(Jorn^U ICam ^rijool Hibtatg Cornell University Library KF 8935.M82 V.1 A treatise on facts :or, The weight and 3 1924 020 129 114 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020129114 A TREATISE ON F^OTS OR THE WEIGHT AND VALUE OF EVIDENCE BY CHARLES C. MOORBJ VOLUME I The causes of trustworthiness and untrustworthiness in evidence will probably without much difficulty be acknowledged to be an interesting pursuit; interesting not merely as a field of speculation, but with a view to practice. Jebemt Bentham, Rationale of Judicial Evidence, Bk. I., chap. ix. NOETHPORT, LONG ISLAND, N. T. • EDWARD THOMPSON COMPANY 1908 CfOPYBlfeT, 19^, BY EDWARD THOMPSON COMPANY. TO HOE". EEANK IRVIKTE DEAN OF CORNELL UNIVERSITY COLLEGE OF LAW IN GEATEFUL RECOGNITION OP HIS EARNEST AND CONSTANT ENCOURAGEMENT FROM THE BEGINNING OF THE PREFACE. Akguments on any question of fact can be supported by reference to judicial authorities — on both sides — as fully as arguments on questions of law are thus fortified. The design of this work is to facilitate the preparation for trial, the argument, and the decision of questions of fact, by exhibiting what has been said by United States, Canadian, and English judges concerning the causes of trustworthiness and untrustworthiness of evidence, and the rules for determining its probative weight. The late Mr. Justice Miller of the United States Supreme Court declared that the difficulties in determining questions of fact are greater and more common than those that occur in deter- mining questions of law, and other judges have testified to the same experience. It is therefore eminently desirable that aid should be sought by the triers of facts in all accessible sources where authentic advice is likely to be found. For more than a hundred years the law reports in England and America have contained the opinions of judges written by themselves and, especially in courts of first instance, discussing questions of fact as well as of law. These opinions express the deliberate convictions of unprejudiced minds, enlightened in numerous instances by vast experience on the bench ; and if they can contribute no valuable assistance in the solution of like questions forever recurring, then advocates and judges are more helpless than any other class of men whose vocation is intellectual. In many classes of cases judges have declared that their experience on the bench has taught them the unreliability of testimony that would be entitled to command implicit belief if appraised by the commonly accepted rules. Vl PREFACE. The law reports teem with expositions of general and par- ticular rules for weighing testimony, of the reasons upon which the credit of witnesses ought to rest, and of the inferences of particular facts which may rationally be drawn from certain evidence, so that judicial precedents exist for the debater of any question of fact which can by any possibility arise. And in the comparatively few instances where precedents of this sort have survived in te:^t books, or have been accidentally preserved in the memories of succeeding judges, it will be found that they are treated with the same consideratioij by courts in the determination of questions of fact as is accorded to the reasoning or ex cc^hedra statements of judges on questions pf law. Such is the tendency of the professional mind to repose ou precedent. Notably in some classes of cases, the credibility of testimony and the proper iu- ferences to be drawn from pertain fact? have become to a large extent as well established as propositions of law. Physicists inform us that conductivities vary with varying temperature, tension, torsion, or pressure, and they have care- fully observed and recorded the various degrees of resistance. In like manner, wise triers of facts have recorded the results of judicial experiments, whereby the mind's conductivity of trutli has been tested for the varying mental, moral, and physical con- ditions operating upon the observation or testimony of witnesses. For example, " no class of men know better than judges how much interest may unconsciously warp an honest mind," said Chief Justice Peters of Maine. In a multitude of reported cases judges have described the proclivities of biased witnesses, esti- mated the degree of alloy by which their testimony is commonly debased, and stated the extent of abatement from its face value which may safely be made. The rule for measuring the probative force of such testimony has been formally enunciated by eminent jurists and applied by themselves in momentous litigations, but until the present time no text-writer has resurrected and exhibited it to the profession. Again, " those who know, from experience and reflection, the PREFACE. TU laws wbioli r^ulate the human memory," as Chief Justice Beasley of JSfew Jersey expressed it, are they whose duties constantly require them to use such knowledge, namely, the judges of courts. Thus the statement that " witnesses whose memories are prodded by the eagerness of interested parties to elicit testimony favorable to themselves, are not usually to be depended upon for accurate information," was not an expression of opinion, but the statement of a fact by a skilled observer of witnesses under oath, to wit, a justice of the United States Supreme Court, made when he was estimating tbe credibility of testimony in the instant case. " Mem- ory ie a thing so marvelous and so complex, manifesting its activity in so many diverse ways, that the trier of facts can never study it enough," says a magistrate of world-wide renown. Judi- cial discussions of that faculty, from every conceivable viewpoint, are here collated in the 260-page chapter on Memory, which con- tains more than two thousand citations of cases, not more than twenty of which were ever cited on that topic in any text treatise until the author of this work extracted them from the reports. In searching for material of the above-mentioned description the aid furnished by digests has been negligible. In a systematic course of reading extending over many years, the autbor has scanned page by page some thousands of volumes of reports in the United States, Canada, and England. By no other means could very much of value for the purposes of this work be dis- covered; and the fact that the topics discussed in these volumes have seldom been treated by text-writers, and even more rarely with any citation of judicial authority, is undoubtedly attribu- table partly to ignorance of the treasures buried in the reports, and partly to lack of courage and industry to pursue a laborious quest for them. Some of the most impressive judicial utterances appearing in these volumes were delivered by judges in instructions to juries, admonishing the jury of the " well-tried rules of judging," of " the cardinal rule which has served in all ages and been applied to all conditions of men," etc., etc. They ought to have great VUi PREFACE. weight with juries, and should be especially useful in jurisdic- tions where the presiding judge himself is forbidden to charge on the facts. " Every lawyer appreciates the fact that any intima- tion, however slight or unconsciously made, by the court in the presence of the jury, as to the force and effect of evidence, is most damaging to the party against whom it is made," said the Supreme Court of Illinois in a recent case. And it may be expected that juries will listen with interest to the philosophical observations of eminent judges instructing juries in like situations, which may unquestionably be read by counsel in argument as freely as he would quote the Proverbs of Solomon or the utterances of any other wise man. It is obviously difficult to compile a perfect index to such a work as this. As mnemonic aids to the frequent or casual reader, the names of all the judges mentioned in the text (but not those in the notes) appear in the General Index. At page xlvii is an index table of the numerous non-legal works and authors cited in these volumes. Lastly, the notes to the twenty-eight chapters contain more than four thousand five hundred cross-references from one part of the work to another. 0. 0. M. NoBTHPORT, Long Island, N. Y., September, 190?. TABLE OF CONTENTS. VOLUME I. CHAPTEK I. INTRODUCTORY. PAGE 1. Inclination to Give Too Much Weight to Testimony 2 2. No Standard of Belief for Triers of Facts 3 3. Judicial Statements concerning Standard of Belief 4 4. Instructions concerning Standard of Belief 7 5. Belief Unnecessary Except in Criminal Cases 8 6. Some Rules for Weighing Evidence 9 7. The "Admitted Facts" Rule 11 8. "Admitted Facts " Rule in Collision Cases 12 9. Admitted Facts in Will Cases 15 10. Other Applications of "Admitted Facts " Rule 15 11. Written Evidence Superior to Oral — Sententious Judicial State- ments 16 12. Written Evidence Superior — Examples 17 13. Above Rule, When Applied with Caution 19 14. Testator's Letters, etc., as Superior Evidence of Capacity oi Incapacity 20 15. Juries Apt to Favor Oral Testimony 20 16. Instructions as to Superiority of Written Evidence 21 17. High Character of Witness No Exemption from Cautionary Rules 22 18. Testimony May Be Partly Credited and Partly Rejected 23 19. Are Juries Best Judges of Facts? — Views of Mr. Justice Miller and Judge Dillon 23 20. Relative Capacity of Judges and Jurors — Views of Various Judges 25 21. Peculiar Fitness of Juries in Negligence Cases 39 22. Juries Specially Qualified to Detect Fraud 43 23. Competency of Juries in Will Cases 44 24. Competency of Juries in Paitent Cases 46 25. Sympathy or Prejudice of Juries — In General 48 26. Prejudice of Juries against Corporations 50 [ix] TABLE OF CONTENTS. OHAPTEE II. DEGREE OF PROOF. PAGE 27. The " Preponderance of Evidence " Rule 54 28. Opposing Presumptions to Be Overcome 55 29. Consideration of Probabilities 55 30. Instructions to Juries in T#rwB of " Probability " 57 31. Proof of Probable Facts 58 32. Proof of Improbabilities 59 33. Mere Suspicion 61 34. Mere Conjecture, Gues§, or Syrmisp . , ,. 62 35. Conjecture as to Cause of Injury or Death 64 36. Surmising Negligence in Admiralty Cases 65 37. Guessing concerning Contributory Negligence 66 38. Conjecture in Accident Insurance Cftges, . , . , 67 39. Conjectural Estimatea of Damage 67 40. Conjeqture ag to Survivorship in Common Disaster 68 41. Proof beyond Suspicion 68 42. Proof in Support of Interlocutory Motions 68 43. Proof of NegEutive Facts .,,,.,., 69 44. Requirement of More than Preponderance 69 45. Cases where One Party Controls the Evidence 73 46. Claims against Decedents' Estates 74 47. Oral Contracts to Devise Property 76 48. Gifts Causa Mortis . , 77 49. Reformation of Instruments — Presumption to Be Overcome. ... 78 50. Reformation of Instruments — Strong Proof Required 78 51. Charge of Frand 81 52. Mere Suspicion of Fraud , , , , 82 53. Suspicion of Fraud — Mr. Justice Grier's Prophylactic Instruc- tion 83 54. Charge of Crime Jn Civil Suit 84 55. Evidence to Exonerate from Responsibility in Collision Cases ... 85 56. Defense of " Prior Use," etc., in Patent Suits 86 57. Anticipation of Anticipation in Patent Suits 92 58. Application for Preliminary Injunction in Patent Suits 93 59. Proof beyond Reasonftble Doubt in Criminal Cases 9.^ 60. Definition of Reasonable Doubt 95 61. Preponderance in Number of Witnesses 98 62. Argument in Favor of Many Witnosaeg against Few 99 63. When Numerical Preponderanoo Controls 101 64. Instructions to Jury concerning Numerical Preponderance 103 65. Equality in Number of Witnesses 106 TABtE OF COfJTENTS. U OHAPTEE III, UNCONTRADICTED TESTIMONY. Introduction. „ , „„ 5 66. Dr. Johnson's Apothegm Ill 67. Sententious Judicial Utterances .,., , Ill 68. Uncontradicted Testimony in Criminal Cases 1 12 Disir^terested Witnesses. 69. Rule Stated in New York 114 70. Rul« Stated in California 116 71. Rule Stated in Illinois, Indiana, and Iowa 116 72. Rule Stated in Massachusetts 118 73. Rule Stated in New Jersey 118 74. Rule Stated in Pennsylvania 118 75. Rule Stated in Federal Courts 119 76. Rule in Various Other Jurisdictions 120 77. Disinterested Testimony Not Conclusive in Missouri 121 Witnesses Interested or Otherwise Biased. 78. General Rule in New York 122 79. Reason and Rigor of the New York General Rule 124 80. Modified Rule in New York 127 81. Rule Stated in Iowa 129 82. Rule Stated in Michigan 129 83. Rule Stated in Wisconsin 129 84. Rule in the Federal Courts 130 85. Rule in Other Jurisdictions 130 86. Testimony by Officers of Corporations 131 87. Servants Testifying in Exoneration of Themselves 131 88. Servants' Self-exculpating Testimony Not Necessarily for the Jury 132 89. Testimony of Party Called by His Adversary 134 90. Witnesses Biased by Relationship, etc 134 91. Testimony Not to Be Totally Ignored 135 Testimony Improvable — Contradiction hy Circumstamces. 92. Improbabilities in Testimony 136 93. Abstract Improbabilities 139 94. Illustrations of Improbability 141 95. Improbability on the Score of Memory 142 96. Improbability in Chinese Deportation Case 143 97. Improbability — Evidence in Control of One Party, , , , , 147 98. Testimony Opposed by Presumptions or Inferences 148 99. Testimopy Contradicted by Physical Facts ..,..,. , 149 xii TABLE OF CONTENTS. Subject-matter of Testimony. page § 100. Testimony to Witness's Mental Processes 149 101. Testimony to Legal Conclusion 150 102. Testimony to Statements Made in Conversation 151 103. Testimony to Declarations of Deceased Persons 152 104. Testimony to Prior Use in Patent Cases 153 Expert a/nd Opinion Evidence. 105. Expert Testimony in General 154 106. When Uncontradicted Expert Testimony Is Conclusive 155 107. Testimony of Medical Experts in General 157 108. Testimony of Insanity Experts 157 109. Opinion Evidence to Handwriting — In General 158 110. Nonexpert Opinion Evidence to Handwriting 158 111. Testimony of Experts in Collision Cases 162 112. Expert Testimony in Patent Cases 162 113. Opinions of Biased Witnesses 163 114. Expert Testimony to Value of Services in General 163 115. Expert Testimony to Value of Legal Services 164 116. Expert Testimony to Value of Medical Services 165 117. Expert Testimony to Value of Property or Damage to Property. 165 118. Party's Estimate of Value of His Property 166 119. Party's Own Testimony to Amount of Damage Sustained 166 120. Estimates of Time, Distance, Speed, etc 167 Sundry Topics. 121. Witness of Bad Charaoter, or Testifying to Discreditable Trans- actions 167 122. Suspicious Facts in the Case 16S 123. Failure to Produce Better Evidence or Corroboration 169 124. Testimony Susceptible of Contradiction but Not Contradicted.. 170 125. Witness Discredited by His Manner on the Stand 170 126. Defective Memory or Intelligence of Witness — Judge Ray's Statement 172 127. Testimony Open to Different Constructions 174 128. Inconsistency in Testimony or Conduct of Witness 174 129. Contradiction of One of Several Concurring Witnesses 174 130. Instructions Overlooking Unanimity of Material Testimony.... 176 131. Effect of Disbelieving a Witness 177 CHAPTEE IV. INCREDIBILITIES AND IMPROBABILITIES. § 132. Far-reaching Scope of This Title 180 133. Test of Probability — Sir James Fitzjames Stephen's Statement. 181 134. Test of Probability — Vice-chancellor Van Fleet's Statement... 181 TABLE OF CONTENTS. XIU PAGE 135. Improbabilities Distinguished from Impossibilities — Sir John Nicholl's Statement 182 136. Improbabilities Are Provable 182 137. Requirement of Improbability " on the Evidence " 183 138. Imputation of Perjury to Be Avoided 185 139. Degree and Character of Proof of Improbabilities 186 140. Improbable Testimony by Contradicted Witnesses 188 141. Improbable Testimony Contradicted by Circumstances 189 142. Numerical Equality or Preponderance of Witnesses Testifying to Improbabilities 189 143. Improbable Stories May Require Corroboration 190 144. Mr. Bok's Comments on Improbable Statement 191 145. Improbable Statement May Discredit Entire Testimony 192 146. Improbable Testimony to Be Submitted to Jury 192 147. Instructions to Juries on Improbabilities 193 148. Testimony Inconsistent vrith Admitted or Clearly Established Faots 193 149. Testimony Contrary to Natural Laws — In General 194 150. " Physical Facts " Rule Sparingly Applied 195 151. Course of Bullets Striking Human Body — Fact versus Theory. . 197 152. Unaccountable Freaks of Electricity 198 153. Mathematical Impossibilities 198 154. Physical Facts in Case of Collision with Street Car 199 155. Physical Facts in Case of Collision between Vessels 200 156. Stories of Violent Collision without Physical Evidence Thereof. . 201 157. Incredible Human Stature 202 158. Incredible Testimony to Defect in Machine 202 159. Physical Facts Proved by Demonstrative Evidence 203 160. Assertion of Looking and Listening at Railroad Crossing 204 161. Travels of a Toddling Infant 206 162. Statement of Impossible Privation 207 163. Incredible Statement of Time Occupied in Work 207 164. Incredibly Quick Comprehension of Long Document 208 165. Incredible Coincidences 208 166. Incredible Minuteness of Observation 210 167. Concurrence of Remarkable Memories 211 168. Incredible Lapse of Memory 211 169. Incredible Ignorance 211 170. Astonishing Credulity 212 171. Acts Opposed to Common Sense — In General 213 172. Improbable Stories of Acquisition and Hoarding of Money 214 173. Acquisition and Hoarding of Money — Improbable Stories Believed 220 174. Improbability of Improvident Business Transactions — In Gen- eral 221 175. Improvident Business Transq.ction3 Provable ,,..,.., 224 xiv TABLE OF CONTENTS. PAGE § 176. Important Contracts Made without Written Evidence Improb- able 224 177. Important Oral Contracts Proved • • 225 178. Improvident Lending and Borrowing Z26 179. Loan of Money without Written Evidence Thereof - . . . . 226 180. Payments without Taking Receipt - Z27 181. Promise to Pay Money without Consideration 287 182. Improvident Release Z28 183. Improbable Carelessness in Executing Attested Document 229 184. Improbable Abandonment of Invention 229 185. Incredible Tale of Common-law Marriage 229 186. Incredible Calmness in Peril 230 187. Incredible Conspiracy to Defraud 230 188. Incredible Taciturnity of Master Mariners 230 189. Servant's Disobedience of Master's Orders , 230 CHAPTEU V. SOUND AND HEARING. 190. Introduction 233 191. Sounds Plainly Audible Presumed to Have Been Heard 234 192. Presumption that a Person Heard Whstt Others Heard 235 193. When Presumption Just Mentioned Does Not Operate 236 194. Presumption that a Person Did Not Hear What Others Did Not Hear 237 195. Positive and Negative Testimony to Sounds. 238 196. Familiar Soilnds Unnoticed — Locomotive Signals. , 238 197. Are Sounds More Audible in Nighttime? 240 198. Identification of Animate or Inanimate Objects by Sownda They Make 241 199. Identification of ConcUrning Sounds 241 200. Distinguishing Kind of Firearms by Report 242 201. Hearing AiTected by Attention and "Expectant Attention" 243 202. Church Bells — Waywardness of Sound — Sensativeness of Hearers , . , , 245 203. Sound of Footsteps on Stairs or Floor — How Many Persons ? , . 246 204. Identification of Person by Sound of Footsteps 246 205. Judgment as to Directictn of Sound 247 206. Sounds Attributed to Sexual Intercourse 248 207. Sound of Human Voice — Seining o* Words Uttered 249 208. Conversation in Adjoining Room 250 209. Sound of Warning Shouts 250 210. Positive and Negative Testimony to Warning Shouts 251 SSll. Audibility of Pomtnands Given in Buttle ,,,.., 251 TABLE OF CONTENTS. XV PAGE 212. Positive and Negative Testimony to Words Spoken 252 213. Sounds Conveyed by Phonograph or Telephone 253 214. Noise of Wagon on Street Pavement 253 215. Crepitation of Injured, Bones 254 216. Noise of Railroad Trains in General 254 217. Noise of Train on Bridge or Frozen Ground. 255 218. Snow on Rails Diminishing Noise of Train 255 219. Noise of Trains in Country at Night , 255 220. How Far Can Trainsi Be Heard ? — Statement by New York Court of Appeals 256 221. Presumption that Train Was Heard 257 222. Sound of Cars with Favwrable or Unfavorable Wind 258 223. Noise of Hand Car 259 224. Noise of Engine Suddenly Reversing. , 259 225. Noise of Engines or Detached Cars or of Backing Train 259 226. Noise of Detached Car Moving Up Grade , , 260 227. Noise of Trains, Engines, or Cars " Coasting" DawiJ Grilde. . . 260 228. Noise of " Drifting" Train 261 229. Noise of Vehicle Preventing Driver from Hearing Train. ...... 261 230. Passing Train Smothering Sound of Approaching Train , . . , 264 231. Noise of Train Drowned by Noise of Steam from Standing Engine 265 232. Storm Preventing Hearing Train ......... ^ ,.,...,.,. r .-,. , 266 233. Singing and Shouting Preventing Hearing Train 266 234. Humming Telegraph Wires Preventing Hearing Train 266 235. Sundry Other Noises Deadening Sound of Approaching Train. . . 267 236. Train Not Heard by Person with Ears Muffled 267 237. Noise of Locomotive Signals , 269 238. Impression df Piteb or LdtidHeSs of Whistle 269 239. Locomotive Signals with Favorable or Unfavorable Wind 269 240. Noise of Vehicle Preventing Hearing Locomotive Signals 270 241. Noise of Sleigh Bells Preventing Hearing Locomotive Signals., 270 242. Noise of Passing Train Preventing Hearing Locomotive Signals. 270 243. Rain or Wind Storm Preventing Hearing Locomotive Signals. ... 271 244. Sundry Other Noises Preventing Hearing Locomotive Signals. . 271 245. Locomotive Signals Not Heard by One with Ears Muffled 271 246. Noise of Electric Cars in General 271 247. Noise of Electric Car on Up Grade 272 248. Noise of Electric Car on Down Grade 272 249. Noise of Electric Car Running Slowly 272 250. Noise of Electric Cars at Night 273 251. Noise of Vehicle Preventing Hearing Electric Car 273 252. Noise of One Electric Car Preventing Hearing Another 273 253. Wind or Rain Storm Preventing Hearing Electric Car 274 254. Sound of Gong of Electric Car 274 255. Noise of Steamer Bushing through Water ,...,.,.,, 874 XVi TABLE OF CONTENTS. PAGE § 256. Vessel's Signals — Eligible Place for Lookout 275 257. Whistle More Penetrating than Fog Horn 276 258. Fog Horn Superior to Bell 276 259. Superiority of Mechanical Fog Horn 276 260. Noise of Eowloeks Not Equal to Fog Horn 277 261. Steam Fog Horn Resembling Steam Whistle 277 262. Sound of Fog Horn Suppressed by Loud Whistle 277 263. Continuous Blowing of Fog Horn Imprudent 277 264. Vessel's Signals — Single or Double Blast ? 278 265. Which of Two Vessels Initiated Signals ? 279 266. Simultaneous Signals between Vessels 279 267. Signal by Third Vessel Mistaken by Other Two as Theirs 280 268. Vessel's Signals in Unfavorable or Favorable Wind 280 269. Excited Officers May Not Notice Sound of Fog Horn 281 270. Signals Not Heard because of Diversion of Attention 281 271. Water as a Communicator of Sound 282 272. Aberration of Sound in Clear Weather 282 273. Aberration of Sound in Fog — Leading American Case 283 274. Aberration of Sound in Fog — Other Cases 285 275. Vagaries of Sound of Fog Horn 288 276. Locating Sound in Fog 288 277. Determining Course of Vessel by Her Fog Signals 289 278. Sound of Signal Deflected by Wind 290 CHAPTEE VI. LIGHT AND SIGHT. § 279. Introduction 293 280. Presumption that Objects Plainly Visible Were Seen 293 281. Presumption that a Person Could See What Others Saw 296 282. When Presumption Just Mentioned Does Not Operate 297 283. Presumption that a Person Did Not See What Others Did Not See 298 284. Presumption of Reciprocal Observation 299 285. Presumption of Reciprocal Nonobservation 300 286. Prepossession or Bias of Observer 300 287. Perception of Objects by Lateral Glance Not Presumed 300 288. Concentrated Gaze Inconsistent with Lateral Observation 301 289. Persons Passing from Light into Darkness 301 290. Moisture Condensed on Eyeglasses Obscuring Vision 302 291. Observations in Nighttime in General 303 292. Stepping Blindly in Darkness or Dim Light 304 293. Stepping Blindly in Daylight - 304 294. Perception of Defects in Highway in Nighttime 305 295. Perception of Slipperiness of Icy Surfaces 305 296. Objects of Uniform Appearance in Juxtaposition 306 TABLE OF CONTENTS. XVll PAGE 297. Differently Colored Objects in Juxtaposition 306 298. Colors of Objects Indistinguishable in Darkness 306 299. Dark Objects on White Background 308 300. White Objects on Dark Background 308 301. Objects in Darkness beyond a Glare of Light 308 302. Legibility of Printed Words in Dim Light 309 303. Optical Illusion 309 304. Lateral Refraction of Light 310 305. Objects Seen in Lightning Flash 311 306. Objects Seen in Moonlight 311 307. Objects Reflecting Sunlight 311 308. Sun Shining in Observer's Pace 312 309. Person Dazzled by Lights Shining in His Face 312 310. Pilots Dazzled by Brooklyn Bridge Lights 313 311. Person Dazzled by Electric Headlights 313 312. Lights Dimmed by Daylight 314 313. Lights Dimmed by Moonlight 315 314. Visibility of Lights Affected by Other Lights 315 315. Reflection of Flashlights Visible when Fixed Lights Obscured. . . 316 316. Lights Intensified by Surrounding Darkness 316 317. Electric Street Light Outshining Locomotive Headlight 316 318. Color of Lights Affecting Their Visibility 317 319. Perception of Colored Lights at Night 317 320. White Lights More Imtense than Green or Red 319 321. Street Lights and Shadows 320 322. Objects Obscured by Shadows Cast in Moonlight 321 323. Lights and Shadows on Station Platforms 321 324. Light of Street Lamps 321 325. Darkness at Dawn 322 326. Controlling Testimony to Degree of Light Near Dawn 322 327. Influences Affecting Witnesses' Estimates of Degree of Darkness. 323 328. Testimony of Biased Witnesses to Amount of Light 324 329. Circumstantial Evidence as to Amount of Light -. 324 330. Visibility of a Body of Smoke 325 331. Visibility of Approaching Train 326 332. Visibility of Approaching Train on Dark Day 326 333. Experiments Showing Visibility of Railroad Train 327 334. Visibility of Train on Snow-covered Ground 328 335. Visibility of Approaching Hand Car 328 336. Visibility of Dark Cars or Engines in Nighttime 329 337. Obscuration of Train or Locomotive by Smoke or Steam 329 338. Snow, Rain, or Fog Obstructing View of Trains or Locomotives . . 330 339. View of Train Obstructed by Trees in Leaf 331 340. Visibility of Locomotive Headlights 331 341. Locomotive Headlight on Dark, Windy, Dusty Night 332 ?42. Locomotive Headlight Obscured bj^ Snow 333 xviii TABLE OF CONTENTS. PAGE § 343. Locomotive Headlight Obscured by Fog 333 344. Locomotive Headlight Obacured by Smoke 333 345. Locomotive Headlight Obscured by Steam 334 346. Visibility of Objects in Front of Locomotive Headlight 334 347. Objects Observed from Rapidly Moving Locomotive 336 348. Observation from Backing Locomotive 336 349. Visibility of Electric Street Cars in Daytime 337 350. Visibility of Electric Street Gar Headlights 337 351. Cloud of Dust Obscuring Street Car Headlight 338 362. Detection of Motion of Headlights 338 353. Detection of Motion of Locomotive in Daytime 339 364. Detection of Motion of Hand Car in Daytime 339 365. Detection of Motion of Locomotive at Dawn 340 356. Detection of Motion of Dark Car or Engine at Night 340 357. Detection of Motion of Vessel's Lights 340 358. How Far Can Coston Lights Be Seen? 342 359. Visibility of Day Signals in Prize Cases 342 360. Visibility of Low, Dark Craft on Water 342 361. Visibility of Vessels in Fog 343 362. Visibility of Vessel's Lights in Fog 344 363. View of Vessel's Lights at Night 345 364. Vessel's Lights Hidden by Sails 347 365. Vessel's Lights in Driving Rainstorm 348 366. Observation of Vessel's Lights in Excitement of Collision 348 367. Lights Not Observed because of Diversion of Attention 349 368. Lookout's Vigilance Affected by Intense Cold 349 369. Lookout Embarrassed by Lights Placed in Front of Him 349 370. Proper 'Place for Vessel's Lookout 350 371. Moral Considerations Affecting Vigilance of Vessel's Lookout. . 351 372. Visibility of Vessel's Torchlight 352 373. View of Unlighted Vessel's Sails at Night 352 374. View of Vessels in Night Carrying No Lights 353 375. View of Vessel at Dusk 355 376. View of Unlighted Sailing Vessel ion Hazy or Misty Night 356 377. Positive and Negative Testimony 356 GHAPTEE VII. TASTE, SMELL, AND TOUCH. Taste. § 378. Taste May Equal Eyesight in Accuracy 358 379. Educated Taste of Kentuckians 359 380. Taste of Beer, Whiskey, etc. — Qualification of Witnesses 361 381. Number of Witnesses 362 382. Discriminating Brands of Wine by Tnste 363 383. Discrimination of Medicinal Compounds by Taste 363 TABLE OF CONTENTS. xiX Smell. PAGE 384. Inference that Odor Was or Was Not Perceived 364 385. Identification of Odors in a Composite Odor 365 386. Detection of Chemical Odor in Suspected Document 366 887. Detection of Odor of Spirits 366 388. Detection of Alcohol Odor in Breath 366 389. Odor of Illuminating Gas 367 390. Contaminating Quality of Kerosene-oil Odor 367 391. Foul and Unhealthful Odors 367 392. Positive and Negative Testimony to Odors 368 Touch. 393. Cultivation of Tactile Sense 369 394. Sense of Touch of Intoxicated Persons 369 395. Tactile Sense of Professional Divers 370 396. Tactile and Other Senses of Blind Persons. . , 370 CHAPTEK VIII. DISTANCE. 397. Estimates of Distance in General 373 398. Estimates of Depth of Water 375 399. Dr. Abercrombie's Obsfeirvations on Estimates of Distance 375 400. Are Distances Foreshortened in Memiory 7 377 401. The Actor Rule Applied 378 402. Estimates of Distance on Water in Daytime 379 403. Estimate of Distance Observed in Darkness 381 404. Estimates of Distance on Water in Nighttime 381 405. Estimate of Distances in Battle 384 406. Excitement of Observer 385 407. Instinct of Self-Preservation Affecting Accuracy of Estimate... 387 408. Estimates of Distance from KecoUection Alone 387 409. Estimates of Biased Witnesses 387 410. Instance of Estimate Constituting Only Scintilla of Evidence.. 388 411. Mere Argumentative Inference of Distance 389 412. Inconsistent Conduct of Witnesses Estimating Distance of Car. . 390 413. Distance Ascertained by Computation from Data in Evidence. . . 390 414. Estimates of Distance Ascertainable by Measurement 392 415. Estimates Must Yield to Measurements 392 416. Estimates Overcome by Physical Facts 393 417. Witness Ignorant of Units of Measurement 393 418. Distance of Steamer's Masthead Light 394 419. Testimony as to Bearing of Vessel More Reliable than as to Distance 395 XX TABLE OF CONTENTS. CHAPTEK IX. SPEED. PAGE § 420. Estimates of Speed Are Mere Opinions 397 421. Estimates of Speed Necessarily Inexact 398 422. Estimates of Speed Compared with Estimates of Distance 399 423. Memory of Speed 399 424. Presumption of Continuance or Increase of Speed 399 425. Speed of Objects Directly Approaching Observer 400 426. Weight of Experiments as Evidence 401 427. Estimates by Nonexperts in General 401 428. Nonexperts May Estimate Speed of Railroad Trains 401 429. Nonexperts May Estimate Speed of Electric Cars 403 430. Nonexpert's Testimony to Speed of Hand Car 404 431. Nonexperts May Estimate Speed of Horse Cars 405 432. Nonexperts May Estimate Speed of Automobile 405 433. Opportunity for Observation in General 405 434. Opportunity for Observing Speed of Trains or Cars 406 435. Opportunity for Observing Speed of Vessels 407 436. Witness Specially Attentive 408 437. Witness Indifferently Attentive 409 438. Excitement Detrimental to Accuracy of Observation 409 439. Estimate of Speed by Intoxicated Person 410 440. Estimate of Speed of Electric Car in Nighttime 410 441. Special Experience of Witnesses 412 442. The Actor Rule 413 443. Neglect to Call Operatives as Witnesses to Speed 414 444. Opinions of Passengers on Railroad Trains 414 445. Opinions of Passengers on Electric Cars 416 446. Opinions of Passengers on Vessels 416 447. Prepossession of Passengers or Others 416 448. Estimates of Speed Opposed to Physical Facts 417 449. Speed of Trains or Cars Inferred from Effects of Collision 420 450. Speed of Vessels Inferred from Effects of Collision 422 451. Speed of Automobile Inferred from Effect of Collision 425 452. Speed of Wagon Inferred from Effect of Collision 425 453. Inference of Speed from Distance Run after Accident 425 454. Other Circumstantial Evidence of Speed of Train 428 455. Inference of Speed of Derailed Cars 429 456. Speed Inferred from Shock of Collision between Cars 429 457. Estimate of Speed from Rebound of Colliding Cars 430 458. Speed of Running Cars Estimated by Noise 430 459. Speed of Passing Horse and Wagon Estimated by Noise 432 460. Estimate of Speed by Noise of Collision 432 TABLE OF CONTENTS. XXI PAGE § 461. Train or Vessel Behind Time 432 462. Vessels Racing 432 463. Horse and Wagon Behind Time 433 464. Speed Proved by Time and Distance 433 465. Testimony to Speed in Relative Terms 434 466. Tesitimony in Relative Terms by Biased Witnesses 437 467. Testimony in Relative Terms Overcome by Physical Facts 438 468. Witness Ignorant of Length of Units of Measurement 438 469. Expert Testimony to Distance Required for Stopping Oar 439 470. Number of Witnesses 440 471. Bias of Witnesses 440 472. Inconsistent Conduct of Witness 442 473. Presumption Against Perjury of Witnesses 442 474. Failure to Contradict Testimony 443 475. Effect of Mistake of Witness in Estimating Speed 443 476. Construction of Testimony to Speed 444 477. Testimony to Speed of Bicycle 444 478. Speed of Automobiles 445 479. Ascertainment of Vessel's Speed with and without Landmarks . . 446 480. Speed of Vessels Estimated from Revolutions of Engines 447 481. Eilect of Reversal of Engines upon Speed of Steamers 448 482. Circumstances Reducing Vessel's Speed 450 483. Inference of Vessel's Speed from Orders Given 451 484. Entries or Absence of Entries in Vessel's Log 452 485. Speed of Ocean Liners in Fog 452 486. Practice in Navigating Mississippi River in Fog 452 CHAPTEE X. THE WEATHER. 487. Testimony to Storms in General 453 488. Opinion as to Direction of Recent Storm 454 489. Weather Bureau Records in General 455 490. Conflict betwe.en Mariners and Weather Bureau Records Recon- ciled 456 491. Bias of Witnesses to Weather 458 492. Credit of Witnesses Incorrect in Some Respects 459 493. Weather Bureau Predictions 459 494. Weather on Long Island Sound and Jersey Ooast 461 495. Existence of Wind 462 496. Accuracy of Memory of Wind 462 497. Weather Bureau Records as to Wind 463 498. Velocity of Wind 467 499. Violence of Wind — Testimony of Frightened Passengers 468 500. Quarter of the Wind 468 xxii TABLE OF CONTENTS. PAGE § 501. Bias of Witnesses to Quarter of the Wind 471 502. Fog Changing to Mist and Vice Versa ^ ^^^ 503. Can Fog Coexist with a Gale? 472 504. Density of the Fog • 473 505. Circumstantial Evidence of Fog - 474 506. Was There Fog ? — Perjury Not to Be Imputed 475 507. Bias of Witnesses to Fog 475 508. Disinterested Testimony as to Presence or Absence oi Fog 476 CHAPTEE XI. COURSE AND BEARING OF VESSELS. § 509. Testimony to Courses or Bearing in General 477 510. Observation of Bearing — the Actor Rule 480 511. Observations of Course, etc., in Nighttime 480 512. Observations of Course after Collision 481 513. Observation of Vessel's Movements by Witnesses on Shore 482 514. Testimony to Compass Course when Collision Impending^ 482 515. Testimony to Course of Vessel, when Superior to Testimony to Bearings 483 516. Variations in Diflferent Compasses 483 517. Compass Deviation 484 518. Compass Needle Sluggish on Smooth Water 484 519. Course Indicated by Angle of Collision 485 520. Character of Wound Indicating Angle of Collision 486 521. MathematieaJ' Calculations to Determine Course 489 522. Course of Sunken Ship Inferred from Heading on the Bottom. . 489 523. Determining Place of Collision , 490 524. Change of Course — Observations Uncertain 492 525. Change of Course — Observations in Nighttime 493 526. Controversy Concerning Change of Course — the Actor Rule . . . 