler— to establish identity, 176. 
 
 examination of person of prosecuting witness, 177. 
 
 compulsory exaqiination not allowable in rape cases 177 
 
 allowable in assault and battery cases, 177, 
 
674 INDEX. 
 
 [EEFEEENCES ABE TO THE PAGES.] 
 
 REAL EVIDENCE— Continued. 
 
 compulsory examination of person in divorce oases when im- 
 potency is alleged allowable both in England and in this 
 country, 177. 
 
 Bishop's view, 177. 
 
 Ohio rule contra, 178. 
 
 real evidence entitled to great weight, 178. 
 
 reasons therefor, 178. 
 REAL EVIDENCE— EVIDENCE OF EXPERIMENTS— 
 
 definition, 179. 
 
 the general rule, 179. 
 
 large discretion in court, 179. 
 
 experiments out of court, 179, 180. 
 
 performance of experiments in presence of jury, 180. 
 
 must not unduly delay progress of the trial, 180. 
 
 admissible to explain or support opinion evidence, 180. 
 
 details of experiment by expert restricted to cross-examina- 
 tion, 180. 
 
 admissible to explain or support non-expert evidence, 181. 
 
 admissible to show that under certain conditions a certain re- 
 sult would, or would not, follow, 182. 
 
 illustrations, 182. 
 
 admissible to show experiments made with bloodhounds, 183, 
 184. 
 
 REBUT AN EQUITY- 
 
 see Parol Evidence Rule. 
 RECEIPTS V. RELEASES— 
 
 see Parol Evidence Rule. 
 RB-BXAMINATION— 
 
 see Examination of Witnesses. 
 REFRESHING MEMORY— 
 
 see Examination of Witnesses. 
 RELEVANCY— ^ 
 
 see Facts Excluded although Logically Relevant. 
 REPORTED TESTIMONY AND OTHER DECLARATIONS UNDER 
 OATH— 
 
 two classes — evidence given at former trial, and depositions, 57. 
 
 essentials of admissibility of evidence given at a former trial, 57. 
 
 disabilities of the original declarant, 57. 
 
 temporary absence from jurisdiction insufElcient, 57. 
 
 blindness of declarant insufficient, 58. 
 
INDEX. 675 
 
 [EEFEBENCES ABB TO THE PAGES.] 
 
 REPORTED TESTIMONY— Continued. 
 
 mere loss of memory insufficient, 58. 
 
 witness may read former testimony to refresh memory, 58. 
 
 effect of subsequent disqualification of witness, 58. 
 
 if witness kept away by connivance of adverse party, evidence 
 
 given at former trial admissible, 58. 
 questions in Issue must be same, 58. 
 sufficient if substantially the same, 59. 
 not essential that actions be the same, 59. 
 parties must be the same, 59. 
 parties sufficient if identified in interest, 59. 
 right to cross-examine witness at former trial a fundamental 
 
 prerequisite, 59. 
 mode of proving former testimony, 60. 
 any person who heard former testimony may give It, 60. 
 notes of former testimony may be used to refresh memory, 60. 
 immaterial by whom or when such notes were made, 60. 
 If used to prove former testimony notes must have been made 
 
 contemporaneously with giving of testimony, 60. 
 must also be verified and adopted by witness as record of past 
 
 recollection, 60. 
 notes of court stenographer may be used to refresh memory, 60. 
 when properly authenticated and adopted as record of past 
 
 recollection admissible, 60. 
 judge's notes Inadmissible, 60. 
 
 bill of exceptions inadmissible to prove former testimony, 61. 
 substance of testimony at former trial sufficient, 61. 
 rule applicable to criminal cases as well as civil, 61. 
 rules pertaining to depositions regulated by statutes, 61. 
 
 RIGHT TO OPEN AND CLOSE— 
 
 see Burden of Proof. 
 SALES OF OTHER SIMILAR LAND— 
 
 see Facts Excluded although Logically Relevant. 
 SCHOOL RECORDS- 
 
 see Proof of Authorship. 
 SCINTILLA OP EVIDENCE— 
 
 see Law and Fact. 
 SEDUCTION— 
 
 see Character. < 
 
 SIMILAR ACTS WHICH INJURE OTHERS— 
 
 see Facts Excluded although Logically Relevant. 
 
676 END^ 
 
 [BEFEBEirOES ABE TO THE PAGES.] 
 
 SLANDER— 
 
 see Character. 
 SPIRITUAL ADVISERS— 
 
 See Privileged Gommunications. 
 SPONTANEOUS CONCLUSIONS— 
 
 see Opinion Evidence. 
 SPONTANEOUS DECLARATIONS— 
 
 see Declarations Relating to tie Res Gtestae, 
 STATUTE OP FRAUDS — 
 
 see Alteration of Writings. 
 TAX RECORDS— 
 
 see Proof of Authorship. 
 TELEGRAMS— 
 
 see Privileged Communications. 
 TENANTS FOR LIFE— 
 
 see Admi^siona. 
 TENANTS IN COMMON— 
 
 see Admissions. 
 TESTATORS- 
 
 see Admissions. 
 TIDE TABLES— 
 
 see Real Evidence. 
 TRUSTEES— 
 
 see Admissions. 
 VERBAL ACTS— 
 
 see Declarations Relating to the Res 6esta& 
 VIEW BY JURY— 
 
 see Real Evidence. 
 WEATHER REPORTS— 
 
 see Proof of Authorship. 
 WILLS— 
 
 see Alteration of Writings. 
 WITNESSES— 
 
 see Competency of Witnesses; Examinatioti of Witnesses. 
 WIVES— 
 
 see Admissions. 
 
KP 8935 H89 
 
 Author Vol. 
 
 H-ughes, T.W. 
 
 ■'''"' A Illustrated Treatise on ^f^ 
 The Law of ■ Evidence