494 527. Mr. Justice Clifford's Exposition of the Actor Rule 497 528. Actor Rule Does Not Impeach Opposing Witnesses 498 529. Actor Rule Prevails in a Direct Conflict 499 530v Actor Rule PreA-ails against Opinions of Experts 500 531. Contradiction between Aotors 501 532. Minor Discrepancies in Testimony of Actors 501 533. Actor Rule Not Blindly Applied 502 534. Actors versus Observers Speaking from Knowledge 502 535. Bias of Actors 505 536. Improbability of Change of Course 506 537. Instinct of Self-Preservation Inimical to Change of Course 507 538. Circumstantial Evitlencc :igainst Change of Course 508 539. Change of Course Indicated by Change of Lights 508 540. Steamer's " Stereotyped Excuse" in CoUision with Sailing VesseU 508 541. The " Stereotyped Excuse " Sometimes Prevails 510 TABLE OF CONTENTS. XXUl OHAPTEK XII. PRESUMPTIONS, INFERENCES, AND CIRCUMSTANTIAIi EVIDENCE. Presumptions. page § 542. Presiunptions of Law 513 SiS: Presumptions of Fact Defined and Classified 514 544. Conflict of Presumptions 516 545. Presumptions versus Facts 516 546. Presumption of Continuance 517 547. Presumption from Habit or Custom 518 548. Presumption of Performance of Duty by Officers, Agents, or Ser- vants 520 548a. Presiunption of Uniformity under Like Conditions 520 549. Presumption of Marriage from Cohabitation ■ 521 550. Presumption against Validity of Stale Claims 622 551. Presumption of Receipt of Letter by Mail 525 552. Presumption of Receipt of Letter Privately Conveyed 528 553. Presumption of Receipt of Telegram 528 554. Instinct of Self-Preservation — Presumption of Care to Avoid Injury 529 555. Prevalence, and Conditions for Operation, of Foregoing Presump- tion 530 556. Presumption of Due Care at Railroad Crossings Overcome by Physical Faots 534 557. Presumption of Due Care at Railroad Crossing Not Equivalent to Traveler's Testimony 535 558. Considerations Aflfecting Weight of Presumption of Care in Crossing Railroad '• . ■■ 535 559. Operation of Instinct of Self-Preservation in Collision Cases between Vessels 538 560. Presumption of Due Care in Miscellaneous Cases 540 561. Presumption against Suicide 541 562. Lord Mansfield's Maxim Concerning Weight of Evidence 542 563. Nonproduction of Evidence — the Rule Stated , 543 564. Nonproduction of Evidence in General 545 565. Nonproduction of Evidence Immaterial unless Prima Facie Case Is Made 550 566. Nonproduction of Corroborative or Cumulative Witnesses 551 567. Nonprod-uotion of Witnesses Equally Available to Both Parties. . 554 568. Emplpyer's Failure to Call Employees 555 569. Nonproduction of Demonstrative Evidence 558 570. Failure to Interrogate a Friendly Witness 559 571. Failure of Party to Testify in General 559 572. Party's Failure to Testify Not Prejudicial in Georgm or Illinms, 564 XXIV TABLE OF CONTENTS. PAGE § 573. Party Testii'ying but Not Contradicting Adverse Testimony... 566 574. Party's Failure to Deny Charge of Fraud 566 575. Party's Failure to Deny Alleged Oral Admissions 567 576. Party Testifying but Refusing to Answer Material Questions. . . 569 577. Party's Neglect to Call His Counsel 570 578. Excuses for Absence of Party or Witnesses 570 579. Evidence Strengthened by Nonproduction of Opposing Evidence. 572 580. Testimony to Sending Letters Strengthened by Nondenial of Receipt 573 581. Party Withholding the Better Evidence 574 582. Nonproduction of Documentary Evidence in General 579 583. Nonproduction of Documentary Evidence on Demand 581 584. Nonproduction of Documents Aids Secondary Evidence 583 585. Suspicious Explanation of Nonproduction of Documents 584 686. Instructions as to Nonproduction of Evidence 585 587. Spoliation or Suppression of Evidence 585 588. Fabrication of Evidence 587 589. Subornation or Intimidation of Witnesses or Jurors 588 590. Perjury of a Party 589 591. Employment of Corrupt Agents to Procure Testimony 590 592. Committing Witnesses by Affidavit 590 593. Obtaining Witnesses' Affidavits Sometimes Proper 592 594. " Contrivances " Prejudicial to Party's Case 593 595. Unfounded Accusations React 594 Inferences and OircumstMitial Evidence. 596. Inferences from Facta Proved 595 597. Direct and Circumstantial Evidence Defined 597 598. Relative Value of Direct and Circumstantial Evidence 597 599. Further Discussion of Circumstantial Evidence 600 CHAPTEE XIII. HANDWRITING AND TYPEWRITING. 600. Individuality of Handwriting 604 601. Handvi^riting Compared to Human Countenance 606 602. Signature by Mark 609 603. General Characteristics Most Reliable Basis for Opinion 610 604. Handwriting Easily Imitated or Traced 613 605. Signatures Exactly Identical Not Genuine — Traced Writings.. 616 606. Natural, Simulated, or Disguised Handwriting 619 607. Causes of Variations in Same Person's Writing 621 608. Ingenious Argument Explaining Dissimilarity 626 609. Variations in Same Document 629 610. Opinions Based on Dissimilarities 629 TABLE OF CONTENTS. XXV PAGE § 611. Inferences from Dissimilarities — Sir John NiohoU's Opinion... 631 612. Examples of Dissimilarities Regarded as Significant 635 613. Dissimilarities in Terminals and " t " Crossings 640 614. Opinions Based on Similarities 641 615. Unreliability of Handwriting Opinion Evidence in General 643 616. Unreliability of Nonexpert Opinion Evidence 644 617. Knowledge Gained by Seeing Person Write 645 618. Knowledge Gained by Correspondence, etc 647 619. Knowledge Gained by Copying Genuine Signatures 647 620. Failure to Cross-examine Nonexpert as to Means of Knowledge. 648 621. Authenticity of Nonexpert's Mental Standard 648 622. Ignorance or Intelligence of Nonexperts 649 623. Testimony of Bank Cashiers or Tellers 650 624. Nonexpert Witness Refreshing His Memory 651 625. Divers Circumstances Affecting Weight of Nonexpert Testimony. 652 626. Cross-examination of Nonexpert 653 627. Conclusiveness of Nonexpert Opinion Evidence 655 628. Contradiction of Nonexperts 656 629. Judicial Observations Derogatory to Handwriting Expert Testi- mony 656 630. More Favorable Judicial Views of Expert Testimony 660 631. Strength and Weakness of Expert Testimony — Chancellor McGill's SUtement 665 632. Handwriting Experts an Inferior Class of Experts 666 633. Relative Weight of Expert and Nonexpert Testimony 669 634. Blunders of Experts 672 635. Expert Opinion of Identity of Signature with Body of Paper. . . 677 636. Expert Testifying from Memory of Lost Instrument 677 637. Proof of Standards of Comparison 678 638. Various Circumstances Ajffecting Value of Expert Testimony . . 680 639. Effect of Disagreement among Experts 681 640. Cross-examination of Experts 682 641. Failure to Cross-examine Expert 684 642. Conclusiveness of Expert Opinion Evidence 685 643. Prepossession of Nonexpert Witnesses 685 644. Bias of Nonexpert Witnesses 689 645. Prepossession and Bias of Experts 690 646. Positiveness of Expert Witness 694 647. Posiliveness of Nonexpert Generally 694 648. Positiveness of Nonexpert in Criminal Oases 696 649. Nonexpert's Courage of Conviction 696 650. Unfair Selection of Standards or Witnesses 697 651. Witnesses with Judgments Unfairly Tutored 698 652. Moral Character of Witnesses Testifying to Opinions 699 653. Comparison of Writings by Trial Court 700 654. Comparison of Writings by Jury 700 XXVi TABLE OF CONTENTS. PAGE § 653. Comparison of Writings by Appellate Court 704 656. Photographic Copies Together with Originals 704 657. Photographic Copies without Originals 706 658. Magnified Photographs to Expose Minute Features 708 659. Proof of Accuracy of Photographs 709 660. Photographs Raise Collateral Issues 709 661. Letterpress Copies 710 662. Microscopic Examination of Writings 711 663. Direct Testimony Weightier than Opinion Evidence 711 664. Direct Testimony Not Necessarily Controlling 714 665. Testimony of Alleged Writer 715 666. Cross-examination of Alleged Writer 718 667. Admissions of Alleged Writer 721 668. Testimony to Handwriting by Unwilling Witness 721 669. Number of Witnesses 722 670. Presumption from Nonproduction of Evidence '. 723 671. Instructions to Jury in Iowa 723 672. Instructions to Jury in Mississippi 724 673. Instructions to Jury in, Nebraska 725 674. Instructions to Jury in Vermont 725 675. Instructions to Jury in Federal Courts 725 676. Detection of Forgery of Typewriting 726 VOLUME n. CHAPTEE XIV. OBSERVATION. In General. 677. Diversities in Capacity and Habit of Observation 733 678. Opportunities for Observation 734 678a. Observation of Structure of Mechanical Device 737 679. Imputation of Perjury Not Involved in Conclusion that Witness Is Mistaken 738 Capacity for Observation. 680. In General 738 681. Observations by Nervous or Debilitated Persons 739 682. Fatigue of Obsen'er 739 683. Observer Suffering Pain 740 TABLE OF CONTENTS. xxvu PAGE 684. Intoxication of Observer 740 685. Observer under Influence of Narcotic 741 686. Age, Sex, Ignorance, Intelligence, or Insanity of Observer 741 Attention and Interest. 687. Attention as a, Condition of Correct Observation 742 688. Interest as a Condition of Attention 742 689. Pecuniary Interest a Stronger Incentive than Mere Curiosity.. 744 690. Interest in Facts Connected with Observer's Vocation 745 691. Witness's Statement oi Reasons for Attention 745 692. Circumstantiality of Statement Indicative of Attention 746 Division or Distraction of Attention. 693. In General 747 694. Conversation Diverting Attention 748 695. Fear, Horror, or Excitement of Observer 749 696. Striking Illustration of Attention Distracted by Fear 751 697. Excited Observers in Collision Cases between Vessels 752 698. Attention Sometimes Intensified by Fear or Excitement 753 Prepossession, Inference, or Bias of Observer. 699. Prepossession Causing Error in Observation 754 700. Prepossession that Person Observed Was Intoxicated 756 701. Observer's Substitution of Inference for Fact 757 702. Bias of Observer 758 Observations of or from Moving Objects. 703. Observation of Moving Objects 759 704. Observation from Moving Objects 760 The Actor Rule. 705. The Rule Stated 760 706. Actor Rule in Regard to Giving Locomotive Signals 762 707. Actor Rule in Regard to Giving of Signals on Vessels 762 708. Actor Rule in Controversy Concerning Vessels' Lights 763 709. Actor Rule as to Bearing of Vessel 767 710. Actor Rule in Collision and Other Admiralty Cases 76S 711. Actor Rule in Miaeellaneous Cases 770 Yisual Observations. 712. In General 772 713. By One Who Has Passed from Light into Darkness 773 XXviii TABLE OF CONTENTS. Auditory Ohservations. page § 714. In General ''73 715. Sound of Human Voice ' ^^ Gustatory, Olfactory, and Tactile Observations. 716. Sense of Taste 773 717. Sense of Smell 774 718. Odor Emanating from Gypsies. . 775 719. Sense of Touch 776 Count of Persons, Objects, or Money. 720. Accuracy of Count of a Stream of Persons 777 721. Accuracy of Count of Objects 778 722. Count of Ballots by Election Officers 779 723. Count of Money 780 Discrepancies between Witnesses. 724. Eflfect in General 783 725. Discrepancies in Collision Cases between Vessels 784 726. Duty to Reconcile Discrepancies 784 CHAPTER XV. MEMORY. " The Laws Which Regulate the Human Memory." 727. Importance of the Subject 791 728. Fickleness of Memory 794 729. Imputation of Perjury Not Involved in Criticism of Memory. . . 797 730. Great Differences in Tenacity of Memory 800 731. Extraordinary Memory 801 Visual, Auditory, Tactile, Gustatory, and Olfactory Memories. 732. In General 803 733. Visual and Auditory Memories 803 734. Tactile, Gusta/tory, and Olfactory Memories 804 Physical Condition as Affecting Memory. 735. In General 805 736. Paralysis, Sunstroke, etc., Impairing Memory 807 737. Memory of Blind or Deaf Persons 807 738. Illness at Time of Observation 808 739. Illness at Time of Testifying 808 740. Fatigue Affecting Memory, in General 809 TABLE OF CONTENTS. XXIX PAGE § 741. Fatigue in Long Cross-examination 810 742. Observer or Narrator under Influence of Narcotic 810 743. Intoxication at Time of Observation 811 744. Intoxication on the Witness Stand 813 745. Traumatic Injuries Causing Amnesia 814 746. Admission of Contributory Negligence Made by Party in Pain. . . 817 747. Witness Testifying While in Severe Pain 819 748. Memory of Person Making Dying Declarations 819 Recency or Remoteness of Facts. 749. Recency of Facts in General 820 750. Remoteness of Facts in General 821 751. Degree of Proof of Ancient Facts 826 752. Recency or Remoteness in Collision Cases between Vessels 826 753. Recency or Remoteness in Patent Infringement Suits 828 754. Recency or Remoteness of Execution of Will 833 755. Memory of Natural Physical Conditions after Great Lapse of Time 833 756. Memory of Ancient Facts by Biased Witnesses 834 757. Effect of Prior Contradictory Statements When Memory Was Presumptively Better 835 Adults' Memories of Childhood Events. 758. Age of Earliest Memories 838 759. Age of Best Memories 839 760. Memory of Childhood Incidents in General 840 761. Memory of Conversations Heard in Childhood 842 762. Memory of Facts Devoid of Interest or Not Understood 843 763. Memory of Impressive Occurrences 844 Age, Sex, Ignorance, or Intelligence of Witnesses. 764. Children, Middle-aged and Aged Persons, and Women 845 765. Illiterate Persons 845 766. Stupid, Ignorant, or Intelligent Persons 848 Attention and Interest, m General. 767. Attention as a Condition of Good Memory 849 768. Instinctive Attention 851 769. Association of Ideas Conducive to Attention 852 770. Witness's Statement of Reasons for Attention 852 771. Interest as a Condition of Attention and Memory 854 772. Circumstantiality of Statement Indicative of Faithful Memory. . 858 773. Conflicting Testimony Reconciled by Presumptions Concerning Attention 859 SX TABLE OF CONTENTS. Division or Distraetiim of Attention. PAGE i 774. In General 860 775. Conversation Diverting Attention 861 Retroactive Attention. 776. In General 863 777. Locomotive Engineer's Memory of Giving Signals 864 778. Motorman's Memory of Passenger's Signal to Stop 865 779. Retroactive Attention in Collision Oases between Vessels 866 780. When Retroactive Attention May Be Futile 867 Imaginary Attention. 781. In GeneraJ 867 782. Miscellaneous Examples 868 Memory of One's Own Acts, Thoughts, or Feelings. '783. Memory of Performance or Nonperformance of Acts 870 784. Memory of Thoughts and Feelings 873 Routine, Oft-repeated, and Familiar Occurrences. 785. In General 875 786. Memory of Routine Matters in Patent Suits 879 187. Officer's Memory of Service of Process 879 788. Gretna Green Clergyman's Memory of Marriages 880 789. Locomotive Engineer's Memory of Giving Signals 880 790. Conductor's Memory of Taking Passenger's Ticket 880 791. Innkeeper's Identification of One of Numerous Guests 881 792. Attorney's Memory of Deeds Drawn by Him 881 793. Attorney's Memory of Execution of Documents 882 794. Attorney's Memory of His Attestations of Signatures 882 795. Bank Clerk's Memory of Giving Notice of Nonpayment 882 796. Notary's Memory of Protest and Notice 883 797. Notary's Memory of Taking Acknowledgments 883 798. Notary's Memory of Administering Oath 884 Mem-ory of Facts Not Understood by the Witness. 799. In General 884 800. Unskilled Witnesses' Memories in Patent Infringement Suits. .. 886 Pleasant and Unpleasant Eocperiences. 801. Memory of Pleasant Experiences 887 802. Memory of Unpleasant Experiences 887 Memory of Important, Trivial, or Collateral Facts. 803. Important, Impressive, or Unusual Events 890 804. Trivial, Casual, Commonplace, Unimpressive Events 893 805. Striking Incidents in Commonplace Transaction or Event 898 806. Collateral or Incidental Circumstances ,.,.,, 900 TABLE OF CONTENTS. XXXI Sundry Topics. p^^^, 807. Matters Inherently Difikult to Recollect 903 S07a. Is Memory More Retentive of the Specific than of the Gteneral ? . 904 808. Memory of Facts in Line of One's Own Vocation 904 809. Memory Affected by Active or Sedentary Life 905 810. Memory of Events Attended by Excitement or Commotion or Inspiring Fear 906 811. Memory of Rapid Succession and of Order and Sequence of Events 907 812. Memory Confounding Similar Events 909 813. Testimony, How Affected by Nonrecollection or Mistake in Some Particulars 911 Psychological Influences Affecting Memory. 814. Memory Deceived by Leading Questions 913 815. Memory of Witness Prodded by Interested Parties 914 816. Prepossession of Witnesses 917 817. Retroactive Prepossession 918 818. Imagination and Inference Turned into Recollection 918 819. Recollection Largely Inference 920 820. Imagination Promoted by Much Thought 922 821. Imagination of Alleged Prior Inventor in Patent Infringement Suits 923 822. Memory Perverted by Repeated Relation of Facts 924 823. Recollection Mixed with Communications from Others 926 Memory of Biased Witnesses. 824. In General 927 825. Interested Forgetfulness of Biased Witnesses 930 826. Integrity of Witness Not Impugned by Imputation of Bias. . . . 932 827. Testimony of Vessel's Lookout Charged with Negligence 933 828. Witness Influenced by Hearing Others Testify 934 Forgetting, and False Memory. 829. Forgetting in General 935 830. Extraordinary Forgetfulness 937 831. Legal Recognition of Forgetfulness 940 832. Illusions of Memory 946 Memory Revived or Refreshed. 833. Involuntary Recollection 948 834. Memory Revived by Association of Ideas 950 835. Absence or InsuflSciency of Explanation of Memory Refreshed. . 954 836. Credible Explanation of Memory Refreshed or Revived 957 837. Memory Refreshed by Memorandum — In General 959 838. Untrue, Inaccurate, or Deficient Memorandum . . , 963 xxxii TABLE OF CONTENTS. Discrepancies between Witnesses. PAGE § 839. Discrepancies Expected between Narratives of Different Wit- nesses 764 840. Discrepancies in Cases of Collision between Vessels 966 841. Harmlessness of Discrepancies 967 842. Effect of Discrepancies — Chief Justice Beasley's Statement. . . . 969 843. Discrepancies Generally Enhance Credit of Witnesses 969 844. Preconcerted Discrepancies 971 Memory of Dates. 845. In General 972 846. Memory of Remote Dates 974 847. Memory Confusing One Date with Another 976 848. Failure to Cross-examine or Contradict as to Dates 977 849. Attention Contemporaneously Directed to the Date 977 850. Fixing Dates by Collateral Facts 977 851. The Collateral Facts Must Be Fixed 981 852. Duplication of Collateral Facts 982 853. Connection of Collateral Fact with Main Fact 983 854. Multiple Collateral Facts 983 855. Mistake, Uncertainty, or Discrepancies as to Dates 983 856. Testimony Reconciled on Theory of Mistake as to Time 986 Memory of Time of Day. 857. In General ; 988 858. Unaided Recollection of Hour or Minute 989 859. Fixing Time of Day by Collateral Facts 990 860. Discrepancies between Witnesses at to Time of Day 990 861. Positive and Negative Testimony as to Time of Day 991 862. Reconciling Conflicting Testimony as to Time of Day 991 Estimates of Periods of Time. 863. In General 992 864. Variation in Individual Capacities to Estimate Time 994 865. Collateral Facts Constituting Indicia of Time 995 866. Estimates of Time by Biased Witnesses 99C 867. Estimates of Time in Collision Cases 997 868. Estimate of Time Passed in Sleep or Drowsiness 999 869. Influences Aflfecting Estimates of Time 1000 870. Some Observations of Psychologists on Estimates of Time 1001 871. Sex Differences in Estimates of Time 1003 872. Estimates of Time by Ignorant Negroes 1004 872o. Discrepancies between Witnesses in Estimates of Time , , . , 1005 TABLE OF CONTENTS. XXxiU Memory of Oral Statements — Deolwrations, Admissions, Conversations, Contracts. p^^j^ § 873. Oral Statements in General 1005 874. Memory of Casual and Random Oonversations 1008 875. Whose Memory of Conversations Is the Best? 1009 876. Psychological Influences Affecting Memory of Conversaitions . . . . 1012 877. Memory of Dead Men's Statements 1014 878. Diverse Recollections of Conkling's Nomination Speech. 1018 879. Memory of Order of Speaking 1022 880. Memory of What Was Not Said 1022 881. Memory of Testimony Given on Other Trials 1023 882. Stenographic Report of Testimony Superior to Memory 1024 883. Oral Promises in Relaiion to Statute of Frauds 1024 884. Biased Witness's Memory of Oral Statements 1025 885. Partisans or Emissaries Testifying to Declarations or Admissions , 1028 886. Attorneys Testifying to Oral Stipulations or Admissions 1029 887. Effect oi Lapse of Time on Memory of Oral Staitements 1030 888. Facts Favorable to Testimony to Oral Statements 1033 889. Facts Unfavorable to Testimony to Oral Statements 1035 890. Positive and Negative Testimony to Oral Statements 1037 Memory of Contents of Written Instruments, Maps, etc. 891. In General 1037 892. Circumstances Favorable to Testimony to Writings 1040 893. Circumstances Tending to Discredit Testimony to Writings 1042 894. Meraiory of Maps, Surveys, and the Like 1045 CHAPTEE XVI. AGE, SEX, IGNORANCE, INTELLIGENCE, OR INSANITY OF WITNESSES. Testimony of Children amd Youths. 895. Observation and Memory of Children 1047 896. Children's Memories Confused with Dreams 1049 897. Child's Sense of Obligation of Oath 1050 898. Wilful Perjury by Children 1051 899. Children Peculiarly Susceptible to Influence of Others 1052 900. Discrepancies and Self-contradictions in Testimony of Children. . 1054 901. Testimony of Boys Compared with That of Girls 1055 902. Testimony of Young Men and Young Women 1058 903. Various Circumstances Affecting Weight of Testimony of Young Persons 1059 904. Testimony of Children of Parties in Divorce or Crim. Con. Suits . 1061 905. Failure to Contradict Testimony of Child or Youth 1062 XXXlV TABLE OF CONTENTS, Testimony of Middle-aged Persons. § 906. Memory of Middle-aged Persons 1062 907. Characteristics of Middle-aged Persons 1063 Testimony of Aged Persons. 908. Attention and Memory of Aged Persons, in General 1064 909. Memory of Recent Events or Events in Middle Life 1065 910. Memory of Events of Special Interest 1066 911. Memory of Childhood Events 1067 912. Memory of Aged Women 1068 913. Veracity of Aged Witnesses 1069 Testimony of Women. 914. Observation of Women 1069 915. Memory of Women 1070 916. Woman's Recollection or Nonrecollection of Date and Circum- stances of Her Marriage 1071 917. Illiterate Mother's Memory of Her Children's Ages 1072 918. Women's Memory of Pleasant and Unpleasant Experiences 1073 919. Veracity of Women 1074 920. Woman's Incorrect Testimony to Her Age 1076 921. Have Women Peculiar Traits That AflFeet Their Testimony? 1077 922. Allowances for Women LTnaccustomed to the Witness Stand 1081 923. Extravagant Statements Manifesting Bias 1081 924. Bias Arising from Uncivil or Scornful Treatment 1082 925. Bias of Women Testifying for Their Husbands 1083 926. Prepossession and Bias of Mothers 1083 927. Bias of Female Servants in Divorce Cases 1084 928. Wife's Denial of Adultery in Divorce Cases 1085 Ignorance or Intelligence of Witnesses. 929. Observation and Memory of Ignorant Persons 1085 930. Ignorance of Witness as a Factor in Weighing Testimony 1087 931. Incoherence and Discrepancies in Testimony of Ignorant Persons. 108S 932. Ignorant Party Not Conclusively Bound by His Own Testimony. . 1089 933. Impartiality and Veracity of Ignorant Persons 1090 934. Testimony of Deaf and Dumb Persons 1O90 935. Witnesses of Marked Intelligence 1091 Insanitii of Witness. 936. Witness Insane at Time of Testifying 1091 937. Witness Insane Only at Time of Observation 1092 TABLE OF CONTENTS. XXXV CHAPTER XVII. AFFIDAVITS, SWORN PLEADINGS, AND DEPOSITIONS. Affldavits. PAGE 938. Weakness of Ex Parte Affidavits 1094 939. Unsatisfactory because of Absence of Cross-examination 1095 940. Unsatisfactory because of Absence of Witness 1097 941. Affidavits Not Prepared by Affiants 1097 942. Substantial Rights Not Usually Tried on Affidavits 1099 943. Affidavit Evidence versus Oral Testimony 1100 944. In Cases Where Clear and Strong Proof Is Required 1101 945. In Cases Where Proof Beyond Reasonable Doubt Is Required. . . 1101 946. On Application for Preliminary Injunction, in General 1102 947. On Application for Preliminary Injunction in Patent Suit 1102 948. Affidavits of Experts in Patent Infringement Suits 1103 949. On Application for Alimony and Counsel Fees in Divorce Cases. 1104 950. Affidavit Opinion Evidence Peculiarly Weak 1104 951. Affidavit Evidence to Impeach Reputation for Veracity 1104 952. Affidavits of Ignorant and Illiterate Witnesses 1105 953. Affidavit Signed by Affiant's Mark 1105 954. Several Affiants Deposing Separately in Same Words 1105 955. Contradiction of Witness by His Former Affidavit 1106 956. Construction of Affidavits 1107 957. Presumption as to Affiant's Personal Knowledge 1108 958. Weight of Counter Affidavits 1109 959. Nondenial of Affidavits 1111 960. Nondenial of Facts Stated on Information and Belief 1111 Sworn Bills or Answers. 961. Verified Answer in Chancery 1112 962. Discrepancies between Testimony and the Witness's Bill or Answer 1112 Depositions. 963. Weakness of Deposition Evidence 1114 964. Deposition Evidence Not Inferior as Matter of Law 1115 965. Ex Parte Depositions 1116 966. Depositions Drawn by Counsel 1117 967. Lifeless Character of Depositions 1118 968. Death of Deponent before Cross-examination 1119 969. Deponent Cajoled, Browbeaten, or Terrified 1119 970. Tes.timony Elicited by Leading Questions 1120 971. Depositions in Cases Where Cogent Evidence Is Required 1120 xxxvi TABLE OF CONTENTS. PAGE § 972. Construction of Depositions 1120 973. Numerical Preponderance in Depositions 1121 974. Contradiction of Witness by His Former Deposition, in General. 1121 975. Contradiction of Witness by His Deposition before Coroner or Committing Magistrate 1122 OHAPTEE XVIII. CREDIBILITY OF WITNESSES, IN GENERAL. § 976. General Observations 1125 977. Witness's Credit in Equipoise 1127 978. Where Testimony Is Conilioting 1127 979. Where Strong Proof Is Required 1128 980. Circumstances Enhancing Credibility 1129 981. Witness's Station in Life 1130 982. Witness Unshaken by Cross-examination 1131 983. Discrepancies between Witnesses 1132 984. Impeachment of One Witness Does Not Discredit Others 1133 985. Corroboration of Witness Prima Facie Discredited 1134 986. Whom Did You First Tell? 1134 987. Witnesses Testifying in Concert 1135 988. When Testimony of Several in Identical Terms Consists with Credibility 1136 989. Witnesses Disobeying or Obeying Sequestration Rule 1137 990. Tutored Witnesses 1138 991. Demeanor as a Test of Credibility 1139 992. Appearance as an Aid in Determining Credibility 1140 993. Preponderance Sometimes Decided by Demeanor 1141 994. Demeanor of Uncontradicted Witness 1141 995. Countenance Betraying Shame 1142 996. Shuffling Denial Equivalent to Admission 1142 997. Evasive, " Fencing " Witnesses 1143 998. Witnesses Frugal of Truth 1144 999. Prevaricating Witness 1144 1000. Refusal to Answer Proper Questions 1144 1001. Sneering Levity 1145 1002. Extraordinary Vehemence of Assertion 1145 1003. Disparaging Inferences from Demeanor Cautiously Drawn 1146 1004. Fair Demeanor Not a Conclusively Favorable Test 1147 1005. Witnesses Making Baseless Aspersions 1147 1006. Treacherous Witnesses 1148 1007. Witnesses " fx'om the Hostile Camp " 1148 1008. Inventor Attempting to Defeat His Own Patent 1150 1009. Witness's Religious Belief or Infidelity 1150 1010. Witnesses Guilty of Fraudulent Conduct 1151 TABLE OF CONTENTS. XXXVU PAGE 1011. Witness Guilty of Unconscionable Business Practices 1152 1012. Witness Oflfering His Testimony for Sale 1152 1013. Party Offering Money to Witnesses 1153 1014. Conviction of Crime 1153 1015. Testimony of Accomplices 1154 1016. Clergymen 1155 1017. Married Roman Catholic Priest 1156 1018. Gamblers 1156 1019. Lawyers 1156 1020. Opium Fiends 1157 1021. Seamen 1157 1022. Orientals, in General 1159 1023. Chinese 1159 1024. Hindus 1160 1024O. Indians 1160 1025. Negroes 1160 1026. Personal History of Witness 1161 1027. Particular Defects in Moral Character 1161 1028. Sexual Immorality of Men 1163 1029. Seducers 1164 1030. Panders 1164 1031. Are Unchaste Women Less Veracious than Unchaste Men? 1164 1032. Prostitutes 1165 1033. Proprietress of Brothel 1166 1034. Servants in Brothels 1167 1035. Procuress 1167 1036. Private Detectives, in General 1167 1037. Private Detectives in Divorce Cases 1167 1038. Self-constituted Spies in Divorce Cases , 1J70 1039. Police Officers in Divorce Cases 1170 1040. Private Detectives and " Spotters " in Liquor Cases 1170 1041. OflScers of Societies as Detectives in Liquor Cases 1171 1042. Excise Agents as Detectives in Liquor Cases _. 1171 1043. Informers in Qui Tarn Actions 1172 1044. Police Officers in Criminal Cases, in General 1173 1045. Police Detectives Testifying to Confessions or Admissions 1174 CHAPTER XIX. PERJURY AND MISTAKE. Perjury. § 1046. Prevalence of Perjury 1176 1047. Presumption that Witness Is Not Committing Perjury 117S 1048. Duty to Reconcile Testimony Without Imputing Perjury 1179 XXXviii tABLE of CONTENTS. PAGE § 1049. How Testimony Is Reconciled Without Imputing Perjury 1183 1050. Cases Offering Peculiar Temptation for Perjury 1185 1051. Probability of Perjury as between Plaintiffs and Defendants or Parties and Nonparties 1188 1052. Perjury in Patent Infringement Suits 1188 1053. Improbability of Perjury Without Motive 1189 1054. Improbability of Confederacy in Perjury 1191 1055. The Usual Quality of Perjury 1193 1056. Plausible Fabrication Presupposes Some Ability 1193 1057. Some Earmarks of Truth 1194 1058. Some Earmarks of Falsehood 1195 1059. Afterthoughts 1196 1060. Improbability Not Necessarily a Badge of Falsehood 1198 1061. Improbability Sometimes a Badge of Veracity 1199 1062. Coincidences in Testimony of Independent Witnesses 1201 1063. Circumstantiality Inconsistent with Perjury 1202 1064. Conspiracy and Perjury Demonstrated by Discrepancies between Witnesses 1203 1065. Hypothesis of Perjury Opposed by High Character of Witness.. 1204 1066. Biased Witnesses in General 1205 1067. Witnesses Pecuniarily Interested 1206 1068. Servants Testifying for the Master 1206 1069. Servant Exculpating Himself from Charge of Negligence 1207 1070. Locomotive Engineer Testifying to Giving Signals 1207 1071. Witnesses Actuated by Hatred or Revenge 1208 1072. Witnesses Near Relatives of Parties 1209 Falsus in Uno, Falsus in Omnibus. 1073. The Maxim Stated 1209 1074. Force of the Maxim 1209 1075. Maxim to Be Cautiously Applied 1213 1076. Witness Alerely Mistaken 1214 1077. False Testimony to Immaterial Facts 1216 1078. Exaggeration or Recklessness 1216 1079. Witness Testifying Differently on Former Occasion 1217 1080. Impeachment of One Witness Does Not Affect Others 1217 1081. Impeachment Does Not Supply Defect of Proof 1218 Mistake. 1082. Slight or Immaterial Mistakes 1218 1083. Mistakes in Matters of Judgment or Estimate, or as to Dates. . . 1219 1084. Mistakes in Merely Incidental or Collateral Facts 1219 1085. Substantial and Material Mistakes 1220 1086. Falsus in Uno, Falsus in Omnibus 1221 1087. Mistakes by Interested or Otherwise Biased Witnesses 1222 TABLE OF CONTENTS. XXXIX PAGE § 1088. Mistakes Where Testimony Is Conflicting 1222 1089. Witness Extremely Positive but Mistaken 1223 1090. Mistaken Witness Corroborated in Some Particulars 1223 CHAPTEE XX. BIAS OF WITNESSES. 1091. Definition of Bias 1225 1092. Cardinal Rule for Weighing Testimony of Biased Witnesses . . . 1225 1093. Testimony to Matter of Fact — Presumption of Truthfulness... 1226 1094. Testimony to Matter of Opinion or Judgment 1227 1095. Imputation of Bias No Reflection on Integrity 1228 1096. Proclivities of Biased Witnesses 1230 1097. Biased Witness's Testimony to Improbable Facts 1234 1098. " Forward " or " Swift " Witnesses 1234 1099. Unwilling Witnesses 1235 1100. Concealment of Bias 1236 1101. Bias of Witness Already Committed by His Afiidavit 1236 1102. Bias on Both Sides — Reply Tu Quoque 1236 1103. Pecuniary Interest of Witnesses 1237 1 104. Interested Witness vers-us Disinterested Witness 1239 1105. Uncorroborated Party against Several Disinterested Witnesses.. 1240 1106. In Conflict of Interested Witnesses, Disinterested Witnesses Con- trol 1241 1107. Testimony of an Attorney in the Cause 1242 1108. Servant Exonerating Himself in Third Person's Action Against Master 1244 1109. Locomotive Engineer's Testimony to Giving Signals 1245 1110. Officers, Seamen, and Passengers in Collision Cases 1247 1111. Witnesses Near Relatives of a Party 1249 1112. Partisan Witnesses 1250 1113. Personal Hostility of Witnesses 1252 1114. Witnesses with a Grievance 1253 1115. Bias of Friendship or Gratitude 1254 1116. Witnesses with Strong Opinions on the Justice of the Cause. . . . 1254 1117. Employee Testifying for Employer 1255 1118. Witness and Party of Same Nationality 1256 1119. Witnesses Interested in the Question in Dispute 1256 1120. Testimony of Prosecuting Witness in Criminal Case 1257 1121. Testimony of Defendant in Criminal Case 1257 1122. Corroboration of Biased Witnesses 1258 1123. Case Proved Apart from Biased Testimony 1258 1124. Disbelieving Biased Testimony Does Not Supply Evidence 1258 Xl TABLE OF CONTENTS. CHAPTEE XXI. IMPEACHMENT, CONTRADICTION, AND CORROBORATION. Impeachment. ^^^^ § 1125. General Observations 1259 1126. Evidence of Bad Reputation for Truth Cautiously Received 1260 1127. Inconsiderate Attempt to Impeach Reacts on Party 1261 1128. Prejudiced Witnesses Testifying to Bad Reputation 1261 1129. Positive and Negative Testimony to Bad Reputation 1262 1130. Effect of Evidence of Bad Reputation for Truth 1262 1131. Impeachment by Proof of Contradictory Statements, in General. 1264 1132. Contradictory Statements under Oath 1266 1133. Testimony to Contradictory Oral Statements Received vpith Caution 1268 1134. Proof of Contradictory Statements in Collision Cases 1269 1135. Party or Emissary Testifying to Contradictory Statements of Witness 1271 1136. Circumstances Impairing Weight of Testimony to Contradictory Statements 1271 1137. Witness's Denial or Nonreeollection of Contradictory Statements. 1272 1138. Effect of Impeachment by Proof of Contradictory Statements. . . 1273 1139. Inconsistent Conduct of Witnesses, in General 1274 1140. Inconsistent Conduct of Alleged Inventors in Patent Suits 1278 1141. Inconsistent Conduct of Witnesses Testifying to Testamentary In- capacity : 1279 Contradiction. 1142. Weighing Conflicting Testimony 1280 1143. Credibility Not Necessarily Impugned by Contradiction 1283 1144. Inference of Perjury from Overwhelming Contradiction 1284 Corroboration. 1145. Corroboration Defined 1284 1146. When Corroboration Is Necessary 1285 1147. How Corroboration Is Effected 1286 CHAPTEE XXII. DECLARATIONS, ADMISSIONS, CONFESSIONS, ORAL CONTRACTS. Oral Statements in General. § 1148. Testimony to Oral Declarations or Admissions, in General 1288 1149. Casual and Random Conversations 1291 1150. Declarations or Admissions of Deceased Persons 1291 TABLE OF CONTENTS. xli PAGE 1151. High Character of Witnaases Testifying to Oral Statements. . . . 1294 1J52. Admissions or Ipconsistent Statement? under Oatb. 1294' 1153. Testator's Declarations Concerning Testamentary Intentions, etc. 1295 1154. iJeis Gestae Declarations in General 1296 1155. Res Gestw Declarations by Injured Persons 1296 1156. Declarations Concerning Eedigree 1298 1157. Deolararf^iona by Agents 1298 1158. Declarations or Confessions Made in Sleep 1298 1159. Stenographer's Notes of Oral Statements 1299 1160. Testimony of Newspaper Reporters to Oral Statements 1299 1161. Misunderstanding of Statement Made by Telephone 1300 1162. Tacit Admissions or Confessions — -Silence Implying Assent 1300 1163. Admissions by Conduct 1302 1164. Admissions or Confessions by Children 1303 1165. Prepossession and Bias of Witnesses to Oral Statements, in General 1303 1166. Bias of Witnesses to Admissions by Deceased Persons 1304 1167. Admissions Designedly Obtained by Agents or Emissaries 1305 1168. Admissions Artfully Obtained from Seamen 1306 1169. Positive and Negative Testimony to Oral Statements 1306 1170. Weight of Oral Admissions Clearly Proved 1310 1171. Facts Tending to Accredit Testimony to Oral Statements 1312 1172. Facts Tending to Disparage Testimony to Oral Statements 1314 1173. Testimony to Improvident or Improbable Admissions 1318 1 174. Witness Deaf or at a Distance 1320 1175. Witness Unable to Give Exact Language or Entire Conversation. 1320 1176. Testimony by Ignorant Witnesses to Declarations or Admissions. 1321 1177. Alleged Admission Probably an Afterthought 1321 Written Admissions. 1178. Weight of 1321 Dying Deola/rations. 1179. Sanction of Dying Declarations 1322 1180. Considerations Affecting Weight of Dying Declarations 1324 Admissions and Confessions in Criminal Cases. 1181. In General 1325 1182. Circumstances Strengthening Testimony to Admissions or Con- fessions 1326 1183. Circumstances Weakening Testimony to Admissions or Con- fessions 1327 1184. Confessions by Intoxicated Persons 1327 1185. Confessions to Police Officers 1328 xlii TABLE OF CONTENTS. Oral Contracts. page § 1186. Oral Promises in Relation to Statute of Frauds 1328 1187. Oral Contracts to Devise Property 1330 CHAPTEE XXIII. POSITIVE AND NEGATIVE TESTIMONY. In General. § 1188. Purely Negative Testimony 1331 1 189. Number of Purely Negative Witnesses 1333 1190. Mere Nonrecollection of Witness 1334 1191. Testimony to Nonobservation by Witnesses with Facilities for Observation 1335 1192. Positive Affirmation and Positive Denial 1336 1193. Relative Weight of Positive and Negative Testimony 1337 Vessels' Lights or Signals. 1194. Positive and Negative Testimony to Vessels' Lights 1339 1194a. Positive and Negative Testimony to Vessels' Signals 1339 Electric Gar Headlight. 1195. Negative Testimony as to Presence of Electric Oar Headlight. . . 1340 Locomotive and Electric Car Signals. 1196. Purely Negative Testimony 1340 1 197. Testimony that Signa-ls Were Not Heard 1343 1198. Positive Affirmation and Positive Denial 1345 1199. Familiar Sound of Locomotive Signals Unnoticed 1347 1200. Circumstances Detracting from Weight of Positive Testimony by Observers 1347 1201. Circvimstances Strengthening Negative Testimony by Observers. . 134S 1202. Circumstances Detracting from Weight of Negative Testimony.. 1349 1203. The Positive Testimony of the Engineer 1350 1204. Imputation of Perjury to Be Avoided 1351 1205. Sympathy and Prejudice of Juries 1352 CHAPTEE XXIV. DEMONSTRATIVE EVIDENCE, EXPERIMENTS, AND PHOTOGRAPHS. Demonstrative Evidence. § 1206. The Highest Species of Proof 1353 1207. Demonstrative Evidence Weighed with Circumspection 1354 1208. Demonstrative Evidence in Patent Suits 1355 Table op contents. xliii Experiments. page 1209. In General 1356 1210. Party Resorting to Weaker Evidence .• 1358 1211. Ex Parte Experiments 1358 1212. Visibility of Person on Railroad Track 1359 1212a. Visibility of Railroad Train in Daytime 1359 1213. Visibility of Lighted Railroad Train in Nighttime 1360 1214. Extent of Illumination by Locomotive Headlight 1360 1215. Amount of Vibration Caused by Machinery 1361 Photogro/phs. 1216. In General 1361 1217. Photographs of Persons 1362 1218. Description and Quality of Goods 1363 1219. Height of Objects 1363 1220. Photographs Deceptive as to Distances and Dimensions 1363 OHAPTEE XXV. IDENTIFICATION OF PERSONS AND THINGS. 1221. Identification of Persons in General 1365 1222. Recognition of Faces in General 1367 1223. Distance at Which Persons Can Be Recognized 1367 1224. Certainty of Identification of Accused in Criminal Case 1368 1225. Identification of Person by His Voice 1369 1226. Identification of Persons or Objects in Nighttime 1369 1227. Prepossession of Witnesses to Personal Identity 1370 1228. Identification of Person Observed by Frightened Witness 1370 1229. Identification of Person by Intoxicated Observer 1371 1230. Parent's Identification of Child 1371 1231. Identification by Aged Witness 1372 1232. Identification of Written Document by Illiterate Witness 1373 1233. Identification of Running Buggy by Its Noise 1373 1234. Identification of Dog by Bark 1373 CHAPTEE XXVI. EXPERT AND OPINION EVIDENCE. 1235. Expert Opinion Evidence Not a High Grade of Evidence 1374 1236. Opinion Evidence versus Facts 1375 1237. Bias of Experts 1376 1238. Prepossession of Witnesses Testifying to Opinions 1379 1239. Uncontradicted Opinion Evidence 1379 xliv TABLE OF CONTENTS. PAGE § 1240. Numerical Preponderance of Expert Witnesses 1379 1241. Inference from Nonproduetion of Expert Testimony 1380 1242. Expert Testimony in Patent Suits 1380 1243. Nautical Expert Testimony 1382 1?44. Conservative Estimate of Medical Expert Testimony 1382 1?45. Expert Opinion of Testamentary Incapacity 1384 lg46. Opinion Evidence as to Value or Damage, in General 1386 1347. Adoption of liowest Estimate of Value or Damage 1387 1248. Quotient Determinatiops of Value or Dam9,ge 1387 1249. Estimate of Number in a Crowd 1389 CHAPTER XXVII. CONSTRUCTION OF TESTIMONY AND SUNDRY TOPICS. Construction of Testimony. 1250. Jury Construe Oral Testimony 1392 1251. Court or Jury Construe Depositions 1393 1252. Meaning Intended by the Witness Governs — In General 1394 1253. Meaning Intended, etc. — Judge Sawyer's Instruction 1396 1254. Reasonable and Ordinary Meaning 1396 lg55. Technical Meaning of Words Not Necessarily Controlling 1397 1256. Testimony Construed by Context, etc 1397 1257. Depositions to JJe Reasonably Construed , 1399 1258. Inconsistencies and Contradictions to Be Reconcile^ 1400 1259. Strict Construction Where Strong Proof Is Required 1401 1260. Strict Construction of Interested or Biased Testimony 1401 136 1. Testimony Construed Against Party Producing It 1402 1262. Self-contradictory Testimony of a Party 1402 lg63. Witness Presumed to Speak froin Personal Knowledge 1403 1364. Excuse for Literal Inconsistency 1403 1265. Negatives Pregnant 1404 1266. Id Certum Est Quo(} Certum Reddi Potest 1404 1?67. Construction of Testimony by Appellate Couvt 1404 Sundry Topics. 1268. Testimony Elicited by Leading Questions 1405 1209. Clear, Consistent, and Positive Testimony 1407 1270. Confused Testimony 1407 1271. Self-contvadjelions in Testimony 1408 1272. Witness Testifying to " Impression," " Best Recollection," etc. . , 1411 1273. Testimony Given tlirougb Interpreter 1413 1274. Cross-Examination I414 1275. Inference from Omission to Cross-Examine 1417 TABLE OF CONTENTS. xlv CHAPTEE XXVIII. WEIGHT OF EVIDENCE IN APPELLATE COURTS. PAGE 1276. Disadvantages of Appellate Courts in Weighing Evidence, in General 1419 1277. Advantages of Appellate Courts, in General 1424 1278. Where the Trial Court Decides on Written Evidence 1425 1279. Disadvantage of Appellate Courts in Divorce Cases 1426 1280. Consideration of Evidence by Appellate Courts in Collision Cases in Admiralty 1428 1281. When Appellate Courts Exercise Independent Judgment 1429 TABLE OF NON-LEGAL AUTHORS AND WORKS CITED. [References are to pages.] Abercrombie, Dr.: Inquiries Concerning the Intellectual Powers.. .< ..372, 375, 742, 935, 951, 1202 All the Year Round : Some Phenomena of Memory 937 Bacon, Lord: Essays: Unity in Religion 306 Of Cunning 913 Of Truth 1148 Baird, Dr.: Letter to Science 319 Bible: Genesis 183 Deuteronomy 1139 Proverbs 2, 304, 1085 History of Susanna, Apocrypha 902, 968, 1064, 1137, 1203 Matthew 904 Mark 904 Luke 904 John 1369 Titus 1025 James 1367 Boswell, James: Life of Dr. Johnson Ill, 838, 887, 927, 1086, 1095 Buckle, Henry Thomas: History of Civilization in England 935 Bunyan, John: Pilgrim's Progress 246, 304, 311, 473, 952, 1059, 1142, 1146, 1299 Burnham, Dr. Wm. H. : Illusions of Memory 757, 805, 849, 921, 924, 928, 948, 1053 Retroactive Amnesia 814 Correspondence with Author 868 Burns, Robert : Epistle to a Young Friend 1228 Byron, Lord: Don Juan 940 English Bards and Scotch Reviewers 1075 [xlvii] xlviii TABLE OF NON-LEGAL AUTHORS AND WORKS CITED. [References are to pages.] Carvalho, David N. : Forty Centuries of Ink 366 Cervantesi: Don Quixote 359 Chambers' Journal: Remarkable Memories 801 Chaucer : Canterbury Tales 1320 Chesterfield, Lord: Letters to His Son ,749, 888, 1076, 1077, 1082, 1140, 1146 Cibber, CoUey: Love's Last Shift 1082 Cicero : Speech in Defense of Arehias 760 De Seneetute 1067 Claparfide, Professor Ed.; What Is the Value of Evidence? 857, 914, 918, 920, 947, 1070, 1337, 1366, 1367 Clarendon, Earl of: History of the Rebellion 748 Colegrove, Professor: On Memory 377, 800, 801, 803, 804, 805, 809, 814, 837, 838, 839, 846, 849, 854, 860, 885, 888, 890, 894, 937, 951, 954, 960, 980, 1049, 1055, 1056, 1063, 1065, 1066, 1067, 1068, 1070, 1073, 1086, 1298, 1347, 1367 Coleridge : Cologne 365 Congreve: The Mourning Bride 1082 Denham : Translation 1067 Densmore, Dr. Eihmet: Sex Equality X074 Ebbinghaus : As cited by Colegrove 809 Elliott: The Nev? England History 27 Encyclopffidia Britanniea : Giants 202 Froude, James Anthony : Lives of the Saints 139, 687, 738, 754, 1049 Gray, Thomas: Journal 240 Greeley, Horace: Recollections of a Busy Life ,.,,.,,.,.,,, 1073 TABLE OF NON- LEGAL AUTHORS AND WORKS CITED, xlix [References are to pages.] Gurney, E.: Phantasms of the Living 924 Hadden, J. Cuthbert: Freaks and Fancies of Memory , 1066 Hall, President G. Stanley: Psychology of Adolescence 1055, 1056 Harris, Professor W. T. : Philosophical Basis of Theism 519 Henkel, W. D.: Journal of Speculative Philosophy 801, 847 Henri, V. and C. ; Popular Science Monthly 838 Hoar, Senator George F. ; Some Famous Judges 996 Hodgson, Richard: Proceedings of Society for Psychical Research 924 Holland : Mental Pathology 809 Irving, Washington: The Widow and Her Son 1084 James, Professor William: Principles of Psychology 2, 196, 742, 749, 800, 805, 809, 820, 837, 844, 845, 847, 849, 854, 863, 873, 875, 884, 885, 887, 888, 891, 894, 904, 924, 949, 950, 972, 1003, 1047, 1065, 1067, 1070, 1080 Johnson, Dr. Samuel: The Rambler 1115 Kinglake, A. W. ; The Invasion of the Crimea 906 Kipling, Rudyard: Kim 309, 980 Kovalfivski, Sonya: Recollections of Childhood 839 Kuhlmann, Professor F. : American Journal of Psychology 894, 914, 922, 923, 946 Leeky, W. E. H. : Rationalism in Europe 5 Littell's Living Age: Memory and Its Caprices , 887, 937 Locke, John: Essay Concerning Human Understanding 238, 801 Lytton, Lord: St. Stephens 1390 Martineau, Harriet: Biographical Sketches , , , 949 1 TABLE OF NON-LEGAL AUTHORS AND WORKS CITED. [References are to pages.] Maudjley, Dr. H.: Sleep: Its Psychology, etc 1298 Maurice, Kev. F. Denison: Juridical Society Paper 1050 McCarthy, Justin: History of Our Own Times 1390 McDougall, Professor: Paper in Science 1004 Miller, Joaquin: Reminiscences 378 Milton, John: Paradise Lost 240 Minto, Professor William: Logic Inductive and Deductive 747, 906, 907, 1005, 1135, 1290 Montaigne : Essay on the Caniballes 1088 Montgomery: English History 308 Muller : As cited by Colegrove 809 Munsterberg, Professor Hugo: Nothing but the Truth 248, 308 Psychological Review 804 Murray, John Wilson; Memoirs of a Great Detective 1198 New International Encyclopaedia 243, 369, 371 liew York Sun 191, 241, 242, 307, 359, 744, 771 New York Times 1018 Obersteiner : As cited by Ribot 1064, 1069, 1086 Paley, Archdeacon: Horse Paulins 16, 783 Piozzi, Mrs.; Anecdotes 838 Poe, Edgar Allan: Murders in the Rue Morgue 849, 951 Pope: Moral Essays 691 Essay on Criticism 691 Poetical Works, Memoir 1003 Porter, President N. . The Human Intellect CS7, 805, 806, 928, 948, 1066 Prescott, William H. : Conquest of Mexico 918 TABLE OF NON-LEGAL AUTHORS AND WORKS CITED, ll [References are to pages.] Prior, M.: Epistle to Fleetwood Shepherd 1333 Proctor, Richard A.: Light Science for Leisure Hours 165 Eibot: Psychology of Attention 739, 741, 742, 854, 855, 895, 1049, 1064, 1069, 1086 Rosebery, Lord: . Napoleon: The Last Phase 839 Ruskin, John: The Spectator 378 Schopenhauer : On Women 1074 Scott, Sir Walter : Ivanhoe 184, 307 Marmion 240, 311 Shakespeare : As You Like It 1001 Coriolanus 868, 995. 1369 Cymbeline 964 Hamlet 759 Julius Caesar 259, 1300 King Henry IV 307, 858 King Henry V 1067 King Henry VIII 1253 King John 1323 Macbeth 1073 Merchant of Venice 315 Midsummer Night's Dream 197 The Tempest 838, 925 Sherlock : Quoted by Mr. Justice Wayne 1077 Sikorski : Revue PMlosophique 1049 Smith, W. G.: The Relation of Attention to Memory 861 Soloviev, Captain L. Z.: Actual Experiences in War 251, 405 Spencer, Herbert: Principles of Psychology 400, 739, 772, 773, 774, 775, 776, 803, 804, 805, 806, 862, 873,- 874, 932, 950, 994, 995, 1003, 1065 Stratton : Experimental Psychology and Culture 922 Railway Disasters at Night 317 lii TABLE OF NON-LEGAt AUTHORS AND WORKS CITED. [References are to pagee.] Taine, M. : On Intelligence 749, 844, 891 Tennyson : The Grandmother 1233 Thorndike, Professor: Elements of Psychology (2d ed,) 310, 731, 755, 800, 851, 862, 865, 878, 887, 949, 951, 1070 Train, Arthur, Assistant District Attorney: See his name in General Index. Tuke, Dr. : Influence of the Mind on the Body 243 Watts, Isaac: Improvement of the Mind 758, 803, 862, 884, 895, 951, 1048, 1425 Williams, Montague: Reminiscences 676 Wordsworth : Anecdote for Fathers 1051 Zenos, Professor Andrew C. : Elements of the Higher Criticism 1252 TABLE OF CASES. [References are to pages.] A. A. B. Easter & Co., lit H (152 Fefl. Rep. 137) Abbe V. &ood (6 McLean (tr. g.) 106) Abbott V. Coleman (22 Kan. 250) 67r, Abbott, in fe (Hask. (tJ. S.) 250) . . V. Flint (78 Vt. 274) V. Kansas City Et. R. Co. ( (Mo. App.) 97 S. W. Eep. 198). A. S. Cleveland Co. v. A. C. Ndlis Co. (18 N. Y. Snpp. 448) 123, A. B. Dick Co. 1). Belke, etc., Co. (86 Fed. Kep. 149) 559, Abercfombie v. Allen (29 Ala. 281) . Abrahams «. KoCh (88 Sf. Y. Supp. 148) Acilia, Tie (120 Fed. Kep. 45S)... 814, Ackersou v. People (124 III. 563).. 311, AckTey v. Berfcey (22 Iowa 226) . . . Acme Flexible Clasp Co. v. Cary Mfg. Co. (101 Fed. Eep. 269). 87, Acosta v. The Halcyon (1 Fed. Cas. No. 32) Adams v. Adams (17 N. J. Bq. 324) 547, 791, 969, 1120, 11.32, 1160, 1166, 1191, 1193, 1202, V. Banfeart (1 C. M. & E. 681). ». Boston, etc., St. ft. Co. (191 Mass, 486) .. .., V. Chicago, etc., fi. Co. (89 Wis. 645) D. Field (21 Vt. 256) . . . , .680, V. Iron Cliffs Co. (78 Mich. 271) V. Keystone Mfg. Co. (41 Fed. Rep, 595) V. McBeath (3 British Columbia 513) 595, i^. Robertson (37 III. 45).. 580, 825, 874 1307 904 580 80 309 131 561 1301 579 1247 1301 1421 554 472 1218 1197 428 99 701 532 562 1144 929 Adams V. Southern E. Co. (84 Fed. Eep. 596) 261 V. Thornton (78 Ala. 489) 8l V. Wells (64 N. J. Bq. 211) . . . 107, 798, 979, 982, 984 Adams, Stc, Mfg. Co. v. Eathbone (26 Fed. ESp. 262) 88, 796, 798, 832, 976, 1279 Addicks V. Christoph (62 N. J. L. T86) 1413 Adelia, The (1 Bask. (tf. 8.) 505). . 479 A. Demerest, The (25 Fed. Eep. 921) 313 Adger «. Acfcertaan ( (C. C. A.) 115 Fed. Eep. 124, 126) 72 AdkinS «. Adkins (63 Mo. App. 351) 1428 Admiral Boxer, The (Swabey 193) 1129, 1548 Adriatic, The (17 Blatchf. (tJ. S.) 176) 930, 1278 Agawain Co. V. Jordan (7 Wall. (U. S.) 583) 90, 1143 Agg ii. Datles (2 Phill. Ecc. 341). . 973, 975, 1276 Agne^ Manning, The (44 Fed. Eep. 110) 495 A. H. Warson, The (Toung (KfoVa Scotia) 83) I1S8 Aikin V. Wecfcerly (19 Mich. 482).. 70 Aikins i;. Allan (14 Manitoba 549) . 1423 AinsWortb v. Greenlee (1 iJawks (8 ^f. Car.) 190) 715 Aird et vir. (28 Quebec Super, Ct. 235) , 726 A. J. Franklin, The (Young (Nova Scotia) 89) 1189, 1202 A. .1. Wright, The (84 Fed. Rep. 1002) 381 Akers V, Akers ( (Ky.) 101 S. W. Rep. 353) 1421 Akins V. Hill (7 Ga. 573) . . . , , 523 Alabama G. S. E. Co. v. Burgess (119 Ala. 555) 8 V. Hall (105 Ala. 599) 402 Alabama Mineral R. Co. v. Marcus (lis Ala. 389) 54 Alabama, The (114 Fed. Rep, 214) . . 766 [liii] Uv TABLE OF CASES. Alabama (126 Fed. Rep. 332) 764 Alaska, The (22 Fed. Eep. 546) .763, 996 Alaska (33 Fed. Eep. 107) 398, 408, 427, 1382 Alaska (44 Fed. Rep. 498) 1228 Albany County Sav. Bank v. Mc- carty (149 N. Y. 71) 72, 912, 1409 Albany Steam Trap Co. v. Felt- housen (20 Fed. Eep. 633) Albany, The (81 Fed. Eep. 966) . . . Albee e. Wachter (74 III. 173) Albemarle, The (8 Blatehf. (TJ. S.) 200) 929, Alberta, The (23 Fed. Rep. 807) . . . 290, 424, 488, 495, Albert E. Co. v. Peck (26 N. Bruus. 191) 548, 585, 796, 836, Albinger, Matter of (30 Misc. (N. Y.) 187) . .219, 611, 615, 619, 681, Albrecht v. Chicago, etc., E. Co. (108 Wis. 530) V. New York Cent., etc., R. Co., (54 N. Y. App. Div. 636) . 123, Albright v. Langfled (131 Fed. Eep. 473) Albro V. Gowland (98 N. Y. App. Div. 474) Alden v. Dewey (1 Story (U. S.) 336) Aldrlch V. Grand Rapids Cycle Co., (61 Minn. 531) 163 Alene, The (74 Fed. Eep. 268) . .199, 441, 450, 485, 510 Alene (79 Fed. Rep. 976) 199 Alene (168 U. S. 710) 199 Alexander v. Barrett (39 111. 307).. 1311 1). Blackman (26 App. Cas. (D. C.) 541).. 552, 897, 1136, 1210, 1317 V. Hooks (84 Ala. 605) 19, 902, 1015, 1016, 1032, 1037, 1250 V. McAllister (34 N. Bruns. 163) 1098 V. Metropolitan St. R. Co. (86 N. Y. Supp. 212 1244 ji. Rodriguez (1 Fed. Cas. No. 172) 113.5, 1237 V. Todd (1 Bond (U. S.) 175). 219, 227, 567, 1277 Alexander Folsom, The (52 Fed. Rep. 403) 407, 413, 467 Alexis V. U. S. (129 Fed. Eep. 60) 96 Alger t). Keith (105 Fed. Eep. 105). 985 [References are to pages.] Algiers, The (21 Fed. Eep. 343)... 352, 489 AlLambra, The (33 Fed. Eep. 73) . . 1119, 1129, 1242 Alice B. Phillips, The (81 Fed. Eep. 413) 765 Alicia A. Washburn, The (19 Fed. Eep. 788) 382, 384 Alijandro, The (56 Fed. Rep. 621).. 1420 .illalre v. Allaire (37 N. J. L. 312) . 958 Allan ». McTavish (8 Ont. App. 440) 856 AUardice v. Robertson (1 Dow. & CI. 495) 49 Alleghany, The (1 Biss. (U. S.) 497) 1135 Alleghany (2 Biss. (D. S.) 29) 381, 422, 1135 Allen V. Blunt (2 Woodb. & M. (U. S.) 121, 131) 525 V. Bobo (81 Miss. 443) 1031 V. Hunter (6 McLean (U. S.) 303) 1382 «. Kirk (81 Iowa 658) 1290 i^. Logan (96 Mo. 591) 1426 ». Public Administrator (1 Bradf. (N. Y.) 378).. 1263, 1295 V. Southern California R. Co. (70 Fed. Rep. 370) 150 V. Willard (57 Pa. St. 374)... 540 V. Yeater (17 W. Va. 128) 1313 V. Young (6 T. B. Mon. (Ky.) 136) 1153 Alley V. Duchemin (2 Has. & War. (P. B. Island) 266) 1111 V. Duchemin (2 Has. & War. (P. B. Island) 360)... 238, 245 Alllanca, The (39 Fed. Rep. 476) . . Alliance Ins. Co. v. The Morning Light (1 Fed. Cas. No. 246c) 1247 AUington, etc., Mfg. Co. v. Olobe Co. (89 Fed. Rep. 865) 90 t>. Lynch (71 Fed. Rep. 409, 410) 88 Allis V. Stowell (9 Fed. Rep. 304) . . 89, 1356 Almatia, The (Deady (U. S.) 473). 546 Alsberg, In re (16 Nat. Bankr. Reg. 116) 567 Alsop V. Commercial Ins. Co. (1 Sumn. (U. S.) 451) 44 Alston V. Jones (17 Barb. (N. Y.) 276) 208, 1232, 1.".75 Altwood V. Small (6 CI. & F. 232) . 19, 21, 30, 1117 Alvena, The (74 Fed. Rep. 252) 65 Amanda F. Myrick (12 Fed. Cas. No. 6,395) 1253 90 1408 560 1247 507 1322 694 293 131 87 80 1289 TABLE OF CASES. Iv [References are to pages.] 764 59 481 Amboy, The (22 Fed. Kep. 555) America, The (95 Fed. Rep. 192) . . American, The (10 Blatchf. (U. S.) 155) American, The, and Syria, The (L. R. 4 A. & E. 226) 1242 American Ballast Log Co. v. Cotter (11 Fed. Rep. 728) 1335, 1415 American Bell Telephone Co. v. American Cushman Tele- phone Co. (35 Fed. Rep. 734) 88, 915, 924, 932 IJ. Cushman (57 Fed. Rep. 843) 1103 V. Globe Telephone Co. (31 Fed. Rep. 729) 1275 V. Molecular Telephone Co. (32 Fed. Rep. 214) 554 V. National Tel. Mfg. Co. (109 Fed, Rep. 976) 554 V. People's Telephone Co. (22 Fed. Rep. 309) 15, 88, 142, 976, 1031, 1210, 1279 American Board, etc., In re (102 Me. 72) 1067, 1230 American Dunlop Tire Co. v. Goold Bicycle Co. (6 Can. Exch. 223) . . 1279 American Featherbone Co. v. War- ren Featherbone Co. (141 Fed. Rep. 655) 86 American Fire Hose Mfg. Co. v. Cornelius Callahan Co. (41 Fed. Rep. 50) 1102 American Freehold Land Mortg. Co. V. Pace (23 Tex. Civ. App. 222) V. Wbaley (63 Fed. Rep. 743) . . American Ice Co. v. New York City R. Co. (50 Misc. (N. Y.) 183)... American Ins. Co. v. Johnson (1 Blatchf. & H. Adm. 9) 1117 American Middlings Purifier Co. v. Christian (4 Dill. (U. S.) 448).. 1102, 1103, 1381 American Nat. Bank v. Suppiee (115 Fed. Rep. 657) 824 American Roll Paper Co. v. Weston (51 Fed. Rep. 237) American Salesbook Co. v. Carter- Crume Co. (145 Fed. Rep. 939) . . American Sugar Refining Co. v. Rickinson (124 Fed. Rep. 188) . . 1417 American Tubing, etc., Co. v. Nich- olls (70 Fed. Rep. 1009).. 89, 153, 830, 965, 1190, 1191, 1197, 1204, 1355 American Union L. Ins. Co. v. Judge (191 Pa. St 484) 1011 80 149 200 89 87 American Whip Co. n. Hampden Whip Co. (4 Fed. Rep. 536) 90 American Writing Mach. Co. «. Wagner Typewriter Co. (151 Fed. Rep. 576) 89, 1336 Ames V. Ames (40 Oregon 495) . .850, 1067 A. M. Todd Co. v. Farmers' Mut. F. Ins. Co. (137 Mich. 188) 87T Anchoria, The (77 Fed. Rep. 994) . 976, 984 Ancon, The, v. Thompson (17 Fed. Rep. 742) 345, 475 Anderson v. Anderson Food Co. (66 N. J. Eg. 209) 80 V. Boyer (156 N. Y. 93) 178 V. Irwin (101 111. 411) 586 V. Liljengren (50 Minn. 3) . . . . 121, 174, 1276 V. Meislahn (12 Daly (N. Y.) 149) 1141 V. Monroe (55 Fed. Rep. 407) . 17, 86, 92 V. New York, etc., B. Co. (6 N. Y. Supp. 182) 532 V. New York, etc., R. Co. (2 Silv. Sup. (N. Y.) 9) 1346 V. Northern Pac. R. Co. (19 Wash. 340) 596 V. Ross (2 Sawy. (U. S.) 91).. 993 ti. Snow (9 Ala. 247) 1417 V. Standard Gas Light Co. (17 Misc. (N. Y.) 625)... 124, 131 V. State (26 Ind. 89) 1294 V. Tribble (66 Ga. 584) 21 Andres v. Brooklyn Heights R. Co. (84 N. Y. App. Div. 596) 299 Andrews v. Hyde (3 CliflE. (U. S.) 516) 1225, 1237, 1264 V. Metropolitan St. R. Co. (91 N. Y. App. Div. 63) 1183 Angeli V. Reynolds (26 R. I. 160) . . 561 V. Rosenburg (12 Mich. 257).. 852 Annaker v. Chicago, etc., R. Co. (81 Iowa 267) 1343 Annapolis, The (Lush. 355) 998 Annapolis, etc., R. Co. o. State ((Md.) 65 Atl. Rep. 434) 535 Anne B. Valentine, The (22 Fed. Rep. 620) 1247 Annex No. 5, The (117 Fed. Rep. 754) 275 Anonymous (35 Ala. 226) 1376 (37 Miss. 54) 1375 ((N. Y. Super. Ct.) 17 Abb. Pr. (N. Y.) 48) 938, 1168, 1262, 1415 Id TABLE OF CASES. 89 1391 164 235 489 550 Ansonia Brass, etc., Co. i>. Electri- cal Supply Co. (32 Fed. Eep. 81) 58, Antelope, The (10 Wheat. (U. S.) 66) Anthony *. Brown (37 Kan. 14) . . . Appersou v. Dowdy (82 Va. 776) . . 802, 1039, 1041, 1042 Appert V. Brownsville Plate Glass Co. (144 Fed. Rep. 115) 977 Appleton V. Bcaubert (62 Fed. Eep. 742) 1278 A. P. Skidmore, The (108 Fed. Eep. 972) Aras, The ((1907) P. 28) 280, 281, 285, 289, Arbuckle v. Templeton (65 Vt. 205) Archbold, In re (34 Nova Scotia 254) 1420 Archibald v. Blois (2 Nova Scotia 307) 1311 Argo, The (1 C. Eob. 158) 189 Argo (Swabey 112) 383 Ariadne, The (7 BlatcM. (U. S.) 211) 764 Arizona, The (5 Prob. D. 123) 755 Arkansas Mut. F. Ins. Co. v. Witham ((Ark.) 101 S. W. Eep. 721) 80 Ark Foo V. TJ. S. (128 Fed. Eep. 697) 170, 549, 1162, 1366 Armonia, The (67 Fed. Eep. 362) . . 1247, 1275 Armour v. Gaffey (30 N. Y. App. DIV. 121) 586 V. Skene (153 Fed. Eep. 241).. 814 Armstrong, The (Brown Adm. 130) 1135, 1158, 1227, 1238, 1247 Armstrong v. Farr (11 Ont. App. 186) 19 ti. Gage (25 Grant Ch. (D. C.) 1)..59, 85, 183, 803, 911, 979, 985, 1135, 1152, 1199, 1223, 1255, 1412 D. Hnddleston (1 Moo. P. C. 478) 546, 1189 Arndt 0. Hosford (82 Iowa 499)... 164 Arnold V. Chesebrough (58 Fed. Eep. 833) 523, 1072, 1217, 1266 ! v: Diggdon (20 Nova Scotia .•!03) llL'n. 1155 V. Metropolitan L. Ins. Co. (22 Pa. Super. Ct. 575)... 143, 836 p. Sinclair (12 Mont. 248) 1311, 1313 600 388 455 56 594 44 [References are to pages.] Aronson ». Baker (43 N. J. Eg. 365) 1098, 1107 Arrott v. Standard Sanitary Mfg. Co. (131 Fed. Eep. 457) 87 Arrowsmith, In re (206 111. 352) . . . 1266 .Vrthur Orr, The (69 Fed. Eep. 350) 288 Arthurton v. Dalley (2 Grant Ch. (TJ. C.) 1) 928, 974, 978, 1249 Artz v. Chicago, etc., E. Co. (34 Iowa 154) 294 Asbach V. Chicago, etc., E. Co. (74 Iowa 248) Asbnry Park, The (144 Fed. Eep. 553) Ashbourne, The (112 Fed. Eep. 687) Ashe V. Mutual Lasting Co. (42 Fed. Eep. 841) Ashland, The (19 Fed. Eep. 651).. 588, Ashley, In re (Newfoundland L. Eep. (1884-1896) 447) Ashley v. Kanawha Valley Traction Co. (60 W. Va. 306).. 400, 426, 537 V. Presqne Isle County (83 Fed. Eep. 534) 551, 1131 Ashley Wire Co. v. Illitiois Steel Co. (164 111. 149) 527 Askew V. Odenheimer (Baldw. (U. S.) 380) 585 Asphalt, etc., Constr. Co. v. St. Louis Transit Co. (102 Mo. App. 469) 297 Assante v. Charleston Bridge Co. (40 Fed. Eep. 765) 549 Astley o. Astley (1 Hag. Fee. 714). 1166 Astsrup i>. Lewy (19 Fed. Eep. 536) 546 Atchinson, etc., R. Co. v. Baumgart- ner (74 Kan. 148) 533 V. Feehan (149 111. 202) 1343 V. Hamlin ((Kan.) 88 Pae. Eep. 541) 261, 266 V. Phipps (125 Fed. Eep. 478). 585 e. Potter (60 Kan. 808) 1303 V. Withei-s (69 Kan. 620) 264 Atherton r. British .Vmerica Assur. Co. (91 Me. 2.S9) 190, 1153 Atlanta v. Brown (7.i Ga. e.TO) 1289 .\tlanta, etc., R. Co. v. Johnson (66 Ga. 259) 1339 V. W.vly (65 Ga. 120) 402 .Atlanta Journal r. Mayson (92 Ga. 640) S4 Atlanta E., etc., Co. v. Monk (118 Ga. 449) 192 V. Owens (119 Ga. 833) 1403 tABLE OF CASES. Ivii 828 553 [References are to pages.] Atlantic Coast Line R. Co. v. Miller ((Fla.) 44 So. Rep. 247) 241, 1180 Atlantic Milling Co. v. Robinson (20 Fed. Rep. 217) 554 Atlantic Works v. Brady (107 V. S. 192) 1279 Atlas, The (10 Blatchf. (U. S.) 459) 1247 Atty.-Gen. ». Bertrand (4 Moo. P. C. C. N. S. 460) 1118, 1425 V. Garbutt (5 Grant Ch. (U. C.) 181) 72 V. Harmer (16 Grant Cb. (IT. C.) 533) 970, 1133 V, Queen's Free Cliapel (24 Beav. 679) 579, 584 Atwood V. Impson (20 N. J. Eg. 150) 572, 1152, 1162, 1205, 1262, 1307, 1309 V. Portland Co. (10 Fed. Rep. 283) 90, Atwood-Morrison Co. i). Sipp Elec- tric, etc., Co. (136 Fed. Rep. 859) 87, 169, An 0. New Yorl£, etc., E. Co. (29 Fed. Rep. 72) 1226, 1245, 1256, 1332 Aubie V. Trimmer (17 N. J. Eq. 242) 225 Auditor-Gen. v. Hill (97 Mich. 80) . 1183, 1185 August, The ( (1891) P. 328) 155 Auguste Andre, The (Young (Nova Scotia) 205) 455 Augustine v. Wolf (215 Pa. St. 558) Auld V. Auld (16 N. Y. Supp. 803) . 516, 599, Ault V. Interstate Sav., etc., Assoc. (15 Wash. 627) 527 Aurania, The (29 Fed. Rep. 98) 448 Aurora, etc., R. Co. v. Gary (123 III. App. 163) 426 Austen v. Dugger (3 Phill. Ecc. 120) Australian Knitting Co. v. Gormly (138 Fed. Rep. 92) Avon, The (22 Fed. Rep. 905) . .299, 311, 345, Axiom MIn. Co. ». White (10 S. Dalf. 198) 1216 Ayer v. The Steamer Glaucus (4 CIltE. (U. S.) 166) 508, 1282 Ayers i). Metcalf (39 111. 307) 1291, 1311 Ayres v. Ayres (142 111. 374) 171 716 601 1307 89 347 B. Babcock v. Chicago, etc., R. Co. (62 Iowa 593) 136 V. Bldridge (15 La. 149) 1412 V. Fitchburg R. Co. (140 N. Y. 308, 311) 67 V. Terry (1 Lowell (U. S.) 66) 1258 Bach V. Barrett (2 La. Ann. 955) . . 547 V. Cornen (5 La. Ann. 109) . . . 580 Ba.ckus V. The Schooner Marengo (6 McLean (U. S.) 487) 778 Badger v. Badger (88 N. Y. 546) ... 522 V. Janesville Cotton Mills (95 Wis. 599) 417 Badger State, The (15 Fed. Rep. 346) 1264, 1313 Badgerow v. Grand Trunk R. Co. (19 Ont. 191) 64 Badische Anilin, etc., Fabrik v. Kalle (94 Fed. Rep. 163) 87 Baggett V. Trulock (77 Ga. 369) .. . 1402 Baler v. Camden, etc., R. Co. (68 N. J. L. 42) 836, 1266 Bailey, Matter of (111 N. Y. App. Div.) 909) 77, 925 Bailey ». Chamberlain (22 N. Y. Supp. 144) 1212 i>. Jourdan (18 N. Y. App. Div. 387) 339 V. Landingham (53 loWa 722) . 1034 V. Stiles (2 N. J. Eq. 220) 857 Bailus V. State (8 Ohio Cir. Dec. 526) 1165 Baird v. Abbey (73 Mich. 347).. 85, 1190 V. New York (96 N. Y. 567) . . 16, 1419 Bakemau v. Rose (14 Wend. (N. Y.) 103) 98, 1263 Baker, In re (14 Nat. Bankr. Reg. 433) 1275 Baker, The (106 Fed. Rep. 87). 487, 495 V. Batt (2 Moo. P. C. 317) 1249 V. Fireman's Fund Ins. Co. ^79 Cal. 34) 136, 143 t). Haines (6 Wharf. (Pa.) 284) 678, 680 V. Harrington (Mass. 1907) 82 N. E. Rep. 33) 1356 !/. Hess (53 III. App. 473) 824 V. Irish (172 Pa. St. 528) 1422 V. Philadelphia, etc., R. Co. (149 Fed. Rep. 882).. 534, 540 V. Robinson (49 III. 299) 1260 ■u. Smith (Holmes (C. S.) 85). 766 Iviii TABLE OF CASES. [References are to pages.] 330 580 594 551 Baker o. Spencer (58 Barb. (N. Y.) 248) ll'll V. State (47 Wis. Ill) 62 0. Steamship City of New York (1 Cliff. (U. S.) 84) 354 ». Tacoma Eastern E. Co. ((Wash.) 87 Pac. Rep. 826) V. Wilson (6 Grant Ch. (U. C.) 603) Baker's Will (2 Redf. (N. Y.) 179). Baldwin v. Brooklyn Heights R. Co. (99 N. Y. App. DIv. 496) . . 0. Dunton (40 111. 196) 823 1/. National Hedge, etc., Co. (73 Fed. Rep. 574) 80, 81, 837, 1151, 1310, 1312 Ballard v. McCuskey (58 Fed. Rep. 880) 1150, 1266 Balmford ti. Peffer (30 Misc. (N. Y.) 117) 1329 V. Peffer (31 Misc. (N. Y.) 715) 1196, 1267 Baly V. St. Paul City R. Co. (90 Minn. 39) 541 Baltic, The (41 Fed. Rep. 603) 281 Baltimore, etc., R. Co. v. Baldwin (144 Fed. Rep. 53) V. Griffith (159 V. S. 603) V. Landrigan (20 App. Cas. (D. C.) 135) 264, V. Landrigan (191 U. S. 461, 474) 529, 530, 533, V. McClellan (69 Ohio St. 142) 265, V. Rambo (59 Fed. Rep. 75).. 588, 1274 V. Homing (96 Md. 67) 1341 V. Stanley (54 111. App. 215) . . 183, 197 V. State (71 Md. 590) 1258 V. State (79 Md. 335) 266 V. State (96 Md. 67) 256 V. State (101 Md. 359). 64, 303, V. State ((Md.) 64 Atl. Rep. 304) V. Stoltz (9 Ohio Cir. Dec. 638) i). Walborn (127 Ind. 142) V. Whitacre (35 Ohio St. 627). Baltimore City Pass. R. Co. v. Mc- Donnell (43 Md. 534) 431, Baltimore Steam Packet Co. v. Coastwise Transp. Co. (139 Fed. Rep. 777) 476 Baltimore, The (155 Fed. Rep. 405) 487 Bamford v. Pittsburg, etc.. Traction Co. (194 Pa. St. 17) 63 1341 533 329 740 330 315 204 402 41 945 436 Banagan v. Clark (37 Misc. (N. Y.) 483) 585 Bank of British North America v. Delafield (126 N. Y. 410) 149 Banks v. American Tract Soc. (4 Sandf. Ch. (N. Y.) 438).. 960, 1307 V. Connecticut R., etc., Co. (79 Conn. 116) 1054 t>. Shedden Forwarding Co. (11 Ont. L. Rep. 483) 557, 1062 Bannatyne v. Bannatyne (2 Rob. Ecc. 472) 977-978 Bannister v. Jackson (45 N. J. Eq. 702) 813 Banta v. Banta (3 Edw. (N. Y.) 295) 1117 Baptiste u. Fourchy (49 La. Ann. 1627) 221, 549 Barbed Wire Patent (143 U. S. 275) 86, 829, 852, 914, 1189, 1278 Barber v. Bennett (58 Vt. 476) 959 V. Lyon (22 Barb. (N. Y.) 622) 584 Barber Asphalt Paving Co. v. Odasz (85 Fed. Rep. 754) 1413 Barcalow v. Sanderson (17 N. J. Eq. 460) 1127, 1222 Barclay v. Hartman (2 Marv. (Del.) 351) 1332 Bardin v. Stevenson (75 N. Y. 164) 653 Barfleld v. Hewlett (6 Mart. N. S. (La.) 78) 658 Barhite's Appeal (126 Pa. St. 404) 184, 187 Bark Carlotta, The (9 Ben. (U. S.) 1) 576, 778 Bark Childe Harold, The (01c. Adm. 275) 1275 Bark Huntress, The (2 Sprague (U. S.) 61) 14, 494 Bark Jupiter, The (1 Ben. (U. S.) 536) 469 Bark Lotty, The (01c. (Adm.) 329) 1316 Barker v. Barker (36 N. J. Eq. 259) 973, 982 Barkley v. Bradford (100 Ky. 304) 121, 1116 Barlow v. Harrison (51 La. Ann. 875) 611, 625, 658, 683 Barnard v. State (88 Wis. 656) 1055 Barnes r. Brown (32 Mich. 146)... 1286 V. New York Cent., etc., R. Co. (42 Misc. (N. Y.) 622)... V. Taylor (27 N. J. Eq. 259).. Barnett v. Becker (25 Pa. Super. Ct. 22) 118 303 825 TABLE OF CASES. lix [References are to pages.] 1031 932 803 BaiMttv. Nally ((Md.) 6 Atl. Kep. 535) 188, 227 V. Proskauer (62 Ala. 486) 1394 V. State (35 Tex. Crim. 280) . . 1395 Barnum v. Barnum (42 Md. 251) . . 1388, 1389 Baron Innerdale, The (93 Fed. Rep. 492) 66 Barqne Anna, The (Taney (U. S.) 549) 576 Barr, Matter of (38 Misc. (N. Y.) 355) 965 Barr v. Hack (46 Iowa 308) 1265 V. Hatch (9 Grant Ch. (U. C.) 312) Barranco v. Law (87 N. Y. App. Dlv. 626) 855, 929, Barrett v. Suttis (17 Nova Scotia 262) ; 792, Barrett's Succession (43 La. Ann. 61) 221, 1204 Barrett i). Williamson (4 McLean (U. S.) 589) 736, 753, 1247 Barrie v. St. Louis Transit Co. (102 Mo. App. 87) 337 Barron t;. People (1 N. Y. 386) 1118 Barth v. Borden's Condensed Milk Co. (104 N. Y. Supp. 882) 1407 Bartholomew v. Mercantile Marine Ins. Co. (34 Hun (N. Y.) 263) . . . 1238 Bartles v. Gibson (17 Fed. Rep. 293) Bartlett v. Brown (121 Mo. 353). Barry v. Boston El. R. Co. ((Mass.) 80 N. E. Rep. 225) 428 «. Graciette ((Tex. Civ. App.) 71 S. W. Rep. 309).. 121, 1429, 1430 Barto V. Sioux City Electric Co. (119 Iowa 179) 1178 Barwick v. Wood (3 Jones L. (48 N. Car.) 306) 648 Bashford v. People (24 Mich. 244) . 1406 Bassett v. Fish (75 N. Y. 303) 945 Bastrop State Bank v. Levy (106 La. 586) 564 Batavier, The (1 Spinks Ecc. & Adm. 378) 784, 1180 Batchelder e. Batchelder (139 Mass. 1) 1273 BatdorflE «. Farmer's Nat. Bank (61 Pa. St. 179) 1202 Bates -0. Cilley (47 Vt. 1) 1181, 1339 V. Lyon (2 N. Bruns. 122).. 30, 577 V. New York, etc., R. Co. (60 Conn. 259) 258 V. Park (54 111. App. 49) 1145 592 79 Bauer v. North Jersey St. R. Co. ((N. J.) 65 Atl. Rep. 1037) 427, 816 V. State (144 Cal. 740) 1403 Baugher v. Gesell ((Md.) 63 Atl. Rep. 1078) 121 Baur V. Cron ((N. J.) 66 Atl. Rep. 585) 877 Baxter, In re (152 Fed. Rep. 137) . . 74 V. Chicago, etc., R. Co. (104 Wis. 307). 157, 1374, 1376, 1378 V. St. Louis Transit Co. (103 Mo. App. 597) 296 Bay State, The (2 Fed. Cas. No. 1,150) 275 , The (153 Fed. Rep. 973) 188 Bayley v. Eastern R. Co. (125 Mass. 62) 992 Bayonne, The (128 Fed. Rep. 288). 508 B. C. Terry, The (30 Fed. Rep. 711) 495 Beal V. Finch (11 N. Y. 128)... 33, 1237 Bealc u. Old Colony St. R. Co. ( (Mass.) 81 N. E. Eep. 867) 427 Beals V. Pinkenbiner (12 App. Cas. (D. C.) 23) 136 Bean v. Quimby (5 N. H. 94) 1115 Beanstrom v. Northern Pac. R. Co. (46 Minn. 193) 270 Bearce v. Dudley (88 Me. 410) 1421 Beard v. Hubble (9 Gill (Md.) 420) 187, 796, 1319 Beardslee v. Columbia Tp. (188 Pa. St. 496) 1361, 1362 Beatty v. Neelon (12 Ont. App. 50) 523, 1276 V. Thllemann (16 Daly (N. Y.) 20) 116 Beaty v. Beaty (1 Add. Ecc. 154).. 1295 Beaublen v. Cicotte (12 Mich. 459). 154, 607 Beauchamp v. Cash (Dowl. & R. N. P. 3) 722 17. Saginaw Min. Co. (50 Mich. 163) 1335 Beauclerk v. Beauclerk ((1891) P. D. 189) 821, 1407, 1427, 1431 Beaufort v. Neeld (12 CI. & F. 248) 1181, 1229, 1244, 1282 Becht V. Corbin (92 N. Y. 658). 123, 131 Beck V. People (115 111. App. 19) . . 1215 Becker v. Crow (7 Bush (Ky.) 204) 796, 1006, 1008, 1033, 1034, 1035 V. Koch (104 N. Y. 394).. 150, 1235, 1405 V. Qulgg (54 111. 390) 1095 V. Woarms (72 N. Y. App. Div. 196, 76 N. Y. Supp. 438) . . 137 be TABLE OF CASES. 296 1289 170 1148 944 Beckwith ». New Tork Cent. E. Co. (64 Barb. (N. Y.) 299)... In re (130 Fed. Rep. 4T5) 1312, 1313 Bedell V. B^oss (50 Vt. 94) 1329 Bedilian v. Seaton (3 Wall. Jr. (C. C.) 279) lOOe, 1031, Bee Printing Co. ». Hichborn (4 Allen (Mass.) 63) 166, Bee, The (1 Ware (U. S.) 336) Beeeher v. Gillespie (6 Ben. (U. S.) 356) Beedle v. People (204 111. 197) 1215, 1272 Beeg V. New York, etc., E. Co. (70 N. J. L. 56) 331 Beekman v. Beekman (2 Dem. (N. Y.) 685) 1212 Beelet V. Heeler ((Ky.) 44 S. W. Eep. 136) 1190 Beer V. McLeod (22 Nova Scotia 535) 17 Beerraan v. Union E. Co. (24 R. I. 275) 272 Beers v. Metropolitan St. R. Co. (88 N. Y. App. Di¥. 9) 386, 1181, 1183 Beier v. St. Louis Transit Co. (197 Mo. 215) 425, 435, 1079 Beisiegel v, New York Cant. R. Co. (40 N. Y. 9, 20) 128, 133, 438 Belcber ». Gfrey (16 Ga. 208) 75 Belden v. Belden (23 N. J. Eq. 350) 1240 Belfotd V. Brooklyn Heights R. Co. (86 N. Y. App. Div. 388) Belgian King, The (125 Fed. Eep. 869) Belhaven Peerage Case (1 App. Cas. 279) Belinski v. National Brewing Co. (124 III. App. 45) 1420 Bell V. Bell (34 N. Bruns. 615) 1150, 1427 V. Cape Breton Electric Co. (Ltd.) (37 Nova Scotia 298) 308, 324, V. Graham (13 Moo. P. C. 242) 880, V. Hill (1 MacArthur Pat. Cas. 361) V. MeCawley (29 Ga. 355) D. Morrlsom (1 Pet. (U. S.) 351) «. Norwood (7 La. 95) V. Shields (19 N. J. L. 98). .. Belletronte First Nat. Bank «. Mc- Maalgle (69 Pa. St. 156) 550, [References are to pages.] Bellingham, The (138 Fed. Eep; 619) 422 Bello V. Metropolitan St. E. Co. (2 N. Y. App. Div. 313) 375 Belloni v. Sydney, etc., E. Co. (9 Nova Scotia 137) 1109 Bell Tel. Co. «. Detharding (148 Fed. Eep. 371) 65 Belmont «. Vinalhaven (82 Me. 524) 1229 Bender v. Pitzer (27 Pa. St. 333) . . 1291 Benedict ». Planigan (18 S. Car. 506) 660, 671, 712 V. Horner (13 Wis. 256).. 1032, 1035 Benglesdorf f. Hanway (90 Md. 217) 1316 Benjamin ». Bllinger (80 Ky. 472) . 581 Benne «. Benne (56 Mo. App. 504) . 1301 Bennett V. BenJiett (50 N. J. Eq. 439) 1130, 1132 V. Mathews (5 S. Car. 478) . . . 644, 660, 671 V. Metropolitan St. R. Co. ((Kan. App.) 99 S. W. Rep. 480) 1341, 1349 V. New York, etc., E. Co. (57 Conn. 422) 303 V. New York Cent., etc., R. Co. (16 N. Y. Supp. 765) 1346 V. Rogers (12 Neb. 382) 54, 1402 V. Susser (191 Mass. 329) 589 Bensley v. Northwestern Horse-Nail Co. (26 Fed. Eep. 250) 960 Benson ». Raymond (142 Mich. 357) 1354 ■iJ. Woolverton (15 N. J. Eq. 158) 1237 Bentley ». Brown (37 Kan. 14) 164 p. Long Dock Co. (14 N. J. Eq. 480) 230 V. Owego Mnt. Ben. Assoc. (1 SilV. Sup. (N. Y.) 177)... 1335 ®. Phelps (2 Woodb. & M. (U. S.) 426).. 857, 960, 963, 1066, 1069, 1076, 1249, iSll Benton v. State ((Ga. App.) 60 S. E. Rep. 116) 1336 Berckmans v. Berckmans (16 N. J. Eq. 122) 139, 1276 «. Berckmans (17 N. J. Eq. 453) 1209, 1253, 141S Berdel ». Egan (125 111. 298) ■!•.": Berg D. State (3 Fed. Cas. No. 1,337) 1305 V. Thistle (3 Fed. Cas. No. 1,337)... 1188, 1258, 1311, 1312 Matter of (173 Pa. St. 647) . . 686, 1079 273 424 598 429 898 1155 1397 1289 713 694 576 TABLE OF CASES. Ixi [Refarences are to pages,] Benger 0, Chicago, etc, R. Co. (97 Mo. App. 187) 140, 183 Berkeley Peerage Case (4 Camp. 401) 1298 Berkery «, Erie E. Co. (55 N. Y, App. Dir, 489) 859, 330 Bernard p. Ashley (Hempst. (P. S.) 865) 1090 Bernhardt v. Beoeaelaer, etc., B, Co. (32 Barb. (N- Y.) 165) 238 Berrien, In re (5 N, Y. Supp, 37) . , 622, 634, 1230 Berry v. Berry (115 Iowa 543) 1427 V. Berry (17 N, J, I,. 440) 580 V. Boston, etc., R. Go. ((Me,) 66 Atl. Hep, 388) 269 V. Hartzell (91 Mo, 132) 1292 V. Pennsylvania R, Co. (48 N. J, L. 141) 831 I/. Safe Deposit, etc., Co. (96 Md- 45) 601, 1385 Berryman v- Pahlgren (6 Bob, (La.) 188) , 648 ». Graham (21 N. J. Eq. 370) , 1190, 1320 Berwind-White Coal Mln. Co., In re (116 Fed. Rep, 51) 863 Beryl, The (L. R. 9) 1382 Ber«esi?y v. Pelaware, etc B- Co, (19 N. y. App. DiT. 309) 123, 136 Bessey v. Bostwiek (13 Grant Ch. (U, C) 879),,. 22, 71, 938, 966, 1132, 1133, 1249 Beta, The (40 Fed. Rep. 899),.. 15, 508 Bettendorf Patents Co. v. 3. R. Lit- tle Metal Wheel Co. (123 Fed. Rep. 435) 90, 553, 832, 981, 1837 Betts t>. Venning (14 N. Bruns. 267) 580 Bevan v. Atlantic Nat. Banlt (142 111. 302) 655 V. Atlantic Nat. Bank (39 111. App. 577) 625 Bevington v. Bevington ((Iowa) 110 N. W. Rep. 840) 72 Bibb V. Hunter (79 Ala. 851) 1292 Bice V. State (37 Tex. Crim. 38) . . 953, 978 Bickel V. Pennsylvania E. Co. ( (Pa.) 66 Atl. Rep. 756) 43 Biddinger v. Wiland (67 Md. 359) . . 1034 Blerbach e. Goodyear Rubber Co. (54 Wis. 208) 735 Bigelow V. Young (30 Ga. 121) 1197 BiggerstaflE v. Biggerstaff (180 111. 407) 1420 Billings V. Rust (1 Nora Scotia 88) 1398 Bims V. Collier (69 Ark. 245) 514 Bindley v, Martin (28 W. Va. 773) . 579, 581 Bingham v. Hyland (1 Silv. Sup. (N. Y,) 551) 1421 Binkley v. State (34 Neb. 757) 94 Bird V. Bird (2 Hag. Ecc. 142) , . . 593, 964, 984, 1296 V. Long Island B, Co. (11 N. Y. App. Div. 134) 373 BIrdsall v, Johnson (24 Grant Ch. (U. C.) 202) 1313 Blrmiughanj Electric R. Co, v. Clay (108 Ala. 233) 408, 853, 977 Birmingham R., etc., Co. v. Frans- comb (124 Ala. 681) 1417 Bisewski », Booth (100 Wis. 383) , . 812, 1409 Biehop V. Busse (69 111. 403) 1420 V- Clay F. & M. Ina, Co. (49 Conn. 167) 79 V. Hilliard (227 111, 382). 1242, 1244 Bissell V. Bissell (55 Barb. (N. Y.) 325) 1132, 1164 Black V. Black (38 Ala. Ill) . . .821, 984 V. Black (30 N. J, Eg, 215).. 643, 659, 715 V. Black (4 Bradt (N. T.) 174) 976 V. Halliburton (9 Nova Scotia 207) 547 «. Lamb (12 N. J, Eg. 108),,, 35 V. Shreve (13 N. J. Bq. 455)., 35 V. Thornton (31 Ga, 641) 1034 Blackman v, Hawks (89 111. 512)., 645, 713, 1827 Blackstone, The (1 Lowell (U. S.) 485) 274 Blaco V. State (58 Neb. 557) 520 Blain v, Terryberry (9 Grant Ch. (U. C.) 286) 77 Blair, Matter of (16 Daly (N. Y.) 540) 1107 Blake, The (1 W, Bob. 74) 1318 V. Blake (70 HI. 618)... 1062, 1148, 1168, 1169, 1264 V. Eagle Works Mfg. Co, (3 Bias. (U, S-) 77) 90, 889 V- Raweon (Holmes (U. S.) 200) 830 Blanchard v. Hodgklns (62 Me. 119) 560 II. McDougal (6 Wis. 167) ... , 1277, 1302 Bland «. Lloyd (24 La. Ann. 603) . . 1292 Blandy v. Griffith (3 Fish. Pat, Cas, 609) ,..,,.,., 1875 bdi TABLE Of CASES. 167 571 36 585 Blank Est., Be (5 Northwest Terri- tory 230) 76 Blankman v. Vallejo (15 Cal. 639, 646) 126, 138, Blatch V. Archer (1 Cowp. 63). 374, 542, Blease «. Garllngton (92 U. S. 1).. Bleecker v. Johnston (69 N. Y. 309) 551, V. Lynch (1 Bradf. (N. Y.) 458) 1032, 1066 Blight ». Ashley (Pet. (C. C.) 15). 1009 V. Camden, etc., R. Co. (143 Pa. St. 10) 205 Bliss V. Paine (11 Mich. 92)... 883, 1396 Blitt V. Heinrich (33 Mo. App. 243) 1215 Block ii. Galitzka (114 N. Y. App. Div. 799) 115 Bloom V. McGrath (53 Miss. 249) . . 1329, 1411 .;. State (68 Ark. 336) 1215 Bloomfield v. Burlington, etc., E. Co. (74 Iowa 607) 205 Bloomlngdale v. Southern Nat. Bank (63 N. Y. App. Div. 72) 123, 131, 132, 1293 Blotz V. Lehigh Valley R. Co. (212 Pa. St. 154) 534 Blount V. Medberry (16 S. Dak. 562) 167 Blue V. Everett (55 N. J. Eq. 329) . . 1212 Blue Bell, The ((1895) P. 242). 423, 998 Blue Bonnet, The (10 Fed. Rep. 150) 382 Blume V. Hartman (115 Pa. St. 32) 1407 Blumenthal v. Boston, etc., R. Co. (97 Me. 255) 193, 205 Bluroek v. Biurock (4 Wash. 495).. 1427 Blydenburgh «. Welsh (Baldw. (U. S.) 331) 48 Board v. Callihan (33 W. Va. 209) . 802, 1263 Board of Health v. Lederer (52 N. •T. Eq. 675) 368 Board of Trade v. Central Stock, etc., Bxch. (98 111. App. 212) 570 Boatmen's Sav. Bank v. Overall (16 Mo. App. 510) 122 Bobb V. Bobb (7 Mo. App. 501) . .81, 1302 Bodelsen v. Swensen (206 111. 68).. 1420 Bodenheimer v. Bodenhelmer (35 La. Ann. 1005) 35, 524, 1292, 1409 Boggs V. Pittsburg, etc., R. Co. (216 Pa. St. 314) 205 Bogle V. Hammons (2 llelsk. (Tenn.) 136) 1307 Bohl V. Carson (63 Fed. Rep. 26) . . X91, 579 [Refeirenees are to pages.] Bohler v. Owens (60 Ga. 185).. 812, 1312 Boland v. Combination Bridge Co. (94 Fed. Rep. 888) 869 Bolden v. Jensen (70 Fed. Rep. 505) 1211 Boler V. Sorgenfrel (86 N. Y. Supp. 180) 560 Boll V. Adirondack R. Co. (4 N. Y. Supp. 769) 259, 339 Bolles, Matter of (37 Misc. (N. Y.) 562) 20 Bolton's Estate (14 Pa. Co. Ct. 575) 1038 Boman ». Plunkett (2 McCord L. (S. Car.) 518) 660, 671, 672 Bonanno u. The Boskenna Bay (36 Fed. Rep. 697) 980 Bond i>. Cutler (7 Mass. 205) 931 V. Smith (113 N. Y. 378) 67 Bones v. Steffens (16 N. Y. Supp. 819) 1284 Bonnell v. Smith (58 Iowa 281) . . . 1239, 1240 V. Wilder (67 111. 327) 107, 188 Bonnemort e. Gill (165 Mass. 493). 1280 Bonner, Matter of (33 Misc. (N. Y.) 9) 1280 Bonnie v. Earll (12 Mont. 239) 1215 Bonsall v. Hamilton-Noyes Co. (139 Fed. Rep. 403) 87 Bonynge v. Field (81 N. Y. 159) ... 547 Booker v. Booker (208 III. 529) .877, 1252. 1306 Boon V. Weathered (23 Tex. 675).. 1163 Booth V. MofEatt (11 Manitoba 25). 166 Borck V. State ((Ala.) 39 So. Rep. 580) 1171 Bordeaux v. Bordeaux (32 Mont. 159) 1425, 1427 Bordentown, The (7 Blatch. (U. S.) 374) 348 Boren v. U. S. (144 Fed. Rep. 801). 1286 Borland v. Walrath (33 Iowa 130). 516, 704, 715, 724 Borneman v. Chicago, etc., E. Co. ( (S. Dak.) 104 N. W. Rep. 208) . . 167, 397, 402 Bostleman v. Bostleman (24 N. J. Eq. 103) 547 Bostoek V. Goodrich (21 Fed. Rep. 316) 91 Boston, etc., R. Co. ii. Hurd (108 Fed. Rep. 116) 72 Boston, The (1 Sumn. (U. S.) 328). 580 Botkin 11. Cassady (106 Iowa 334). 811 Botsford i>. Burr (2 Johns, Ch. (N. Y.) 40.T) 912 Botts V. Williams (17 B. Mou. (Ky.) 687) 13U TABLE OF CASES. Ixiii [References are to pages.] Bouga V. Weare Tp. (109 Mich. 520) 891 Boulton V. Robinson (4 Grant Ch. (U. C.) 109) 911, 1117 Bourda v. Jones (110 Wis. 52). 121, 166 Bourgeois v. Chauvln (39 La. Ann. 216) 303, 1169 Bourn v. Hill (27 App. Cas. (D. C.) 291) 1279 Bouton V. Welch (48 N. T. App. DlT. 378) 226 Bowden v. Johnson (107 U. S. 251) 559 Bowdoln College v. Merritt (63 Fed. Rep. 213) 874 V. Merritt (75 Fed. Rep. 480, 499) 548, 936 Bowen v. Preferred Ace. Ins. Co. (82 N. T. App. Dlv. 458) 841, 974 Bower v. Hadden Blue Stone Co. (30 N. J. Eq. 171) 580 Bowers v. San Francisco Bridge Co. (91 Fed. Rep. 408) 87 Bowers Dredging Co. v. New Torls Dredging Co. (77 Fed. Rep. 980) . 1102 Bowes V. Hopkins (84 Fed. Rep. 767) 412, 1265 D. Toronto (11 Moo. P. C. 463) 1252 Bowie V. Maddox (29 Ga. 285) 598 Bowles V. Chesapeake, etc., R. Co. ( (W. Va.) 57 S. E. Rep. 131) Bowman v. Bowman (24 111. App. 165) V. Little (101 Md. 273) V. Sanborn (25 N. H. 87) 671, 685, 700 Boyd „. Colt (20 How. Pr. (N. Y.) 384) 1322 V. Cook (3 Leigh (Va.) 32)... 1204 V. Glucklieh (116 Fed. Rep. 131) 61 ti. Gorman (29 N. T. App. Div. 428) 1215, 1221 V. Sell (Tappan (Ohio) 43) . . . 1332 Boyden v. Fltchburg R. Co. (72 Vt. 89) 534 Boykin v. Baker (9 Fed. Rep. 699) . 89, 979 Boylan ». Meeker (15 N. J. Bq. 310) 965 u. Meeker (28 N. J. L. 274).. 4, 37, 118, 185, 186, 190, 629, 713, 858, 958, 973, 1032, 1066, 1129, 1190, 1191, 1202, 1260, 1264, 1320, 1333, 1370, 1425 Boyne City, etc., R. Co. v. Anderson ((Mich.) 109 N. W. Rep. 429)... 253 270 1110 56 Boyston v. Bain (90 111. 283) 108 Brabham v. Crosland (25 S. Car. 525) 1422 Brachmann d. Hall (1 Disney (Ohio) 539, 546).. 606, 645, 646, 047, 652, 055 Bradford v. People (22 Colo. 157). 718 Bradish ». Bliss (35 Vt. 326) 85 Bradley ». Eccles (120 Fed. Rep. 947) 93 V. Eccles (138 Fed. Rep. 911). 86, 120 V. Eccles (144 Fed. Rep. 90).. 87, 89 V. Gorham (77 Conn. 211) 168, 1269 V. Mutual Ben. L. Ins. Co. (45 N. Y. 422) 1336, 1344 V. Second Are. R. Co. (34 N. Y. App. Div. 284) 1196 Brady v. Little (21 Ga. 133) 1332 V. New York, etc., B. Co. (20 R. L 338) 1342 17. Thompson (17 111. 270) 735, 1183 Bragg V. Geddes (93 111. 39).. 1044, 1289 V. Stockton (27 Fed. Rep. 509) 1211 Bragg Mfg. Co. v. New York (141 Fed. Rep. 118) 89, 980 Brahn v. Ramapo Iron- Works (35 Fed. Rep. 63) 832, 837, 974, 1275 Bramweii v. Bramwell (3 Hag. Bcc. 618) 1253 Brand v. Schenectady, etc., R. Co. (8 Barb. (N. Y.) 368) 410 Brandon v. Cabiness (10 Ala. 155). 696 Brantlngham v. Huff (67 N. Y. App. Div. 621) 219 Brantner v. Chicago, etc., R. Co. ((Iowa) 112 N. W. Rep. 790)... 1335, 1361 Brashears ». Orme (93 Md. 442) . . . 1375 Brauer v. Campania Navigacion, etc., Co. (66 Fed. Rep. 776) 1230 Breard ». Mechanics', etc., Ins. Co. (29 La. Ann. 764) 1140 Breck v. State (2 Ohio Cir. Dec. 477) 602 Breed v. Hillhouse (7 Conn. 523) . . 595 Breemersch v. Linn (101 Mich. 64) 143 Breeze v. MacKinnon Mfg. Co. (140 Mich. 372) 258 Brehm v. Great Western R. Co. (34 Barb. (N. Y.) 256) 154 Brelning's Estate ((N. J.) 59 Atl. Rep. 561) 1198 Ixiv TABLE OF CASES. [Eeferenees Brennan v. Metropolitan St. R. Co. (60 N. y. App. Div. 264). 421 V. New York (103 N. T. Supp, 266) 455 V. People (15 111. 611) 1215 V. Tbe Virgo (4 Fed. Cas. No. 1,831) 485 Bresee v. Los Angeles Traction Co. (149 Cal. 131) 400, 412, 536 Bressler v. Chicago, etc., E. Co. (74 Kan. 256) 205,533, 534 Breuchley v. Still (2 Eob. Bcc. 162) 1282, 1412 Breunniger v. Pennsylvania R. Co. (9 Pa. Super. Ct, 461) 205 Brewer v. Humble (26 N. Bruns. 495) 55 11. Wilson (17 N. J. Eg. 180) . . 59, 188, 223 Brewster v. Sewell (3 B. & Aid. 302) 647 Brickell v. Farrell (82 Fed. Rep. 220) 559 Bride v. Cicotte (4 Mich. 478) 853 Bridges v. North London R. Co. (L. R. 7 Eng. & Ir. App. Cas. 223) . . 304 Brig Emily, The (01c. Adm. (U. S.) 132) 385, 492, 998 Brig James Gray, The, v. The Ship John Fraser (21 How. (U. S.) 184) 347 Brig James Wells, The (Brun. Col. Cas. (D. S.) 65) 1227 Brig .leremiah. The (10 Ben. U. S.) 326) 15, 480, 487, 768, 1114 Brig Napoleon, The (01c. Adm. (U. S.) 208) 103, 1139 Briggs V. Phelps (70 Fed. Rep. 29) 130 Brigham v, Buseey (28 La. Ann. 676) 858, 929 1). Luekenbach (140 Fed. Rep. 322) 765, 767 Bringier e. Gordon (14 La. Ann. 272) 1294 Brink V. Lyons (18 Fed. Rep. 605). 858 «. Stratton (176 N. Y. 150) . . . 1150, 1151, 1249, 1254 Brlnker v. Michigan Cent. R. Co. (121 Mich. 283) 262 Brinkqjan V. Sunken (174 Mo, 709) 71 Bristed i;. Weeks (5 Redf. (N. Y.) 529) 1233 Bristol, The (10 Blatchf. (U. S.) 537) 279, 280, 380, 401, 965 Britannia, The (34 Fed. Rep. 546) . 448 a-re to pages.] Britannic, The (39 Pea. Rep. 395). 289, 450 British Queen, The (89 Fed. Rep. 1003) 279 Britten V. Michigan Cent. R. Co. (122 Mich. 359) . , 332, 1313 Brobston v. Cahill (64 III. 356) 717 Brock V. Luckett (4 How. (Mies.) 459) 44 Brocking v. Straat (17 Mo. App. 296) 576 Brocklebank, In re (Newfoundland (1854-1864) 88) 15, 20 Brockway v. Mutual Ben, L. Ins. Co. (9 Fed. Rep. 249) 1332 Brom «. People (216 HI. 148) 820 Bromberger v. U. S. (128 Fed. Rep. 346) 1418 Brommer, In re (28 N. Y. Supp. 907) 1280 Bronson o. Oakes (76 Fed. Rep. 734) . 309 Brooke v. Scogging (4 Fed. Cas. No. 1,936) 55 Brooklyn Ferry Co. v. U. S, (122 Fed. Rep. 696) 279 Brooks I). BickneU (4 McLean (U. S.) 70) 1381 V. Jenkins (3 McLean (TJ. S.) 432) 1381 V. Sacks (81 Fed. Rep. 403) .. . 93, 554, 832, 974, 978 V. Scoggins (11 Nat. Bankr. Reg. 258) 1243 V. The D. W. Lenox (4 Fed. Cas. No. 1,952) 424 V. The Ship William Penn (2 Hughes (U. S.) 144) 1258 V. Wilson (53 Hun (N. Y.) 173) 1151, 1317, 1319, 1293, 1406 Brotherton v. Reynolds (164 Pa. St. 134) 1141, 1422 Broughton «, Smart (59 111. 440) . . 1408 Brouso i\ Stayner (16 Grant Ch. (U. C.) 553) , .798, 836, 954, 1027, 1031, 1088, 1143 Brown v. Barse (10 N. Y. App. Div. 444) 571 I'. Boole (1 Nova Scotia 137).. 22 V. Boston, etc., R. Co. ((N. H.) 04 Atl. Rep. 194) 308 V. Brown (62 N. .T. Bq. 29) . . . 38 I'. Brown (83 N. J. Eq. 348) . . 38, 1161, 1168, 1193, 1233, 1253, 1369, 1409 V. Brown (1 Woodb. & M. (U. S.) 325) , 1249 TABLE OF CASES IXT [References are to pages.] Blown V. Brown (8 El. & Bl. 876) . . 1040 V. Cspron (24 Grant Ch. (U. C.) 91) 71, 825, 1292, 1321 «. Cranberry Iron, etc., Co. (72 Fed. Rep. 96) 944 V. Matthews (79 Ga. 1) 595 11. Mutual Ben. L. Ins. Co. (32 N. J. Eq. 812)... 713, 716, 1066 V. Petersen (25, App. Cas. (D. . C.) 359) 130, 168 V. Schocfe (77 Pa. St. 471)... 561, 597 V. Southern E. Co. ((N. C.) 57 S. E. Eep. 397) 267 V. State (32 Miss. 448) 819 V. Zaubitz (105 Fed. Rep. 242) 87, 90, 797, 830, 914, 930, 979, 1321, 1355 Browne i). New York Cent., etc., R. Co. (87 N. t. App. Div. 206) 234, 264, 294, 1344 Browning v. Budd (6 Moo. P. C. 430) 1258 V. Gosnell (91 Iowa 448) 644 V. Reane (2 Phill. Ecc. 69) 1252 V. Stiles ((N. J.) 65 Atl. Rep. 457) 1386 Bruce t>. Kelly (39 N. Y. Super. Ct. 27) 137, 567 Bruch V. Philadelphia (181 Pa. St. 588) 313, 1393, 1398 Brucklay Castle, The (36 Fed. Rep. 923) 1408 Bruger v. Princeton, etc., Mut. F. Ins. Co. (129 Wis. 281) 1409 Brugher v. Buchtenkirch (167 N. Y. 153) 302 Brunner v. Blaisdell (170 Pa. St. 25) 64 Brunswick, etc., R. Co. i/. Wiggins (113 Ga. 842) 1256 Brush V. Condit (20 Fed. Rep. 826) 89 .;. Holland (3 Bradf. (N. Y.) 461) 901, 911 V. Smith (111 Iowa 217) 1375 Brush-Swan Electric Light Co. v. Brush Electric Co. (41 Fed. Rep. 163) 568 Brusseau ». New York, etc., R. Co. (187 Mass. 84) 263 Bryan v. Cowart (21 Ala. 92).. 577, 1008, 1010, 1320 Bryant «. Fink (75 Iowa 516) 566 V. Simoneau (51 111. 324) 1183 V. Stilwell (24 Pa. St. 314) . . . 1045 Bryant's Estate (176 Pa. St. 309) . . 1189, Bryant's Estate (16 Pa. Co. Ct. 321) Bryce Bros Co. v. Seneca Glass Co. (140 Fed. Rep. 161) 86, 87, Brydges ». King (1 Hag. Ecc. 256). 714, 967, 1203, 1211, 1249, B. S. Sheppard, The (1 Biss. (U. S.) 221) 14, Bube V. Weatherly (25 Pa. Super. Ct. 88) Buchan, Matter of (16 Misc. (N. Y.) 204) 188, 1115, Buchanan v. Foster (23 N. Y. App. Dlv. 542) Buckeye, The (9 Fed. Rep. 666) . . . Buckley v. New York, etc., B. Co. (148 Fed. Rep. 460) Buckmaster v. Chicago, etc., E. Co. (108 Wis. 353) 256, Buell V. Van Camp (119 N. Y. 160) Buesching v. St. Louis Gaslight Co. (73 Mo. 219) 530, Buffalo, The (50 Fed. Rep. 630) .. . Buford V. McGetchie (60 Iowa 298) Bugbee v. Howard (32 Ala. 713). 22, 796, 798, 871, 873, 960, 962, 966, 1183, Bull, In re (2 N. Y. Supp. 52) Matter of (111 N. Y. 624) Bullock V. State (65 N. J. L. 557). Bunel V. O'Day (125 Fed. Rep. 303) Bunge i). The Steamship Utopia (1 Fed. Rep. 892) 310, 380, 407, 496, Burbank, In re (104 N. Y. App. DiT. 312) 158, Burch V. Americus Grocery Co. (125 Ga. 153) Burckhalter v. Coward (16 S. Car. 435) Burdett v. May (100 Mo. 13) Burdick v. People (58 Barb. (N. Y.) 51) Buren v. St. Louis Transit Co. (104 Mo. App. 224) Burg V. Chicago, etc., E. Co. (90 Iowa 106) Burgin v. Giberson (26 N. J. Eq. 72) Burgoyne v. Showier (1 Eob. Ecc. 5) Burke v. Brooklyn Wharf, etc., Co. (86 N. Y. App. Div. 296) 255, 1246, 1362 1141 1235 1409 1240 515 1183 550 355 271 332 69 540 281 1322 1281 116 1253 1257 1406 582 685 526 84 1290 1257 1421 1359 985 882 1344 ixn TABLE OF CASES. [References are to pageg.] Burke's Appeal (99 Pa. St. 350) . . . 224, Burkhialter V. Oliver (88 Ga. 478) . . Burlingame v. Cowee (16 K. I. 1) . . Burnett v. People (204 111. 208)... Burnham v. Ayer (SO N. H. 182) . . ■u. Norton <1CH) Wis. 8) Burns v. Donogiue (185 Mass. 71). V. People <45 Hi. App. 70) V. Walsh (10 Misc. (N. Y.) 985 1402 1105 1328 694 129 1214 1171 1322 652 523 561 681 Burr V. Harper (Holt N. P. 420) . . . 645, V. Kase (168 Pa. St. 81) Burrell v. State (25 Neb. 581) 361 Burriss v. Pere Marquette B. Co. (9 Ont. L. Rep. 259) 572 Burrough v. Martin <2 Campb. 112) 961 Burrowes v. Lock (10 Ves. Jr. 470). 943 Burt V. Got«ian (102 Fed. Rep. 937) 938, 1143 ■u. Quaekenbusli (72 N. Y. App. Div. 547) 123 V. Timmons (29 W. Va. 441) . . 220, Burtls, Matter of <107 N. Y. App. Div. 51) 617, Matter of (43 Misc. (N. Y.) 437) 10, 187, 560, 612, 619, 642, 691, 694, 7^9, 973, 978, 979, 1293, 1294 Burton v. Plummer (2 Ad. & El. 341) 961 V. Scott (3 Rand. (Va.) 399) . 796, 979, 1422 V. Wlllen (6 Del. Cli. 403) 977 Buser v. Novelty Tufting Macb. Co. (151 Fed. Rep. 478) 89, 182, 210, 549, 957, 979, 1153, 1198, 1278, 1399 Bush V. Guion (6 La. Ann. 797) . . . 580 Matter of (1 Connoly (N. Y.) 330) 1061 Busse ti. State (129 Wis. 171).. 392, 980 Bussom I'. Fofsyth (32 N. J. Bq. 277) 889, 1032 Butler 41. Chicago, etc., R. Co. (71 Iowa 206) 57 V. Metropolitan St. R. Co. (117 Mo. App. 3ri4 ) 1343, 1347 V. Rockland, etc., I ;. R. Co. (99 Me. 149) 272 V. Truslow (55 Barb. . New York Cent., etc., R. Co. (19 N. Y. Supp. 839) 2.^.8, 330, 1359 Canning v. Buffalo, etc., E. Co. (168 N. Y. 555).. 329 Cannon ». New York, etc., R. Co. ((Mass.) 80 N. E. Sep. 450) 329 V. Pittsburg, etc.. Traction Co. (104 Pa. St. 159) 388 V. The Steamer Potomac (3 Woods (U. S.) 158)... 14, 279, 927, 1247 Cantrell v. Wallick (117 V. S. 889) 87 Cappell V. Fagan (30 Mont. 50t) . . . 1038, 1044, 1265 Card V. Fowler (120 Mich. 646)... 62 Carey v. Jones (8 Cfa. 516)... 795, 905, 1411 V. Metropolitan St. K. Co. ((Kaa. App.) 101 S. W. Eep. 1123) 374 V. Smith (5 Ont. L. Rep. 209) . 547 ». State (70 Ohio St. 121) 1170, 1171 Carey's Will, In re (14 Misc. (N. Y.) 486) 799 Carleton v. Davis (2 Ware (U. S.) 225) 56, 250, 1306 Carlisle v. Cooper (19 N. J. Eq. 256) . . . . .374, 821, 822, 857 Carl KonoW, The (64 Fed. Eep. 815) 1394 Caril «. The Brastus WIman (20 Fed. Eep. 245) 495, 501, 507, 967 Carlson V. Chicago, etc., R. Co. (96 Minn. 504) 5S3, 534 V. Winterson (10 Misc. (N. Y.) 388) 1417 CarmMi e. Smith (3 N. Bruhs. Bq. 44) 79 Camall «. Wilson (14 Ark. 482) .. . 556 Carney v. Caraqnet R. Co. (29 N. Bruns. 425) 971 Caro, The (23 Fed. Eep. 734) 765 Carpenter v. Blake (75 N. Y. 12) . . 740, 871 V. Carpenter (9 N. Y. Supp. 583) 1403 V. Fisher (175 Maes. 9)...... 1392 V. Muchmore (15 N, J. Eq. 123) 9S4, 1266 V. Pennsylvania R. Co. (13 N. Y. App. Div. 328) 554, 585 V. Providence WasMngtoa Ins. Co. (4 How. (U. S.) 185). 1412, 1413 Carr v. Catiey (9 Nova Scotia 213) . 1294 V. Gale (1 Curt. (U. S.) 384). 1101 fxviii TABLE OF CASES. [References are to pages.] Carr v. Eice (1 Fish. Pat. Cas. 198) 1381 V. State (84 Ga. 250) 1180 Ex p. (2 Ves. & B. 108) 1025 Carrere v. Dun (26 Misc. (N. Y.) 717) 123 Carrico v. Neal (1 Dana (Ky.) 162) 1412 Carrier v. Hampton (11 Ired. L. (33 N. Car.) 307) 610 Carrigan ». The Charles Pitman (1 Wall. Jr. (C. C.) 307) 1197 Carroll v. Curless (23 Nova Scotia 32) 1143, 1426 V. Norton (3 Bradf. (N. Y.) 291) 20, 808 V. Pennsylvania R. Co. (12 W. N. C. (Pa.) 348) 205 X). Upton (3 N. Y. 272) 1417 Carroll, The (8 Wall. (U. S.) 302) . 1219 Carson's Appeal (59 Pa. St. 493) . . . 607, 1081 Carswell v. Wilmington (2 Marv. (Del.) 360) 1332 Carter v. Baker (1 Sawy. (U. S.) 512) 1381 ■u. Bennett (4 Fla. 284).. 1141, 1422 V. Carter (152 111. 434) 248 V. Carter (1 MacArthur Pat. Cas. 388) 915, 1197, 1406 V. Central Vermont R. Co. (72 Vt. 190) 263, V. Chambers (79 Ala. 223, 231) V. Connell (1 Whart. (Pa.) 392) V. Fry (54 Fed. Rep. 883).. 89, 1355 V. Wollschlaeger (53 Fed. Rep. 573) 828, 832 Cartier v. Troy Lumber Co. (138 111. 533) 583 Carton v. Booze (68 N. J. Bq. 771). 220 Cartwright v. Cartwright (1 Phill. Bee. 91) 1084, Carver ». Louthain (38 Ind. 530) . . 1116, 1139, 1234, Carver, Matter of (3 Misc. (N. Y.) 567) Cary «. Cary (39 N. J. Bq. 20) 1312 V. Lovell Mfg. Co. (31 Fed. Rep. 344) 88, V. Morrison (129 Fed. Rep. 177) Case V. People (76 N. Y. 242) V. Perew (46 Hun (N. Y.) 57). Casey-Swasey Co. v. Treadwell (32 Tex. Civ. App. 480) Casper «. Metropolitan St. R. Co. (84 N. Y. App. Dlv. 639) 1241 326 579 694 1250 1426 629 554 42 520 356 98 Cass County v. Green (66 Mo. 498). 56, 566 Cassio V. Brooklyn Heights R. Co. (59 N. X. App. Div. 617) 1241 Castor V. Bernstein ((Cal. App.) 84 Pae. Rep. 244) 683 Cathcart v. Hannibal, etc., R. Co. (19 Mo. App. 113) 270, 1341 Catherine and Martha, The (5 Fed. Cas. No. 2,512) 354 Cavendish v. Troy (41 Vt. 99) 1309 Caverly v. Deere (52 Fed. Rep. 758) 829, 1071 Cawfleld v. Asheville St. R. Co. (Ill N. Car. 597) 1332 Cawley v. La Crosse City R. Co. (101 Wis. 145) 205, 267 Celluloid Mfg. Co. v. Eastman Dry Plate, etc., Co. (42 Fed. Rep. 159) 1102 V. Russell (37 Fed. Rep. 676) . 88, 554, 829 Central Coal, etc., Co. e. Hartman (111 Fed. Rep. 96) 67 Central Guarantee Trust, etc., Co. V. White (206 Pa. St. 611).. 1376, 1385 Central of Georgia R. Co. ». Waxel- baum (111 Ga. 812) 167 Central R., etc., Co. v. Phinazee (93 Ga. 488) 1215 Central R. Co., In re (92 Fed. Rep. 1010) 280, 485, 492 V. Keegan (82 Fed. Rep. 174) . . 65 V. Smalley (61 N. J. L. 277) ... 265 Central Trust Co. v. Wabash, etc., R. Co. (57 Fed. Rep. 441) 1141 Central Vermont P.. Co. v. La Cie. d'Assurance, etc. (2 Quebec Q. B. 450) 195 Centurion, The (68 Fed. Rep. 382). 1197, 131T C. F. Simmons Medicine Co. v. Sim- mons (81 Fed. Rep. 163) 364 Chacon v. Eighty-nine Bales Coch- ineal (1 Brock. (17. S.) 478) 813, 901, 909, 912. 1202, 1211, 1391 Chaffee v. Old Colony R. Co. ((R. I.) 35 Atl, Rep. 47) 993 ». U. S. (18 Wall. (tJ. S.) 516) 585 Chaires v. Brady (10 Fla. 133) 735 Chamberlain r. Chamberlain (71 N. Y. 423) 1319 V. Ward (21 How. (tT. S.) 548) 193, 230, 346, 351, 485, 993, 1264 TABLE OF CASES. Ixix 78 174 998 Chambers v. Chambers (61 N. T. App. DlT. 299) 1194 V. Chambers (1 Hag. Cons. 439) 1249 t. Hill (34 Mich. 523.).. 1008, 1307, 1333 t>. McCreery (106 Fed. Rep. 367) 70 V. Yatman (2 Curt. Ecc. 415) . 798, 1409 Chance v. Indianapolis, etc.. Gravel Road Co. (32 Ind. 472) 671 Chandler v. Attica (22 Fed. Rep. 625) 553 V. Hough (7 La. Ann. 441).. 825, 843, 975 0. Le Barron (45 Me. 534) 718 V. Schoonorer (14 Ind. 324) . . . 1320 Chaney v. Basket (5 Fed. Cas. No. 2,595) Chapin v. Merchants' Nat. Bank (14 N. Y. St. Rep. 272) V. The Hattie Ross (5 Fed. Cas. No. 2,598) Chapman v. Camden, etc., R. Co. (7 Phila. (Pa.) 204) 1148 I). Chapman (129 III. 386) 1169 V. Cooley (12 Rich. L. (S. Car.) 654) 1261, 1284 V. New York Cent., etc., R. Co. (41 N. Y. App. Div. 618) . . 131 V. Railroad Co. (7 Phila. (Pa.) 204) 594, 1234, 1322 „. State (109 Ga. 157) 1301 V. Woodward (16 La. Ann. 167) 1316 Chappell V. Trent (90 Va. 849) 1135, 1265, 1277 Charge to the Jury (3 ClitE. (U. S.) 639) 1182 Charles Adolph, The (Swabey 153, 157) 249 Charles Hebard, The (56 Fed. Rep. 315) 1428 Charles H. Trickey, The (66 Fed. Rep. 1020) 1242 Charles L. Jeffrey, The (55 Fed. Rep. 685) 54 Charleston Gas Light Co. v. Charles- ton (9 Rich. L. (S. Car.) 342) . . 1244 Charlotta, The (2 Hag. Adm. 361) . . 131 Charlotte, The (124 Fed. Rep. 989). 538, 1340 , The (128 Fed. Rep. 38) 1428 Charlton ». St. Louis, etc., R. Co. (200 Mo. 413) 733 [References are to pages.] Charmbury v. Walden (141 Fed. Rep. 373) 87 Chatfleld, The (52 Fed. Rep. 490).. 455 Chatham, The (44 Fed. Rep. 384).. 1375 , The (52 Fed. Rep. 396) 14 Chattahoochee, The (74 Fed. Rep. 899) 287, 344 Cheatham v. Hatcher (30 Gratt. (Va.) 56) 1265 V. Riddle (12 Tex. 112) 137 Cheethara v. Union R. Co. (26 R. I. 279) 401 Cheney v. Price (90 Hun (N. Y.) 238) 20 Cherokee, The (15 Fed. Rep. 119) . . 408 , The (31 F6d. Rep. 167) 14 Chesapeake, etc., R. Co. v. Sparrow (98 Va. 630) 64 V. Steele (84 Fed. Rep. 93) 1345 ». Wilson ((Ky.) 102 S. W. Rep. 810) 1346 Chesapeake Beach R. Co. v. Dona- hue ((Md.) 68 Atl. Rep. 507) 1273 Cheshire, The (Blatchf. Prize Cas. 151) 1211 Chester v. Dlckerson (52 Barb. (N. Y.) 349) 567 Chestnut v. Chestnut (1 Splnks Ecc. & Adm. 196) 970, 1048, 1061, 1118 Chetwood v. Brittan (2 N. J. Eg. 438) 796, 799, 932, 1291 Chezem v. State (56 Neb. 496) 170 Chicago 1). Jarvis (226 111. 614)... 196 V. Smith (48 111. 107) 1215 V. Webb (102 111. App. 232) .. . 57 Chicago, etc., R. Co. v. Andrews (130 Fed. Rep. 65) 235, 255, 298, 1341, 1350 1^. Barber (15 111. App. 630)... 268 V. Barnett (56 111. App. 384) . . 1341 V. Beaver (199 111. 34) 532 V. Boger (1 111. App. 472) 1215 ■V. Button (68 111. 409) 1311 V. Campbell (7 Ann. Cas. 987) . 53T V. Cauffman (38 111. 424) 1346 1). Chambers (68 Fed. Rep. 148) 338 V. Champion ((Ind.) 32 N. B. Rep. 874) 1357 V. Chipps (226 III. 584) 72 V. Clark (26 Neb. 645) 401, 402 V. Clarkson (147 Fed. Rep. 397) 531, 535, 1297, 1311 V. Condon (108 111. App. 639). . 299 V. Corson (101 111. App. 115).. 1.343 V. Coyer (79 111. 373) 1332 ixx TABLE OF CASES. 255 1352 596 533 Chicago, etc., R. Co. v. Crisman (19 Colo. 30) 263 e. De Freitas (109 IlL App. 106) 205, 326 V. EganoK (112 UK App. 323). 1341 V Oivens (18 111. App. 404),. 409, 412, 440, 441, 1256, 1347 V. Graen (114 Fed. Rep. 676).. 1375 V. Gretzner (46 111. 74)... 735, 1245 V. Groves (56 Kan. 601) 120 D. Gunderson (174 111. 495). 254, 402 V. Harmon (16 111. App. 31)... 1024 V. Hartley (90 IlL ApjL 284) . . i;. Hazzard (26 111. 373) . . .796, 798, 1007, 1351, V. Hildebrand (42 Neb. 33) V. Hinds (56 Kan. 758) V. Houston (95 111. App. 350) . . 444, 532, 1179 V. Kemp (23 111. App. 39) 747 „. Kimmel (221 111. 547) 251 V. Kirby (86 ill. App. 57) 204 1). Kline (220 III. 354)... 1216, 1217 V. Lee (87 111. 434) ... 1346 V. Myer (127 111. App. 314)... 904 V. O'Brien (132 Fed. Rep. 593) 429 t), O'Leary (126 111. App. 311). V. Osborne (105 111. App. 462). V. Pounds (82 Fed. Eep. 219). . J,. Piatt (14 111. App. .346) V. Presbrey (98 111. App. 303). V. Pritcbard ((Ind.) 79 N. B. Rep. 508) V. Pulliam (111 111. App. 305). V. Ratbbum (90 111. App. 238). V. Ratbburn (190 HI. 572) V. Robinson (16 111. App. 229). 1024 V. Robinson (106 III. 142) 1346 V. Rossow (UT Fed. Rep. 491). 235 V. Sharp (63 Fed. Hep. 532)... 262 V. Shea (66 111. 471) 13.34 V. Slerer (13 111. App. 261) 517, 864, 980 V. Sporer (69 Neb. 8) 400, 412 V. Stlckman (95 III. App. 4)... 880 V. Still (19 111. 499) 1,341 V. Storment (90 III. App. 505). 093 ) . Stube (15 HI. App. 39) 1247 li. Stumps (55 111. 367)... 116, 117, 104S, 1336 V. Stitherland (88 HI. App. 295) 1341 V. Trayes (17 111. App. 136) .. . 456 V. Tnrner (33 Ind. App. 264) . . 260, 333 1). Vipond (101 HI. App. 607). . 540 1). Vremeister (112 111. App. 346) 205, 328 [References are to page*.] Chicago, etc., R. Co. ». Warner (108 111. 538) '596 V. Weeks (99 111. App. 518) ... 816 V. Weir (91 111. App. 422) 296 V. Zapp (110 III. App. 553) .... 455 Chicago City R. Co. v. Allen (169 111. 287) 1217 V. Benson (108 111. App. 193).. 426 ■u. Brecker (112 111. App. 109). 1357 V. Bundy (210 111. 39) 1217 V. Dnffin (24 111. App. 28) 556 !.. Loomls (201 111. 118) 1343 V. Maloney (99 111. App. 623) . . 425, 440, 1240 ■V. Matthieson (212 III. App. 292) 435, 1264 V. McMahon (103 111. 485) 589 V. Osborne (105 HI. App. 462). 1173 V. Tuoby (196 111. 410)... 298, 1303 V. Tuohy (95 111. App. 314) .. . 1048, 1163, 1268 Chicago Consol. Traetio"n Co. v. Ger- Teng (113 III. App. 275) 1343 Chicago Directory Co. v. tJ. S. Di- rectory Co. (122 Fed. Hep. 189).. 1110 Chicago Gen. R. Co. v. Kluczynski (79 111. App. 221) 1418 V. NOrvaeck (94 HI. App. 178) . 410 Chicago Gen. St. R. Co. u. Capek (68 HI. App. 500) 1336 Chicago G. W. R. Co. v. Mohan (88 III. .ipp. 151) 444 Chicago Hardware Co. i;. Matthews ( 124 111. App. 89) 203 Chicago Telephone Supply Co. v. Marne, etc., Telephone Co. (134 Iowa 252) 1357 Chicago. The f78 Fed. Rep. 819) ... 769 , The (101 Fed. Rep. 143) 380 Chicago TTnion Traction Co. v. Er- trachter (228 III. 114) .... 1242 V. Lowenrosen (222 HI. 506).. 1408 I'. O'Brien (219 III. 303) 136 Chickering t'. Chickering (120 Fed. Rep. 09^ 1102 Children's Aid Soc. i. Loveridge (70 N. Y. 887) 1218, 1221. 1410 Childs ('. Pennsylvania R. Co. (150 Pa. St. 73) 2«9 t'. State (76 Ala. 93) 1215 Chinese Exclusion Case, The (130 TT. S. 581) 1160 Cbisholm »', Ben (7 B. Mon. (Ky.) 408) 587. 10^9, 1044, 1045 V. State (141 N. Y. 246) 305 V. The Steamer Alex. Folsom (44 Fed. Rep. 932) 488 818 54 205 1153 108 514 263 540 1280 TABLE OF CASES. Isxi: [References are to pages.] Chlttenaen », Bvansr (41 ill. 251) . . 1215 CMveiie V. Knight (2 Has. & War. (P. B. Island) 108) 120 Choice V. State (31 Ga. 424) 158 Christian v. Pearson (100 Iowa 635) 158 Christopher, etc., St. B. Co. v. Twenty- Third St. E. Co. (149 N. Y. 58) 80 V. Twenty-third St. R. Co. (78 Hun (N. Y.) 462) 1421 Christy v. Clarlse (45 Barb. (N. Y.) 529).. Oil, 932, 984, 1007, 1027, 1082, 10.34, 1073, 1229, 1243, 1253 Chrystal v. Troy, etc., E. Co. (105 N. Y. 104) 207, 374, 399 Chubb V, New York Cent., etc., R. Co. (lie Fed. Hep. 902) 98 Church V. Cheape (64 Fed. Eep. 975) 56, 1319 V. Church (25 Pa. St. 278) 584 Oburcher ». Guernsey (39 Pa. St. 84) 1289 Churchward «. Palmer (10 Moo. P. C. 472) 1339 Ctampa Amelia, The (41 Fed. Rep. 57) 382 . , The (53 Fed. Hep. 155).. 590, 1107 Cincinnati, etc., E. Co. x;. Butler (103 Ind. ai) 1346 V. Reynolds ((Ky.) 102 S. W. Eep. 888) 336 Cincinnati Traction Co. v. Stephens (75 Ohio St. 171) 1265 Ciocci V. Ciocci (26 Eng. L. & Eq. 604) 12, 529, 1168, 1169 Circassia, The (55 Fed. Eep. 113) . . 348, 485, 488, 764 Clrello V. Metropolitan Express Co. (88 N. Y. Supp. 932) 1195 Citizens Sav. Banis v. Mitchell (18 E. I. 7,39) City Nat. Bank v. Dudgeon (65 111. 11) City of .Alexandria, The (40 Fed. Eep. 607) 59, City of Atlanta, The (26 Fed. Eep. 456) 288, City of Augusta, The (102 Fed. Eep. 991) City of Belton v. College ((Tex. Civ. App.) 33 S. W. Eep. 880) City of Birmingham, The (125 Fed. Eep. 506) 879, , Tne (138 Fed. Eep. 555) City of Brockton, The (37 Fed. Hep. 897) 538 78 1236 551 909 235 369 381 492 City of Cleveland, The (56 Fed. Eep. 729) 505 City of Carlisle, The (39 Fed. Eep. 807) 928, 932, 1142, 1239, 1256 City of Chester, The (18 Fed, Eep. 608) 990 City of Dundee, The (108 Fed. Eep. 679) 282 City of Merida, The (24 Fed. Eep. 229) 486 City of Naples, The (69 Fed. Eep. 794) 99, 541 City of New York, The (3 Blatchf. (U. S.) 1187) 1408. , The (8 Blatcht (U. 8.) 194) 345 , The (15 Fed. Rep. 624).. 288, 506, 998 , The (85 Fed. Eep. 604).. 289, 422, 482, 490 , The (54 Fed. Eep. 181) 1428 , The (147 U. S. 72).. 85, 288, 478, 482, 490, 506 City of Paris, The (9 Wall. (TJ. S.) 634) 379, 388 City of Portsmouth, The (125 Fed. Eep. 264) 595, 818, 1197, 1317 City of Puebla, The (3 Can. Bxch. 26) 407, 433 City of Eeadlng, The (103 Fed. Rep.) eOd) 288, 762 City of Savannah, The (41 Fed. Eep. 891) 354 City of Springfield, The (29 Fed. Rep. 923) 280, 492 City of St. Augustine, The (n2 Fed. Eep. 237) 14, 382, 485, 486, 488, 508 , The (68 Fed. Eep. 393).. 487, 495 City of Troy, The (9 Ben. (XJ. S.) 466) 322 , The (13 Fed. Rep. 47) 1141 City of Truro, The (35 Fed. Eep. 317) 486, 498 Clack V. Hadley ( (Tenn. Ch.) 64 S. W. Eep. 403) 80, 1200 Claflin u. Beaver (55 Fed. Eep. 576) ]2'^4 Clampit D. Chicago, etc., E. Co. (84 Iowa 7i) 1343 Clapp V. Fullerton (.34 N. Y. 100) . . 1067 Clara M. Porter, The (3 Ware (U. S.) SO) 1226, 1236, 1247 Clare v. Clare (19 N. J. Eq. 37) 591 Clarence, The (1 Splnks 206).. 388, 471, 971, 1135, 1178 Ixxii TABLE OF CASES. 524 1228 Clark V. Baudouine (55 N. Y. 256) . 1141 V. Carter (4 Moo. P. C. 207).. 592, 1236 V. Clark (40 Iowa 698) 1291 „. Clark (52 N. J. Bq. 650) 897-898, 901, 913, 1076, 1144, 1239, 1311 V. Condlt (21 N. J. Bq. 322) . . . 1386 V. Dwelling-House Ins. Co. (81 Me. 373) 1294 V. Bills ((Ky.) 28 S. W. Rep. 148) V. Fisher (1 Paige (N. Y.) 171) 953, 1068, V. Harmon S. Palmer Hollow Concrete Bldg. Block Co. (149 Fed. Rep. 1001) 89 V. Hedden (109 La. 147) 1252 V. Kirkpatrick ((N. J.) 16 Atl. Rep. 309) 545, 555 V. Larkin (9 Iowa 391) 1291 V. Manchester (64 N. H. 471) . 597 V. McGrath ((Tex. Civ. App.) 22 S. W. Rep. 527) 121 1!. Merchants' Nat. Bank (8 Daly (N. Y.) 481) 52 V. New York Cent., etc., R. Co. (17 Misc. (N. Y.) 113)... 1246, 1341, 1350 V. People (224 111. 554) 525 V. Slldell (5 Rob. (La.) 330) . . 1291 V. state (12 Ohio 494) 96 V. State (8 Humph. (Tenn.) 671. 1328 V. Turner (50 Neb. 290).. 1292, 1295 V. Underwood (17 Barb. (N. Y.) 202) In re ((N. J.) 52 Atl. Rep. 222) Clark Pomace-Holder Co. v. Fer- guson (17 Fed. Rep. 79) Clark Thread Co. v. Wllllmantic Linen Co. (140 U. S. 481) 92, 1229, 1237, Clarke v. Cartwrlght (1 PhiU. Ecc. 91) V. Dunnavant (10 Leigh (Va.) 14) V. Joselln (16 Ont. 68).. 79, 81, 187, V. Koeppel (119 N. Y. App. Dlv. 458) V. Little (5 Grant Ch. (U. C.) 363) 1008, 1037 V. State (.S5 Ga. 75) 1160 V. The Dodge Healy (4 Wash. (U. S.) 851) 1319 [References are to pages.] Clay V. McCally (4 Woods (U. S.) 605) 1275 Clay City Nat. Bank v. Halsey (70 Fed. Rep. 567) 548 Clayton v. Consolidated Traction Co. (204 Pa. St. 536) 1241 D. Warden (4 N. J. Eq. 230) . . 516, 522 Clement v. Clement (1 Jones Eq. (54 N. Car.) 184) 796, 1290 Clements v. Berry (11 How. (U. S.) 398) 989 Cleveland v. Burton (11 Vt. 138).. 1291 Cleveland v. Chisholm (90 Fed. Rep. 431) 1428 Cleveland, etc., R. Co. v. Chinsky (92 111. App. 50) 265, 330 V. Coffman (30 Ind. App. 462) . 257 V. Harrington (131 Ind. 426).. 264 V. Keenan (190 111. 217) 532 V. Miles (162 Ind. 646) 264 V. Monaghan (140 III. 474) 1362 V. Richerson (10 Ohio Cir. Dec. 326) 1246, 1346 *. Stewart (161 Ind. 242) 265 Cleveland Electric R. Co. v. Wads- worth (25 Ohio Cir. Ct. 376) 338 Cleveland Target Co. v. Empire Tar- get Co. (97 Fed. Rep. 44).. 88, 92, 184, 982, 983, 1136, 1267, 1278, 1408 Clifton V. Clifton (47 N. J. Eq. 227) 1251 V. V. S. (4 How. (U. S.) 242). 575, 585 Cline ( . Cline (204 111. 130) 71 V. Cline ((Oregon) 16 Pac. Rep. 282) 1168 CIos V. Boppe (23 N. .T. Eq. 270) ... 19 Close V. Close (24 N. J. Eq. 338) . . 1253, 1276 Cluett V. Claflin (30 Fed. Rep. 921). 90, 830 Clyde, The (2 Spinks Ecc. & Adm. 27) 13 Coats V. Elliott (23 Tex. 606). 152, 1293 Cobb I'. Battle (34 Ga. 458) 191, 1028. 1035, 1036, 1127, 1251, 1252, 1288 Coburn v. Schroeder (S Fed. Rep. 519) 90 Cockerell «. Smith (1 La. Ann. 1).. 580 Coe F. Young, The (40 Fed. Rep. 167) 379, 388 Coplor 1). Abele (18 La. Ann. 617) 1292 Coey t>. Darknell (25 Wash. 578).. 137, 1329 213 1036 89 1401 1027 796 223 601 TABLE OF CASES. Ixxiii [References are to pages.] Coffey V. Omaha, etc., St. R. Co. ((Neb.) 112 N. W. Rep. 589) 404 CoSan V. Ogden (18 Wall. (U. S.) 120) 89, 570 V. U. S. (156 U. S. 432) 95 Cogan ». Cass Ave., etc., R. Co. (101 Mo. App. 179) 1402 Coggins V. Carey ((Md.) 66 Atl. Rep. 673) 80 Cogswell D. O'Connor (13 Nova Scotia 513) 560 Cohansey Glass Mfg. Co. v. Wharton (28 Fed. Eep. 189) 88 Cohen v. Teller (93 Pa. St. 123) 710 V. The Brig Mary Wilder (Taney (U. S.) 567) 322, 323, 382, 856, 860, 967, 1005 Cohn V. Hudson (119 N. Y. 609) . . . 1303 V. Saldel (71 N. H. 558) 63 Colt V. Dowling (4 N. W. Ter. 464) 911 Colbert v. State (125 Wis. 423) 1212, 1291 Coldstream, The (4 Sawy. (U. S.) 172) 1258 Cole ». Lake Shore, etc., R. Co. (105 Mich. 549) 462, 852 Coleman v. Adair (75 Miss. 660) . . . 724 V. Howell ((N. J.) 16 Atl. Rep. 202) 580 V. New York Cent., etc., R. Co. (98 N. T. App. DIv. 349) . . 258 V. Wathen (5 T. R. 245) 801 Coleman's Estate, In re (185 Pa. St. 437) 595 Coles V. Perry (7 Tex. 109) 602, 735, 1412 V. Wrecker (2 Shannon Tenn. Cas. 341) 98 Colima, The (82 Fed. Rep. 665) 454, 890, 938, 1247 Collett V. CoUett (1 Curt Ecc. 678) Ill Collins V. Albany, etc., R. Co. (12 Barb. (N. Y.) 492) 50 V. Graves (13 La. Ann. 95) 1388 V. Janesville (117 Wis. 415) . . . 736, 785, 965, 967 ». White (6 Fed. Cas. No. 3,019) 1205, 1226 Colonial Trust Co. ». Getz (28 Pa. Super. Ct. 619) 119, 131 Colorado, etc., R. Co. v. Thomas (33 Colo. 517) 120 Colorado Midland R. Co. v. Robbing (30 Colo. 449) 407, 413, 437 Colorado, The (Brown Adm. (U. S.) 393)... ..287, 289, 344, 350, 422, 448 Colpitts V. Reg. (6 Can. Exch. 254). 416, 1220 Columbia R. Co. v. Cruit (20 App. Cas. (D. C.) 521) 818 Columbia, The (27 Fed. Eep. 704). 74, 447, 932, 1229, 1247 , The (29 Fed. Rep. 716) . .495, 496 , The (48 Fed. Rep. 325). 455, 462 . The (50 Fed. Rep. 441).. 777, 1205, 1430, 1431 , The (104 Fed. Rep. 109) 285 Columbian, The (91 Fed. Eep. 801). 279 , The (100 Fed. Rep. 991). 287, 769, 1429 Columbine, The (2 W. Rob. 27) 354 Columbus Chain Co. v. Standard Chain Co. (148 Fed. Eep. 622).. 93 Columbus, The (Abb. Adm. 384)... 491 Colvin V. Frazer (2 Hag. Ecc. 266) . 1008, 1027, 1289, 1295, 1304 V. Vensel (194 Pa. St. 83) 237 Colyer v. Langford (1 A. K. Marsh. (Ky.) 237) 1313 Com. V. Billings (97 Mass. 405)... 517 V. Cleary (135 Pa. St. 64) 757 V. Coe (115 Mass. 481) 6f9 V. Connors (156 Pa. St. 147).. 1366 V. Cooper (5 Allen (Mass.) 495) 1324 V. Curtis (97 Mass. 574) 1328 ». Dobbyn (14 Gray (Mass.) 44) 361 V. Downing (4 Gray (Mass.) 29) 1171 V. Eastman (1 Cush. (Mass.) 189) 658, 679, 710 1). Garth (3 Call (Va.) 6) 580 V. Harmon (4 Pa. St. 269) 602 V. Harrington (152 Mass. 488) . 1266 0. Hayes (138 Mass. 185) 1369 V. Howe (9 Gray (Mass.) 110). 1328 V. Hutchinson (10 Mass. 225). 1059 V. Hyland (155 Mass. 7) 113 V. Jeffries (7 Allen (Mass.) 548) 710, 711 V. Keller (191 Pa. St. 122) 1363 V. Kendall (162 Mass. 221)... 23, 149 V. Kenney (12 Met. (Mass.) 2.35) 1301, 1302 V. Killion (194 Mass. 153)... 1284, 1325 V. Mason (135 Mass. 555) 1171 17. McDermott (123 Mass. 440). 130X Ixxiv TABLE OF CASES. 296 1171 964 1325 679 180 1301 599 1297 1369 54 Com. V. McNeese (1S6 Mass. 231) .. . 113 V. Mellet (196 Pa. St. 243). 793, 883 V. Meserve (184 Mass. 64).... 1373 u. Moore (145 Mass. 244) 1171 V. Ol-r (188 Pa. St. 276) . . .799, 973, 989, 1237 V. Porter ((Ky.) 32 S. W. Rep. 138) i;. Putnam (2 Allen (Mass.) 301) ». Read (2 Ashm. (Pa.) 261).. 783, 0. Roddy (184 Pa. St. 274)... 891, V. Shaffer (178 Pa. St. 409)... 1326 V. Smith (6 S. & R. (Pa.) 568) . 647 „. Snow (111 Mass. 411) 1212 V. Trainor (123 Mass. 414) 1171 V. Tucker (189 Mass. 457). 598, V. Van Horn (188 Pa. St. 143). V. Walker (13 Allen (Mass.) 570) V. Webster (5 Cnsh. (Mass.) 295) 96, V. Werntz (161 Pa. St. 591)... «. Williams (105 Mass. 62) Comet, The (1 Abb. (D. S.) 451).. , The (9 Blatchf. (U. S.) 323). 1242 Comly, Matter of (185 Pa. St. 208) . 1333, 1421 Comly's Estate (19 Pa. Co. Ct. 184) 1299, 1303, 1315 Commercial Bank u. Reckless (5 N. J. Eq. 430) 1316 V. Union Bank (19 Barb. (N. Y.) 391) 1117, 1118 Commonwealth Bank v. Mudgett (44 N. Y. 514) 653, 697 Comstock, In re ( ( Surrogate Ct. ) 1 N. Y. Supp. 334) 1132 Conaghan v. German Sav. Bank (104 N. Y. Supp. 829) 77 Condit V. Sill (18 N. Y. Supp. 97).. 168 Confederation L. Assoc, v. Kinnear (23 Ont. App. 497) 1211 Conger V. Cotton (37 Ark. 286) 1112 Congregational Church v. Morris (8 Ala. 182) 576 Conkey v. Carpenter (106 Mich. 1) . . 1262 Conklin v. Conklin (17 Abb. Pr. (N. Y.) 20) 1062 V. New York Cent., etc., R. Co. ((Supm. Ct. Gen. T.) 17 N. Y. Supp. 651) 259, 330 Conley t>. Cincinnati, etc., R. Co. (89 Ky. 402) 760 [References are to pages.} Conlin v. Elmer (16 Grant Ch. (D. C.) 541) 220, 1276 Conlon V. Mission of Immaculate Virgin, etc. (39 Misc. (N. Y.) 215) 187 Connar v. Leach (84 Md. 571) 1152 Connecticut F. Ins. Co. v. Carnahan (10 Ohio Cir. Dec. 186) 1149 Connecticut, The (45 Fed. Rep. 374) 588 Connell ». Hyatt (6 Fed. Cas. N6. 3,237) 1143 , In re (18 Phila. (Pa.) 241).. 1280 Conner v. Groh (90 Md. 674) 1241 Connerton v. Delaware, etc.. Canal Co. (169 Pa. St. 339) 534 Connolly v. Rogers (51 Iowa 704) . . 1226 V. Ross (11 Fed. Rep. 342) 455 V. Straw (53 Wis. 645) 1242 Connor, Matter of (5 Silv. Sup. (N. Y.) 261) 1133, 1147 ^—. Matter of (29 Misc. (N. Y.) 391) 1375-1376 Conover ». Brown (29 N. J. Eq. 510) 1409 V. Rapp (4 Fish. Pat. Cas. 57) . 1381 ». Roach (4 Fish. Pat. Cas. 12) 1381 Conqueror, The (166 U. S. 110). 119, 154 Conrad v. Elizabeth, etc., H. Co. (70 N. J. L. 676) 427 V. Hazlett (20 TJ. S. (L. Ed.) 821) 485 V. Williams (6 Hill (N. Y.) 444) 250 Consolidated Bunging Apparatus Oo. V. Woerle (29 Fed. Rep. 449) 974 Consolidation Coal Co. v. The Admiral Schley (115 Fed. Rep. 378) 345 Consolidated Electric Light Co. v. McKeesport Co. (40 Fed. Rep. 21) 90, 1279 Consolidated Fruit Jar Co. v. Bel- laire Stamping Co. (27 Fed. Rep. 377) 831, 854 Consolidated Fastener Co. r. Colum- bian Fastener Co. (73 Fed. Rep. S2S) 1102 Consolidated Rubber Tire Co. v. Fin- ley Rnbber-Tire Co. (106 Fed. Rep. 175) 1102 Constable v. Steibel (1 Hag. Ecc. 56).... 614. 622, 680, 642, 681, 688 V. Tutnell (4 Hag. Ecc. 465).. 546, 1191, 1225 Constant v. Rochester University (111 N. Y. 604) 942, 944 TABLE OF CASES. Ixxv [Heferefnees are to pages.] 19 533 85 489 75 7U Consumers Cordage Co. «. Connolly (31 Canada Sup. Ct. 244) Continental iBJp. Co. v. Stead (95 D. S. lel) 263, 530, Continental Ins. Co. «. Jaehnichen (110 Ind. 59) Continental, The (8 Blatcbf. (U. S.) 3) Continental Trust Co. v. Toledo, etc., R. Co. (86 red. Sep. 929) 1151 Converse v. Matthews (68 Fed. Rep. 246) 88, 1278 Conway v. Cooney (111 N. Y. App. Dlv. 864) 72, V. Ewald ((N. J.) 42 Atl. Rep. 338) 612, 624, 625, Conwell e. The Schooner Reliance (7 Can. Sup. Ct. 653) 767 Cook V. Barr (44 N. Y. 156) 1310 «. BrocKway (21 Barb. (N. T.) 831) 1386 «!. Cook ((N. J.) 27 Atl. Rep. 818) 907, 966 tf. Missouri Pac. B. Co. (19 Mo. App. 329) 596 e, Smith (30 N. J. L. 387) 169 V. state (24 N. J. L. 843) 186 t). U. S. (26 App. Cas. (D. C.) 427) 1415 Cookson b. I'ittsburg, etc., H. Co. (179 Pa. St. 184) Cooley v. Barcroft (43 N. J. L. 363) 118, Coonrod e. Kelly (119 Fed. Hep. 841) 134, Coop, III re (6 N. Y. gupp. 644) Cooper D. Bockett (3 Curt. Ecc. 648) 798, 0. Bockett (4 Moo. P. C. 419) . . 183, 229, 799, 857, 885, V. Borr (45 Barb. (N. Y.) 9) t*. Carlisle (17 N. .T. Eg. 525) . . 802, 890, 1015, 1016, 1032 ». Cooper (13 App. Cas. 88) . . 798, 824, 974 «. Los Angeles Terminal R. Co. (137 Cal. 229) 260 V. Skeel (14 Iowa 578) 107, 909, 1008, 1036, 1290, 1315 Cope o. Sibley (12 Barb. (N. Y.) 521) 1407 Copley 0, Union Pac. H. Co. (26 tJtah 361) 818 Corbit «. Smith (7 I6wa 60) 909, 988, 1008, 1037, 1291 51 168 139 1144 851 911 1237 Corcoran v. Ke* Tort ((N. T,) 80 N, E. Rep. 660).. 302, 305, 307 v. FennsylTanla H. Co. (203 Pa. St. 380) 239, 541, 1347 Cordell ». New York Cent., ets., B. Co. (75 N. Y. 330) 265, 532 Corks V. The Belle (6 Fed. Cas. No. 3,231a) 54, 382 Cornelius C. Vanderbilt, The (Abb. Adm, 361) 1223 Cornell v. Hyatt (6 Fed. Cas. No. 3,237) 820, 1144, 1335 Cornet v. Bertelsmann (61 Mo. 118) 797, 1008, 1037, 1409 Corning v. Troy Iron and Nail Fac- tory (44 N. Y. 577) 834 Cornish t). Bryan (10 N. J. Bq. 146). 547 V. Farm Buildings F. Ins. Co. (74 N. Y. 295) 156 Cornwall ». Halifax Banking Co. (35 N. Bruns. 398) 79 Corn well v. Biker (2 Dem. (N. Y.) 354) ..... . .365, 1067, 1161, 1234, 1320 Corotinsky v. Maimln (37 Misc. (N. Y.) 777) 123 Corrigan v. Pironi (48 N. J. Eg. 607) 38 Corser v. Paul (41 N. H. 24) 1302 Cortelyou ». Johnson (145 Fed. Rep. 933) 516 Cosgrove v. Leonard (134 Mo. 419) . 164 Cosnahan v. Grice (15 Moo. P. C. 215) 77, 186, 523, 1275, 1302 Costell ». Co«tell (69 N. J. Bq. 218) 1169, 1198, 1276 Costello V. Crowell (133 Mass. 352). 679 V. Hunter (12 Ont. 333).. 1284, 1286 V. State (130 Ala. 143) 361 Cottingham v. Boulton (6 Grant Ch. (U. C.) 186) 798, 1031 Cotton ». Corby (7 Grant Ch. (U. C.) 50) 79 17. Huldekoper (2 P. & W. (Pa.) 149) 1399, 1418 ■u. Willmar, etc., B. Co. (99 Minn. 366) 268, 1345, 1346 Cottrell, Matter of (95 N. Y. 329) . . 716 Coughanour «. Hutchinson (41 Oregon 419) 12J Coughlln ». People (18 111. 266) 13.36 Coulbourn v. Flemin* (78 Md. 2l0) . 1265 Covell «. Wabash Co. (82 Mo. App. 180) 340 CoTCi' V. Manaway (115 Pa. St. 338) 1320, 1406 Covert V. Brinkerhoff (41 Misc. (N. Y.) 230) 33, 36 Ixxvi TABLE OF CASES. 979 657 1381 559 566 1348 Covert I). Covert (106 Fed. Eep. 183) 87, 833, Cowan V. Beall (1 MacArthur (D. C.) 270) Cowden v. Shreveport Belt E. Co. (100 La. 236) 274 Cowdry, In re (77 Vt 359) 95 Cowell V. Craig (79 Fed. Eep. 685) . 845 Cowen V. Watson (91 Md. 344) ... 255 Cowie V. Eemfry (5 Moo. P. C. 232). 1275 Cowley V. Chicago, etc., E. Co. (87 111. App. 123) 401, 425 V. People (83 N. Y. 465) 1363 Cox V. Dill (85 Ind. 334) 619 . Boston, etc., R. Co. (96 Me. 207) 55, 301 V. Brown (18 Gmnt Ch. (U. C) 682) 1141 P. Cole (65 Mich. 129) 617, 1276 V. Crawford (13 Ga. 508) 1217 ■u. Stellman (1 Fish. Pat. Cas. 487) 1256, 1381 Dean V. AndeMon (34 N. J. Bq. 496) 842t 1010 V. Dean (42 Oregon 290). .845, 850 V. Dean (48 Misc. (N. Y.) 149). 1104 V. Metropolitan El. R. Co. (119 N. Y. 540) 149 V. Raplee (145 N. Y. 319). 84 Deans v. Dortch (5 Ired. Bq. (40 N. Car.) 331) ..523, 912 De Beaumoat v. Webster (81 Fed. ilep. 535) 559 De Camp «. New Jersey Mut. L. Ins. Co. (7 Fed. Cas. No. 3,719)..... 1298 Decatur H. Miller, The (62 Fed. R^. 92) 1197 Decker V. Satiford (135 Fed. Rep. 112) 89 V. Sexton (19 MlSc. (N. Y.) 59) 116, 124 u. SbmerBSt J'-'t. F. Ins. Co. (66 Me. 406) 55, 85 Deering v. Metcalf (74 N. Y. 501). 1212 V. Winona Harvester WoTks (155 U. S. 286)... 86, 588, 797, 828, 830, 831, 1225, 1275, 133.T De Gottardi, In re (114 Fed. Rep. 328) 566 De Groot, Matter of (2 Connoly (N. Y.) 210) 1400 Deltz'3 Will (42 N. J. Eq. 689) 13:52 Delacroix e. Prevost (6 Mart. (La.) 276) 1310 Delafield v. Sherwood (15 La. 174). 735, 1332 Dolaiiy V. Noble (3 N. J. Bq. 441).. 1212 De la R ma v. De la Kama (201 U. S. 303) 1252, 1428 De Laval Separator Co. o. Vermont Farm Maeh. Co. (135 Fed. Rep. 772) 1150 992 77 1202 421 258 TABLE OF CASES. Ixxix [Befei^iKjes a.sre to pages.] 1249 332 258 1219 Delaware, Tlie (1 B!ss. . Barber (6 S. & R. (Pa.) 420, 426) V. New Orteans, etc., R. Co. (32 So. Rep. 914) Denton «. Carroll {4 N. Y. App. Div. 532) 126, 128 V. Cole (30 N. J. Eq. 244) 1127 Denver, etc., R. Co. v. Lorentzen (79 Fed. feep. 291) 1345 bepierris v. Slaven (5 N. Y. App. Div. 147) 1317 Depue V. Place {7 Pa. St. 428).. 659, 680 Derby *. Derby (21 N. J. Eq. 36) . . 187, 738, 821, 860, 868, 1106, 1107, 1134, 1156, 1244, 1406 Deschenes v. Concord, etc., E. Co. (69 N. H. 285) 64 Des Marets v. Leonard (12 Misc. (N. T.) 81) 131, 134 Desmond v. Schenck (36 N. Y. App. Div. 317) 1307 Despatch, The (Swabey Adm. 138) . 999 186 1178 1336 1180 1309 1215 795 306 Despres, EH p. (36 N. Brums. 13).. Desrosiers v. Bourn {26 R. I. 156) . Dessert v. Eoe (1 Wall. Jr. C. C. 9) Detroit, etc., R. Co. V. Van Stein- burg {17 Mich. 99) 403, 405, 852, 853, 863, Detroit Southern R. Co. v. Lambert {150 Fed. Rep. 555) 435, De Vaugrigneuse, Matter o( (46 Misc. (N. Y.) 49) Devereux ». Bullock (1 PhiU. Eec. 60) V. Sun Fire Office <51 Hun (N. Y.) 147) Deverill v. Coe (11 Ont. 222) Dew V. Clark (3 Add. Eec. 79) 1226, 1227, Dewar v. Peardon {8 Nova Scotia 102) 1250, Dewitt «. Barley (9 N. Y. 371) De Witt V. Barley {13 Barb. (N. T.) 550) 607, DeSter v. Arnold (3 Susan. (O. S.) 152) 71, 1029, V. Arnold (5 Mason (U. S.) 303) 798, 821, 825, V. Providence Aqueduct Co. {1 Story ^a. S.) 387) Deyo V. New York Cent. R. Co. (34 N. Y. 9) 426, V. Van Valkenburgh (5 Hill (N. Y.) 242) DiaiSioiia Drill, etc., Co. v. Kelly (120 Fed. Rep. 296) 830, 833, 930, 980, 1226, Diamond Meter Co. «. Westinghouse Electric, etc., Co. (152 Fed. Rep. 704) 959, 967, 980, Dick V. Ireland (130 Pa. St. 299).. 1027, Dickensoli v. Stale (20 Neb. 72) . . . Dickey v. Malechi (6 Mo. 177) V. McCullough (2 W. & S. (Pa.) 88) V. Stats (86 Miss. 525) Dickie v. Van Vleck (5 Redt. (N. Y.) 284) V. Woodworth (19 Nova Scotia 96) Dickinson v. Bentley (80 Iowa 482) . 562, V. Buskle (59 Wis. 136) V. Dickinson {187 Mass. 474).. V. The Steaaiboat Gore {Newb. Adm. 4S) , 1420 993 1417 865 1343 20 1229 81 871 1255 1306 611 1368 1289 912 26 444 1100 1358 1133 1038 19 1039 580 589 10 547 1171 814 149 1141 Ixxx TABLE OF CASES. 580 1312 550 205 824 970 108 546 Dickson II. McPherson (3 Grant Ch. (U. C.) 185) Diehl V. Standard Oil Co. (70 N. J. L. 424) Diel . Pennsylvania, etc., Canal, etc., Co. (139 N. Y. 637) . . 338 Drachler v. Foote (88 N. Y. App. Div. 270) 80 Drain ». St. Louis, etc., R. Co. (86 Mo. 574) 1393, 1395 Drake v. Stewart (76 Fed. Rep. 140) 1275 Draper v. Baker (61 Wis. 450) . .735 1335, 1339, 1351 Dreher v. Fitchburg (22 Wis. 675). 1290 Dresser v. Norwood (17 C. B. N. S. 466) 944 Drew, The (35 Fed. Rep. 789).. 764, 766 Driskell ». Parish (5 McLean (U. S.) 64) , 1180 Driven Well Cases (16 Fed. Rep. 387) 91, 980 Driver v. Driver (28 N. J. Eq. 393) . 938 Drury v. Hervey (126 Mass: 519).. 1302 Druse v. Wheeler (26 Mich. 189) . . 168, 177 Drysdale v. Union Steamship Co. (8 British Columbia 228) 928, 939 Duame v. Chicago, etc., E. Co. (72 Wis. 523) 1345 Dube V. The Queen (3 Can. Exch. 147) 415, 417, 441 Dublin, etc, E. Co. «. Slattery (3 App. Cas. 1155) 1343, 1352 Dubois V. Baker (30 N. Y. 355) . . 650, 704 V. New York Cent., etc., E. Co. (88 Hun (N. Y.) 10) 330 Dudley v. Bergen (23 N. J. Eq. 397). 1241 V. Dudley (3 Leigh (Va.) 436). 1422 V. Parker (132 N. Y. 386) 1235 V. Satterlee (8 Misc. (N. Y.) 538) 153, 1293 Duerst V. St. Louis Stamping Co. (163 Mo. 607) 595 Duflfy, Matter of (51 Misc. (N. Y.) 543) 803, 911 Duffy V. People (98 111. App. 34) . . . 1369 V. Reynolds (24 Fed. Rep. 855). 88 Du Prane v. Metropolitan St. R. Co. (83 N. Y. App. Div. 298) 337, 1245 Durkee «. Delaware, etc., Canal Co. (88 Hun (N. Y.) 471) 749, 1207, 1226 V. Stringham (8 Wis. 1) 1290 Dumfries, The (10 Moo. P. C. 461). 379 , The (Swabey 63) 997 Dumont V. Dumont (46 N. J. Eq. 223) 1253, 1304 Dumphy o. Montreal Light, etc., Co. (28 Quebec Super. Ct. 18) 30 Dun D. International Mercantile Agency (127 Fed. Rep. 173) 1102 Dunbar v. McGlll (64 Mich. 676) . . 57, 58 Dunbier v. Day (12 Neb. 596).. 121, 1333 Dunbritton, The (73 Fed. Rep. 352) . 134, 1245 Duncan «<. Littell (2 Bibb (Ky.) 424) 596 Duncombe v. Richards (46 Mich. 166) 1143, 1295, 1320 Dundas's Estate (213 Pa. St. 628) . . 524, 584, 1203, 1253, 1292 Dunlap V. Dunlap (49 La. Ann. 1696) 1428 Ixxsii. TABLE OF CASES. [References are to pages.] Dunlap V. HayiieS (4 HMSk. (Tenn.) 567 1267 140 1333 476) V. Patterson (5 Gow. (N. Y.) 243) ; i V. Smith (25 III.- App. 288)... V. Snyder (17 Barb. (N. Y.) 561) .-.i. Dflnn V. People (29 N. T. 523) 1266-1277 V. State (166 Ind. 694)...;... 601 V. The Steam-Tug "t'ouflg America (14 Phila: (Pa.) 532) .■ : .-..•: 769 V. Weir (34 III. App. 612) 140 Dunscombe v. Bi6h&rds (46 Mich. 166) : 755 Dunseath b. Pittsbatg, etc., Trac- tion Co. (161 Pa St. 124) 427 DUnsmuir v. The Ship Harold (4 Can. ExCh. 222) . 1135, 1134, 1233, 1317 Duriton V. Allan Line Stedmfe'hip Co. (115 Fed. Rep. 250).;:... 1136 V. Allan Steamship Co. (119 Fed. Rep. 590).. 280, 762 Dunworth v. Grand Truhk Western R. Co. (127 Fed; Rep. 307).. 264, 329 Dupre V. McCright (6 La. Ann. 146). 1191 Diipuis V: Sagin&w "Valleiy Traction Co. (146 Mich. 151) 104 Durant b. Ashmore (2 Rich. L. (S. Car.) 184) :. 1236 e. Baebt (15 N. J. Bq. 411).. 799, ldS2, 1037, 1294 Dili-fee ». Bawb (118 Fed. Rep. 853) 87 Durham v. Durham (10 Prob. D. 80) 756, 1379 biissert v. Roe (1 Wall. Jr. 39)... 1400 Duttoh V. Steam-Tug Express (3 Clifle. (D. S.) 462) 569, 1264 DuYale V. DUVale (54 N. J. Eg. 581) . 4, 1311 Duvall i). Hambletoti (98 Md. 12) . . 798, 912, 1276, 1406 Dwight li. Williams (25 Misc. (N. T.) 667).. 116 Dwyer Pine Land Co. v. Wbitefcan (92 Minn. 55) ; 71 Dyer v. dalwell (2 Lee Ecc. 120) .. . 1264 V. Erie R. Co. (7l t«. Y. 228) . . 1344 V. National Steam Nav. Co. (3 Ben. (tr. S.) 173) 346, 382, 998 Dysart v. Dysart (1 Rob. Ecc. 106) . 49, 822, 1084, 1090 Dysart Peerage Case (0 App. Cas. 489) 835, 1065, 1198 Bi. 315 iU 893 Eagle, Tte (69 Fed. Rep. 157) B&gle Point, The (114 Fed. Rep. 971) : .......456, Eagleton v. Kingston (8 Ves. Jr. 438) ..: 655, 672, Ealing V. Grove (2 Hag. Adm. IS).. 1316 Eames v. Eames (41 N. H. 177)... 859, 1087, 1416 B. A. Packer, The (22 Fed. Rep. 668) 1316 , The (49 Fed. Rep. 92) 496 tearle v. Norfolk, etc.. Hosiery Co. (36 N. i. Eq. 188) 137, - 191, 1152, 1304 V. PicSens (5 C. & P. 542) 1288 Early v. Louisville, etc., R. Co. (115 Ky. 13) 336, 1356 Earp V. Edgington (107 Tenn. 23) . 1291, 1316, 1320 E. A. Shofes, Jr., The (73 Fed. Hep. 342) 314, Eastern Paper Bag Co. v. Conti- nental Paper Bag Co. (142 Fed. Rep. 479) 88, 829, V. Nixon (35 Fed. Rep. 752)... 1102 Eastern Trust Co. v. Jacksoii (3 N. Bruns. Eq. 180) 76, 77, Eastman li. Amosketig Mfg. Co. (44 N. H. 143) V. Hinckel (5 B. & A. Pat. Cas. 1) 559, 830-831, 1279 t); West Chicago St. R. Co. (79 111. App. 585) 1239 East St. tonls Connecting R. Co. u. Allen (.'^4 111. App. 27) . . . 5^2 V. Altgen (112 111. App. 471). 547 SJast Tennessee, etc., R. Co. v. Cul- ler Cfg Ga. T04) 5!i6 V. McClure (94 Ga. 658) 1-^22 Rbor, The (11 P. D. 2".).. 279. 289, 290 Eborn v. Zimpelman (47 Tex. 503). 707-70S Eckel V. Eckel (49 N. .T. Eq. .'^87^ . . 580 Eckington, etc.. R. Co. C. Hunter (6 App. Cas. (D. C.) 287). ..;..403. Ecton V. Continentiil InS, Co, (32 Mo. App. 68) 574, Ector V. Welsh (29 Ga. 44") Eddey's Appeal (109 Pa. St. 406).. 1280. 1295 tedfl.v's Case (32 N. .T. Eq. 701) 1066 Edgar v. Clevenger (2 N. 3. Eq. 258) 1316 V. McCutcheon (9 Mo. 768) . . . 1895 484 830 796 583 405 1311 TABLE O^ CASES. Ixxxiii [EeffereneeS Ediaon Hlfectflc Light Co. v. Beacon Vacuum Pump, etc., Co. (54 Fed. Eep. 678) 88, 93, 1275, 1279 V. Columbia Incandescent Lamp Co. (56 Fed. Rep. 496). 93, 1102 -.' Electfic Mfg. Co. (57 Fed. Rep. 616) 88, 828 Edier *. Uchtmatin (10 111. App. 488) 116 Edmund L. Levy, the (128 Fed. JRep. 685) 1236 Edward AluMd Draper, Esq., Trial Of (30 How. St. Tr. 1056) 1320 Edwards v. Edwards (63 N. J. Eq. 224) 1244 V. fJoyee (65 Jf. t. 125) 71 fid*in. The (87 Fed. Rep. 540) 1119 Edwin Sawley, The (41 t'ed. Rep. 606) 343 Efl*in H. Webster, The (18 Fed. Rep. 724) 383,491, 495 Egan V. Berkshire Apartment Assoc. (16 Daly (N. Y.) 218). 835, 1394 V. Bowker (5 Allen (Mass.) 449) 589 V. Pease (4 Dem. (N. t.) 301). 793, 855 Ehrhard v. Metropolitan St. R. Co. (58 N. Y. App. Div. 613)... 303, 746, 909 Eihfmann v. Nassau Electric R. Co. (23 N. f. App. Div. 21) 404, 1344 Eichelberger's Estate (170 Pa. St. ^42) 1293 JJIfcthold V. Tiffany (20 Misc. (*r. Y.) 680) 1311 Eider, The (37 Fed. Rep. 903) 488 Ulifert V. Green Bay, etc., R. Co. (48 Wis. 606) 1345 liisefahauei' f). f^ota Scotia Marine Ins. Co. (24 Nova Scotia 205) . . 463, 1106, 1270 Bisenloi'd v. Cluni (126 N. Y. 552) . 1276, 1315 Elsslnfe V. Brie R. Co. (73 M. J. L. 843) 1341, 1342 El Dorado, The (27 Fed. Rep. 763) . 59 Eidred, Matter of (109 N. Y. App. Div. M7) 1421 fildridge. Matter of (82 N. Y. 161) . l099 Eleanota, The (17 BlatcHf. (U. S.) 88) 427 filectrical Accumulator Co. v. .Tulien Electtic Co. (38 Fed. Rep. 117) . . 186, 829, 830, 905, 910, 1279 ate to tiageS.] Electric Fireproofing Co. i>. Smith (113 N. Y. App. Div. 6l5) 128 Electric Mfg. Co. v. Edison Electric Light Co. (61 Fed. Rep. 834) 93 Elfrida, The (77 Fed. Rep. 754)... 455 Elgin, etc., R. Co. v. Hoadley (122 111. App, 165) 265, 853, 1348, 1349 Eliza Ann, The (1 Hag. Adm. 257). 11 Elizabeth and Jane, The (1 Ware (U. S.) 27) 1231 Elizabeth English, The (7 Blatchf. (U. S.) 180) 355,495, 755 Eliza S. Potter, The (35 Fed. Rep. 220) 1428, 1429 Elkins V. Kenyon (34 Wis. 93) 1330 Ella, The (8 Fed. Cas. No. 4,367) . . 342 Ella and Anna, The (2 Sprague (U. S.) 267) 342 Ellen McGovern, The (27 Fed. Rep. 868) 797-798, 871, 872, 875, 878, 899, 1135 Ellingwood v. Bragg (62 N. H. 489). 658 Elliott V. Baker (194 Mass. 518).. 1424 V. Chicago, etc., R. Co. (105 Mo. App. 523) 260, 267 V. Missouri, etc., R. Co. (74 Fed. Rep. 707) 520, 779 V. The James Nelson (1 Pittsb. (Pa.) 6) 997, 998 Ellis V. Erie R. Cd. (66 N. J. L. 451) : 1344 V. Republic Oil Co. (133 Iowa 11) 129(J i>. Sanfoi-d (106 Iowa 743) 550 Elm City, The (6 Ben. (U. S.) 58). 3l7 Eiliner v. Fessenden (154 Mass. 427) 897, 95S BImwood V. Western Union Tel. Co. (45 N. Y. 549) 1244 El Paso F. & M. Co: o. De Guereque ((Tex. Civ. App.) lOl S. W. Rep. 814) 137, 195 B. Luckenbach, The (93 Fed. Rep. 841) ., ,.,,,,, ...... 1428 Elwes V. Blwes (1 Hftg. Cons. 269). Ill, 990, 1134, 1229, 1255; 1271- 1272, 1318, 1319 Elwood *. West6i:h Union Tel, Co. (45 N: Y, 549) 55, 115, 122, 130, 131, 138, 148, 992 fily, Matter of (16 Misc. (N. Y.) 228) 20 Matter of (2 Hawaii 649) 1295 Ely «, Monson, etc., Mfg. Co. (4 Fish. Pat. Cas. 64)... 833, 1108, 1268 Ixxxiv TABLE OF CASES. Ely V. Pittsburgh, etc., R. Co. (158 Pa. St. 233) 1410 Emerson v. Miller (27 Pa. St. 278) . 1022, 1032 Emerson Electric Mfg. Co. v. Van Nort Bros. Electric Co. (116 Fed. Rep. 974) 87, 828, 1255 Emery v. Cichero (9 App. Cas. 136) . 746, 765, V. DePeyster (77 N. Y. App. Div. 65) Emflnger v. Emflnger (137 Ala. 337) Emily A. Foote, The (73 Fed. Rep. 508) Emily B. Maxwell, The (96 Fed. Rep. 999) Emmel v. Pittsburg R. Co. ((Pa.) 65 Atl. Rep. 1083) 413 Emmy Haase, The (9 L. R. P. D. 81) 998 Emory v. Smith (54 Ga. 273) 565 Emperor v. Shrinivas (7 Bombay L. Rep. 969) 1154 1098 337 71 1161 1314 1428 567 276 1422 1305 610 190 98 569 Empire, The (63 Fed. Rep. 476) . Enchantress (1 Hag. Adm. 395)... Energy, The (42 Fed. Rep. 301)... England v. Burt (4 Humph. (Tenn.) 399) Engle V. Betz (214 Pa. St. 185)... Engles V. Benington (4 Yeates (Pa.) 346) Engmann v. Immel (59 Wis. 249) . . 112, 121, 160, Ennis v. Dudley (22 Misc. (N. Y.) 4) Enos V. St. Paul F. & M. Ins. Co. (4 S. Dak. 639) 543, Enright v. Seymour (4 Misc. (N. Y. ) 597) 1262 Ensign v. The Peerless (12 Chicago Leg. N. 41) 468 Entwisle «-. Seidt (155 Fed. Rep. 864) 1407 Ephland V. Missouri Pac. R. Co. (57 Mo. App. 147) 1129 Epps V. Dickerson (35 Iowa 301).. 1252 Eppstein v. Missouri Pac. R. Co. (197 Mo. 720) 264, 739 Epstein V. State Ins. Co. (21 Oregon 179) 220 Equitable L. Assur. v. McElroy (83 Fed. Rep. 631) 1232 Erickson )•. Kansas City, etc.. St. R. Co. (171 Mo. 047) 993 V. V. S. (107 Fed. Rep. 204)... 1211 [References are to pages.] Erie, etc., R. Co. V. Knowles (117 Pa. St. 77) 1240 V. Smith (125 Pa. St. 259) 62 Ernst V. Crosby (140 N. Y. 364)... 547 V. Hudson River R. Co. (35 N. Y. 9) 32, 257, 532 V. Hudson River R. Co. (24 How. Pr. (N. Y.) 97).. 33, 1345 V. Hudson River R. Co. (31 Barb. (N. Y.) 159) 268 Eskridge v. State (25 Ala. 30) 1327, 1328 Eslava v. Mazange (1 Woods (D. S.) 623) 1305 Esler .;. Wabash R. Co. (109 Mo. App. 580) 262 Espenschied v. Baum (115 Fed. Rep. 793) 1419 Esquimalt and Manaimo R. Co., The, V. The Ship Cutch (2 British Columbia 357) 188, 433 Esquimalt, etc., R. Co., The, v. The Ship Cutch (3 Can. Exch. 362).. 1223, 1248 Estell V. State (51 N. J. L. 182).. 1297 Estes 1). Fry (22 Mo. App. 53) 980 Etruria, The (147 Fed. Rep. 216).. 451, 456, 475 E. T. Williams, The (139 Fed. Rep. 2.-!l) 463 Eureka Ins. Co. v. Robinson (56 Pa. St. 256) 518, 896 Evans v. Evans (1 Hag. Cons. 35).. 888, 895, 932, 1082, 1226, 1229. 1230, 1254, 1275 V. Evans ((1899) P. D. 195).. 208 V. George (80 111. 51) 117 V. Hettick (3 Wash. (U. S.) 408) 120 V. Knight (1 Add. Ecc. 229).. 592. 916, 961, 965, 1119, 1276 I. Philadelphia Bourse (215 Pa. St. 652) 190 V. St. Louis, etc.. R. Co. (16 JIo. App. .^37) 1215 Evansville Elec. R. Co. v. Lerch ((Ind. App.) 81 N. E. Rep, 224). 993 Evening Post Co. t. Richardson (113 Ky. 645) 185 Bvison t'. Chicaw. etc.. R. Co. (45 Minn. 370) 519 E. V. MacCaulley, The (84 Fed. Rep. 500) 462, 1271, 1272 , The (90 Fed. Rep. .TIO) 460 Ewing V. Goode (78 Fed. Rep. 442). 155, 157, 559 Table of cases. Ixxxv [References are to pages.] Excelsior, The (12 Fed. Eep. 195).. 490, 496 , , The (102 Fed. Eep. 652) 814 Express, The (55 Fed. Rep. 340) . . 313 Eyre v. Eyre (19 N. J. Eq. 102, 103) 524, 1008 F. F. & P. M. No. 1, The (45 Fed. Rep. 704) : 442 Paber v. St. Paul, etc., R. Co. (29 Minn, 465) 271, 465 Fabrik ». Levinstein (29 Ch. Div. 366) 1251 Fahy v. Society, etc. (114 Fed. Rep. 760) 913, 1220 Fairbanks, The (9 Wall. (U. S.) 420) 487 V. Bangor, etc., R. Co. (95 Me. 78) 1258 ii. Kuhn (14 Nova Scotia 147) . 580 Fairchiia v. Fairchild ((N. J.) 44 All. Rep. 944) 1239 Fairfield Sav. Bank v. Chase (72 Me. 226) 944 Fairweather v. Lloyd (36 N. Bruns. 548) 1066, 1276 u. McFarlane (83 N. Bruns. 180) 1420 Fair Wind, The (64 Fed. Rep. 806) . 485, 488, 510 Faison v. Hardy (114 N. Car. 58) . . 73 Falle ti. Le Sueur (12 Moo. P. C. 501) 798, 1294, 1319 Fannie, The (11 Wall. (U. S.) 238). 495, 507 Fannie Hayden, The (137 Fed. Rep. 280) 766 Fanning v. Doan (139 Mo. 392)... 971, 1099, 1138, 1187 V. Fanning (2 Misc. (N. Y.) 90) 303 Fanny Tuthill, The (17 Fed. Rep. 87) 579 Farley v. Hill (150 U. S. 572) . . .71, 225, 932, 1013, 1026 Farmer v. Grand Trunk R. Co. (21 Ont. 299) 64 Farmers', etc.. Bank ». Champlain Transp. Co. (23 Vt. 186).. 1309 1). Young (36 Iowa 44) 712 Farmers' Bank o. Whitehill (10 S. & R. (Pa.) 110) 655, 685, 694, 702, 722 Farr v. Thompson (Cheves L. (S. Car.) 36) 799, 1265, 1283 Farrell «. Houston, etc.. Ferry R. Co. (4 N. Y. Supp. 597) 426, 433 Farwell .;. The Steamboat John H. Starln (2 Fed. Eep. 100) 866, 1183 Fash V. Blake (38 111. 363) . .656, 694, 695 Fashion, The, e. Ward (6 McLean (U. S.) 152) 1007, 1159, 1412 Fassin v. Hubbard (55 N. Y. 465).. 1403 Fath v. Hake (16 Mo. App. 537)... 1215 Fat]o V. Seidel (109 La. 699) . . .971, 1137, 1413 Faulkner v. Simms (68 Neb. 299).. 1419, 1421, 1424, 1425, 1426 Faust V. Philadelphia, etc., R. Co. (191 Pa. St. 420) 1346 Pavorita, The (18 Wall. (U. S.) 598) 385 Fawcett v. Rubber, etc.. Harness Trimming Co. (38 Fed. Rep. 739) 1274 Fay V. Allen (24 Fed. Rep. 804).. 915, 930 V. Fay, ((N. J.) 29 Atl. Rep. 356) 622 «. Mason, (120 Fed. Rep. 506). 576 F. Dohmen Co. v. Niagara F. Ins. Co. (96 Wis. 38) 81 Peagles v. Tanner (11 Ohio Cir. Dec. 172) 555 Fearing v. DeWolf (3 Woodb. & M. (U. S.) 185) 26 Fee V. Sharkey (59 N. J. Eq. 284) . . 1147, 1235, 1320 V. Taylor (83 Ky. 259) 661 Peeter v. Heath (11 Wend. (N. Y.) 485) 903 Feierabend, Matter of (38 Misc. (N. Y.) 524) ■ 979 Felch V. Concord R. Co. (66 N. H. 318) 7, 56 Feldser, In re (134 Fed. Rep. 307) . 130 Fellenz e. St. Louis, etc., R. Co. (106 Mo. App. 154) 204, .337 Fellers v. Warren St. R. Co. (26 Pa. Super. Ct. 33) 427 Pelton V. Newport (105 Fed. Rep. 332) 143, 1246 Fenham, The (6 Moo. P. C. C. N. S. 501) 380, 382, 388 Penner ». Wilkes-Barre, etc., Trac- tion Co. (202 Pa. St. 365)... 296, 298, 421, 427 Ferdon v. The Justus E. Earle (8 Fed. Cas. No. 4,737o) 767 Ferguson v. Harlem Sav. Bank (43 Misc. (N. Y.) 10) 128. 133 Ixxxvi TABLE OF CASES. 330 117 589 Ferguson ®. HubbeH <97 N, Y- 507) , 1187, 1375, 1379 ,;. Rafferty (128 Pft. St. 337).. 568 e. State (1 Ga. App, 841) 1197 V. Wisconsin Cent. B. Co. (63 Wis. 145) 264, Ferliel v. People (16 IlL App. 310). Ferrari v. Interurban St. E. Co. (118 N. Y. App. Div. 155) .... 585, Ferrie V. Public Administrator (4 Bradf. (N. Y.) 28) 843, 1088 Ferris v. Hernsheim (51 La. Ana. 178) 204 V. Saxton (4 N. J. L. 1)..787, 1183 Ferry Boat New York, The (1 Ben. (U. S.) 211) 423, 443, 1231, 1247 Ferson v. Sanger (1 Woodb. & M. (D. S.) 138) 36 Fetherly v. Waggoner (11 Wend. (N. Y.) 599) 1045 Feuer v. Brooklyn, etc., E. Co. (49 Misc. (N. Y.) 629) 1240 Fiddler v. New Yorfc Cent., etc., R. Co. (56 N. Y. App. Div. 05) . .205, 294 Pideliter, The (Deady (U. S.) 620). 587 Fidelity llutual Life Assoc, e. Jef- fords (107 Fed. Rep. 402).. 1243, 1305 Fldler v. .Tohn (178 Pa. St. 112).. 1151 Field V. Field (77 N. Y. 294) 1307 Fillson V. M^ine Cent. R. Co. ((Me.) 67 Atl. Rep. 407) 194 Filson i;. Crawford (5 N. Y. Supp. 682) 368 Finch, In re (23 Ch. D, 267). 1285, 1330 Finlay v. Ritcbie (12 Ont. L. Rep. 368) 1244 Finlayson r. Chicago, etc., R. Co. (1 Dill. (TJ. S.) 579) 270, 271 Fin MacCool, The (147 Fed. Rep. 123) 767, 1428, 1429 Finn v. Duffy (15 Misc. (N. Y.) 126) 219 V. New England Telephone, etc., Co. (101 Me. 279) 1303 V. Peterson (24 Misc. (N. Y.) 737) 123, 131 «i. Vallejo St. Wharf Co. (7 Cat. 253) 1244 Fire Assoc, v. Gilmer (3 Walk. (Pa.) 234) 898 Fischer v. Neil (6 Fed. Rep. 89) . . . 560 Fish V. Carnegie (7 Grant Ch. (U. C.) 479) 220 V. Colvin (2 Silv. Sup. (N. Y.) 450) 913 V. Praser (9 Nova Scotia 514) . 120 [Reference? we to psges.] Fisher v. CarrplI (6 Ired. Eq. (41 N. Car.) 485) V. Carter (1 Wall. Jr. (C. C.) 9 Fed. C»s. No. 4,815),. 69, V. C«!ntral Vermont fl. Co, (118 N. Y. App. Div. 446) V. Clisbee (12 111. 344) V. Cook (23 111. App. 621)... V. Monongahela Connecting R. Co. (131 Pa. St. 292) I). People (20 Mich. 135) V. Rankin (78 Hun (N. Y.) 407) Fisler V. Porch (10 N. J. Eq. 243) . . 834, Pitch V. Vatter (143 Mich. 568). 70, Fitschen v. Thomas (9 Mont. 52) . . Fitz, fix p. (2 Lowell (TJ. S.) 519). 27, 871, 873, Fitzgerald ». Connecticnt River Pa- per Co. (155 Mass. 155).. V. Fitzgerald (100 111. 385)... V. State (12 Ga. 213) 753, u. Wynne (1 App. Cas. (D. C.) 107) Pitzgibbons v. Manhattan R. Co. (88 N. Y. Supp. 341) Pitzhugh !'. Boston, etc., E. Co. ((Mass.) 80 N. E. Rep. 792) V. The Commerce (9 Fed. Cas. No. 4,841) Pitzpatrlck v. Graham (122 Fed. Rep. 401) Pixman v. Brown (14 Daly (N. Y.) 110) Plagg I'. Mann (2 Sumn.. (U. S.) 4SG) 70, 79S, S35, Flnherty v. llarrisou (08 Wis. 559) 417, 419, Flanagan v. New York Cent., etc., R. Co. (70 N. Y. App. Div. 505). . .267, 402, 421, 427, ti. People's Pass. B. Co. (163 Pa. St. 102) 425, Flattery ,.. Flattery (88 Pa. St. D Flavell i>. piaveU (20 N. J. Bq. 211) 1276, PIpicliman v. The Steamer .John P. Best (14 Phila. (Pa.) 527) ifloischner v. Bearer (21 Wash. 6). Fleming v. Canadian Pac. R. Co. (31 N. Bruns. 318)..425, S19, 1241, 1258, 1115 543 1196 251 302 255 1212 123 1028 80 547 1010 305 1188 1183 1038 251 1344 746 73 973 1234 1346 437 1427 1299 189 1304 1311 T4Bj:^E PF CASES. l^xxyii [RefpTfinees are to pages.] Fleming V. pojlenback (7 3arb. (N. Y.) 271) 1233 V. State (5 Humph. (Tenn.') .564, 812 Flemipg, etc., Co. v. pvans (9 K?iii. App. 858)' ■ 527 FlemnjiBg v. Ljiwless ((N. J.) 36 Atl.' Rep. 502) 219, 366, 580, 1199 Fletchef i), fuller (120 y. S. 5.34) . . 821 V. The Cubana (9 Fed. Cas, No. 4,863) : 323 Fleuty V. Orr (13 Out. L. Rep. 59) , 1397 Flint 11. Kennedy (33 Fed. Rep. 820) 1396 Flomertelt v. Newwitter (88 Fed. Rep. 696) .89,979, 980 Flora V. Aijder^op (75 Fed. Rep. 217) 1031, 1222, 1319 Florep.o,e, The (8.8 Fei, Rep. 302) . . 60, 63, 1289 Floreaee P. Hall, The (14 Fed. Rep. 408) 455, 459, 462, 475 1222 Flower v. LlQyd (10 CJl. D. 327) . . . 1178 Flowers v. Haralson (6Terg. (Tenn.) 494) 1400 Floyd B. Floyd (3 Strobh. L. (S. Car.j 44) 1319 1). Philadelphia, etc., R. Co. (1,62 pa. ^t. 29) 752, 907 Fluck p. Rea ((N. J.) 27 Atl. Rep. 636) ..... : 1081, 1085, 1231 Flyer, The (62 Fed, Rep. 615) 422 Flynn v. Kan^? City, etc., R. Co. (78 Mo, 195) •• : 540 I/. lyferch^jits' Mut. Ins. Co. (17 L^. Anjj, 133) 1174, 1387 1). P.owef:s (54 Barb. (N. Y.) 551) 980 Fogg V. Dennis (3 Humpb. (Tenn.) 47) .. 609 Foley 1). poston, etc., R. Co. ((Mass.) 79 N. E. Rpp. 765) 434 V. Brocksmit (119 Iowa 457).. 166 V, ^nte'ruxbgfl St. R. Co. (88 N. T. Supp. 932) 912 Fong Yue TJng «>. U. S. (149 U. S. 698) 1160 Eipng Yu^, Iff rfi (S British Columbia 118) , 1314 Ponville v. State (91 Ala. 39) 1160 fforbea v. Clflchester (8 N. Y. gijpp. 747) ........ ^.,. 76 Ford s. Central jUpw^ R. Co. (69 Iowa 627) 2.35 V. Ford (7 Humpb. (Tenn.) »2) ., ,. ...1261, 1263 Ford V. Kepuedy (64 Gfi. 537) ..... 1325 V. Metropolitan R. Co. (4 Qnt. L. ^ep, 29).' !....'. 272 V. Osborne (45 Ohio St. 1) . ... 571, 834, 883, 1151, 1288 V. Phillips (21 Quebec Super. Ct. 1 ),..,. 571, 984, 1134, 1409 V. Taylor (140 Fed. Rpp. 3§6') . . 1102, 1110 Pordham v. Smith (46 N. Y. 683).. 178 Foreman v. New York City R. (Co. (104 N.Y, Supp. 932) ......33, 137 Forgey v. Cambridge City First Nat. Bank (66 Ind. 125).... 158, 694 Forgie V, Oil- Well Supply Co. (58 Fed. Rep. 871); 89, 91, 1197, 1279, 1408 Forman, Matter of (54 ^arb. (N. Y.) 274) ,. ....,,......, 1228 Fprncrook v. Root (21 Fed. Rep. 328) .;...,......: 89 Forrest v. Kissam (7 Hill (N. Y.) 463) ,,, 9Q8 Forsyth v. Doolittle (120 D. S. 73) . 1§3 Forty-Second St., etc., R. Co. v. Hau- non (85 Fed. Rep. 852). 130 Poss V. Smith (79 Vt. 434) 1363 Foster, In re (2 Nat. Bankr. Reg. 232) .■.,,.:,.,..,..,... 1407 Foster, Matter of (34 I^iclj. 21).-. 658, 704, 706, 719 Foster's Estate (142 Pa. St. 62)... 1233 Fostej- v. Beardsley Scytbe Co. (47 Barb. (N. Y.) 505) 1151 V. Jepkins (SQ iGa. 476)... 161, 607, j853, 697 V. Mansfield, etc., R. Co. (146 U. S. 88)..., ;...,.. 74 V. Ohio-Colorado Reduction, etc., Co. (17 Fed. Rep. isO) . . . 21 V. Swasey (2 Woodb. & 1^. (D. S.) 217) ,,.:. 1244 V. The Sch,opner Miranija (.6 McLean (U. S.) 221) .".745, 852 Fowler t). Ad*mB (13 Wis. 458),.., 141? V. Peterson' (2.5 111. .\pp. 81).. 108 V. Rqe (11 N. .1. Bq. 367) 190 V. Wallace (131 Ind. 347) 84 Fox V. Bprkey (126 Pa. St. 16i) . . . 154 V. Gilbert (2 Lee Ecc. 1.51) 129t) ■u. Manhattan R. Cp. (67 N. Y. App. Div. 460) 115, ISl V. McDonough (18 La. Ann. 419) 1274 V. New York (5 N. Y. App. Div. 349) 321 JXXXVLU TABLE OF CASES. [References are to pages.] 155 .88, 974 404 Fox's Succession (2 Rob. (La.) 299) 1292 Foye v. Patch (132 Mass. 105) 649 Frace v. New York, etc., R. Co. (143 N. Y. 182) Francis v. Kirkpatrick (52 Fed. Rep. 824) Francisco V. Troy, etc., R. Co. (78 Hun (N. Y.) 13) 402, Francisco R., The, v. The Waterloo (79 Fed. Rep. 113) 1275 Frank v. Chemical Nat. Bank (37 N. Y. Super. Ct. 26).. 664, 711 V. Pennsylvania R. Co. ((N. J.) 55 Atl. Rep. 691) 1342 «i. St. Louis Transit Co. (112 Mo. App. 496) 421 Frankfort Whisky Process Co. v. Mill Creek Distilling Co. (37 Fed. Rep. 533) 549 Frank G. Fowler, The (8 Fed. Rep. 331) 546, 1227 Franklin v. Franklin (90 Tenn. 44) 660 Franklin L. Ins. Co. v. Villeneuye (29 Tex. Civ. App. 128) 131 Frank Moffatt, The (2 Flipp. (U. S.) 291) Frank P. Lee, The (30 Fed. Rep. 277) Frantz v. Lenhart (56 Pa. St. 365) . 1307, 1309, Frazier v. Georgia R., etc., Co. (108 Ga. 807) 120, V. State (56 Ark. 242) 1215 Frear v. Drinker (8 Pa. St. 521)... 1242 Freddie L. Porter, The (8 Fed. Rep. 170) Frederick E. Ives, The (25 Fed. Rep. 447) 456, Frederick, The (1 Hag. Adm. 211). Frederick v. Marquette, etc., R. Co. (37 Mich. 342) 1186 Fred M. Lawrence, The (15 Fed. Rep. 635) 578 Fred Schleslnger, The (71 Fed. Rep. 747) 495 Freehold First Nat. Bank v. Irons (28 N. J. Bq. 43) 186 Freeman v. Basly (117 111. 317)... 1215 V. Fogg (82 Me. 408) 570, 1242 V. Freeman (31 Wis. 235) 1136 Fremont, Ptc, R. Co. v. French (48 Neb. 638) 99 Fremont Brewing Co. v. Pekarek ((Neb.) 05 N. W. Rep. 12) 1110 French «. Day (89 Me. 441) 8 765 998 1338 599 549 470 1034 French v. Eastern Tmst, etc., Co. (91 Me. 485) 902, V. Millard (2 Ohio St. 44) Fresh v. Gilson (16 Pet. (U. S.) 327) Freund v. Paten (10 Abb. N. Cas. (N. Y.) 311) Frey, Matter of (2 Connoly (N. Y.) 70) Freyermuth v. Southboirad R. Co. (107 Ga. 31) Prick V. Barbour (64 Pa. St. 120) . . Frickes, In re (19 N. T. Supp. 315). Fridge v. Payne (86 Ta. 303) Fried i^. Stein (16 Misc. (X. Y.) 494) Fries v. Fries (34 Misc. (N. Y.) 478) Frieseke v. Frieseke (138 Mich. 458) Fritz V. Fritz (94 Minn. 264) Prizell V. Cole (29 111. 465) 796, 1008, 1309, 1310, 1332, Froeder v. Lorsch (150 Fed. Rep. 710) Frostburg, The (25 Fed. Rep. 451). 379, 827, 998, Frush V. Green (86 Md. 494) Pry V. Jones (95 Ky. 149) ■V. Piersol (166 Mo. 429)... 59, 60, Prye v. St. Louis, etc., E. Co. ( (Mo.) 98 S. W. Rep. 566) Fryrear t). Lawrence (10 111. 325).. Fuentes v. Gaines (25 La. Ann. 85). 802, 1015, Fulda, The (31 Fed. Rep. 351) , The (52 Fed. Rep. 400).. 275, 312, 450, Fullam V. Rose (160 Pa. St. 47) . . . 1181, Pullenwider v. Ewing (30 Kan. 15). Puller ». Fuller (41 N. J. Eq. 460) . 167, 590, FuUerton «. Dalton (58 Barb. (N. Y.) 236) PuUmore v. Young (13 Nova Scotia 556) Pulton, The (62 Fed. Rep. 604)... Fulton I). Colwell (110 Fed. Rep. 54) V. Hood (34 Pa. St. 365) V. Maccrncken (18 Md. 528)... V. Metropolitan St. R. Co. ((Mo. App. 1907) 102 S. W. Rep. 47, 50) Furnessia, The (154 Fed. Rep. 34S). 172 516 81 1129 1402 585 1410 80 98 1170 1406 80 1336 1147 1265 929 45 228 334 1112 1016 312 451 1410 1094 1104 1397 1420 422 80 671 1411 853 1265 TABLE OF CASES. Ixxxix [Refeirences a-re to pages.] 6. 208 713 G. V. M. (10 App. Cas. 171) 1276 Gaar r. Stack ((Tenn. Ch.) 36 S. W. Rep. 140) 1066 i;. Stolte (115 Iowa 139) 219 Gabler's Appeal ((Pa.) 5 Cent. Rep. 314) 1313 Gage V. Burns ((Neb.) Ill N. W. Rep. 791) 82 V. Edfly (179 111. 492) 104, 106 Gagneaux v. Desonier (51 La. Ann. 1095) 1332 Gaines, Matter of (84 Hun (N. T.) 520) 188, Gaines's Succession (38 La. Ann. 123) 188, 631, 606, 614, 640, 654, 658, 683, Gaines v. Hennen (24 How. (D. S.) 553) 1131, 1190, 1204, 1314 V. Lizardi (3 Woods (U. S.) 77) 1266 i>. New Orleans (6 Wall. (U. S.) 642) 889, 892, 1069, 1332 1). Relf (12 How. (U. S.) 472). 1065, 1075, 1077 Gainesville, etc., R. Co. «. Wall (75 Ga. 282) Gainey v. State (141 Ala. 72) Gair V. Colien (26 Misc. (N. Y.) 801) 116, Gale V. Morris (30 N. J. Eq. 285). Galesburg v. Higley (61 111. 287).. 1305, 1317 Galileo, The (24 Fed. Rep. 389) 998 Gallagher v. Crooks (132 N. Y. 338). 57 V. Gallagher (92 N. Y. App. DiT. 138) 1414 V. Hastings (21 App. Cas. (D. C.) 88) 555, 1283 V. Taylor (13 Nova Scotia 279). 835, 836 Gallego, The (30 Fed. Rep. 271) . . . 1275 Galveston, etc., R. Co. v. Matula (79 Tex. 577) 1426 V. Murray ((Tex. Civ. App.) 99 S. W. Rep. 144) 137, 317, 426, 435, V. Patlllo ((Tex. Civ. App.) 101 S. W. Rep. 492) 428, V. Tirres (33 Tex. 'Civ. App. .362) 2.58, 1345 Galvin v. New York (112 N. Y. 223). 532 Gamlior v. Gamber (18 Pa. St. 363). 1250 Gamble v. Gummerson (9 Grant Ch. (U. C.) 193) 1288 556 96 123 569 534 596 Gammell, Re (19 Nova Scotia 265, 282) 621, 661, 711, 1132 Gangawer v. Philadelphia, etc., U. Co. (168 Pa. St. 265) 400 Gangwere's Est., In re (14 Pa. St. 417) 984, 1179 Gannon v. Laclede Gas Light Co. (145 Mo. 502) 121 V. Moles (209 111. 180) 71, 1420 ». Moles (111 111. App. 19) 1420 Ganoga, The (135 Fed. Rep. 747) . . 1423 Garbarsky ^. Simkin (36 Misc. (N. Y.) 105) 123, 149 Garber v. Blatchley (51 W. Va. 147) 545 Garden City, The (19 Fed. Rep. 529) 379 , The (26 Fed. Rep. 766) 995 , The (127 Fed. Rep. 298) 1382 Gardiner v. Gardiner (34 N. Y. 155). 1421 Gardner v. Baer (26 Misc. (N. Y.) 181) 128, 166 V. Benedict (75 Hun (N. Y.) 204) 1242 V. Frieze (16 R. I. 640) 1296 V. Gardner (2 Gray (Mass.) 434) 1264 V. Gardner (2 App. Cas. 723) . . 29, 61, 514, 1179, 1199, 1311 e. Porter ((Wash.) 88 Pac. Rep. 121) 64 V. Weston (18 Iowa 533).. 187, 223 Garduhn v. Union R. Co. (50 N. Y. App. Div. 602) 409 Garey v. Union Bank (3 Crauch (C. C.) 233) 1120 Garfield v. Hartford St. R. Co. ((Conn.) 65 Atl. Rep. 598) 314 Garland o. Hewes (101 Me. 549).. 42, 1421 V. Toronto (23 Ont. App. 238) . 62 Garnet, Ex p. (10 Fed. Cas. No. 5,243) 979 Garnett v. Mayo (4 Hughes (U. S.) 382) 1230, 1255 Garrett v. Garrett (29 Ala. 439).. 524, 1008, 1015, 1016, 1027, 1319 V. Garrett (78 Fed. Rep. 472). 1408 Garrison v. Akin (3 Barb. (N. Y.) 25) 1277, 1290 V. Technic Electrical Works (59 N. J. Eq. 440) . . 1140, 1232, 1237 Garrow «. Davis (10 Fed. Cas. No. 5,257) 83 Garske v. Rldgeville (123 Wis. 503) . 104 Garth v. Howard (8 Bing. 451) 1298 Gate City, The (90 Fed. Rep. 314) . . 539, 767 sq TABLE OF CASES, [Rgferencps ?i,Te to pages.] 543 Gates V, Cljjcftgp, etc., 5. Co. (4 Sr Dak. 433) V. Kelley (15 N. Pafe. 639),.. 118,9, 1264 V. Walker (8 La. Ann. 277) . . . 1202 Gaunt V. Pynney (L. E. 8 Ch. App. 8 ) 244 Pavin V. Hadden (8 Moo. P. C. C. N. S. 90) 1235 Gay V. Union Mut. L. Ins. Co. (9 BlatcW. . Grant (3 N. J. Eq. 629).. 973 Goddaj'n} »,. Gloninger (.5 Watts (Pa.) 209) 960 Godden «. Burjje i$5 La. Ann. 160) . 1276 Godfrey ». Moser («6 N. Y. 250) . . 1141 Godfrey v. Disbrosy . State (97 Tenn. 50) 1301 V. State ((Tex. Crim.) 35 S. W. Rep. 967) 362 V. Terwilliger (56 Fed. Rep. 384). ..606, 611, 635, 652, 664, 689, 692 V. The Schooner Adelaide (Taney (U. S.) 575) .353, 75.3, 767, 907, 1247, 1248 V. Watson (1 Bibb (Ky.) 105) . 1265 Greenawaldt v. Lake Shore, etc., R. Co. ((Ind.) 73 N. E. Rep. 910) Greenawalt «. McEnelley (85 Pa. St. 352) Greenbaum v. Interurban St. R. Co. (84 N. Y. Supp. 588) 387, Greene v. Soci6t§, etc. (81 Fed. Rep. 64) 1027, 1031, 1197, 1304 567 1424 260 1180 427 267 1293 421 Greene v. Windsor Hotel Co. (26 Super. Ct. 97) 1333, 1337 Greene County Bank v. J. H. Teas- dale Commission Co. (112 Fed. Rep. 801) 1099 Greenleaf v. Grounder (84 Me. 50) . 187, 547, 939, 1262 Greenoch Church v. Love (5 N. Bruns. 179) 1294 Greenshields v. Barnhart (3 Grant Ch. (U. C.) 1) 71, 796, 1262 Greeuslade v. Dare (20 Beav. 284) . . 1269, 1318 Greenville, The (58 Fed. Rep. 805). 381 Greenwood v. Bracher (1 Fed. Rep. 856) 831, 1103, 1265, 1279 V. Cline (7 Oregon 17) 548 V. Henry ((N. .1.) 28 Atl. Rep. 1053).. 614, 624, 663, 693, 700 V. New Orleans (12 La. Ann. 426) 974 Greet v. Citizens' Ins. Co. (27 Grant Ch. (V. C.) 121) 1291 Gregg Tp. v. Jamison (55 Pa. St. 468) 1195 Gregory v. State (80 Ga. 270).. 735, 1353 V. Wabash R. Co. (126 Iowa 230) 402 Grenadier, The, v. The August Korff (74 Fed. Rep. 974) 285, 288, 422 Grenell v. Michigan Cent. R. Co. (124 Mich. 141) 1346 Gress v. Braddock, etc., St. R. Co. (14 Pa. Super. Ct. 87) 421 Greville ». Tylee (7 Moo. P. C. 320) . 820, 871, 1225 Gribble «. Ford ((Tenn. Ch.) 52 S. W. Rep. 1007) 102 Grier v. Northern Assur. Co. (183 Pa. St. 334) 1240 Griffln D. Jersey City, etc., R. Co. (73 N. J. L. 389) 1087 V. State (15 Ga. 476) 1114 Griffith V. Baltimore, etc., R. Co. (44 Fed. Rep. 574) 817 Griffiths V. Griffiths (69 N. J. Eq. 689) 840 V. Hardenbergh (41 N. Y. 464) . 107 V. State (163 Ind. 555) 572 Grimes v. State (63 Ala. 166) 1213 Griswold V. Lambert (89 Me. 534) . . 227, 547 Groarke v. Laemmle (56 N. Y. App. Div. 61) 64 Groesbeck v. Chicago, etc., R. Co. (93 Wis. 505) 533, 534 miv TABLE OF CASES. [References a,re to pagea.] Groff 4). GrdS (209 Pa. St. 603) .654, 719 Grogaii t); Boston El. H. Co. ((Mass.) 80 N. E. Rep. 485) 337 Grosveiior (;. I-Iarl'ison (54 Mich; 194) 802, 916, 1032, Groth V. Thomann (110 Wis. 488, 496) ^ Grotjan v. Rice (124 Wis. 253, 102 N. W. Rep. 551) 54, 1008, Grow V. I'ottstille (197 Pa. St. 337) Grunbefg v. V. S. (145 Fed. Rep. 81) Grymes v. Hone (49 N. Y. 17) Gudrdliouse v. Blackburn (L. R. 1 P. & D. 100). ^■■- Guardians of the Poor v. Nathans (2 Bre*st. (Pa.) 149) ...... 1315, Gubasko v. New York (12 Daly (N. Y.) 183) GutEey *. Deeds (29 VA. St. 378) .. . Guggenheim v. Lake Shore, etc., R. Co. (66 Mich. 150) 402, 432, Guibert v, British Shiii George Bell (3 Hughes (U. S.) 468) 276, 344, Guild V. Pringle (130 Fed. Rep. 419) ,..,... Gulnard v. Enapp (95 Wisj 482)... Guinea v. Campbell (22 Quebec Super. Ct. 257) Gdlf, etc., R. Co. v. DiSVall (12 Tdx. Civ. App. 348) V. Ellis (54 Fed. Rep. 481) .543, ■V. Holland (27 Tex. Civ. App. 397) ; 41, Gunn li. Meti'opOlitaU St. B, Co. (86 N. Y. Siipp- 241) Gurley t). MlsSburi Pac. R. Co. (104 Mo. 211) Gurney i'. L&nglandS (5 B. & Aid. 330) Guy V. Mpdd (22 N. Y. 462) , . . Guypr M. 5Jis=!oill-i Pdc. R. Co. (174 Mo. .-i 1 4 ) Guyoil 0. Brooklyn Heights R. Co. 49 Misc. (N. Y.) 514) 165, 1415 Gypsurtl prince, The (67 Fed. Rop. 612) ,,..496-497 II. Haas V. Orand Httpids, etc., R. Co. (47 Mich. 401) 1341 Hadden ti. Ni-\V Yol-k Silk M{g. Co. (1 Daly (N. Y.) 3S8) ,,... 1294 Haeclspi' v. CliicnRo, etc., K. Co. (91 111. App. 570) ,......., 1341 1036 203 1291 903 77 796 1332 41 645 436 420 1297 54 66 401 260 HE 202 620 18 409 llaetsch v. Chicago, etc., R. Co. (87 Wis. 304) 333 Hafner V. St. LoUis Transit Co. ( (Mo.) 94 S. W. Rep. 291) 299 Hagan V. YateS (1 Ddm. (N. Y.) 584) 59, 631, 714 Hagar v. O'Neill (21 Ont. 27) 1198 Hagenbaugh v. Crabtree (33 III. 225) 1302 Hager v. Hager (38 Barb. (N. Y.) 92) 685 Haines v. People (82 111. 430) 1413 HajseS V. Chicago, etc., R. Co. ((Neb.) 97 N. W. Eep. 327).. 263, 331 Halbert's Will, Matter of (15 Misc. (N. Y.) 308) 516 Halcyon, The (1 Fed, Cas. No. 32). 1277 Haldermsfl r. Beckwlth (4 McLean (U. S.) 386) ; 382 Hale V. Lel.jhton (36 N. Bruns. 256) 585 Hale, etc., Mfg. Co. v. Norcross (199 Pa. St. 283) 799, 825, 836, 1267, 1418 Haley v. Goodheart (58 N. J. Eq. 368) 1008 Halifax Electric Tramway Co. v. IhgllS (30 Can. Sup. Ct. 256) 428 Hall, Matter of (5 Misc. (N. Y.) 461) 1137, 1192 Hall V. Austin (73 Mliin. 134) 571 V. Brown (30 Conn. 551) 1180 V. Cardell (111 Iowa 206) 117 V. Edwards (15 III. App. 369). 897, 965, 1196, 1250 V. Hall ((N. J.) 53 Atl. Eep. 455) 188 V. Hall (20 Ont. 684) 77, 1229 V. Layton (16 Tex. 262)..12S9, 1316 ■u. JIurdock (114 Mich. 233)... 1409 V. Rose Hill, etc., Road Co. (70 111. 673) 1266 V, St. TiOilis, etc., R. Co. ((5Io. Apti.) 101 S. W. Rep. 1137) 404 V. Thp Propeller Buffalo (Newb. Adra. 115) 478. 738, 1283 t'. Thompson (1 SmSd. & M. (Miss.) 443). ,.1035, 1301, 1315, 1320 ■u. Vanderpool (150 Pa. St, 152) 543, 585 V. Wood (1 Paige (N. Y.) 404). 824, 876 Hrtllett r. Fish (120 Fed. Rep. 986). 1274 IlallidttJ' II. Brooklyn Heights R. Cd, (59 N. Y, App. IMv. 57) 427 ITallock r. Pnbciick Mfg. Co. (124 Fed. Eep. 226) 93 TABLE OF CASES. xcv 984 123 74 567 [References are to pages.] Hall Signal Co. »i General Hy. Signal Co. (1B3 Fed. Rep. 907) 1103 Hall's Will, In re (24 N. Y. Supp. 864) - . . . Halsey ii. Hart (85 Hun (N. Y.) 46) Halstead v. Grlnnan (152 U. S. 412) Ham V. Gllmore (7 Misc. (N. Y.) 596) Hamersly v. Lambert (2 Johns. Ch. (N. Y.) 432) , 1198 Hamerton v. Hamerton (2 Hag. Ecc. 8) ; 1169 Hamilton, In re (102 Fed. Rep. 683) 1141 Hamilton, Matter of (1 Ben. (U. S.) 455) 605 Hamilton u. Hamilton (9 CI. & F. 327) 1134 ti. Owego Water Works (22 N. T. App. Div. 57.?) 123, 166 V. People (29 Mich. 173) 34 598, 870 V. Royse (2 Sch. & Lef. 315) , . 942 Hamlin ». Stevens (177 N. Y. 39).. 76, 1330 Hammock », McBrlde (6 Ga. 178) . . 1114, 1394 Hammond v. Wolt (78 Iowa 227) . . 657, 677 Hampton v. Wescott (49 N. J. Eq. 522) 1253 Hand v. Clearfield Consol. Coal Co. (143 Pa. St. 408) 560-561 V. The Schooner Elvira (Gilp. (U. S.) 60) 1273 Haney ». Baltimore Steam Packet Co. (23 How. (U. S.) 287).. 350, 478, 480, 508, V. The Steamer Louisiana (Taney (U. S.) 602) 478 Hanheide v. St. Louis Transit Co. (104 Mo. App. 323) 403 Hanifen v. Lupton (95 Fed. Rep. 465) K. Lupton (101 Fed. Rep. 462) . Haokin v. Squires (5 Biss, (U. S.) 186) Hankins i). New York, etc., R. Co. (142 N. Y. 416) 872 Hankinson v. Hankinson (33 N. J. Eq. 66) 1062 V. Lynn Gas, etc., Co. (175 Mass. 271) ;150, 1244 Hanks v. Hanks (3 Bdw. (N. Y.) 469) 187 Hanley v. Gandy (28 Tex. 211). 697, 712 V. U. S. (127 Fed, Rep. 929) . . 527 5.37 64 701 195 583 211 526 1316 564 560 899 Hanlon v, Milwaukee Electric R., etc., Co. (118 WIB. 210), 406, Hanly V. Hanly (105 N. Y. App. Div. 335) 1330 Hann u. Hann (58 N, J. Eq. 211) . . 1212 Hanna v. Philadelphia, etc., R. Co. (213 Pa. St. 157) ,.,,..... 537 Hannas v. Hawk (24 N. J. Eq^ 124) 835, 956 Hannay v. New Orleans Cotton Exch. (112 La. 998) 580, 1292, 1411 Hanrahan v. Brooklyn El. R. Co. (17 N. Yi App. Div. 588) nanriot v. Sherwood (82 Va. 1)... 605, 617, 664, 671, Hansen v. New Jersey St. R. Co. ((N. J.) 43 Atl. Rep. 663) Hanson v. Eustace (2 How. (U. S.) 653) , V. Powle (1 Sawy. (U. S.) 539) Hantley v. V. S. (127 Fed. Rep. 929) Harbold v. Kuntz (16 Pa. St. 212) 73, 1292 Harding «. American Glucose Co. (182 111. 551) 569-570 i>. Brooks (5 Pick. (Mass.) 244) 118, 121, 151, 1036 V. Giddings (73 Fed. Rep. 335). 580 II. Long (103 N. Car. 1) Hardt v. Deutsch (22 Misc. (N. Y.) 66) ;..., Hardy v. Harbin (154 U. S. 598).. 189, 584, 644, 797, 822, 835, 897, Hargraves v. Miller (16 Ohio 338) . 1117, 1263 Hargreaves f . Rothwell (1 Keen 154) 944 Haring v. New York, etc., R. Co. (13 Barb. (N. Y.) 9) Harriot, Matter of (145 N. Y. 540) . Harman v. Harman (70 Fed. Rep, 894) 1015, 1187, 1258, 1330 Harmon u. Struthers (43 Fed. Rep, 437) ..., 88,830, 968 Harmonides, The ((1903) P. D. 5). 11j4 Harold, The (84 Fed. Rep. 698). 289, 495 Harp V. Parr (168 111. 459) 1412 Harper v. Cameron (2 British Columbia 411) 1140, 142.1 ■u. St. Paul City B. Co. (99 Minn. 253) 747 Harper's Will (4 Bibb (Ky.) 244).. 1296 Harrer v. Wallner (80 111. 197) 975, 979, 1072 Harrigan v. Gilchrist (121 Wis. 127) 84 Harriman v. Sampson (23 111. App. 159) 1213 81 1235 932 50 207 XCVl TABLE OF CASES. [References are to pages.j 329 305 56 1152 Harrington v. Pry (R. & M. 90)... 649 Harris v. Bedford (2 Phlll. Bee. 177) 1296 11. Frank (81 Cal. 280)... 1066, 1302, 1329 V. Harris (109 111. App. 148). 98, 1427 e. Knight (15 P. D. 170) 1275 V. Lincoln Traction Co. ((Neb.) Ill N. W. Kep. 580) 425 V. Melntyre (118 111. 275).... 1008 V. Minneapolis, etc., R. Co. (33 Minn. 459) 1341 c. The King (9 Canada Bxch. 206) 271 V. Uebelhoer (75 N. Y. 175) .. . V. Vanderveer (21 N. J. Eq. 561) Harrison v. New Jersey R., etc., Co. (19 N. J. Bq. 488) 59, 1228, 1151, i>. Patterson ((N. J.) 50 Atl. Rep. 113) 219, 1212 V. Peabody (34 Cal.' 178) . .1321-1322 V. St. Mark's Church (12 Phila. (Pa.) 259) 246, 1180, 1339 V. Yerby ((Ala.) 14 So. Rep. 321) 1334 Harry Buschman, The (33 Fed. Rep. 558) 552 Hart V. Dreytous (42 La. Ann. 631) . 1387 B. Bekles (4 Phila. (Pa.) 48).. 09.j V. Hart (2 Splnks 193) .. .899, 1238 i>. Hudson River Bridge Co. (80 N. Y. 622) V. Minehen (69 Fed. Rep. 520) . V. New Haven (130 Mich. 181) V. Powell (18 Ga. 6.S5) V. Ten Byck (2 Johns. Ch. (N. Y.) 82) Barter v. Christoph (32 Wis. 245). V. People (204 111. 1.-|8) . . .820, Hartford, The (125 Fed. Rep. 550). 552, 765, Hartford v. Palmer (16 Johns. (N. Y.) 143) 814 Hartford F. Ins. Co. v. Bourbon County Ct. (115 Ky. 109) 1362 Hartford Ij., etc., Ins. Co. t'. Gray (80 111. 28) 117 V. Sherman (123 111. App. 202). 547 Hartley v. Lord (38 Wash. 221)... 1129 Hartley's Appeal (103 Pa. St. 23) . . 222 Hartman v. Interurban St. R. Co. (88 N. Y. Supp. 352).. 137, V. The Brig Will (4 Pa. L. J. Bep, 350) 548, 234 527 1290 197 16 149 1266 1244 171 960 Harton, The (9 P. D. 44) 345 Hartshorn ». Metropolitan L. Ins. Co. (55 N. Y. App. Div. 471) 548 Harvest, The (11 P. D. 14) 490 Harvey ». Bvansville, etc., Steam Packet Co. (8 Biss. (U. S.) 99) 1379 V. Louisiana Western R. Co. (114 La. 1065) 420, 432 V. New York, etc., R. Co. (23 N. Y. Wkly. Dig. 198) 1346 Harwood v. Baker (3 Moo. P. C. 282)... 860, 812, 967, 1228, 1249, 1264 Haskins v. Haskins (9 Gray (Mass.) 390) 57 Hassell ». Basket (8 Biss. (U. S.) 303) 77 Hastings v. Brooklyn L. Ins. Co. (138 N. Y. 479).. 192, 224, 526, 1421 V. Stetson (130 Mass. 76) 589 Hatch V. New York Cent., etc., R. Co. (42 Misc. (N. Y. 152) . 326, 1350 V. Sigman (1 Den. (N. Y.) 519) 1293, 1295 V. Van Dervoort (54 N. J. Eq. 511) 799, 1010,1276 Hatcher V. Hatcher (139 5Io. 614).. 1427 Ilatfleld V. King (184 U. S. 162)... 1095 Hat-Sweat Mfg. Co. e. Davis Sewing Mach. Co. (32 Fed. Rep. 401). 836, 1096, 1102, 1266, 1279 V. Waring (46 Fed. Rep. 106) . 874 Haughey v. Meyer (48 Fed. Rep. 679) 88 Ilaun V. Rio Grande Western R. Co. (22 Utah 346) 269, 1345 Hauser v. Central R. Co. (147 Pa. St. 440) 205, 331. 476 v. People (210 III. 253) 112. 171 Havana, The (54 Fed. Rep. 411).. 495 Ilavemeyer v. Randall (21 Fed. Rep. 404) 89, 832, 1334 Haven v. Markstrum (67 Wis. 493). 1291 Ilaverly v. Jlercur (78 Pa. St. 257) . 1277, 1329 Ilavprstick r. Pennsylvania R. Co. (171 Pa. St. 101) 520, 534, 543, 557, 86.-., 1060, 1348 Havilah, The (33 Fed. Rep. 875).. 15. 479. 4SG. 496 Itaviland r. Kansas City, etc., R. Co. (172 Mo. 106) 199 Ilawes V. Antisdel (2 B. & .V. Pat. Cas. 10)..S33. S71, 912. 915, 927, 954, 975, 1148, 1211, 1256, 1408 TABLE OF CASES. XCVU [References a.re to pages.] 89 187 1278 1240 725 Hawkins v. Berry (10 III. 36) 1316 V. Grimes (13 B. Mon. (Ky.) 257) 158, 624, 661, 692, 700 ». Hawkins (65 Md. 104) 1256 V. Sauby (48 Minn. 69) 121, 136 Hawley «. Hawley (187 111. 351).. 1420 Haworth v. Stark (88 Fed. Bep. 512) 59, Hawralty v. Warren (18 N. J. Bq. 124) Hay V. Gordon (9 Moo. P. C. C. N. S. 102) Haycraft v. Davis (49 111. 455) Hayden v. Frederickson (59 Neb. 141) V. Suffolk Mfg. Co. (4 Fisb. Pat. Cas. 86) .737, 829, 855, 857, 968 Haydock v. Haydock (33 N. J. Eq, 494) 192, 820, 890, 939, 1409 Hayes v. Livingston (34 Mich. 384) . 1289 „. Pitts-Klmball Co. (183 Mass. 262) 1030 Haynes v. State (17 Ga. 465) 1286 ^. Thomas (7 Ind. 38) 694 Hays «. Hays ((Neb.) 106 N. W. Rep. 773) 1062 Hayward v. North Jersey St. R. Co. ((N. J.) 65 Atl. Rep. 737). 427 V. Rogers (62 Cal. 349) 116 Haywood e. State ((Miss.) 43 So. Rep. 614) 599, Hazel V. People's Pass. R. Co. (132 Pa. St. 96) Hazen, Re (16 N. Brans. 329) Hazen v. Henry (6 Ark. 86) Hazzard's Estate (7 Pa. Co. Ct. 56) . 1231, 1280 H. B. Moore, Jr., The (155 Fed. Rep. 380) 743 Head v. Hargrave (105 U. S. 45).. 165 Headley ». Leavltt (66 N. J. Bq. 94) 1320 Health Dept. v. McAdam (13 N. T. Wkly. Dig. 118) 154 V. Purdon (99 N. Y. 237) 1376 Healy v. Clark (120 N. T. 643) 56 Heaney v. Long Island B. Co. (112 N. Y. 122) 326 Heany v. Parker (27 U. C. Q. B. 509) 1420 Heaphy v. Metropolitan L. Ins. Co. (25 N. Y. App. Dlv. 420) 704 Heard v. State (9 Tex. App. 1) 680 Hearn v. Hearn (24 R. I. 328). 1198, 1204 Hearno v. Marine Ins. Co. (20 Wall. (U. S.) 489) 79 Heath v. Jones (12 III, App. 493) . . 1300 602 64 1066 1311 Heaton, Matter of (21 N. J. Bq. 221) 1227 Heaton v. Hennessy (112 111. App. 053) 1420 Hebert v. Jobin (26 Quebec Super. Ct. 193) 1022 Heedle v. City Electric R. Co. (112 Mich. 547) 1217 Heclas v. Slevin (53 How. Pr. (N. Y.) 356) HetHey v. Poorbaugh ((Pa.) 10 Atl. Rep. 12) Heidelbaugh «. People's R. Co. ( (Del.) 65 Atl. Rep. 587) Heist 13. Blaisdell (198 Pa. St. 377) . Heldt V. State (20 Neb. 492).. 1174, 1325, 1326 Helena, The, v. The Lord O'Nell (26 Fed. Rep. 463) 1315 Helen G. Moseley, The (128 Fed. Bep. 402) 353, 483, Helen Hasbrouek, The (29 Fed. Rep. 463) Helen Keller, The (50 Fed. Rep. 142) Helen R. Cooper, The (7 Blatchf. (U. S.) 378) 132, Helper «. Mt. Carmel Sav. Bank (97 Pa. St. 420) Hemingway v. Illinois Cent. B. Co. (114 Fed. Bep. 843) 533, Hemmens i>. Nelson (138 N. Y. 517) Hemolin Co. v. Harway Dyewood and Extract Mfg. Co. (131 Fed. Rep. 483) 886, Henavie «. New York Cent., etc., R. Co. (166 N. Y. 280) 339, 1347 Henderson c. Crouse (7 Jones L. (52 N. Car.) 623) 1339 «. Henderson (55 Mo. 534) 566 ». Henderson (27 Ont. 93) 1235 V. Montgomery Bank (11 Ala. 855) Hendricken v. Meadows (154 Mass. 599) Hendricks 1). Mon (11 La. 137) Hendrickson v. Great Northern R. Co. (49 Minn. 245)... 235, 236, 533, 865, V. Ivins (1 N. J. Eq. 562) . 1008, V. People (10 N. Y. 13) Hennessy v. Murdock (137 N. Y. 317) Henry x.. Henry (8 Barb. (N. Y.) 588) 548 165 54 214 764 485 395 137 1023 534 192 1335 648 1335 1290 1346 1034 1325 70 1321 xcvm TABLE OF CASES. Henry v. Imperial Council, etc. (52 N. J. Bq. 770).. 893, 1141, 1151 V. Pindar (22 Grant Ch. (U. C.) 257) 1276 Henry A. Crawford, The (68 Fed. Eep. 939) 1*15 Henshaw v. Bryant (5 111. 97) 1306 Henson v. Arthur ((Pa.) 66 Atl. Rep. 256) 426 Hentz V. Long Island R. Co. (13 Barb. (N. Y.) 646) 254 Henze v. St. Louis, etc., R. Co. (71 Mo. 636) 1341 Hepburn v. Citizens' Bank (2 La. Ann. 1007) 1338 Herbert v. Herbert (49 N. J. Eg. 70) 1034 V. Jobin (26 Quebec Super. Ct. 193) 960 V. Southern Pac. R. Co. (121 Cal. 227) 261 V. The Amanda F. Myrick (12 Fed. Cas. No. 6,395) 1264 Herbert Manton, The (14 Blatchf. (U. S.) 37) 492 Hercules, The (17 Fed. Rep. 606).. 388, 508, 509 , The (55 Fed. Rep. 120) 455 . The (63 Fed. Rep. 268) 589 , The (80 Fed. Rep. 998) 276 , The (129 Fed. Rep. 945) 1375 Hermine, The (3 Sawy. (U. S.) 80). 1198 Hernandez v. State (18 Tex. App. 134) 1105 Heroine, The (6 Blatchf. (U. S.) 188) 538, 1428 Herring v. Nelson (14 Blatchf. (U. S.) 293) 571 V. Poritz (6 111. App. 208) 98 Herrington v. Herrlngton (11 111. App. 121) 931 Herrmann v. Herrmann (98 N. Y. Supp. 654) 230, 1190, 1191 Hershey v. Blakesley (33 Fed. Rep. 922) 915, 1267 V. The North America (12 Fed. Cas. No. 6,429) 324 Herwlg i>. Oakley (Taney (U. S.) 389) 120,5, 1273, 127.1 Herzinger v. State (70 Md. 278) .. . 1395 Hess ti. Klllebrew (209 III. in:!)... 1420 V. Willlamsport, otc, R. Co. (181 Pa. St. 492) 1345 Hesse v. St. .lohu R. Co. (.30 Can. Sup. Ct. 218) 547 Hester v. Frary (99 III, App. 51)., 136 [References are to pages.] Hetherington v. Kemp (4 Campb. 193) 526 Heyman v. Heyman (210 111. 524) . . 1427 Hey ward v. Hey ward (1 Bay (S. Car.) 335) 1265 H. Hirschberg Optical Co. v. Michael- son ((Neb.) 95 N. W. Rep. 461). 1180 Hibbard «. Chicago, etc., E. Co. (102 Wis. 624) 1353 HIbbs 0. Woodward (15 W. N. C. (Pa.) 338) 1307, 1329 Hiekey v. New York, etc., R. Co. (8 N. Y. App. Div. 123) 333, 402 Hickok V. Farmers', etc.. Bank (35 Vt. 476) 1138 Hicks V. Hicks (16 Ohio Dec. 509) . 1027 V. Nassau Electric R. Co. (47 N. Y. App. Div. 479) 556 V. Otto (19 Fed. Rep. 749) 88 V. Person (19 Ohio 426) 671 Higbee v. The Bark Nipoti Accame (14 Phila. (Pa.) 517) 767 riiggins, Matter of (94 N. Y. 557) . . 851 Higgins V. Shepard (186 Mass. 57). 1394 riiggs V. Wilson (3 Met. (Ky.) 337). 1311 HighflU V. Missouri Pac. R. Co. (93 Mo. App. 219) 183, 195 Highland Ave., etc., R. Co. v. Samp- son (112 Ala. -125) 402 Highlands v. Philadelphia, etc., R. Co. (209 Pa. St. 286) 80, 228 Highley v. -Vmerican Hxch. Nat. Bank (86 111. App. 48) 136 Higley v. Bostick (70 Conn. 97) 1286 Hildreth v. Marshall (51 N. J. Eq. 241) 956, 1308 Hill, In re (7 Ont. App. 694) . . .580, 584 Hill, Re (34 Nova Scotia 494) 1155, 1189, 1276, 1431 Hill V. Beach (12 N. J. Eq. 31) 1312 ». Bulkeley (1 Phill. Ecc. 280). 1119 V. Day (34 N. J. Eq. 150). 561, 1277 1'. Fraser (3 Nova Scotia 294) . 1358 t>. Hermans (59 N. Y. 396)... 1100 ». Hill (63 111. App. 366) 1410 V. Hill (10 N. Y. Wkly. Dig. 239) 825 V. Hogg (9 N. Bruns. 108) 1311 V. McNichol (80 Me. 209) 560 V. Montgomery (184 111. 220).. 1263 V. Newman (47 Ind. 187) 1311 V. West End St. R. Co. (158 Mass. 458) 23,750, 964 Hlmrod Coal Co. v. Cllngan (114 111. App. -.0)8) 1215 HIne V. Pomeroy (30 Vt. 211). 1309, 1S3S Hlnkle V, Hlgglns (83 Tej;. 616) . . . 13Q7 TABLE OF CASES. XCIX [References a^re to pages.] 1291 254 915 723 Hinshaw v. State (147 Ind. 334).. 515, 590 Hinton v. Cream City E. Co. (65 Wis. 323) 1238, 1339 Hintz V. Michigan Cent. R. Co. (132 Mich. 305) 1240 Hitch V. Wells (10 Beav. 84) 1423 Hitchcock V. Baughan (36 Mo. App. 216) V. Burgett (38 Mich. 501, 505). V. Tiemaine (9 Blatchf. (U. S.) 550) HItchings v. Wood (2 Moo. P. C. 355) Hitt V. Rnsh (22 Ala. 563) 735, 798, 966, 980, 1180, 1282 H. Krantz Mfg. Co. ti. Gould Storage Battery Co. (82 N. Y. Supp. 474) . 1270 Hoag V. Wright (174 N. Y. 36) 659, 682, 692 Hoard t>. Blackstone Mfg. Co. (177 Mass. 69) 303 Hoban v. Campau (52 Mich. 346) . . 1280 Hobbs V. Davis (30 Ga. 423) 1184 Hoben v. Steamer Westover (2 Fed. Rep. 91) 509 Hoby V. Hoby (1 Hag. Bcc. 146) . . . 798, 976, 984 Hodder v. Philadelphia Rapid Tran- sit Co. ((Pa.) 66 Atl. Rep. 239). 106, 784 Hodge e. Amerman (40 N. .T. Bq. 99) 919, 1014 V. Buffalo ((Buffalo Super. Ct. Gen. T.) 1 Abb. N. Cas. (N. Y.) 356).. 124, 1139, 1206, 1229, 1238 Hodgen v. Guttery (58 111. 431)... 1013, 1035 Hodgkinson v. Wilkie (1 Hag. Cons. 262) 1249 Hodgson, In re (31 Ch. D. 177) .. . 76 Hoellerer v. Kaplan (19 Misc. (N. Y.) 539) 1289, 13U Hoerth v. Zable (92 Ky. 202) 1266 Hoffard v. Illinois Cent. R. Co. ((Iowa) 110 N. W. Rep. 446).. 267, 1341 HoflPer V. Gladden (75 6a. 533) 548 Hoffman v. Fltchburg R. Co. (67 Hun (N. Y.) 581)... 1246, 1341 V. Hoffman (6 N. Y. App. Div. 84) 9b r V. Loud (111 Mich. 156) 56 "■ Pennsylvania R. Co. (215 Pa. crt. 62) 1280 Hogarth V. Pocasset Mfg. Co. (167 Mass. 225) 734 Hoge 1). People (117 III. 35) 1215 Hoguet V. Berkman (6 N. Y. Supp. 214) 11 lioui V. Scales (2 Hag. Ecc. 566) . . 1133, 1226 Hoitt V. Moulton (21 N. H. 586) .. . 645, 1411, 1412 Holcomb V. Holcomb (28 Conn. 179) 739, 1092 Holcombe v. Holcombe (39 N. J. Bq. 592) 1239 Holden v. Pennsylvania R. Co. (169 Pa. St. 1)..205, 770, 1227, 1229, 1237, 1241 Hollingsworth v. Martin (23 Ala. 591) 596 V. State (53 Ark. 387) 1161 Holloman v. Life Ins. Co. (1 Woods (U. S.) 674) 984 Hollywood ». Waters (6 Grant Ch. (D. C.) 329) 70, 590, 916, 1031, 1154, 1302 Holmes v. Connable (111 Iowa 298) . 142, 152, 802, 822, 842, 897, 1008, 1043 V. Dodge (Abb. Adm. (U. S.) 60) 1141 V. Goldsmith (147 U. S. 150).. 616, 696 V. Holmes (Walk. (Mass.) 474) 1262 ,.. Holmes (18 N. J. Eq. 141).. 1266 V. Holmes (1 Sawy. (U. S.) 99) 560, 1072, 1206 V. Matthews (3 Grant Ch. (U. C.) 379) 1007, 1008, 1028 ■u. Morse (50 Me. 102) 1032, 1036, 1274, 1290 V. Oregon, etc., R. Co. (5 Fed. Rep. 523) 374, 1235 1). Pennsylvania R. Co. (74 N. J. L. 469) 1347 Holt «. Tuite (188 N. Y. 17).. 1292, 1304 I-Iolton V. Davis (108 Fed. Rep. 138) 1156, 1261, 1262, 1315 Home Ins. Co. v. Nobles (63 Fed. Rep. 642) •. . ISO V. Weide (11 Wall. (U. S.) 4.38) 514 0. Western Transp. Co. (51 N. ■i'. 93) 60 «. Wood (47 Kan. 521) 1011 Homes v. Hale (71 111. 552) 1215 Homoeopathic Mut. L. Ins. Co. v. Mar- sball (32 N, J, Eq. Ill) . .821, 822, 857 TABLE or CASES. [References are to pages.] 123 Honegger v. Wettstein (94 N. Y. 252) Hook V. Missouri Pac. E. Co. (162 Mo. 569) 204, 206, 293 Hool V. U. S. (41 Ct. CI. 378) 1117 Hooper v. United Traction Co. (17 Pa. Super. Ct. 638) 398, 427 Hoover v. Reilly (2 Abb. (U. S.) 471) 79 Hope, The (4 Fed. Rep. 89)... 495, 507, 997, 1247 Hopkins, Matter of (172 N. Y. 360, 370) 515, 606, 610, 611, 625 Hopkins v. Megguire (35 Me. 78) . . . 696 Hoppe V. Byers (60 Md. 381) 644 V. Chicago, etc., E. Co. (61 Wis. 357) 398, 420 Hopper «. Ashley (15 Ala. 457) .... 646, 655, 694, 696 V. Dunsmuir (10 British Colum- bia 23) 1416 Ho Qual Sin, In re (84 Fed. Eep. 310) 1274 Horace B. Parker, The (71 Fed. Eep. 989) 357 Horan v. Byrnes (70 N. H. 531) ... 62 Horn V. Baltimore, etc., R. Co. (54 Fed. Rep. 301) 1341 Home V. Peacock (122 Ga. 45) 1402 Hornellsville First Nat. Bank v. Hy- land (53 Hun (N. Y.) 108) 571 Horner v. Speed (2 Patt. & H. (Va.) 616) 799, 1008, 1036, 1294 Hornet, The ( (1892) P. 361) 1428 Horning v. Poyer (6 Ohio Cir. Dec. 370) 548 Hortensia, The (2 Hask. (U. S.) 141).. 356, 502, 1211, 1247, 1249 Horton v. Handvll (41 N. J. Eq. 57) 192 Hoskins v. Hoskins ((Ky.) 89 S. W. Rep. 478) 1427 Hossler v. Trump (62 Ohio St. 139) 163 Hostetter Co. k. Bower (74 Fed. Eep. 235) 364, 1167 V. Comerford (97 Fed. Rep. 585) 364 V. Conron (111 Fed. Rep. 737). 569 V. Gallagher Stores (142 Fed. Rep. 208) 364, 546 Hough V. Richardson (3 Story (U. S.) 659) 19, 960, 1256 House V. Clemens (16 Daly (N. Y.) 3) 858, 905, 1307 Houseman v. Glrard Mut. Bldg., etc., Assoc. (81 Pac, Rep. 256) 944 Houston, etc., R. Co. v. Kauffman ((Tex. Civ. App.) 101 S. W. Rep. 817) 274 ■i;. Ramsey ((Tex. Civ. App.) 97 S. W. Rep. 1067) 1359 Hovey v. Blanehard (13 N. H. 145). 944 Howard v. Colquhouu (28 Tex. 134) 19, 796 V. Daly (61 N. Y. 362) 528 ■V. Indianapolis St. R. Co. (29 Ind. App. 514) 273 Howatt V. Laird (1 P. E. Island 21) 578, 1227, 1255 Howe, Matter of (112 Iowa 220) . . . 669, 724 Howe I). Manning (13 La. 412) 163 V. Underwood (12 Fed. Cas. No. 6, 775)... 90, 829, 830, 869, 923, 968, 1271 Howell «. Crosby (89 Hun (N. Y.) 355) 581 V. Hartford F. Ins. Co. (12 Fed. Cas. No. 6,780).. 587, 685, 702, 711, 726, 1154, 1206, 1263 Howland v. Blake (97 D. S. 624)... 79 Howlett V. Dllts (4 Ind. App. 23) . . 108 Hoyberg v. Henske (153 Mo. 64)... 157 Hoyt V. Hoyt (27 N. J. Eq. 399)... 822 V. Metropolitan St. R. Co. (73 N. Y. App. Div. 249) 196 V. Wildfire (3 Johns. (N. Y.) 518) 1256 H. P. Baldwin, The (Brown Adm. (U. S.) 300) 352 Hreglich v. One Thousand Tons Coal (128 Fed. Rep. 464) 1375 H. S. Beard, The (134 Fed. Eep. 648) 495 Hubbard v. Boston, etc., E. Co. (159 Mass. 320) 1341,1342 V. Dickie (39 Nova Scotia 510) 594, 736, 12ri5 V. McLean (122 Wis. 75). 559, 1409 V. Rankin (71 111. 129).. 1116, 1420 Iluber V. Miller (41 Oregon 103) ... 99 Iluble V. Clark (1 Hag. Bcc. 115).. 85. 592, 624, 649, 1270 Huchberger v. Home F. Ins. Co. (5 Biss. (U. S.) 106) 81 ■II. Merchants' P. Ins. Co. (4 Biss. (U. S.) 265) 8 Hudson, The (15 Fed. Rep. 162)... 1197 Hudson «. .\dams ((Ky.) 49 S. W. Rep. 192) 34 V. Parker (1 Rob. Ecc. 14) 796 V. Rome, etc., R. Co. (73 Hun (N. Y.) 467) 192 TABLE OF CASES. CI 1420 523 421 548 163 552 1426 Hudson V. Wabash, etc., R. Co. (32 Mo. App. 667) 595 Huff V. Nimg (11 Neb. 363) 718 Huffman v. Baybam (26 Ont. App. 514) 1). Stiger (1 PIttsb. (Pa.) 185). Hughes V. Camden, etc., E. Co. (65 N. J. L. 203) V. Coleman (10 Bush (N. Y.) 246) 869, 1188, 1219 V. Louisville, etc., R. Co. ((Ky.) 67 S. W. Rep. 984) 64 V. People (116 111. 330) 1101 Hull V. Littauer (162 N. Y. 572) . . . 124, 128, 168, 170, V. St. Louis (138 Mo. 618) Humboldt Lumber Manufacturers' Assoc, In re (60 Fed. Rep. 428). 455, Humboldt Lumber Manufacturers' Assoc. V. Christopherson (73 Fed. Rep. 239) 455, 463, 1405, Humphrey v. Thorp (89 Fed. Rep. 66) 1197 Humphreys v. Charles Warner Co. (45 Fed. Rep. 270) 827 Humphries v. State (100 Ga. 260) . . 1309 Hun V. Gary (59 How. Pr. (N. Y.) 426) 116, 128 Hunnewell v. Taber (2 Sprague (D. S.) 1) 743 Hunt V. Caldwell (11 Ohio Cir. Dec. 562) 1253, 1278 V. Fish (4 Barb. (N. Y.) 324). 526 V. Lawless (7 Abb. N. Cas. (N. Y.) 113) 616, 617, 1198 V. The Propeller Cleveland (6 McLean (U. S.) 76) 1244 Hunt Bros. Fruit Packing Co. v. Cas- sidy (53 Fed. Rep. 257) 90 Hunter v. Bilyen (30 111. 228) 1412 V. Cooperstown, etc., R. Co. (112 N. Y. 371).. 398, 402, 425, 441 V. Glenn (1 Bailey L. (S. Car.) 542) 576 V. Hook (64 Barb. (N. Y.) 468) 128, 1307 V. New York, etc., R. Co. (116 N. Y. 615) 202 V. Wetsell (84 N, Y. 549). .797, 933 Hunter No. 2, The (22 Fed. Rep. 795) 491 Huntley v. Home Ins. Co. (42 Iowa 709) 560, 1322 V. Whittler (105 Mass. 391)... 525 [References are to pages.] Huntress ». Boston, etc., E. Co. (66 N. H. 185) 398, 400, Hupsch V. Resch (45 N. J. Eq. 657) . Hurley v. Metropolitan St. R. Co. (120 Mo. App. 262) Huron Barge Co. v. Turney (71 Fed. Rep. 972) Hurtzlg 1). Hurtzig (44 N. J. Bq. 329) 1168, 1169, Hussey Mfg. Co. v. Deering (40 Fed. Rep. 87) Husted V. Mead (58 Conn. 55) 1269, 1273, Hutcheson v. Meazell (64 Tex. 604) . 610, 822, 857, Hutchins v. Murphy (146 Mich. 621) 1273, Hutchinson v. Market Bank (48 Barb. (N. Y.) 302) «. Missouri Pac. R. Co. (161 Mo. 246) Huttig Sash, etc., Co. v. Fuelle (143 Fed. Rep. 363) Hyatt V. Cochran (37 Iowa 309) .71, ■u. Lunnin (1 Dem. (N. Y.) 14) Hyde v. Paige (8 Barb. (N. Y.) 150) V. Sontag (1 Sawy. (N. Y.) 249) V. Woolfolk (1 Iowa 159),. 158, 671, Hyer v. Little (20 N. J. Eq. 443).. Hyndman v. Hogsett (111 Pa. St. 643) V. Montreal Ins. Co. (2 Has. & War. (P. B. Island) 132). 73, 80, Hynes v. McDermott (82 N. Y. 41). 647, H. W. Kastor, etc.. Advertising Co. «. Coleman (11 Ont. L. Rep. 262). Hypodame, The (6 Wall. (U. S.) 216) I. lauch V. De Socarras (56 N. J. Bq. 538) Iberia, The (40 Fed. Rep. 893) . .162, 290, Iberia (117 Fed. Rep. 718) Idaho Mercantile Co. v. Kalanquin (8 Idaho 101) Ide V. Brown (178 N. Y. 26) ■u. Trorllcht, etc., Carpet Co. (115 Fed. Rep. 137) 530 877 743 1307 1170 90 1289 897 1274 22 339 1141 1236 1212 116 1407 685 1184 118 295 707 1426 341 1319 1404 507 1334 77 87 cu table; of CASES. [References are to pages.] 758 1102 1420 436 897 1424 134 196 1241 1341 329 Ideal Stopper Co. v. Crown Cork & Seal Co. (113 Fed. Rep. 244). 300, lUingwortli v. Spaulding (9 Fed. Rep. 154) Illinois, etc., E. Co. v. Ogle (92 111. 353) Illinois Cent. R. Co. v. Ashline (171 111. 313) ■V. Barslow (94 111. App. 206, 210) 803, V. Bom ((Ky.) 76 S. W. Rep. 352) 34, V. Conghlin (132 Fed. Rep. 801) V. Crockett ( (Ky.) 79 S. W.. Rep. 235) ». Cunningham (102 111. App. 206) 1). Haecker (110 111. App. 102) . V. Hayes ((Ky.) 84 S. W. Eep. 338) 265, V. Nowicki (148 111. 29) 532 V. Schmitt (100 111. App. 490). 332 V. Slater (139 111. 190) 1343 V. Swisher (53 111. App. 411).. 387 Illinois Mut. F. Ins. Co. v. Malloy (50 111. 419) 566 Illinois, The (63 Fed. Rep. 161, 163) 817, 1255, 1305, 1317 Illinois (65 Fed. Rep. 123)... 235, 414, 422, 451, 452 Illinois (87 Fed. Rep. 574) 235 In re, see the name of the party. Imperial Land Co., In re (L. R. 15 Eq. 18) 528 Improved Match Co. v. Michigan Mut. F. Ins. Co. (122 Mich. 256). 1418 Inca, The (130 Fed. Rep. 36). 1161, 1211 Inca (148 Fed. Rep. 363) 1419 Inch V. Plewelling (30 N. Bruns. 19) 1105, 1262 Inchmaree Steamship Co., The v. The Steamship Astrid (6 Can. Exch. 178) 478, 1159 Indiana, etc., K. Co. i). Otstot (212 111. 429) 1343 Indianapolis «. Keeley ((Ind.) 79 N. E. Eep. 499) 514 Indianapolis, etc., E. Co. v. Bennett ((Ind. App.) 79 N. H. Eep. 389) 106 1). Stables (62 111. 318) 414 Indianapolis St. E. Co. v. Bolin ((Ind. App.) 78 N. E. Rep. 210) 425 V. Bordenchecker (S3 Ind. App. 138) 426 Indianapolis v. Darnell (32 Ind. App. 687) 556 ■u. Johnson (163 Ind. 518).. . 106 V. Schmidt (163 Ind. App. 360) 104, 105 V. SlMer (35 Ind. App. 700)... 312 V. Taylor ((Ind. App.) 80 N. E. Rep. 436) 273, 298, 304 Ingraham v. Strong (41 111. App. 46) 1025 Ingram «. lUges (98 Ala. 511) 1032 17. Robbins (33 N. Y. 409). 1095, 1412 V. Watklns (1 Dev. & B. L, (18 N. Car.) 442) 1210 v. Wyatt (1 Hag. Ecc. 384) .. . 1227, 1251, 1252, 1254 Inland, etc.. Coasting Co. v. Tolson (139 U. S. 551) 817 Inlow V. Hughes (38 Ind. App. 375) 1295 Innis V. State (42 Ga. 473) 1335 Insurance Co. ■». Melvin (1 Walk. (Pa.) 362) 1392 V. Nelson (103 U. S. 544) 192 V. OHanlan (1 Walk. (Pa.) 359) 903 V. Weides (14 Wall. (U. S.) 375) 903 International, etc., E. Co. v. Dalwigh ((Tex. Civ. App.) 48 S. W. Eep. 527) 1345 e. De Bajligethy (9 Tex. Civ. App. 109) 259, 260, 340 V. Dyer (76 Tex. 156) 812 V. Johnson (23 Tex. Civ. App. 160) 132, 1245 V. Mills (34 Tex. Civ. App. 127) 1241 V. Woodward (26 Tex. Civ. App. 389) 258 International Tooth-Crown Co. v. Bennett (72 Fed. Rep. 169) 119, 153 V. Bennett (77 Fed. Eep. 313). 89 V. Hanks Dental Assoc. (Ill Fed. Rep. 916) 47 «. Kyle (96 Fed. Rep. 442) .. . 1408 lone, The v. Davis (13 Fed. Cas. No. 7,058) 1143 Irby V. M'Ci-ae (4 Dosaus. (S. Car.) 422) 799, 1015, 1016, 1294 Irish V. Knapp (5 B. & .\. Pat. Cas. 47) 1412 ». Union Bag, etc., Co. (103 N. Y. App. Div. 51) 123, 131 Iron Mountain Bank v. Murdock (62 Mo. 70) 1215 Iroquois, The (91 Fed. Eep. 173) . . 57, 495, 507 TABLE OF CASES. cm 495 769 [References are to pages.] Irrine v. F. H. Palmer Mfg. Co. (2 N. Y. App. DlT. 69, 3 N. Y. App. Dlv. 380) 203 , Matter of (102 Cal. 606).. 19, 825, 836 Irwin V. Metropolitan St. E. Co. (25 Misc. (N. Y.) 187) 136 Isaac Bell, The (9 Fed. Rep. 842) . . 491, 744, 764, 1144 Isaac H. TlUyer, The (101 Fed. Rep. 478) Isaac H. Tlllyer, The, v. The J. Schuyler (35 Fed. Rep. 551) Isaacs V. Skralnka (95 Mo. 517) . . 1307, 1344 Isear v. Burstein ((N. Y. Super. Ct. Spec. T.) 24 N. Y. Supp. 918)... 165 Isemlnger v. New Haven W. & P. Co. (206 Pa. St. 591) 304 Islander, The (152 Fed. Rep. 385) . . 279, 1281 Island of Trinidad, The (5 C. Rob. 85) 234 Israel v. Israel (28 Misc. (N. Y.) 57) 1104 iTes V. Leonard (50 Mich. 296) 685 Ivey V. State (23 Ga. 576) 1215 V. Wisconsin Cent. R. Co. (128 Wis. 357) 1350 J. Jack *. Mutual Reserve Fund L. Assoc. (113 Fed. Rep. 49) 1297 Jacks V. Darrin (3 E. D. Smith (N. Y.) 557) 116 Jackson v. Adams (100 Iowa 163). 724 V. Blanton (2 Baxt. (Tenn.) 63) 568 V. Hart (11 Wend. (N. Y.) 343) 226 V. Jackson (7 Grant Ch. (U. C.) 114) 1027 V. KniP (2 Johns. (N. Y.) 31) 772, 1094, 1096, 1295 V. Loomls (12 Wend. (N. Y.) 27) 19, 822 V. M'Vey (18 Johns. (N. Y.) 330) 583 V. Odell (9 Daly (N. Y.) 371). 365, 548 V. Powell (110 Mo. App. 249). 1215 V. Union R. Co. (77 N. Y. App. Dlv. 161) 425 0. Van Dusen (5 Johns. (N. Y.) 144) 609 V. Vanler (18 Quebec Super. Ct. 246) 597, 1061, 1315 Jacobs V. Van Sickle (127 Fed. Rep. 62) 82 Jacobsen v. Dallas, etc., Nav. Co. (106 Fed. Rep. 428) 379, 444, 501, 827, 998, 1219, 1273 Jaeger ». Kelley (52 N. Y. 274) . .82, 83 James, The (Swabey 55) 13 James Berwlnd, The (44 Fed. Rep. 693) 282 James Ives, The (44 Fed. Rep. 445) 379 James Jackson, The (9 Fed. Rep. 614) 1376 James P. Donaldson, The (19 Fed. Rep. 264) 384 James v. Biou (2 Sim. & St. 600).. 580 V. Signell (60 N. Y. App. Dlv. 75) 1109 Jameson v. Weld (93 Me. 345) 770 Jane, The (2 Hagg. Adm. 338) 12, 1211, 1276 Jane Grey, The (99 Fed. Rep. 582) . 912, 1406 Janvrin v. De la Mare (14 Moo. P. C. 334) 1252 Jaques v. Horton (76 Ala. 238)... 963, 1039 V. Public Administrator (1 Bradf. (N. Y.) 499).. 912, 1027 Jarrell v. Jarrell (27 W. Va. 743).. 80 Jarvis V. Schaefer (105 N. Y. 289). 566 Jay Gould, The (19 Fed. Rep. 765). 491, 1247 Jayne u. Jayne (5 Misc. (N. Y.) 307) 1129 J. D. Peters, The (42 Fed. Rep. 269) 508 Jeflferds ». People (5 Park. N. Y. Crim. 522) 311, 1327, 1328 Jeffrey v. United Order, etc. (97 Me. 176) 547 Jeffries v. Lawson (39 Miss. 791) . . 1313 Jelks V. McRae (25 Ala. 440) 1302 , Jenkins v. Baltimore, etc., R. Co. (98 Md. 402) 320 V. Cohen (138 111. 634) 1420 V. Einstein (3 Biss. (U. S.) 128) 823 V. Jenkins (86 111. 340).. 1134, 1252 V. Mathews (80 Ala. 486). 1252, 1263 Jennings v. Jennings (94 111. App. 72) 1421 B. Klbbe (24 Fed. Rep. 697) . . 88 V. Kosmak (20 Misc. (N. Y.) 300) 1216 ». Pendergast (10 Md. 346)... 1421 Jennison ». Haire (29 Mich. 207) . . 1100 CIV TABLE OF CASES. 525 Jensen «, McCorkell (154 Pa. St 323) V. The Steamship Belgenland (5 Fed. Rep. 86) 484, 1270 Jersey City, The (51 Fed. Rep. 527) 1428 Jersey City Second Nat. Bank o O'Rourke (40 N. J. Eq. 92) 5, 219 Jesse V. State (20 Ga. 168) 114 Jessop V. Ivory (172 Pa. St. 44)... 21 Jessup V. Cook (6 N. J. L. 434) .. . 19, 1032, 1035, 1302 Jeter v. Haviland (24 Ga. 252) 735, 743, 854, 856, 1412 Jewett V. Banning (21 N. T. 27) . . . 1300 V. Bowman (29 N. J. Eq. 187). 82, 1167 V. Draper (6 Allen (Mass.) 434) 619 Jew Sing V. V. S. (97 Fed. Rep. 583) 72 Jew Wong Loy, In re (91 Fed. Rep. 240) 130, 137, 169, 1160, 1366 J. F. Conrad Grocer Co. v. St. Louis, etc., R. Co. (89 Mo. App. 534).. 534 J. F. Pease Furnace Co. v. Kesler (21 N. T. App. Div. 631) 157 Jibb V. Jibb (24 Grant Ch. (U. C.) 487) 1027, 1031, 1036, 1309 Jlllson t>. Winsor (1 MacArthur Pat. Gas. 136) 1279 J. L. Hasbrouck, The (14 Blatcht. (U. S.) 30) 413 Joannes v. Millerd (90 Wis. 68)... 1309, 1329, 1332, 1336, 1347 Jobes«. Nelson ( (N. J.) 36 Atl. Rep. 688) 560, 561 Jockers v. Bergman (29 Kan. 109). 1411 Johanne Augusta, The (21 Fed. Rep. 134) John Brooks, The (1 Hask. (TJ. S.) 439) John Craig, The (66 Fed. Rep. 596) , 14, John H. Dillon, The (30 Fed. Rep. 285) 384, John H. May, The (52 Fed. Rep. 884) 857, John H. Starin, The (122 Fed. Rep. 236) John I. Brady, The (115 Fed. Eep. 204) 317, 346, , The (131 Fed. Rep. 235) John L. Hasbrouck, The (93 U. S. 405) 462, John Martin, The (2 Abb. (U. S.) 172) [Referenoss a,re to pages.] Johns Hopkins, The (13 Fed. Eep. 185) 317, 345, 448 Johns V. Norris (22 N. J. Eq. 102) . 927, 965 V. Slack (2 Hughes (U. S.) 467) 1292 Johnsen v. Oakland, etc.. Electric E. Co. (127 Cal. 608) 403, 416, 429 Johnson, Matter of (40 Conn. 587) . 798, 929, 930, 933, 1038, 1039, 1042, 1043, 1044, 1231 Johnson v. Boston, etc., E. Co. (153 Mass. 58) 1344 V. Chicago, etc., E. Co. (37 Minn. 519) 165, 166 V. Daveme (19 Johns. (N. T.) 134) 649 V. Doll (11 Misc. (N. T.) 345) 128, 135 V. Forty-second St., etc., R. Co. (33 Fed. Eep. 499) 90 V. Hicks (1 Lans. (N. Y.) 150) 664 V. Hudson River E- Co. (20 N. Y. 65) 67, 529, 532 V. Johnson (24 111. App. 80) . . 1427 ■u. New York Cent., etc, R. Co. (173 N. Y. 79) 115, 128, 1245 V. New York Cent, etc., R. Co. (40 Misc. (N. Y.) 350) 398, 433 V. People (83 111. 431) 1282 V. People (140 III. 350) 108 I/. Quarles (46 Mo. 423).... 71, 1187, 1276, 1292 ». Scribner (6 Conn. 18.-i)..253, 738. 799, 860, 1309. 1400 V. state (14 Ga. 55) 991, 1332 V. State ((Ga.) 57 S. E. Rep. 353) 992 V. The .Vnne (13 Fed. Cas. No. 7.370) 182, 1275 V. The Industry (13 Fed. Cas. No. 7,391) 1211, 1264, 1272 t\ Third Ave. E. Co. (69 N. Y. App. 247) 297 V. Van Velsor (43 Mich. 208, 217)... 797. 7ns, 912. 920. 932, 1112. 1225, 1236 V. Wctmorc (12 Barb. (N. Y.) 433) 5S1 Johnston t. .\shley (7 Ark. 470) . . . 1336 V. Dingley (5 N. Bruns. 400) . . 1109 V. Johnston (1 Phill. Bee. 447). 1295, 1296 V. Oliver (3 Ont 26) 1031 764 295 482 388 860 764 423 422 468 107 TABLE OF CASES. CV [References are to pages.] Johnston ». Sochurek (104 111. App. Dlv. 350) 1294 V. Todd (5 Beav. 597)... 1089, 109S, 1105, 1106, 1298 Johnston Harvester Co. v. Miller (72 Mich. 265) 682 Jolly ». Terre Haute Draw Bridge Co. (6 McLean (U. S.) 237) 1116, 1382 Jonasson D. Barnes (21 N. Y. Supp. 714) 128, 135 Jones, In re (6 Blss. (U. S.) 68).. 798, 939, 1275 , In re (13 Fed. Cas. No. 7,444) 913 Jones V. Brooklyn, etc., R. Co. (3 N. Y. Supp. 253) 910, 1130 V. easier (139 Ind. 382) 1045 V. Dimes (130 Fed. Rep. 638) . . 1102 V. Godrich (5 Moo. P. C. 16).. 928, 968, 970, 1035, 1226 V. Hough (77 Ala. 437)... 607, 609 V. Jones (124 111. App. 201)... 1420 r. Jones (127 Mich. 685) 1427 V. Jones (4 Gill (Md.) 87) 1389 V. Knauss (31 N. J. Bq. 609) . . 586, 1040, 1041, 1042, 1290, 1294, 1316 V. Laney (2 Tex. 342) 985, 1178 V. Lehigh, etc., R. Co. (202 Pa. St. 81) 426 V. Morton Co. (14 Ont. L. Rep. 402) 17. Murphy (8 W. & S. (Pa.) 275) V. Murphy (8 W. & S. (Pa.) 275) 974, 978, V. Osgood (6 Blatehl. (U. S.) 435) V. Patrick (145 Fed. Rep. 440). V. Roberts (37 Mo. App. 163) . . 17. State (60 Ind. 241) 622, 1). State (54 Ohio St. 1) V. State (7 Tex. App. 457) 1/. Stroud (2 C. & P. 196) V. Subera (150 Fed. Rep. 462) . 1099 V. The Brig Ratler (Taney (U. S.) 456) V. The Schooner Hanover (9 N. Y. Leg. Obs. 232) 356, 546, 17. Tyler (6 Mich. 364) 1314 17. U. S. (35 Ct. CI. 36) 576, 1094, 1098, 1099, 1132 Jordan «. Crickett (123 Iowa 576). 219 V. Eaton <2 Hask. (U. S.) 2.36) 1009, 1010 816 973 981 1102 72 514 625 961 660 961 1262 908 Jordan v. St. Louis Transit Co. ((Mo.) 101 S. W. Rep. 11) 393 Jorden v. Money (5 H. L. Cas. 185) 796, 798, 1030, 1221 Joseph 17. Eldorado First Nat. Bank (17 Kan. 256) 655, 685 17. Seward (91 Ala. 597) 107 Joseph B. Thomas, The (81 Fed. Rep. 578) 543, 557, 1281 Joseph Harvey, The (1 C. Bob. 306) 186 Joseph Somes, The (Swabey 185).. 827, 965 Joseph Stickney, The (50 Fed. Rep. 624) 15, 485, 510, 511 Joseph W. Gould, The (19 Fed. Rep. 785) 423 Joy 17. Dlefendorf (130 N. Y. 6) 122 J. S. Toppin Co. 17. McLaughlin (120 Fed. Rep. 705) 17 Judsou 17. Central Vermont R. Co. (91 Hun (N. Y.) 1) 263 t>. Moore (1 Bond (U. S.) 285). 798, 1031 Juliana, The (Swabey 20) 458, 827 Jumpertz ». People (21 111. 375)... 702 Justice 17. Lang (52 N. Y. 323) 515 Kaare v. Troy Steel, etc., Co. (139 N. Y. 369) 552, 1241, 1430 Kahl 17. Schober (35 N. J. Eg. 461). 1280 Kahn, Matter of (1 Connoly (N. Y.) 510) 1192 Kahn i7. Lesser (28 Abb. N. Cas. (N. Y.) 77) 149 Kaine 17. Welgley (22 Pa. St. 179) . . 82 Kaiserin Maria Theresa, The (149 Fed. Rep. 97) 346, 351, 164 Kaiser Wilhelm der Grosse, The ((1907) P. 36) 422, 485 Kaldenberg, In re (105 Fed. Rep. 2.'i2) 1289, 1317 Kamp 17. Coxe (122 Wis. 206) 1424 Kanawha, The (28 Fed. Rep. .S291.. 510 Kansas City i7. Butterfleld (89 Mo. 646) 165 17. street (36 Mo. App. 666) 165 Kansas City, etc., R. Co. 17. Crocker (95 Ala. 412) 404, 436 17. Lane (33 Kau, 702) 1346 17. Perry (65 Kan. 792) 601 Kansas City-Leavenworth R. Co. «. Gallagher (68 Kan. 424). 320, 339 533 CVl TABLE OF CASES. Kansas City Southern R. Co. v. Lewis (80 Ark. 396) 133, 1246 V. Morris ((Ark.) 98 S. W. Rep. 363) 1297 Kansas Pac. R. Co. i). Richardson (25 Kan. 391) 134* Kapiloff V. Feist (91 N. Y. Supp. 27) 115, 123 Kappes V. New York City R. Co. (50 Misc. (N. Y.) 534) 128 Kappus V. Metropolitan St. R. Co. (82 N. Y. App. Div. 13) 299 Karger v. Karger (19 Misc. (N. Y.) 236) 1212 Karoo, The (49 Fed. Rep. 651).. 14, 1211 Raster d. Raster (43 Mo. App. 115) 1427 Ratzenbach v. Holt (43 N. J. Bq. 536) 102 Kaufhold v. Arnold (163 Pa. St. 269) 1241 Kautmann v. V. S. (113 Fed. Rep. 919) Kaufman's Estate (117 Cal, 288).. Kavanagh v. Wilson (70 N. Y. 177) . 115, 124, 135, Kearney, Matter of (69 N. Y. App. Div. 481) 685, Kearney v. Mcji.eon (85 N. Y. 136) . 74, Kearney v. New York (92 N. Y. 617) 123, Keasbey v. Wilkinson (51 N. J. Eq. 29) 799, Keasbey & Mattison Co. v. American Magnesia, etc., Co. (143 Fed. Rep. 490).. 829, 8,30, 840, 1185, 1307, 1412 t>. Philip Carey Mfg. Co. (139 Fed. Rep. 571) 87, 92, 830, 1278 Keating's Appeal ((Pa.) 17 Atl. Rep. 207) 1265 Reedy v. Nally (63 Md. 311) 79 Keene v. Behan (40 Wash. 505)... 137 Keep V. Fuller (42 Fed. Rep. 896) . . 560, 1141 Keerans «. Brown (68 N. Car. 43) . . 1274 Kehr v. Stauf (12 Daly (N. Y.) 115) 1151, 1321 Keillor t). Charters (23 N. Bruns. 493) 76, 835, 1095 Kelm V. Union R., etc., Co. (90 Mo. 314) 333, 542 Keiper v. Miller (68 Fed. Rep. 627) 546 [References a.re to pages.] Reiser v. Lehigh Valley R. Co. (212 Pa. St. 409) 434, 520, 1342 Keith V. Lothrop (10 Cush. (Mass.) 453) 619 V. Woodruff (136 Ala. 443)... 130 Keller v. Erie R. Co. (183 N. Y. 67) 204 V. Erie R. Co. (98 N. Y. App. Div. 550) 264, 329 V. Gill (92 Md. 190) 567 V. Jackson (58 Iowa 629) 568 ». People (204 111. 604) 1409 V. Philadelphia, etc., R. Co. (214 Pa. St. 82) 520 Kelley v. Cable Co. (8 Mont. 441). 112, 1311 V. Cunard Steamship Co. (120 Fed. Rep. 536) 138 V. Diamond Drill, etc., Co. (142 Fed. Rep. 868) 87 .;. Schupp (60 Wis. 76)... 1309, 1329 Kelley Bros. v. Diamond Drill & Uakh. Co. (142 Fed. Rep. 868).. 829 Kellogg, In re (113 Fed. Rep. 120) . 546 Kellogg V. Hastings (70 111. 598) . . 1312, 1313 V. New York Cent., etc., R. Co. (79 N. Y. 72) 257, 327 Kellum, Matter of (52 N. Y. 517).. 882, 900 Kelly V. Blackstone (147 Mass. 448) 945 V. Burroughs (102 N. Y. 93).. 127 11. Dow (9 N. Bruns. 435) 560 V. Georgia (68 Fed. Rep. 652). 751 V. Hendrle (26 Mich. 255) 535 V. Jackson (6 Pet. (U. S.) 622). 120 V. New Brunswick R. Co. (33 N. Bruns. 310) 70 V. St. Paul, etc., R. Co. (29 Minn. 1) 1344 V. Wakefield, etc., St. R. Co. (175 Mass. 331) 272 V. Wakefield, etc.. St. R. Co. (179 Mass. .'-.42) 261 Relsay v. Missouri Pac. R. Co. (129 Mo. 362) 205 Kelsey v. Universal Lite Ins. Co. (35 Conn. 225) 791, 1237 Kemp )'. McBrlde (129 Fed. Rep. 382) 88, 914 Kempson v. Kempson (61 N. J. Eq. 303) 547 Kendall v. May (10 Allen (Mass.) 64) 1091 Kenllworth, The (64 Fed. Rep. 890) 274, 288 213 45 142 713 75 169 824 tABLfi 01? CASES. CVU [References Kennebec, The (103 Fed. Rep. 681). 298, 302 Kennedy, Matter of (30 Misc. (N. Y.) 1) 513 Kennedy v. Conn (3 B. Mon. (Ky.) 321) 523, 580 V. Kennedy (2 Ala. 571) 1307 «. Kennedy (57 Mo. 73) 1292 V. McAllaster (31 N. Y. App. Div. 453) 137 V. Steamer Sarmatian (2 Fed. Rep. 911) 379,382, 998 Kennlff v. Caulfleld (140 Cal. 34).. 1040 Kenny v. Lembeck (53 N. J. Eq. 20) 1151 Kenrick v. Kenrick (4 Hag. Bcc. 114) 976, 983 Kent V. Lasley (24 Wis. 654).. 824, 1066, 1087 1). Manchester (29 Barb. (N. Y.) 595) Kentner v. Kline (41 N. J. Eq. 422) . Kern ». Snider (145 Fed. Rep. 327) . Kerr v. Lefferty (7 Grant Ch. (U. C.) 412) 1042 V. Read (23 Grant Ch. (U. C.) 525) 1). Russell (69 111. 666) .825, 974 Kessel*. Kessel (79 Wis. 289). 1413, 1430 Keyes v. Kimmel (186 III. 109) . . 1415, 1423 V. Pueblo Smelting, etc., Co. (31 Fed. Rep. 561) Keys ». Flinn (2 N. Bruns. 220) . . . V. Pollok (1 Nova Scotia 109). 1291 V. Steamboat Ambassador (1 Bond (U. S.) 237)... 382, 383, 384, 735, 752, 1178, 1248 Keyser ». Pickrell (4 App. Cas. (D. C.) 198) 670, Kidder v. Jones (13 Misc. (N. Y.) 216) Kledaisch, Matter of (2 Connoly (N. Y.) 438) 1080, Kielbeck ». Chicago, etc., R. Co. (70 Neb. 571) 239, 296, 875, 1341 Kieley v. Morrison (24 Nova Scotia 327) 1095 Kierzkowski v. Dorlon (5 Moo. P. C. C. N. S. 397) 822, 8.38, 1031, 1032, 1266 Kilgore V. Norman (119 Fed. Rep. 1006) 1101, 1111 Kllleen v. Buffalo Furnace Co. (140 Fed. Rep. 33) 87 Kllllan V. Georgia R., etc., Co. (97 Ga. 727) 1336 16 100 65 1311 1071 48 1313 692 123 1386 are to pages.] King V. Anderson (90 Fed. Rep. 500) 61 V. Atkins (33 La. Ann. 1057).. 560 V. Dale (2 111. 513) 1117 V. Donahue (110 Mass. 155).. 610, 718 0. Ford River Lumber Co. (93 Mich. 172) 1315 V. Isley (116 Mo. 155) 1291 tf. Ruckman (20 N. J. Eq. 316) . 547, 1156, 1163, 1236, 1250, 1261 V. Story (19 N. J. Eq. 83). 1071, 1409 e. Two Cases (3 Hag. Adm. 294) 1220 King Ax Co. V. Hubbard (97 Fed. Rep. 795) 1275 Kingman «. Reinemer (166 111. 208). 81 Kingsland Land Co. v. Newman (1 N. Y. App. Div. 1) 123, 132, 527 King's Proctor v. Daines (3 Hag. Bcc. 218) 1276 Kinleslde v. Harrison (2 Phlll. Ecc. 449, 533) . .798, 801, 916, 932, 1080, 1139, 1280, 1294, 1320 Klnmonth -u. White ((N. J.) 47 Atl. Rep. 1) 208, 219 Kinne v. Kinne (2 Thomp. & C. (N. Y.) 391) 1421 Kinnebrew v. State (80 Ga. 232) . . 363 Kinney v. Flynn (2 R. I. 319).. 605, 647 «. Murray (170 Mo. 674)... 77, 842, 1008, 1037 Kipp V. Chamberlin (20 N. J. L. 656) 1097 Kirbell v. Pitkin (75 Conn. 301)... 593 Kirby v. Delaware, etc., Canal Co. (20 N. Y. App. Div. 473) . . 178 V. Tallmadge (160 U. S.) 379). 542, 559 V. V. S. (174 U. S. 55) 95 Kirby Hall, The (8 P. D. 71) 290 Kircher v. Sprenger (4 Pa. Super. Ct. 38) 131 Kirk V. Middlebrook (201 Mo. 245). 543, 1030, 1380 Kirkpatrick v. Allemannla P. Ins. Co. (102 N. Y. App. Div. 327) 585 Kirksey v. Kirksey (41 Ala. 626) . . 620 Kirkwood Gymnasium, etc., Assoc. ». Van Ness (61 Mo. 361) 1312, 1411 Klssam ». Forrest (25 Wend. (N. Y.) 651) 1099 Kitay v. Brooklyn, etc., R. Co. (23 N. Y. App. Div. 228) 404, 443 Klauber v. Wright (52 Wis. 303) ... 903 Klein v. Gibson ((Ky.) 2 S. W. Rep. 116) 219 CVUl TABLE OF CASES. 427 488 Klein V. Interurban St. R. Co. (105 N. y. Supp. 95) 825 V. Second Ave. E. Co. (54 N. Y. Super. Ct. 169) 157 Kleinsorge u. Eohse (25 Oregon 51). 1431 Kline v. Grannls (61 N. J. Bq. 397) . 800, 877, 1306 Klockenbrink v. St. Louis, etc., E. Co. (172 Mo. 678) 421, KlotB V. The Red Jacket (14 Fed. Cas. No. 7,871) Klotz ». Winona, etc., E. Co. (68 Minn. 341) 267 Knapp V. Monell (4 N. Y. L. Bui. 91) 164 V. State (168 Ind. 153) 1178 Kneale v. Kneale (28 Mich. 344). 886, 1061 Knickerbocker L. Ins. Co. v. Nelson (78 N. Y. 137) 166 Knorr t). Lloyd ((N. J.) 47 Atl. Rep. 53) 219, 1409 Knowlden «. Knowlden ( (N. J.) 52 Atl. Eep. 377) 851, 864, 1083 Knowles v. Knowles (86 111. 1) .222, 226 u. People (15 Mich. 408).. 551, 1212, 1250 e. Scrlbner (57 Me. 495)... 55, 85 Knox V. Philadelphia, etc., E. Co. (202 Pa. St. 504) 258, 415, 520, 1342, 1350 V. Traver (24 Grant Ch. (U. C.) 477) 1420 Knox Rock-Blasting Co. u. Drake (53 Fed. Eep. 790) 88 Knubel v. Flintolithic Stone, etc., Co. (2 City Ct. (N. Y.) 354) 1308 Koch, Matter of (33 Misc. (N. Y.) 153) 548, 617, 659 , Matter of (91 N. Y. App. Div. 194) 303 Kochesperger v. Philadelphia Rapid Transit Co. (217 Pa. St. 320)... 1409 Koebel ». Beetson (112 N. Y. App. Div. 0;s!)) 1294 Koehler v. Adler (78 N. Y. 287) 116, 137 V. New York Steam Co. (84 N. Y. App. Div. 221) 1244 V. Rochester, etc., R. Co. (66 I-Iun (N. Y.) 566) 266 Koen V. Kerns (47 W. Va. 575). ... 80 Koepke v. Milwaukee (112 Wis. 475) 393 Koerner v. Deuter (143 Fed. Ri'p. 544) 87, 1278 Kohl «. State (59 N. J. L. 445) 975, 976, 1006, 1036, 1327 [References are to pages.] Kohler v. Pennsylvania U. Co. (135 Pa. St. 346) 1089, 141fc Kohley, In re (200 111. 189) 1420 Korap V. State (129 Wis. 20) 884 Konba v. Horacek (3 Silv. Sup. (N. Y.) 320) 961 Koning Willem, The ((1903) P. 114) 275, 282, 285, 288, 290, 422, 452, 997 Eonold V. Klein (3 B. & A. Pat. Cas. 226) 19 Koons V. State (36 Ohio St. 199) . . 158, 659, 677, 680 Kopf V. Monroe Stone Co. (133 Mich. 286) 1415 Korf V. Korf (125 Mich. 259) 1212 Kornazewska v. West Chicago St. R. Co. (76 111. App. 366) 1215 Korter v. Gulf, etc., E. Co. (87 Miss. 482) 1274 Koster ». Noonan (8 Daly (N. Y.) 231) 155, 1244 Kraatz v. Tieman (79 Fed. Eep. 322) 828, 879 Kramm v. Stockton Elec. E. Co. ((Cal. App.) 86 Pac. Eep. 738).. 273 Kramme v. The Ship Nevr England (Newb. Adm. 481) 207 Krauth v. Thiele (45 N. J. Eq. 407) . 71, 825, 912, 1253 Kreamer v. Perkiomen E. Co. (214 Pa. St. 210) 534 Krug's Estate (196 Pa. St. 484).. 1240, 1311 Kube V. St. Louis Transit Co. (103 Mo. App. 582) 436 Kuenster v. Woodhouse (101 Wis. 216) 811, 812 Kuhn V. Williams (124 111. App. 390) 1420 Kulman v. Brie E. Co. (65 N. J. L. 241) 98 Kuntz V. New York, etc., E. Co. (206 Pa. St. 162) 260, 333, 1345 Kupp V. Eummel (199 Pa. St. 90).. 1424 Kurz V. Doerr (180 N. Y. 88)... 84, 85 Kwiatkowski ». Grand Trunk R. Co. (70 Mich. 549) 534 Kyes V. Valley Telephone Co. (132 Mich. 281) 249 La Bau r. Vanderbilt (3 Redf. (N. Y.) 384).. 1129, 1151, 1198, 1234, 1295, 1296, 1301 Lahrpcque v. Dnckett (22 Quebec Super. Ct. 1.35) 912 TABLE OF CASES. CIX [References are to pages.] 416 452 506 694 Jja Bourgogne (139 Fed. Rep. 433) . , In re (117 Fed. Rep. 261) . . . 422, 451, La Champagne, The (43 Fed. Rep. 444) 486, 502, Lachance v. Loeblein (15 Mo. App. 460) Lacon First Nat. Bank e. Myers (83 111. 507) 783, 1420 Lacy V. Wilson (24 Mich. 479) 568 Ladd V. Lookout Mountain Distill- ing Co. (147 Ala. 173) 1317 Ladenburg v. Commercial Bank (5 N. Y. App. Div. 219) 1109, 1111 La Flam v. Mlssisguoi Pulp Co. (74 Vt. 125) 810 Laflin t;. Shackleford (98 Fed. Rep. 372) 164 Laib V. Pennsylvania R. Co. (180 Pa. St. 503) 271 Laldlaw v. Sage (158 N. T. 73) . .23, 815 V. Sage (2 N. Y. App. Div. 374) 301 Lake v. Meacham (13 Wis. 355) . . . 79, 1293, 1412 V. Ranney (33 Barb. (N. Y.) 49) 928 Lake Erie, etc., R. Co. v. Mugg (132 Ind. 168) 1357 ./.Stick (143 Ind. 449) 205 V. Wilson (87 111. App. 360) . . . 1264, 1361, 1362 Lake Michigan, etc., Transp. Co. v. Union Towing, etc., Co. (112 Fed. Rep. 155) 388 Lake Shore, etc., R. Co. v. Blanchard (15 III. App. 582) «. Bodemer (139 111. 596) ». Boyts (16 Ind. App. 640) . . V. Foster (74 111. App. 387) .. . V. Schade (8 Ohio Cir. Dec. 316) Lake Shore Transit Co. v. Corrigan (137 Fed. Rep. 484) 388, 1426 Lakme, The (113 Fed. Rep. 772).. 386 , The (118 Fed. Rep. 972) 1115 Lalance, etc., Mfg. Co. v. Haber- mann Mfg. Co. (53 Fed. Rep. 375) 90, 796, ■u. National Enameling, etc., Co. (108 Fed. Rep. 77)... 568, Lamare i;. Dixon (L. R. 6 H. L. 414) 1307 Lamb ». Irwin (69 Pa. St. 436) 137 ». Prudential Ins. Co. (22 N. Y. App. Div. 552) 124, 131 Lambert v. People (70 N. Y. 220) . . 1108 T.ambte, Matter of (97 Mich. 49) . . . 586 268 297 . 260 414 1346 828 920 Lammers v. Great Northern E. Co. (82 Minn, 120) 414 La Motte v. Archer (4 E. D. Smith (N. Y.) 46) 1421 Lamoureux v. New York, etc., R. Co. (169 Mass. 338) 1153, 1346, 1394 Lamphere v. State (114 Wis. 193). 1216 Lamprey Boiler Furnace Mouth Pro- tector Co. v. Economy Feed Water Heater Co. (62 Fed. Rep. 590) . . 1318 Lancey v. Brake (10 Ont. 428) 584 Landell t. Hotchklss (1 Thomp. & C. (N. Y.) 580) 596 Landers v. Bolton (26 Cal. 393) 855 Land Mort. Invest. Agency «. Pres- ton (119 Ala. 290) 723 Landon «. Chicago, etc., R. Co. (92 III. App. 216) 1346 Landsdale v. Smith (106 U. S. 391). 17 Lane v. Hill (68 N. H. 275) 1295 V. Jackson (20 Beav. 533). 860, 1308 V. Missouri Pae. R. Co. (132 Mo. 4) 205 Lang©. Ferrant (55 Minn, 415). 136, 1276 V. Missouri Pac. R. Co. (115 Mo. App. 489)... 195, 196, 262 Lange v. Cullinan (205 111. 365)... 130 Langfond, The (143 Fed. Rep. 150) . 1230 Langston's Will (Tuck. (N. Y.) 301) 44 Lanigan v. Neely (4 Cal. App. 760) . 1164 La Normandie (58 Fed. Rep. 427).. 285 Lansdale v. Smith (106 U. S. 391). 523 Lansdowne, The (105 Fed. Rep. 436) 519, 762, 764, 809, 913 Lansing v. Russell (3 Barb. Ch. (N. Y.) 325 610, 615 La Pointe «. Boston, etc., R. Co. (182 Mass. 227) 373 Larrison v. Larrison (20 N. J. Eq. 100) 188 Larry v. Sherburne (2 Allen (Mass.) 34) 1301 Larue v. Rowland (7 Barb. (N. Y.) 107) 581, 582 La Salle «. Evans (111 III. App. 69) 99, 824, 974, 976, 1361 Last Chance Min., etc., Co. v. Ames (23 Colo. 167) 1215 Latham v. Delany (59 N. Y. Super. Ct. 590) 1311 V. Latham (30 Graft. (Va.) 307) 812, 1250, 1267 Laughlin v. Grand Rapids St. R. Co. (62 Mich. 220) 1375 Laura, The, v. Rose (28 Fed. Rep. 104) 199, 510 cz TABLE OF CASES. [References are to pages.] liaurada, The (85 Fed. Rep. 760) . . 546 Lautenbaeher ». Philadelphia ((Pa.) 66 Atl. Rep. 549) 305 Lautner v. Kanu (184 Pa. St. 334) . 119, 143 Lavenburg v. Harper (27 Miss. 299) 1213 Law V. Merrills (6 Wend. (N. T.) 268) 1289 V. Woodruff (48 111. 399) 585 Lawes v. Reed (2 Lewin C. C. 152) 950 Lawless ». Chamberlain (18 Ont. 296) 929 Lawlor v. French (14 Misc. (N. T.) 497) 154 V. Lawlor (76 Mo. App. 637) . . 1427 Lawson v. State (20 Ala. 65) 1301 Lay V. Indianapolis Brush, etc., Mfg. Co. (120 Fed. Rep. 831).. 87 V. Wissman (36 Iowa 306) . . . 158, 655, 716 Lazarus v. Spencer (29 Misc. (N. T.) 767) 1196 L. C. Waldo, The (106 Fed. Rep. 502) 380 Lea V. Poiii County Copper Co. (21 How. (U. S.) 493) 1291 Leahy «. O'Keefe (Newfoundland (1884-1896)527) 77, 835 Leathers v. Salvor Wrecking, etc., Co. (2 Woods (U. S.) 680).. 19, 798, 824 Leavltt V. Dodge (16 N. Y. Supp. 309) 123 „. Jewett (11 Blatchf (U. S.) 419) 508 V. Leavitt (13 Mich. 452). 1162, 1253 Lebanon Sav. Bank v. Hollenbeek (29 Minn. 322) 944 Le Blanc v. Sweet (107 La. 355, 366) 761, 1245, 1338 Le Breton v. Ennis (4 Moo. P. C. 323) 1139, 1409 1). Fletcher (2 Hag. Ecc. 558). 1255 t.e Cointo V. U. S. (7 App. Cas. (D. C.) 7) 1307 Lederman v. Pennsylvania R. Co. (165 Pa. St. 118) 406 Ledoux V. Morgan (3 La. Ann. M5) 985 Lee, Matter of (47 Md. 321, 327).. 20 , Matter of (46 N. .1. Eq. 193) . 1145, 1228, 1237, 12,39 Lee V. Chicago, etc., R. Co. (80 Iowa Lee ». Huron Indemnity Union (135 Mich. 291) 527 V. Upson, etc., Co. (42 Fed. Rep. 530) 89, 897 V. Upson, etc., Co. (43 Fed. Rep. 670) 58, 89, 832 Leeds e. Debuys (4 Rob. (La.) 257). 560 Leeds Woolen Mills, In re (129 Fed. Rep. 922) 1143 Leese e. Clark (29 Cal. 664) 580 Lee Sing Far v. U. S. (94 Fed. Rep. 834) 137, 143, 170, 1372, 1414 Legare v. Union R. Co. (61 N. Y. App. 202) 1278 Lehigh Coal, etc., Co. v. Central R. Co. (41 N. J. Eq. 167) 1017 Lehigh Coal & Nav. Co. v. Evans (176 Pa. St. 28) 118, 1041 Lehigh Valley R. Co. v. Hall (61 Pa. St. 361) 264 Lehman v. Marshall (47 Ala. 362) . . 1215 t;. McQueen (65 Ala. 570).. 910, 1026, 1037, 1289, 1294, 1316, 1319, 1426 jj. Oschmann (89 N. Y. App. Dlv. 620) 62 Lein v. Myers (97 Fed. Rep. 607) .87, 153 Leitch V. Atlantic Mut. Ins. Co. (66 N. Y. 100) 156 V. Union R. Transp. Co. (7 Chicago Leg. N. 291) 1040 Leiand, The (19 Fed. Rep. 771). 280, 286 Lemoine v. Gauton (2 E. D. Smith (N. Y.) 343) 1106 Lemon v. Wright (31 Ga. 317). 825, 1066 Lennon ». White (61 Minn. 150) . . . 1190 Lenox v. Fuller (39 Mich. 268) 1262 «. Winislmmet Co. (1 Sprague (U. S.) 160) 484 Leonard v. Miami Mln. Co. (148 Fed. Rep. 827) 64 V. Pope (27 Mich. 145).. 1127, 1154, 1261 Leo, The (11 Blatchf. (U. S.) 225) . 280, 282, 472, 1264 Leopard, The (Lowell (U. S.) 238). 1220 Lepanto, The (21 Fed. Rep. 651)... 230, 288, 2S0. 407, 483, 1248 , The (50 Fed. Rep. 2,S4)..201, 348, 508, 510. 767 Lc Pard «. Russell ((N. J.) 39 Atl. Rep. 1059) 929 Lerch t>. Bard (177 Pa. St. 197). 172). 258, 1334, 1344, 1345, 1340 Leslie, In re (119 Fed. Rep. 406).. 1), Guardian L. Ins. Co. (5 Ins. I 142, 1087 L, J. 26) 985, 1396 ' Leslie v- McMurtry (60 Ark, 301) . . 1295 TABLE OF CASES. CXI [References a.re to pages.] Lesser o. Wunder (9 Daly (N. Y.) 70) 124 Lester t>. State (32 Ark. 727) 1328 Leversoas, The (10 Fed. Rep. 753). 351 Levins v. Bancroft (114 La. 105).. 818 Levy ». Abramsohn (39 Misc. (N. Y.) 781) 123 V. Cox (22 Pla. 546) 120 V. Levy ((N. J.) 57 Atl. Rep. 1011).. 136, 213, 218, 552, 890 V. Rust ((N. J.) 49 Atl. Rep. 1017) 219, 728 V. Yazbecls (22 Misc. (N. Y.) 136) 124 Lewars ». Weaver (121 Pa. St. 268). 843 Lewis V. Delaware, etc.. Canal Co. (145 N. Y. 508) 1000 ». Eagle Ins. Co. (10 Gray (Mass.) 508) 807 V. Lewis (76 Conn. 586) 138 «!. Lewis (3 PhiU. Ecc. 109)... 1129 V. Long Island R. Co. (30 N. Y. App. Div. 410) 260 e. Long Island R. Co. (31 Misc. (N. Y.) 546) 51 V. Merrltt (113 N. Y. 386).. 68, 78 V. New York City R. Co. (Supm. Ct. App. T.) 50 Misc. (N. Y.) 535, 99 N. Y. Supp. 462) Ill, 128 V. Roby ((Vt.) 65 Atl. Bep. 524) 984, 1394 Lexington R. Co. v. Herring ((Ky.) 96 S. W. Rep. 558) 34, 48, 98 Liebman «. Pooley (1 Stark. 167).. 1040 Life Assoc, of America v. Neville (72 Ala. 517) 1143 Lightfoot ». People (16 Mich. 507) . . 1105, 1122, 1123 V. Winnebago Traction Co. (123 Wis. 479) 299 Lighthouse «. Chicago, etc., R. Co. (3 S. Dak. 518) 137, 336 Lilienthal v. Drucklleb (84 Fed. Rep. 918) 559 Lillibridge v. Barber (55 Conn. 366). 105 Llllle V. State (72 Neb. 228) 26, 1369 Llllis V. Gallagher (39 N. J. Eq. 93). 118 Lilly V. Quick (2 N. J. Eq. 97) 1265 Lima, The (3 Hag. Adm. 346) 1139, 1227, 1253 Lima Bank v. Anglo-Peruvian Bank (8 Ch. D. 160) 945 Linck *. Kelly (2.') Ind. 278) 1395 V. Whipple (31 111. App. 155). 1215 Wncoln V, French (105 U, S, 614)., 516 Linden v. Thleriot (105 N. Y. App. Div. 405) 75 Lindgren v. Omaha St. R. Co. ((Neb.) 103 N. W. Rep. 307) 434 Lindsay ». Cuslmano (12 Fed. Rep. 504) 455 V. People (63 N. Y. 143) 978 Line V. Grand Rapids, etc., B. Co. ((Mich.) 106 N. W. Bep. 719).. 402 Linn I). Barkey (7 Ind. 69) 1428 Linscott V. Linscott (83 Me. 384) . . 1232, 1250 Linsley v. New York City R. Co. (54 Misc. (N. Y.) 562) 556, 585 Llonberger v. Pohlman (16 Mo. App. 392) 122 Lipp V. Fielder ((N. J.) 66 Atl. Bep. 189) 1008 Llpplncott V. Snowden (48 N. J. Eq. 257) 584 LIschy V. Schrader (104 Ky. 657).. 45 Littauer v. Narragansett Pier E. Co. (61 Fed. Rep. 591) 262 Little V. Grand Rapids St. E. Co. (78 Mich. 205) 237 V. Superior Rapid Transit R. Co. (88 Wis. 402) 1216 V. McKeon (1 Sandf. (N. Y.) 607) 1242, 1243, 1304 V. D. S. (Hoffm. Land Cas. (U. S.) 325) 1199, 1222 «. U. S. (15 Fed. Cas. No. 8,396) 1275 Llttlefleld i>. Lawrence (83 N. Y. App. Div. 327) 128 LIttleJohn «. Arbogast (95 111. App. 336) 1215 V. County Line Creamery Co. (14 S. Dak. 312) 222 Little Bock B., etc., Co. v. Green (78 Ark. 129) 541 Lltzky V. Horowitz (87 N. Y. Supp. 136) 137 Liverpool, etc., Ins. Co, v. Goehring (99 Pa. St. 13) 1230 Livings V. Home Mut. F. Ins. Co. (50 Mich. 207) 903 Livingston v. Jones (1 Fish. Pat. Cas. 521) 1375, 1381 V. Eoberts (18 Fla. 70) 1412 Livingston County v. White (30 Barb. (N. Y.) 72) 520, 1334 Livingstone, The (87 Fed. Rep. 769) 281, 539, 765 Livingstone », Acre (15 Grant Ch, (U, C.) 610) 78 cxu TABLE OF CASES. [References liinzay v. Linzay (51 La. Ann. 630) . 1212, 1251 19 680 81 260 579 Lizzie Henderson, The (20 Fed. Rep. 524) 348, 766, 1190 Llado 1). Tritone (8 Reporter 165) . . Lock V. Denner (1 Add. Ecc. 353) . . Locke V. Friedman, etc., Co, ((Miss.) 43 So. Rep. 673) Lockwood V. Lockwood (2 Curt. Ecc. 281). 996, 1225, 1226, 1249, 1251 V. Rose (125 Ind. 588) 583 Loder v. Metropolitan St. R. Co. (84 N. Y. App. Div. 591) 1255 Lodge V. Pipher (11 S. & R. (Pa.) 333) 621 Loeb V. Waller (110 Ala. 487) 72 Logan V. M'Chord (2 A. K. Marsh. (Ky,) 224) 1035, 1145, 1290 Lokerson V. Stillwell (13 N. J. Eq. 357) 932, 957, 1198 Lomer v. Meeker (25 N. Y. 361) .122, 127 Lomerson v. Johnston (44 N. J. Eq. 93) 1314 London & Western Trusts Co. v. Lake Erie, etc., R. W. Co. (12 Ontario Law Rep. 28) London Racket, The (1 Mason (U, S.) 14) Long V. Little (119 111. 600) 722 V. Russell (45 N. Y. Super. Ct. 434, 444) 836, 1010 Long Branch Banking Co. v. Dennis (56 N. J. Eq. 549) 219 Longree v. Jackes-Bvans Mfg, Co. (120 Mo. App. 478) Longwell v. Mierow (130 Wis. 208) Lonis «. Lake Shore, etc., R. Co. (Ill Mich. 458) 1344 Lonzer v. Lehigh Valley R. Co. (196 Pa. St. 610) 118 Look, Matter of (4 Silv. (N. Y.) 233) Loonan v. Myers (13 Daly (N. Y.) 535) Lord Electric Co, v. Morrill (178 Mass. 304) Lord O'Neill, The (66 Fed. Rep. 77) 1429 Lorenz v. Lorenz (93 111. 376) 142 Lorenzo D. Baker, The (24 Fed. Hep. 814) Lortz V. New York Cent., etc., R. Co. (7 N. Y. App. Div. 515) . .204, 297, 333, Losee r. Moroy (57 Barb. (N. Y.) 561) 107, 858 Loucheine y. Strouse (49 Wis. 623) . 1267 595 1293 295 1422 1369 1252 1359 a.re to pages.] Louden Machinery Co. v. Janesville Hay Tool Co. (141 Fed. Rep. 975) 90 Loughney v. Loughney (87 Wis. 92) 1267 Louie You, In re (97 Fed. Rep. 580) 1160 Louisburg, The (75 Fed. Rep. 424). 276, 450 Louisville, etc., Consol. R. Co, ». Berry (9 Ind. App. 63) 40, 817 Louisville, etc., R. Co. v. Berry (2 Ind. App. 427) 1297 V. Buck (116 Ind. 575) 1207 V. Deason ((Ky.) 96 S. W. Rep. 1115).. 757, 813, 860, 974, 983, 986, 989, 1180 «. Hart (2 Ind. App. 130) 853 V. Jones (108 Ind. 551)... 400, 402 V. Kelly (63 Fed. Rep. 407) . . . 1215, 1283 ■u. Lucas ((Ky.) 98 S. W. Rep. 308) ..'. 1346 «. Malone (109 Ala. 509) 155 ». Morlay (86 Fed. Rep. 241).. 420, 432, 442 «. Orr (121 Ala. 489) 398 V. Ramsey (3 Ky. L. Rep. 385) . 402 V. Smith ((Ky.) 84 S. W. Rep. 755) 1290 V. Stewart (128 Ala. 313) 401 V. Tate (70 Miss. 348) 1246 V. Truett (111 Fed. Rep. 876). 23 «. Ueltschi ((Ky.) 97 S. W. Rep. 14) 266, 330, 995 ■V. Watson (90 Ala. 68) 1240 V. York (128 Ala. 305) 935, 1343 Louisville Chemical Works -v. Com. (8 Bush (Ky.) 179) 1336 Louisville Trust Co. «. Stone (107 Fed. Rep. 305) im Love D. Braxton (5 Call (Va.) 537) . 1313 V. Dilley (64 Md. 238) 386 «. New Fairvlew Corp. (10 British Columbia 330) ... 62 Lovell V. Davis (52 Mo. App. 342) . . 136 V. LovcU (11 Ont. L. Rep. 547) 1427 Lovell Mfg. Co. V. Gary (147 U. S. 623) 89 Lovitt V. The Ship Calvin Austin (9 Canada Exch. 160) 281 Lowe V. JolUBfe (1 W. Bl. 365) 1177, 1191 «. Massey (62 111. 47) 566 e. Protostnnt Episcopal Church (83 Md. 409) 547 Lowenfleld v. Lowenfleld ((1903) P. 177) ,...,...., ;.. 49 TABLE OF CASES. OXUl [References are to pages.] Lower Castle, The (1 Hag. Adm. 384) 965 Lowerson v. Johnston (44 N. J. Eg. 93) 1194 Lowery v. Erskine (113 N. T. 52) . . 554 Lucas V. GofE (33 Miss. 629) 1310 V. Parsons (27 Ga. 593) 973 Luce V. Coyne (36 U. C. Q. B. 305) . 718 Luckenbach, The (144 Fed. Rep. 980) 558 Luco V. V. S. (23 How. (U. S.) 515) 606, 704, 705, 717, 890, 1133, 1163, 1194, 1195 Lucy, The (74 Fed. Rep. 572) 1428 Ludtke V. Hertzog (72 Fed. Rep. 142) 982 Ludvig Holberg, The (157 TJ. S. 60) . 997 , The (36 Fed. Rep. 914).. 344, 474, 475 Ludwjg V. Metropolitan St. R. Co. (71 N. Y. App. Div. 210) 576 Lumley v. Wagner (1 DeG. M. & G. 604) 583, 1202 Lummas v. Van Dyke (17 N. Y. App. Div. 621) 106 Luray, The (24 Fed. Rep. 751) 407 Lussee v. Hays (22 La. Ann. 307) . . 121 Lutz V. Lutz (28 Mich. (N. Y.) .393) 1162 Lyddy, In re (5 N. Y. Supp. 636) . . 964, 970 Lyddy, Matter of (2 Silv. Sup. (N. Y.) 223) 1190 Lyde v. Barnard (1 M. & W. 101) . . 1025 Lyie V. The Conestoga (15 Fed. Cas. No. 8,622o, 4 Am. L. J. N. S. 183) 383, 509, 1207, 1247 Lynch v. Clements (24 N. J. Eg. 431) 067, 1032, 1033, 1034, 1235 Lyon V. Lyman (9 Conn. 55)... 158, 619, 650, 661, 695, 698, 701 Lyons v. Lawrence (12 111. App. 531) 589 V. Van Riper (26 N. J. Eg. 337) 565, 571, 1066 M. M. V. C. (L. R. 2 P. & D. 414, 417) . 901, 1134, 1278 Maben v. Maben (72 Iowa 658) .... 1316 Mace V. Reed (89 Wis. 440)... 741, 811 Maehin v. Grindon (2 Lee Ecc. 406) 645 Mack V. Spencer Optical Mtg. Co. (52 Fed. Rep. 819). 88, 208, 802, 879 Macfcay v. New York Cent. H. Co. (35 N. Y. 75) 237,266, 267 Mackenzie v. Handasyde (2 Hag. Ecc. 220) 973, 1031, 1157 Mackerall v. Omaha, etc., R. Co. (Ill Iowa 547) 1343, 1352 Mackey v. N. Y. Cent. R. Co. (27 Barb. (N. Y.) 528).... 116, 1345, 1352 Mackowik v. Kansas City, etc., R. Co. ((Mo.) 94 S. W. Kep. 256).. 340 Macon Consol. St. R. Co. v. Barnes (113 Ga. 212) 136 Macon Knitting Co. v. Leicester Mills Co. (65 N. J. Eg. 138) 1276 Madden v. New York City R. Co. (50 Misc. (N. Y.) 555) 128, 172 V. Saylor Coal Co. (133 Iowa 699)... 98, 105, 735, 1087, 1125 Maddison v. Alderson (8 App. Cas. 467) 77, 1027 Magee v. Osborn (32 N. Y. 678)... 158, 685, 716 V. People (139 111. 138) 1262 Magerstadt v. Schaefer (110 111. App. 166) 1420 Maggie S. Hart, The (38 Fed. Rep. 765) 479 Magneta, The (2 Abb. (D. S.) 495). 507 Magnolia, The (3 Am. Leg. Reg. 465) 998 Magoon v. Boston, etc., R. Co. (67 Vt. 177) 1208 Mahar v. New York Cent., etc., R. Co. (5 N. Y. App. Div. 22) 993 Mahaska County v. Ingalls (16 Iowa 81) 1293 Mahnken v. Mabnken (9 N. Dak. 188) 1427 Mahon v. Dime Sav. Bank (92 N. Y. App. Div. 506) 115 Main V. Glen (7 Biss. (V. S.) 86).. 219, 1161, 1199 ». Main ((N. J.) 24 Atl. Rep. 1024) 1161, 1409 Mair V. Culy (10 U. C. Q. B. 321) . . 139, 527, 1142 Mairs v. Freeman (3 Redf. (N. Y.) 181) 1398 Malcolm v. New York El. R. Co. (147 N. Y. 308) 1387 V. Perth Mut. F. Ins. Co. (29 Ont. 717) 1109 Maleolmson v. Clayton (13 Moo. P. C. 198) 932, 967 V. Meeson (1 Moo. P. C. C. N. S. 357) 422, 448 CXIV TABLE OF CASES. [References are to pages.] 541 998 1031 262 617 547 378 Male ». Dahlgrin (66 Neb. 524) 1426 Malin v. Malin (1 Wend. (N. T.) 625).. 735, 955, 1267, 1273, 1290, 1376 Mallng, The (110 Fed. Rep. 227) . . 1408 Mallory v. Travelers' Ins. Co. (47 N. Y. 52) Malone v. The Pedro (16 Fed. Cas. No. 8,995) 382, Maloney v. Herbert ((N. J.) 15 Atl. Rep. 824) 1276, 1302 V. Metropolitan St. R. Co. (95 N. Y. App. Div. 393) 1240 Malony v. Milwaukee (1 Fed. Rep. 617) Malott V. Hawkins (159 Ind. 127). 254, 258, Mandell v. Green (108 Mass. 277) . Mandeville v. Reynolds (68 N. Y. 528) Mangrove Prize Money Case, The (188 U. S. 720) Manhasset, The (34 Fed. Rep. 408) . 1130 Manhattan L. Ins. Co. v. Alexander (89 Hun (N. Y.) 449) 571 Manistee First Nat. Bank v. Mar- shall, etc.. Bank (83 Fed. Rep. 725) 890, 1027 Manitoba, The (2 Flipp. (TJ. S.) 241) 14, 1158, 1190, 1247, 1273 Manltou, The (116 Fed. Rep. 60).. 147, 543, 546, 1223 Manley v. Delaware & H. Canal Co. (69 Vt. 101) 436 Mann u. Belt R., etc., Co. (128 Ind. 138) 41, 254, 260, 268, 326 V. Keene Guaranty Sav. Bank (86 Fed. Rep. 51) 1280 V. People (35 111. 467) ... .1396, 1417 Manning v. Atlantic Ave. R. Co. (91 Hun (N. Y.) 279) 1421 V. Hayden (5 Sawy. (U. S.) 360) 1237 i;. John Hancock Mut. L. Ins. Co. (100 U. S. 693) 600 V. Metropolitan St. R. Co. (85 N. Y. Supp. 1122) 1241 Mantonya v. Reilly (184 111. 183).. 585 Manufacturers' Nat. Bank v. Swift (70 Md. 515) 803, 910, 1309 Many v. Slzer (1 Fish. Pat. Cas. 17) 1381 Mapes «. Union R. Co. (56 N. Y. App. Div. 508) 272 Maple V. Nelson (31 Iowa 322) 523 Marcellus, Matter of (165 N. Y. 70) . 75 Marcott «. Marquette, etc., R. Co. (49 Mich. 99) 738, J337, 1341 Marcotte v. Lewiston (94 Me. 233) . 973 V. Sheridan ((Supm. Ct. App. T.) 91 N. Y. Supp. 744)... 1032 Marcus Hook, The (135 Fed. Rep. 744) 1426 Marey v. Barnes (16 Gray (Mass.) 161) 705, 711 Marden ». Phillips (103 Fed. Rep. 196) 1266 Margaret B. Roper, The (103 Fed. Rep. 887) 13, 103, 320, 455, 469, 487, 489 Margaret Mitchell, The (Swabey 382) 1276 Maria Luigia, The (18 Fed. Rep. 556) 1197 Mariamne, The (5 C. Rob. 16) 1276 Maricopa, etc., R. Co. v. Dean (7 Ariz. 4) 1345 Marie Anne, The (48 Fed. Rep. 743) 1197 Marietta Tilton, The, v. The Harris- burg (36 Leg. Int. (Pa.) 66, 16 Fed. Cas. No. 9,084) 866,875, 1099, 1266, 1273 Marinelli v. Ferrand ( ( Supm. Ct. App. T.) 17 Misc. (N. Y.) 373).. 106, 1267 Mariner v. Saunders (10 111. 113).. 1038 Markowjtz v. Metropolitan St. R. Co. (186 Mo. 350) 299, 387 Marks v. Dartmouth Ferry Commis- sion (36 Nova Scotia 158) . 30, 1291 V. New Orleans Cold Storage Co. (107 La. Ann. 172) 131 Marland o. Pittsburgh, etc., R. Co. (123 Pa. St. 487) 205 Marnier ». Saunders (10 111. 113).. 583 Marquette Election, Re ( 11 Manitoba 381) 1098 Marr v. Marr (2 Head (Tenn.) 303) 1295 Marre v. Glnochio (2 Bradf. (N. Y.) 165) 1263, 1317 Mars, The (93 Fed. Rep. 505) 507 , The (116 Fed. Rep. 204) 281 Marsh v. Hunt (9 Ont. App. 595) . . 798, 1035, 1184, 1191 ». Lasher (13 N. J. Eq. 253).. 1029 V. Marsh (64 Iowa 667) 1132 V. Tyrrell (2 Hag. Ecc. 84)... 755, 798. 928, 932, 1229 Marshall v. Chicago, etc., R. Co. (48 111. 475) 820 t>. Green Bay, etc., R. Co. (125 Wis. 96) , ?0e TABLE OF CASES. CXV [References are to pages.] Marshall v. Mee (1 MacArthur Pat. Cas. 229) 1211, 1218 V. Union Ins. Co. (2 Wash. (U. S.) 357) 869 Marshall Dental Mfg. Co. e. Harken- son (84 Iowa 117) 1310 Marstou ». Brittenham (76 III. 611) 1317 0. Dresen (85 Wis. 530) 220 Marston, Petitioner (79 Me. 25)... 584 Martello, The (153 U. S. 64) 288 (34 Fed. Rep. 74) . 281, 289, 450 Martin v. Browning (2 Hawks (9 N. Car.) 644) ...820, 890, 1044 V. Campbell (11 Rich. Eg. (S. Car.) 205) 227, 1097 „. Chicago, etc., E. Co. (194 111. 138) 308 0. Farrell (66 N. Y. App. Div. 177) 1314 V. Letty (18 B. Mon. (Ky.) 573) 1009, 1014 V. Maguire (7 Gray (Mass.) 177) 678 V. New Tork Cent., etc., R. Co. (30 Misc. (N. Y.) 691) 327 V. Northern Pac. Express Co. (10 Manitoba 595) 966, 1133 ^. Peters (4 Robt. (N. Y.) 434) 1290 o. The William (16 Fed. Cas. No. 9,171) 1185 V. Tuttle (80 Me. 310). 822, 897, 1421 Martin Dallman, The (70 Fed. Rep. 797) 491 Martinez ». Pabacher (118 La. 954) 1421 Martin's Estate (19 Pa. Co. Ct. 209) 908 Mary Ann, The (11 Fed. Rep. 336). 485, 495 — — , The (1 Hag. Adm. 158) 1270 Mary A. Troop, The (90 Fed. Rep. 307) 575 Mary Augusta, The (55 Fed. Rep. MS) 488, 1211 Mary B. Wellington, The (25 Fed. Rep. 153) 571 Mary C, The (1 Hask. (U. S.) 474) 382, 766, 998, 1159 Mary Doane, The (2 Lowell (U. S.) 428) 388, 1231 Maryland Casualty Co. v. Finch (147 Fed. Rep. 388) 455 Mary Lord, The (26 Fed. Rep. 863) . 455, 764, 765, 1264 Mary P. Mosquito, The (145 Fed. Rep. 960) 351 Mary S. Lewis, The (126 Fed. Rep. 848) 317 Mary Weaver, The (124 Fed. Rep. 977) 456 Mason «. Harkins ((Ark.) 102 S. W. Rep. 228) 71 V. Poulson (40 Md. 355) 1273 Mason Fruit Jar Co. v. Paine (166 Pa. St. 353) 1414 Masonic Fraternity Temple Assoc, e. Collins (110 111. App. 504).. 916, 1054, 1135, 1244 Massey-Harris Co. v. Warener (12 Manitoba 48) 1109 Massoth V. Delaware, etc.. Canal Co. (64 N. Y. 524) 328 Mast V. Dempster Mill Mfg. Co. (82 Fed. Rep. 327) 1255 Masten, The (Brown Adm. 436) . . . 516, 766, 1270 Masten v. Griffing (33 Cal. 111)... 1415 Masters u. Troy (50 Hun (N. Y.) 485) 1397 Mastin v. Noble (157 Fed. Rep. 506) 1191 Masury ». Tiemann (8 Blatchf. (U. S.) 426) 90 Mathieson v. Omaha St. R. Co. ((Neb.) 92 N. W. Rep. 639).. 406, 411 Mathls V. State (18 Ga. 345) . . .252, 1055 Matter of, see the name of the party. Matteson v. Blackmer (46 Mich. 393) 1318, 1320 V. Caine (17 Fed. Rep. 525)... 90 V. Morris (40 Mich. 52)... 614, 645 V. New York Cent. R. Co. (35 N. Y. 487) 596 V. People (122 111. App. 66) . . . 1262 Matthews ». Baxter (L. R. 8 Bxch. 132) 812 V. Granger (196 111. 164) 1215 V. Holmes (5 Grant Ch. (U. C.) 1) 524, 525, 591, 916, 1008, 1188, 1294 V. Poythress (4 Ga. 287) 1332 Matthias, In re (63 Fed. Rep. 523) . 1183, 1190 Matthias i). Matthias (3 Jones L. (48 N. Car.) 132) 62 Mattingly v. Pennie (105 Cal. 514). 1292 Mauch Chunk, The (154 Fed. Rep. 182) 422 Maud Webster, The (1 Hask. (U. S.) 325) 420, 1248 Maurer v. Bliss (14 Daly (N. Y.) 150) 1421 Maurice B. Grover, The (79 Fed. Rep. 379) 491, 1180 CXVl TABLE OF CASES. Maverick v. Reynolds (2 Bradt. (N. Y.) 360) 911, 974, 1067 Maxwell v. Wilkinson (113 TJ. S. 656) 961 ,/. Wilmington Dental Mfg. Co. (101 Fed. Rep. 852) 1275 ilaxwell Land Grant Case (121 U. S. 325) 79 560 973 997 400 1286 73 May V. Steam-Ship Powhatan (5 Fed. Rep. 375) 59, 1244 Mayberry v. NIchol ((Tenn. Ch.) 39 S. W. Rep. 881) 523, 1262, 1409 Mayer, Matter of (10 Daly (N. Y.) 143) Mayer v. Appel (13 III. App. 87) . . . V. Davis (103 N. Y. Supp. 943) Mays V. Moore (13 Tex. 85) 71, 1186, 1332 I/. Pryce (95 Mo. 603) 770 Maysvllle, etc., R. Co. v. McCabe ( (Ky.) 100 S. W. Rep. 219) McAllister v. McAllister (28 Wash, 613) McAnnulty v. Selck (59 Iowa 586) . . 71 McArthur v. Sears (21 Wend. (N. Y.) 190) 973 McAsklll V. Smith (24 Nova Scotia 247) 560 McAuliffe V. New York Cent., etc., R. Co. (88 N. Y. App. Div. 356). 331 McBee v. McBee (22 Oregon 329).. 1333 McBeth V. McBeth (11 Ala. 596).. 1296 McBrlde v. McBride (9 N. Y. Supp. 827) 1322 McCabe ii. Com. ((Pa.) 8 Atl. Rep. 45) 96, 1325 V. Montana Cent. R. Co. (30 Mont. 323) 733 V. Old Dominion Steam-Ship Co. (31 Fed. Rep. 234, 238)... 285, 288, 450, 538 McCaffrey v. Delaware, etc.. Canal Co. (16 N. Y. Supp. 495) 260 McCain «. McCain (11 Ky. L. Rep. 582) McCall V. McDowell (Deady (U. S.) 233) 120, ti. Moschowltz (14 Daly (N. Y.) 16) McCallum v. Long Island E. Co. (38 Hun (N. Y.) 569) 1344, McCann v. Mtna. Ins. Co. (3 Neb. 198) V. State (13 Smed. & M. (Miss.) 471) 601, [References are to pages.] McCanna v. New England E. Co. (20 R. I. 439) 263 McCarn v. Rundall (111 Iowa 406). 71, 1412 McCarragher v. Proal (114 N. Y. App. DIv. 470) 425 McCarthy v. Christopher, etc., St. R. Co. (10 Daly (N. Y.) 540). 1206, 1313 V. Claflln (99 Me. 290) 1354 V. Judah (12 Moo. P. C. 47).. 59, 643 V. McCarthy (143 N. Y. 235).. 572, 1166, 1169 v. Scanlon (176 Pa. St. 262).. 82 V. Travelers' Ins. Co. (15 Fed. Cas. No. 8,682) 119 McCartney v. Kipp (171 Pa. St. 644) 1409 V. Union Traction Co. (27 Pa. Super. Ct. 222) 338 McCarty v. Boone (162 Ind. 218)... 597 V. Heryford (125 Fed. Rep. 46) 1211 o. State (162 Ind. 218) 596 McClafterty v. Fisher ((Pa.) 2 Atl. Rep. 60) 234, 365 McClaskey u. Barr (54 Fed. Rep. 781) 810, 976, 1067, 1410 McClellan v. Sanford (26 Wis. 595). 1037, 1229, 1307 McClung V. McClung (40 Mich. 493) 1162, 1198 MeConkey v. Cockey (69 Md. 286) . . 567 McConnell u. American Bronze Pow- der Mfg. Co. (41 N. J. Eq. 447) . 802, 824 McCord r. The Steamboat Tiber (6 BIss. (U. S.) 409) 157 McCormack v. McBride (23 N. Bruns. 12) 1108 McCormick v. Grogan (L. R. 4 H. L. Cas. 82) 1030, 1430 V. Kansas City, etc., R. Co. (50 Mo. App. 109) 1344, 1346 McCormick Harvesting Mach. Co. v. Seeman (49 Neb. 312) 1215 McCoy V. Milwaukee St. R. Co. (82 Wis. 215) 548, 1241 V. Milwaukee St. R. Co. (88 Wis. 56) 748 V. The Steamer Currituck (2 Hughes (U. S.) 91) 1247 MeCracken i\ Consolidated Traction Co. (201 Pa. St. 378) 535 V. People (209 III. 215) 1420 McCraw )\ MeCraw (171 Mass. 146) 518 1293 568 1422 1345 71 0S9 TABLE OF CASES. CXVIX [References a-re to pages ] 723 261 McCready «. Goldsmith (18 How. (U. S.) 89) 275 McCubbin v. Hastings (27 La. Ann. 713) 1375 McCulIocli V. Murphy (125 Fed. Eep. 147) 1410 McCuUougU «. Minneapolis, etc., E. Co. (101 Mich. 234) 1346 McCuUy V. Malcom (9 Humph. (Tenn.) 187) 715, McCuster v. Pennsylvania E. Co. (198 Pa. St. 540) 205, McDade v. Philadelphia Rapid Tran- sit Co. (215 Pa. St. 105) 593 McDaniel ». Monroe (63 S. Car. 307) 1161 11. Walter (29 Ga. 266) 167 McDauiels v. Barnum (5 Vt. 279) . . 1138 McDermott v. Jackson (97 Wis. 64) . 527 Macdocald «. Blaekmer (4 B. & A. Pat. Cas. 78) McDonald v. Brooklyn Heights R. Co. (51 N. Y. App. Div. 186) V. McDonald (33 Can. Sup. Ct. 145) 77, V. McDonald (7 Nova Scotia 42) V. McDonald (26 Nova Scotia 103) V. McKinnon (26 Grant Ch. (U. C.) 12) 1284, 1285 MacDonald v. McLean (38 Fed. Rep. 328) 89 McDonald v. New York Cent., etc., R. Co. (186 Mass. 474) 1344 Macdonald t>. Shepard (4 Fed. Rep. 228) 831 «. Worthington (7 Ont, App. 531) 79, 965 McDonogh's Succession (18 La. Ann. 419)... 615, 617, 658, 1133, 1161, 1320 McDougall, Matter o( (87 Hun (N. Y.) 349) 1394 McDuffle ». Lake Shore, etc., R. Co. (98 Mich. 356) 329, 1346 McBlhaney v. McElhaney (125 Iowa 333) 1427 McElroy v. Davis (1 Manitoba 53).. 71 McElvain v. McBlvain (171 Mo. 244) 77, 842, 1032, 1037 McEvoy V. Lommel (78 N. Y, App. Div. .324) 1273 McBwan Bros. Co. v. McEwan (91 Fed. Rep. 787) 87 McEwen v. Gary ((Ky.) 96 S. W. Rep. 850) 780 93 427 966 840 547 McFadden v. Wallace (38 Cal. 51) . 802, 822, 1134 McFarland ». Reeve (5 Del. Ch. 118) 1313 V. Selby Smelting, etc., Co. (17 Fed. Rep. 253).,. 388, 487, 998 McGeorge v. Ross (5 N. W. Territory 116) 1313 McGhee v. Phoenix Ins, Co. (28 N. Bruns. 45) 555 V. White (66 Fed. Rep. 502) . . 533 McGibbon V. Burpee (25 N. Bruns. 81) 620, 657 McGill ». McGill (19 Fla. 341) 1333 V. Young (16 S. Dak. 360). 137, 167 McGinley v. D. S. Life Ins. Co. (8 Daly (N. Y.) 390) 1110 McGinnis v. Chamberlain (30 Ga. 32) 1322 McGlothlin V. State (2 Coldw. (Tenu.) 223) 1325 McGrail v. McGrail (48 N. J. Bq. 532) 812, 995, 996, 1005, 1170 McGrath v. Great Northern R. Co. (80 Minn. 450) 985, 1411 V. Hudson River R. Co. (32 Barb. (N. Y.) 144) 264 McGregor u. Bishop (14 Ont. 7)... 1151 M'Gregor v. Topham (3 H. L. Cas. 132) 547, 793, 890, 925, 926, 982, 1157, 1180, 1183, 1180, 1204 McGrenra «. McGrenra (7 Del. Ch. 432) 840, 897, 983 McGrew V- Steamboat Melnotte (1 Bond (U. S.) 453) 506, 1248 McGrochi). Hooker (11 111. App. 649) 1418 McGulgan v. Gaines (71 Ark. 614). 80 McGuiness v. School Dist. No. 10 (39 Minn. 499) 583 McGuire v. Bloomingdale (33 Misc. (N. Y.) 337)... 1230, 1253, 1255, 1267, 1282 V. Broadway, etc., R. Co. (16 N. y. Supp, 922) 571 V. Hartford F. Ins. Co. (7 N. T. App. Div. 575) 560 «. People (44 Mich. 286) 1060 McHugh V. Dooley (10 British Col- umbia 537) 1234, 1236 Mcllhenny «. Philadelphia (214 Pa. St. 44) 320 Mclnnes, Matter of (119 N. Y. App. Div. 440) 1198 Mclntire v. Mclntire (162 U. S. 383) 1041, 1235, 1334 V. Pryor (173 U. S. 38)... 584, 1195, 1237 CXVIU TABLE OF CASES. McKarren i;. Boston, etc., St. R. Co. (194 Mass. 179) 1362 McKay v. Victoria Yukon Trading Co. (9 Britisli Columbia 37). 1423, 1426 McKee v. McKee ((Neb.) 96 N. W. Rep. 489) 1427 McKeever v. New York Cent., etc., R. Co. (88 N. Y. 667) 1341 McKenzie v. Anderson (2 Woods (U. S.) 357) 939 Mackenzie ». Handasyde (2 Hag. Ecc. 211) 1281 McKenzie v. Harris (19 Nova Scotia 348) 1420 V. The Oglethorpe (16 Fed. Cas. No. 8,857) 584 McKeone v. Barnes (108 Mass. 344) 624, 679 McKerchnle v. Standish (6 N. Y. Week. Dig. 433) 355 McKinley v. Drew (69 Vt. 210) 877 V. Metropolitan St. R. Co. (91 N. Y. App. Div. 153) 205 McKinney t. Slack (19 N. J. Bq. 164). 227, 1015, 1017, 1023, 10.37, 1276 McKinstry v. Collins (74 Vt. 147) . 548 V. Runk (12 N. J. Bq. 60) 1407 McKown V. Mathes (19 La. 542).. 1290 M'Lanahan ». Universal Ins. Co. (1 Pet. (U. S.) 184) 1382 McLane v. Perkins (92 Me. 39). 531, 532 McLaren v. Gillispie (19 Utah 137) . 1242, 1243 McLaughlin, In re ((N. .1.) 59 Atl. Rep. 892) 1239 McLaughlin v. McDevltt (63 N. Y. 213) 1421 V. Webster (141 N. Y. 76, 85) 560 Maclean i;. Scripps (52 Mich. 214) . 708 McLean ii. Clark (47 Ga. 24) 1216 V. Erie R. Co. (69 N. J. L. 57) . 1344, 1363 McLean v. Whelan (1 Has. & War. (P. E. Island) 135) 544, 567, 1111 McLellan v. Ingraham (15 Nova Sco- tia 164) 1317, 14.30 McLenan v. Winnipeg (3 Manitoba 474) McLeod, Rr (23 Nova Scotia 154).. McMahoD V. Harrison (6 N. Y. 443) McManus v. Davitt (94 N. Y. App. Div. 481) 17. McManus (24 Grant Ch. (U. C.) 118)... 71, 1036, 1037, 1198, 1289 [References are to pages.] McMarshail v. Chicago, etc., R. Co. (80 Mo. 757) 297, 1343 M'Mechan v. Grifflng (3 Pick. (Mass.) 149) 70 McMichael v. Webster (54 N. J. Eq. 478) 1278, 1309 McMicken v. Ontario Bank (20 Can. Sup. Ct. 548) 71, 74, 1227 McMillan v. Grand Trunk R. Co. (130 Fed. Rep. 827) 134 McMiUin V. Barclay (4 Brews. (Pa.) 275) 88, 1030 McMuUen v. Clark (49 Ind. 77)... 797, 1032, 1290 McMurrin v. Rigby (80 Iowa 322) . . 1163 McNalr i/. Com. (26 Pa. St. 388) . . 645, 652 McNally v. Colwell (91 Mich. 527) . 1374 V. Meyer (5 Ben. (U. S.) 239). 493 McNamara ». New York Cent. R. Co. (19 N. Y. Supp. 497) 330 McNeil V. Magee (5 Mason (U. S.) 244) 984 Macnelll ». Macgregor (2 Bligh N. S. 481) 835, 954, 955 v. Macgregor (1 Dow. & CI. 208) 1292 McNinch v. Charles (2 Rich. L. (S. C.) 229) 1296 McNish V. Everson (2 Fed. Rep. 899) 89 McNuIty V. Hurd (86 N. Y. 547) .142, 835 McPhall V. Clements (1 Manitoba 165) 1222 McPherrln v. Jones (5 N. Dak. 261) 1216 McQuade v. Adams (2 Silv. Sup. (N. Y.) 503) 1311 V. Metropolitan St. R. Co. (17 Misc. (N. Y.) 154) 267 McQuigan v. Delaware, etc., B. Co. (122 N. Y. 618) 122 McRae ti. Morrison (13 Ired. L. (35 N. Car.) 46) 985, 1411 McReynoIds v. Longenberger (57 Pa. St. 13) 1045 McRoberts v. Stelnoff (11 Ont. 369). 1420 McTague e. Flnnegan (54 N. J. Eq. 454) 77 McTighe V. Dean (22 N. J. Eq. 81). 1100 McVoy V. Chesapeake, etc., R. Co. (46 W. Va. Ill) 403, 413 McWiUlams, In re (74 Fed. Rep. 648) 455 McWlIUams v. The Vim (12 Fed. Rep. 911) 388 Mead v. Conroe (113 Pa. St. 220).. 106, 796, 1309 8.35 71 518 107 TABLE OF CASES. CXIX [References are to pages.] Meagley v. Hoyt (125 N. Y. 771) . . 521, 550 Means v. Means (5 Strobh. L. (S. Car.) 167) 4, 46, 1295, 1422 Mease v. United Traction Co. (208 Pa. St. 434) 425 Medcalf v. St. Paul City R. Co. (82 Minn. 18) 11 Meehan v. Rourke (2 Bradf. (N. Y.) 385) 858, 1183, 1190 Meeker v. Clagliorn (44 N. Y. 349) 1322 Meeteer v. Manhattan R. Co. (63 Hun (N. Y.) 533) 123 Mehrle e. Brooklyn, etc., R. Co. (59 N. Y. App. Div. 617) 1341, 1401 Meier v. Bell (119 Wis. 482) 79, 1409 Meigs V. Lister (23 N. J. Eq. 199) . . 368 V. Steamship Northerner ( 1 Wash. Ter. 78) 341 Meinrenken v. New York Cent., etc., Co. (81 N. Y. App. Dlv. 132)... 194, 330, 333 Meiswlnkel v. St. Paul F. & M. Ins. Co. (75 Wis. 147) 149 Melxsell ti. Williamson (35 111. 529) 1283 Melendy v. Bradford (56 Vt. 148) . . 1216 Mellick V. Mellick ((N. J.) 19 Atl. Rep. 870) 808 Mellon V. Smith (2 B. D. Smith (N. Y.) 462) 492, 1421 Melvin v. Hodges (71 111. 422) 1415 Memphis, etc., R. Co. v. Shoecraft (53 Ark. 96) 148 Memphis Consol. Gas, etc., Co. v. Bell (152 Fed. Rep. 677) 540 Memphis v. Kelley Institute Co. (155 Fed. Rep. 1113) 1208 Memphis St. R. Co. v. Kartright (110 Tenn. 277) 1245 V. Roe ((Tenn.) 102 S. W. Rep. 343) .338, 1149 Menard v. Boston, etc., R. Co. (150 Mass. .386) 1344, 1348, 1349 Mendell «. Kimball (85 111. 582) . . . 1099 Mendenhall's Will (43 Oregon 542) . 1265 Mendoza v. Levy (111 N. Y. App. Div. 449) 115, 124, 168 Menu V. State ((Wis.) 112 N. W. Rep. 38) 62, 980 Menzies v. White (9 Grant Ch. (U. C.) 574) 984 Mercantile, etc., Co. v. Landa ((Tex. Civ. App.) 40 S. W. Rep. 406)... 137 Mercantile Bank v. Anderson (27 N. Y. App. Div. 94) 123 I Mercantile Trust, etc., Co. ». Colum- bus Waterworks Co. (130 Fed. Rep. 180) 1102 Mercer v. State (17 Ga. 146)... 812, 1327 D. The Florida (3 Hughes (U. S.) 488) 375 e. Wright (3 Wis. 645) 1218 Merchant v. White (77 N. Y. App. Div. 539) 1032 Merchant Prince, The ((1892) P. 9) 1235 Merchants', etc., Transp. Co. ti. Hop- kins (108 Fed. Rep. 890) 560, 997 Merchants' Bldg., etc., Assoc, v. Bar- ber ((N. J.) 30 Atl. Rep. 865, 867) 548, 984 Merchant's Nat. Bank v. Northrup (22 N. J. Eq. 58).. 182, 221, 799, 984 Merchant's Will (Tuck. (N. Y.) 151) 44, 722 Mercurio v. Lunn (93 Fed. Rep. 592) 1406 Meredith v. Sayre (32 N. J. Eq. 557) 1306 Merk v. Gelzhaeuser (50 Cal. 631) . 84 Merkle v. New York, etc., R. Co. (49 N. J. L. 473) 263 «!. State (37 Ala. 139) 361 Merrill v. Grinnell (30 N. Y. 594) . . 576, 890, 892, 1132, 1286 Merrlmac Mattress Mfg. Co. v. Brown (122 Fed. Rep. 87) . 87, 829 ti. Feldman (133 Fed. Rep. 64, 69) 89, 92, 1279 Merritt v. Heckscher (50 Barb. (N. Y.) 451) 1109 Merritt, etc., Derrick, etc., Co. c. North German Lloyd (120 Fed. Rep. 27) 59 Merschendorf v. Koch (22 Misc. (N. Y.) 356) 124 Mertens v. St. Louis Transit Co. ((Mo. App.) 99 S. W. Rep. 512). 308 Mertz V. Detroit Electric R. Co. (125 Mich. 11) 404 Merwin v. Ward (15 Conn. 377)... 583 Mesaba, The (111 Fed. Rep. 215).. 451 Mesick V. Mesick (7 Barb. (N. Y.) 120) 844 Metallic Roofing Co. v. Jose (14 0nt. L. Rep. 156) 23 Metcalf V. Van Benthuysen (3 N. T. 424) 1016, 1038, 1412 Meteor, The (17 Fed. Cas. No. 9,498) 560, 600 Metis, The (4 Ben. (TJ. S.) 120)... 353 Metropolis, The (17 Fed. Cas. No. 9,501) 324, 354, 480 cxx TABLE OF CASES. 897 Metropolitan El. E. Co. ». Manhat- tan El. E. Co. (11 Daly (N. Y.) 373) 124, 142, Metropolitan L. Ins. Co. i/. Harper (3 Hughes (U. S.) 260) 1231 Metropolitan E. Co. v. Blick (22 App. Cas. (D. C.) 194) 401, 403 Metropolitan St. E. Co. v. Agnew (65 Kan. 478) 205 V. Oppenheim (58 N. Y. App. DiT. 510) 1410 Metz V. St. Paul City R. Co. (88 Minn. 48) 412 Metzger v. Schultz (16 Ind. App. 454) 517 Meux V. Bell (1 Hare 73) 943 Mexican Cent. E. Co. v. Henderson (114 Fed. Rep. 892) 1405 Mexico, The (78 Fed. Eep. 655). 366, 485 Mey V. Gulliman (105 111. 272) 1266 Meyer v. Chicago, etc., R. Co. (Iowa) 112 N. W. Eep. 194) 331 «, Mead (83 111. 19) 735 Meyers v. Hunt (17 N. Y. Supp. 637) 655, 723 Miami, TJje (87 Fed. Rep. 757) 1357 Mic^ Insulator Co. v. Union Mica Co. (137 Fed. Eep. 928) 828 Michaud v. Canadian Pac. E. Co. (88 Me. 381) 1408 Michel V. Tinsley (69 Mo. 442) 735 Michigan, The (63 Fed. Eep. 280) . . 277, 12T4, 1340, 1406 -, The (63 Fed. Rep. 295).. 281, 422, 1266 Michigan Carbon Works v. Schad (38 Hun (N. Y.) 71) 135, 151, 152, 1243, 1290 Michigan Cent. R. Co. v. Campau (35' Mich. 468) 264, 270 Michigan Pipe Co. v. Michigan F. & M. Ins. Co. (92 Mich. 482) 168 Mick 1). Mart ((N. J.) 65 Atl. Rep. 851) Middeke v. Balder (198 111. 590) . . . Middlesex Quarry Co. i). The Schooner Albert Mason (2 Fed. Rep. 821) . . Mlddleton, Matter of (68 N. J. Bq. 584) 1319, 1409 Midland, The (48 Fed. Rep. 331).. 488 Midnoer ». Midmer (26 N. .T, Eq. 209) 802, 1031, 1036. 1037, 1321 Miles V. Loomls (75 N. Y. 288) 611, 620, 647, 669, 680, 697, 698 Miller 1). Chicago, etc., R. Co. ((S. , Dak.) Ill N. W. Rep. 553) 133 1319 1133 838 937 1289 89 [References are to pages.] Miller v. Cohen (173 Pa. St. 488) 19, 795, 834, 837, «. Confederation L. Assur. Co. (11 Out. 120) V. Cotten (5 Ga. 341).. 16, 795, 801, 847, 924, V. Poree (9 Fed. Rep. 603) V. Hilton (88 Me. 429) 215 V. Miller (100 Mich. 563).. 802, 834, 857, 1035, 1253, 1421 V. Miller (20 N. J. Eq. 216) . . . 1133 K. Mllllgan (48 Barb. (N. Y.) 30) 1151 I). Morris (123 Ala. 164) 80 V. Sauerbler (30 N. J. Eq. 71). 219, V. Smith (20 N. Y. App. Div. 507) V. Start (10 Grant Ch. (TJ. C.) 23) 0. State (106 Wis. 156) 1216 V. Stern (12 Pa. St. 389) 1410 V. V. S. (133 Fed. Rep. 337).. 1289 u. Wilmington, etc., R. Co. (128 N. Car. 26) Miller's Case (3 Wils. C. PI. 420).. Mllllgan, Matter of (112 N. Y. App. Div. 373) 72, Milligan v. Chicago, etc., R. Co. (79 Mo. App. 393) Milliman v. Rochester R. Co. (3 N. Y. App. Div. 109) 559, Million ». Million (106 Mo. App. 680) 1427 Millman v. Rochester R. Co. (3 N. Y. App. Div. 109) 1200 Millner f. Eglln (64 Ind. 197) 1116 Mills, Matter of (1 Mich. 392) 1262 Mills 1'. Lewis (55 Barb. (N. Y.) 179) 1312 e. Mills (57 Fed. Rep. 873, 876) 219 Milne, /H re (11 Grant Ch. (tJ. C.) 153) 1315 Milton 1). Surrey Dist. (10 British Columbia 296) 1375 Milwaukee, The (Brown Adm. (U. S.) 513) 279, 763 Minard v. West Jersey, etc., R. Co. ((N. J.) 64 Atl. Rep. 1054) 1246 Mlnhinnick v. Jolly (29 Ont. 238).. 798 Mlnkoff t'. Lipsehuetz (88 N. Y. Supp. 139) 1267 Minneapolis Sash, etc., Co. v. Great Northern R. Co. (83 Minn. 370) . 62 Minnehaha, The (124 Fed. Eep. 210) 119, 153 Minnesota Bank «. Page (14 Ont. App. 347) 1110 553 177 1111 265 876 75 1344 585 TABLE OF CASES, CjCXl [References are to pages,] 495 764 196 582 Minnesota Steamship Co. v. Lehigh Valley Transp. Co. (129 Fed. Eep. 22) 381, 492, Minnie, The (87 Fed. Rep. 781).. 746, 1277 Minton v. New York E. E. Co. (130 N. r. 332) 1396 Mlrcovich v. The British Bark Star of Scotia (2 Fed. Kep. 578) . .486, 487, Missouri, etc., E. Co. v. Brown ( (Tex. Civ. App.) 101 S. W. Eep. 464) V. Elliott (102 Fed. Eep. 96).. 542, 546, V. Harris ((Tex. Civ. App.) 101 S. W. Eep. 506) 137 V. Murphy (59 Kan. 774).. 136, 1244 Missouri Pac. R. Co. v. Chick (6 Kan. App. 481) 400, 401 V. Lee (70 Tex. 496) 258 V. Motfatt (60 Kan. 113) 537 V. Pierce (39 Kan. 391) 1341 Mitchell V. Boston, etc., R. Co. (68 N. H. 96) 547, V. Eyan (3 Ohio St. 377) Mitchell Transp. Co. i;. Green (120 Fed. Rep. 49) 11, Mitchum V. State (11 Ga. 615) Mix V. Eoyal Ins. Co. (169 Pa. St. 639) M. J. Cummings, The (18 Fed. Rep. 178) M. M. Chase, The (2 Hask. (U. S.) 270) 470, 1158, 1242 Mobile, etc., R. Co. v. Davis (24 111. App. 250) 1346 Mockowik V. Kansas City, etc., R. Co. (106 Mo. 550) 516, 566 Modrell v. Riddle (83 Mo. 31) 1292 Moett V. People (85 N. Y. 378) 1210 Molt V. Illinois Cent. E. Co. (153 li'ed. Rep. 356) 64 Moline Plow Co. v. Carson (36 D. S. App. 448) 1232 V. Parlin, etc., Co. (84 Fed. Eep. 349) 1278 Moller e. MoUer (115 N. Y. 466) . . 592, 1097, 1166, 1169, 1195 Molloy V. New York Cent., etc., E. Co. (10 Daly (N. Y.) 453). 1267, 1294, 1322 V. Whitehall Portland Cement Co. (116 N. Y. App. Dlv. 839) 128 Uomence Stone Co. v. Groves (197 111. 88) 558 557 559 1430 1296 1241 455 Monce v. Woodworth (4 B. & A. Pat. Cas. 307) 89, 892, 979 Money v. Fisher (92 Hun (N. Y.) 347) 128 Monmouthshire, The (44 Fed. Eep. 697) 347,379, 764 Monroe, Matter of (2 Connoly (N. Y.) 395) 1243 Monteith, Be (10 Ont. 529) 1154 Monterey, The (153 Fed. Eep. 935). 384, 422, 469, 1114, 1415 Montgomery v. Beecher ((N. J.) 31 Atl. Eep. 451) 566, 1189 V. Hart (11 Nova Scotia 533) . 547 «. Hobson (Meigs (Tenn.) 437) 825, 1027, 1250, 1412 V. Merrill (36 Mich. 97) 822 V. State (128 Wis. 183) 1409 Montgomery St. E. Co. v. Shanks (139 Ala. 489) 435 Monticello, The (1 Lowell. (U. S.) 184) 346, 506, 970, 998, 1001, 1149 Montreal Rolling Mills Co. v. Cor- coran (26 Can. Sup. Ct. 595) 64 Montreal St. E. Co. v. Deslong- champs (14 Quebec Off. Law Rep. 355) 274, 1343 Montross «. Flynn (63 N. Y. App. Div. 616) 1277 Moody V. Found (208 111. 78) 1420 ■0. Eowell (17 Pick. (Mass.) 490) 619, 620, 648 Moon V. Crowder (72 Ala. 79) 704 Mooney v. Grout (6 Ont. L. Eep. 521) 1016, 1289 V. Trow Directory, etc., Co. (2 Misc. (N. Y.) 238)... 425, 427, 433 Moore, /« re (1 Hask. (U. S.) 134). 1009, 1027, 1031, 1152 Moore, Matter of (109 N. Y. App. Div. 762) 1274 Moore v. Central R. Co. (24 N. J. L. 268) 431, 436, 1311, 1344 t>. Connecticut Mut. L. Ins. Co. (3 Ont. App. 230) 906 V. Crawford (130 U. S. 122).. 71, 584 „. Ellis (89 Wis. 108). 129, 137, 164 D.Grayson (132 Cal. 602)... 1322, 1420 V. Hunter (6 111. 317) 1320 V. Jones (13 Ala. 296) 1215 ». Kraemer (50 N. J. Eq. 776) . 1015, 1017, 1276 V. Livingston (28 Barb. (N. Y.) 543) 646, 1277 cxxu TABLE OF CASES. Moore v. Moore ((Ky.) 101 S. W. Rep. 358) 569, 1300 V. Moore (2 Bradf. (N. Y.) 261) 965, 1037 V. New York Cent, etc., E. Co. (75 Hun (N. Y.) 381)... 1246, 1344 V. Pearson (6 W. & S. (Pa.) 51) 22, 706, 1023 V. Robinson ((Tex. Civ. App.) 75 S. W. Rep. 890) 131 t>. Smith (103 Micli. 387).. 187, 802 1,. Smith (14 S. & R. (Pa.) 388) 1291, 1301, 1302 V. St. Louis Transit Co. (95 Mo. App. 728) 322 V. Stolses (6 Mart. N. S. (La.) 538) 1178 V. Tate (114 Ala. 582) 1031 V. Thomas (3 B. & A. Pat. Cas. 13) 90 V. Ullman (80 Va. 307) 561 V. Wright (90 III. 470) 566 Moorheau v. Thompson ( 1 La. 281 ) . 1290, 1294 Moran v. Abbott (26 N. Y. App. Div. 570, 50 N. Y. Supp. 337). 123, 527 V. Kent (87 N. Y. App. Div. 610) 1407 V. McLarty (75 N. Y. 25). 1283, 1421 V. SociSte, etc. (107 La. 286). 1155 Moratzky «. Wirth (74 Minn. 146) . 155, Morey, Matter of (147 Cal. 495)... Morgan v. Daniels (153 U. S. 120). V. State (48 Ohio St. 371) V. Pennsylvania R. Co. (209 Pa. 25) - V. Roberts (38 111. 65) 1242 V. Southern Pac. Co. (95 Cal. 501) V. Tipton (3 McLean (U. S.) 339) Morgan Envelope Co. v. Albany Per- forated Paper Co. (40 Fed. Rep. 577) Morgantown Second Nat. Bank v. Weston (172 N. Y. 250) 128, Morgenthau v. Walker (2 Misc. (N. Y.) 245) 1179 Moritz V. Brough (16 S. & R. (Pa.) 403) 1295 Morley v. Morley (5 De G. M. & G. 610) 1094, 1096, 1119 Morning Light, The (2 Wall. (TJ. S.) 550) 1270 [References are iso pages.] Morning Star, The (4 Biss. (U. S.) 62) 473, 1387 Morrill v. Palmer (68 Vt. 1) 566 Morris v. Davies (5 CI. & F. 163) . . 974 V. Metropolitan St. R. Co. (63 N. Y. App. Div. 78) 315 V. Morris (2 Bibb (Ky.) 311).. 1290 ■u. Morris (Wright (Ohio) 630) 212 V. Murphy (Newfoundland (1884- 1896) 295) 77 K. Sargent (18 Iowa 90).. 658, 878, 883, 890, 1183 V. State ((Ala.) 39 So. Rep. 608) 812 V. Swaney (7 Heisk. (Tenn.) 591) 1040 V. Taylor (22 N. J. Eq. 438).. 72, 799, 825, 836 Morrison v. Bausemer (32 Graft. (Va.) 225) 944 V. Chapin (97 Mass. 72) 961 ». City of Toronto (12 Ontario Law Rep. 333) 367, 757 V. McLeod (2 Ired. Eq. (37 N. Car.) 108) 1388 V. New York, etc., R. Co. (32 Barb. (N. Y.) 568) 548 V. Porter (35 Minn. 425).. 625, 67] V. Toronto (12 Ont. L. Rep. 333) 817 Morse v. Pineo (4 Vt. 281) 1160 V. St. Paul F. & M. Ins. Co. (124 Fed. Rep. 451)... 11, 170, 1226, 1283 Mortimer v. Chambers (63 Hun (N. Y.) 335) 723 Morton, The (Brown Adm. 137) 501 Morton v. Morton (82 Ark. 492) . . . 1420 e. O'Connor (85 111. App. 273) . 1256 Morvant's Succession (45 La. Ann. 207) 694 Mosely v. Gordon (16 Ga. 384) 1404 Moses V. Trice (21 Gratt. (Va.) 556) Mosher v. Davis (41 N. Y. App. Div. 622) Moshier v. Utica, etc., R. Co. (8 Barb. (N. Y.) 427) Moss V. Brander (1 Phlll. Bcc. 254) . V. Philadelphia Traction Co. (180 Pa. St. 389) 409, Mott V. Detroit, etc., R. Co. (120 Mich, 127) 405, V. Mott (49 N. .1. Eq. 192) t>. Mott (3 N. Y. App. Div. 532) 211, 592, 970, ll.'^S, 11G6, 1193 Motz, Matter of (136 Cal. 558) 1420 157 1280 88 96 64 770 570 61 178 71 1411 254 209 425 406 580 TABLE OF CASES. cxxm GS5 120 [References are to pages.] Mount V. Potts (23 N. J. Bq. 188). 1222 Mountford v. Scott (1 T. & R. 274) 944 Mowbray v. Gould (63 N. Y. App. Div. 158) 1322 Moye K. Hemdon (30 Miss. 110) . . 158, 663, Moyle 1). Hocking (10 Colo. App. 446) Moyler v. Moyler (11 Ala. 620)... 1315, 1332 Mudsill Mln. Co. v. Watrous (61 Fed. Rep. 163) 601 Mulrheld v. Smith (35 N. J. Bq. 303) 82, 130 Mulford V. Minch (11 N. J. Eq. 16) . 1253, 1320 Mullane v. Houston, etc., Ferry E. Co. (20 Misc. (N. Y.) 434) 98 Mullen V. McKelvy (5 Watts (Pa.) 399) 101, 689, 716, 721 MuUer v. Lodge, etc., Mach. Tool Co. (77 Fed. Rep. 621) 89 V. Ryan (2 N. Y. Supp. 736) . . 165 V. St. Louis Hospital Assoc. (5 Mo. App. 390) 1156, 1416 Mullery v. Hamilton (71 Ga. 720). 970, 1133 Mullins V. Wall (8 B. Mon. (Ky.) 445) 586 Mulock V. Mulock (31 N. J. Eq. 594) 902, 938, 968, 1133 Multnomah Coufaty v. Willamette Towing Co. ((Oregon) 89 Pac. Rep. 389) 1421 Multz V. Price (91 N. Y. App. Div. 116) 567, 1198 Mundy i;. Foster (31 Mich. 313) . . 1016, 1026 Munn V. Worrall (16 Barb. (N. Y.) 221) 931 Munoz V. Wilson (111 N. Y. 295).. 123, 128, 153, 167 Munroe v. Gates (48 Me. 463) 596 Munsle v. Lindsay (11 Ont. 520).. 1388 Munson Steamship Line %i. Steiger (132 Fed. Rep. 160) 985 Murati V. Luciani (1 Bald. (U. S.) 49 613 Murdoch, In re (12 Nova Scotia 427) 1254 Murphy v. Hagerman (Wright (Ohio) 294) 607, 613, 622, 631, 651 V. People (90 111. 59) 1332, 1338 Murphy ». St. Louis Transit Co. (189 Mo. 42) 297 V. Waterhouse (113 Cal. 467). 8 Murray, Re (9 Ont. App. 369) 78 Murray v. Boston, etc., R. Co. (72 N. H. 32) 817, 1297 V. Johnson (6 N. Bruns. 409) . 1311 t>. Donnelly (17 Fed. Cas. No. 9,958) 27 V. Knapp (42 How. Pr. (N. Y.) 462) 1102 V. Missouri Pac. R. Co. (101 Mo. 236) 1344 0. Pawtuxet Valley St. R. Co. (25 R. I. 209) 148 V. St. Louis Transit Co. (176 Mo. 183)... 421, 425, 1345, 1348 V. White (9 Fed. Rep. 564) . .59, 208 Murtaugh v. Murphy (30 111. App. 59) 1215 Musbach v. Wisconsin Chair Co. (108 Wis. 57) 204 Muscott V. Stubbs (24 Kan. 520) . . 1411 Musselwhite v. Receivers (4 Hughes (U. S.) 166) 298, 601 Muster v. Chicago, etc., R. Co. (61 Wis. 325) 418 Mutual Ben. L. Ins. Co. v. Brown (30 N. J. Bq. 193) 631, 659, 713, 716, 1)39 Mutual L. Ins. Co. n. O'Donnell (146 N. Y. 275) 1100 Mutual Reserve Fund L. Assoc, v. Cleveland Woolen Mills (82 Fed. Rep. 508) ■ 1011, 1309 Mutual Wheel Co. v. Mosher (89 111. App. 106) 296 Myers v. Baker (Hard. (Ky.) 553). 1289, 1320 J). Baltimore, etc., R. Co. (150 Pa. St. 386) 205, 331 V. Brantford St. R. Co. (31 Ont. 309) 876 ■u. Chicago, etc., B. Co. (95 Fed. Rep. 406) 25 V. McFarland (31 Pa. Co. Ct. 49) 445 V. Parks (95 111. 408) 1151 V. Perry (1 La. Ann. 372) 1248 Mynn v. Robinson (2 Hag. Ecc. 169) 547, 1138, 1198, 1251, 1295, 1409 Mynning v. Detroit, etc., R. Co. (64 Mich. 93) 258, 532 V. Detroit, etc., R. Co. (64 Mich. 93) 532 CXXIV TABLE OF CASES. N. Naas V. Manning (39 Nova Scotia 133) 1298, 1315 Nabob, Tlie (Brown Adm. (U. S.) 115) 350, 1213, 1270, 1273 Naclitrieb v. Harmony Settlement (3 Wall. Jr. (C. C.) 66) 1006, 1289 Nahor, The (9 Fed. Rep. 213).. 348, 485 N. & JU. Friedman Co. v. Atlas Assur. Co. (133 Mich. 212) 1274, 1400 Nannie Lamberton, The (85 Fed. Rep. 983) 1419 Nantahala Marble, etc., Co. e. Thomas (76 Fed. Rep. 59) 79 Napier ». Ferguson (18 N. Bruns. 415) 1080 Narragansett, The (11 Fed. Rep. 918) 763, 765 Nash V. Hoxie (59 Wis. 384) 1312 Nashville, etc., R. Co. v. Lawson (105 Tenn. 639) . .813, 1189,1245, 1246 Nasmith Co. v. Alexander Brown Milling, etc., Co. (9 Ont. L. Rep. 24) 1027, 1329 Natchez, The (78 Fed. Rep. 183) . . 495 National Ace. Assoc, v. Burr (57 Neb. 437) National Car-Brake Shoe Co. v. Terre Haute Car, etc., Co. (19 Fed. Rep. 514) National Casket Co. v. Stolte (157 Fed. Rep. 392) 871, 904, 1063, 1131, 1204 National Filtering Oil Co. e. Arctic Oil Co. (8 Blatcht. (U. S.) 416) . 93, 554 National F. Ins. Co. v. Crane (16 Md. 260) 877 National Folding-Box, etc., Co. v. Brown, etc., Co. (98 Fed. Rep. 437) 1102 National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co. (106 Fed. Rep. 693) 87, 707, 916 National Masonic' Ace. Assoc, v. Burr (57 Neb. 437) 1265 National Park Bank *. American Exch. Nat. Bank (88 N. Y. Supp. 271) 547 National State Bank v. McCormick ((N. J.) 44 Atl. Rep. 706)... 219, 1167 Neal V. Neal (58 Cal. 287) 718, 1415 Nealley v. Greenough (25 N. II. 325) 1.300 Necdham v. People (98 111. 278). ... T174 Neely «. Boyd (145 Fed. Rep. 172) 71 [References are to pages.] Neffi V. Harrisburg Traction Co. (192 Pa. St. 501) 1250 Neiheisel v. Toerge (4 Redf. (N. Y.) 328) 1338 Neill V. Kreese (5 Tex. 23) 1293 V. State (79 Ga. 779) 1336 V. Traveller's Ins. Co. (7 Ont. App. 570) 310 Neilson v. Betts (L. R. 5 Bug. & Ir. App. Cas. 1) 138, 546, 1279 Noin V. La Crosse City R. Co. (92 Fed. Rep. 85) Hi Nekarda, Matter of (114 N. Y. App. Div. 370) 208 Nelius V. Brickell (1 Hayw. (2 N. Car.) 19) 609 Nellie Flagg, The (23 Fed. Rep. 672) 62 Nelson, Matter of (141 N. Y. 152) . . 1265 Nelson v. Big Blacktoot Milling Co. (17 Mont. 553) 198 V. Farmer Type-Founding Co. (91 Fed. Rep. 418) 87 V. McLellan (31 Wash. 208)... 1376 V. New York (1 Silv. Sup. (N. Y.) 471) 903 V. New York (131 N. Y. 4) 567 Nephler t. Woodward ((Mo.) 98 S. W. Rep. 488) 750 Nereus, The (23 Fed. Rep. 448) . . 279, 280, 798, 909 Nesbit V. Crosby (74 Conn. 554) ... 432 Nessmore, The (41 Fed. Rep. 437) . . 422, 495, 509, 767, 1192, 1270 Ncubert ». Armstrong Water Co. (211 Pa. St. 582) 148. 527 ). Armstrong Water Co. (211 Pa. St. 682) 525 Nevada, The (17 Blatchf. (IT. S.) 122) 910 Nevins v. Dunlap (33 N. Y. 676) . . 78 New Brunswick R. Co. v. Kelly (26 Can. Sup. Ct. 341) 1291 Newcombe r. Hyman (18 Misc. (N. Y.) 25) 135, 137, 580 New England Motor Co. v. B. F. Sturtevant Co. (1.50 Fed. Rep. 131) 92 New England Screw Co. «. Sloan (1 MacArthur Pat. Cas. 210)... 120, 671, 117S, 1410 Newfoundland, The (89 Fed, Rep. 510) 370, 490, 492, 735 Npwhard t>, Penns,vlvanla R. Co. (153 Pa. St. 417) 268, 269, 1342 New Jersey Express Co. v. Nichols (33 N. J. L. 434) 1139 527 587 TABLE OF CASES. CXXV [Referenoes are to pages.] New Jersey R. Co. e. Palmer (33 N. J, L. 90) 815, 1404 New Jersey Zinc, etc., Co. v. Morris Canal, etc., Co. (44 N. J. Eq. 398, 15 Atl. Rep. 227) 188, 799, 834 Newman v. Cordell (43 Barb. (N. Y.) 448) 552, 567, 890 New Mary Houston, The (69 Fed. Rep. 362) 1239 New Orleans, The (9 Ben. (U. S.) 303) 320 New Orleans i). Gauthreaux (32 La. Ann. 1126) 121 New Orleans City Bank «. Foucher (9 La. 405) 1311 New Orleans Coffee Co. v. Cady (69 Neb. 412) 1322 New PBlton, The ((1891) P. 261).. 997, 999 Newport, The (5 Ben. (U. S.) 231). 279 , The (28 Fed. Rep. 663) 1220 Newport News, The (82 Fed. Rep. 522) 381 , The (83 Fed. Rep. 522).. 237, 270, 346, 384, 422 , The (105 Fed. Rep. 389). 41 6, 1264 New Process Fermentation Co. u. Koch (21 Fed. Rep. 580) 89, 979 Newton V. Carbery (5 Crauch (C. C.) 626) 711, 1228, 1254 V. Pope (1 Cow. (N. Y.) 109) . Il5, 118, 172 V. Ricketts (9 H. L. Cas. 262) . 120 New York, The (175 U. S. 187) 558 , The (109 Fed. Rep. 909). 388, 419 New York v. Pentz (24 Wend. (N. Y.) 668) 612 New York, etc., Ferry Co. v. Moore (102 N. Y. 667)... 115, 137, 216, 566, 598 New York, etc.. Mail Steamship Co. V. Rumball (21 Sow. (U. S.) 372) 497 ■New York, etc., R. Co. V. Robblns ((Ind. App.) 76 N. B. Rep. 804). 582, 1338 New York Bank Note Co. v. Hamil- ton Bank Note Engraving, etc., Co. (92 N. Y. App. Div. 427) 547 V. McKeige (17 N. Y. App. Div. 294) 123, 178 New York Filter Mfg. Co. v. Niagara Falls Waterworks Co. (77 Fed. Rep. 900) 88, 1278 New York F. Ins. Co. v. Tooker (35 N. J. Eq. 408) :J318 New York Grape Sugar Co. i). Ameri- can Grape Sugar Co. (35 Fed. Rep. 212) 915, 955, 1087, 1139, 1211, 1266 New York Paper-Bag Mach. Co. 0. Union Paper-Bag Mach. Co. (32 Fed. Rep. 783) 1131, 1235 New York Wire-Railing Co. ». Cake (18 Fed. Cas. No. 10,217) 46, 1356 Niagara, The (77 Fed. Rep. 329) . . 285 , The (84 Fed. Rep. 902).. 276, 287 Nichols, The (7 Wall. (U. S.) 656) . 13, 907, 966 Nichols «. Brunswick (3 Cliff. (U. S.) 81) 1184 Nicholson «. Conner (8 Daly (N. Y.) 212) 124, 171, 1206, 1225 V. Snyder (97 Md. 415) 1265 Nickey v. Steuder (164 Ind. 189) . . 54 Nicol V. Tackaberry (10 Grant Ch. (U. C.) 109) 796 NlcoU V. Mason (49 111. 358) . . .798, 825, 826, 920 Nielsen e. Cedar County ((Neb.) 98 N. W. Rep. 1090) 1215 Niemyer v. Washington Water Power Co. ((Wash.) 88 Pac. Rep. 103). 338, 400 Niendorff «. Manhattan R. Co. (4 N. Y. App. Div. 46) 1409 Nies V. Broadhead (75 Hun (N. Y.) 255) 1361 Nieto V. Clark (1 Cliff. (tJ. S.) 145) 1275 Nlles V. Rhodes (7 Mich. 374).. 597, 1310 Niller v. Johnson (27 Md. 6) 1178 Nisson V. Wesseis (5 Ben. (U. S.) 483) 1321 Nith, The (36 Fed. Rep. 86) 11, 1159 Noble V. New York Cent., etc., R. Co. (20 N. Y. App. Div. 40) 264 Ncl.in (J. Kroening ((Wis.) 109 N. W. Rep. 963) 1422 Noland v. M'Cracken (1 Dev. & B. L. (18 N. Car.) 594) 137 Nolder v. McKeesport, etc., R. Co. (201 Pa. St. 169) 1004 Nolton 1). Moses (3 Barb. (N. Y. 31) 1261 Non Pareille, The (33 Fed. Rep. 524) 496 Norfolk, etc., R. Co. v. Denny (106 Va. 383) 1345 V. Johnson (103 Va. 787) 264 ■V. Poole (100 Va. 148) 64, 1255 Normandie, The (43 Fed. Rep. 151) 383, 450 exxvi TABLE OF CASES. [References are to pages.] 98 721 900 1240 301 1282 723 Norris v. Sheppard (20 Pa. St. 475) 1296 North Alton v. Dorsett (59 111. App. 612) North American F. Ins. Co. v. Throop (22 Mich. 146) 606, 614, 653, North American Ins. Co. v. Whipple (2 Biss. (U. S.) 418) North Chicago St. E. Co. v. Fitzgib- bons (54 111. App. 385).. 815, V. Nelson (79 111. App. 229) . . . V. Wellner (105 111. App. 652). 1087, Northern Bank v. Butord (1 Duv. (Ky.) 335) 714, Northern Cent. R. Co. v. State (29 Md. 420) 533 V. State (100 Md. 404) 1344 Northern Indiana, The (3 Blatchf. (U. S.) 92) 355, 382, 450, 484 Northern Pac. R. Co. v. Austin (64 Fed. Rep. 211) 137 V. Craft (69 Fed. Rep. 124)... 556 V. Freeman (83 Fed. Rep. 82) . . 262, 1343 V. Freeman (174 U. S. 379).. 534, 1343 V. Haye^ (87 Fed. Rep. 129).. 117, 119, 172, 406, 1215 V. Holmes (3 Wash. Ter. 543) . 104 1). .Tones (144 Fed. Rep. 47) . . V. Keyes (91 Fed. Rep. 47) . . V. Krohne (86 Fed. Rep. 230) V. Spike (121 Fed. Rep. 44) . . 533, 540, 1360, 1362 Northern Warrier, The (1 Hask. (U. S.) 314) 382,998,1294 Northey v. Moore (5 Grant Ch. (U. C.) 609) 1031 North Peoria v. Rogers (98 III. App. 355) 320 Northrup v. Canadian Pac. R. Co. (32 N. Bruns. 365)... 426, 440, 1237, 1246 V. New York, etc., R. Co. (37 Hun (N. Y.) 205) 403 North Star, The (8 Blatchf. (U. S.) 209) 346, 1248 , The (22 Fed. Rep. 71) 890 , Oakley v. Asplnwall (3 N. Y. 547) . . , The (43 Fed. Rep. 807) . 14, 103, 270. 280, 290, 420, 422, 827, 1270 , The (62 Fed. Rep. 71) . . .420, 852, 866, 875 , The (108 Fed. Rep. 436) 1396 Northway v. Northway (116 Mich. .19) 1427 267 1418 251 Northwestern Benev. Soc. v. Dudley (27 Ind. App. 327) 813 Northwestern Mut. L. Ins. Co. v. Stevens (71 Fed. Rep. 258) 52 Northwood e. Keating (8 Grant Ch. (U. C.) 643) 929, 1222, 1285 Norton v. Jenson (49 Fed. Rep. 864) 163 ^. North Carolina E. Co. (122 N. Car. 910) 533-534 Norwalk, The (11 Fed. Rep. 922).. 381 Norwich, etc., Transp. Co. «. Wright (13 Wall. (U. S.) 104) 601 Norwood V. Richardson ((Del. Ch.) (57 Atl. Rep. 244) 1212 1). State (118 Ala. 134) 1252 Nostrand v. Knight (123 N. Y. 614) 554 Nottingham, The (143 Fed. Rep. 942) 766 Nova Scotia Bank v. Duncan (32 N, Bruns. 310) 580,798, 824 V. Fish (32 N. Bruns. 434)... 212, 1292 Novelty Tufting Mach. Co. v. Buser (158 Fed. Rep. 83) 1336, 1355 Nowack t!. Metropolitan St. R. Co. (166 N. Y. 433) 588, 589 Noyes, In re (121 Fed. Rep. 209).. 1314 Noyes v. Tootle (2 Indian Ter. 144) 1215 N. Strong, The ((1892) P. 105)... 423, 424, 451, 455, 467 Nuckols V. Jones (8 Gratt. (Va.) 267) 689 Nugent V. O'Connor (103 N. Y. Supp. 722) 1276 Nunn V. Brandon (24 Ont. 375) 1142 Nurnberger v. U. S. (156 Fed. Rep. 721) 1405, 1406 Nutter V. Boston, etc., R. Co. (60 N. H. 483) 402, 403 Nutting V. Kings County El. R. Co. (21 N. Y. App. Dlv. 72) 170, 572 Nymphiea, The (84 Fed. Rep. 711). 398, 998 O. Oakford v. Hackley (92 Fed. Rep. 38) 54S 1111 Oberholtzer v. Hazen (101 Iowa 340) 1290 O'Brien, Appellant (100 Me. 156).. 1130 O'Brien v. Chicago, etc., R. Co. (92 Wis. 340) 1268 V. Flynn (8 lia. Ann. ,107). 802, 1289 . .-. O'Brien ((N. ,T.) 30 M\. Rep. 875).. 799, 897, 916, 1031, 1168 TABLE OF CASES. CXXVll [References are to pages.] O'Callaghan v. O'Brien (116 Fed. Rep. 934) 1135, 1136, 1218 Ocean Bride, The (Hask. (U. S.) 331) 546 Oceanic, The (61 Fed. Rep. 338) .. . 381 Ocean Steamship Co. v. McAlpin (69 Ga. 438) 1289 Oceanus, The (12 Blatchf. (U. S.) 430) 482 Ochsenbein v. Shapley (85 N. Y. 214) 562 O'Conner ». Rempt (29 N. J. Bq. 156) 1212 O'Connor v. Missouri Pac. R. Co. (94 Mo. 150) 250 Odd Fellows' Beneficial Assoc. ». Carpenter (17 R. I. 720) 1072 Odin, The (1 C. Rob. 248) 138, 1122, 1211, 1410 O'Donnell v. American Sugar-Refin- ing Co. (41 N. Y. App. Div. 307) 1245 V. Confederation Life Ins. Co. (14 Nova Scotia 231) 963 V. New Yorlf, etc., R. Co. (8 Daly (N. Y.) 409) 443 V. Segar (25 Mich. 367) 1414 O'Donoghue «. Title Guarantee, etc., Co. (79 111. App. 263) 1243 Oehmler v. Pittsburg R. Co. (25 Pa. Super. Ct. 617) 427 O'Flaherty v. Nassau Electric R. Co. (34 N. Y. App. Div. 74) 123, 131, 1245 Ogden V. Haven (24 111. 57) 942 V. Thornton (30 N. J. Eq. 569) 1032 Oglesby v. Missouri Pac. R. Co. (150 Mo. 137) 122 O'Hagan ■„. Dillon (76 N. Y. 170) . . 852, 990 Ohio, etc., R. Co. v. Atteberry (43 111. App. 80) 133, 1246 17. Collarn (73 Ind. 261) 41 V. McDaneld (5 Ind. App. 108) . 329 V. Mueller (46 111. App. 109).. 1341 V. Reed (40 111. App. 47) 1341 O'Keefe v. Third Ave. R. Co. (25 Misc. (N. Y.) 41S) 1241 Oleese v. Mobile Fruit, etc., Co. (112 111. App. 281) 1116 Older, The (13 Fed. Rep. 272) Olds V. Brown (41 Fed. Rep. 698).. O'Leary v. Chicago, etc., R. Co. ((Iowa) 103 N. W. Rep. 362)... Oleson 1). Lake Shore, etc., R. Co. (143 Ind. 405) 3?7, 3?9 469 89 426 Olinde Rodrigues, The (174 U. S. 510) 907 . The (91 Fed. Eep. 274).. 516, 586, 1158 Olive V. Whitney Marble Co. (103 N. Y. 292) 64 Oliver «. Columbia, etc., R. Co. (65 S. Car. 1) 1180 V. Pate (43 Ind. 132) 170 li. State Bank (11 Humph. (Tenn.) 74) 1332 Olmstead v. The Sandusky (18 Fed. Cas. No. 10,504) 500 Olsen V. Ensign (7 Misc. (N. Y.) 682) 123, 171 ti. Montana Ore Purchasing Co. ((Mont.) 89 Pac. Rep. 731) 64, 183 V. Oregon Short Line, etc., R. Co. (9 Utah 129) 1345 Olson V. GJertsen (42 Minn. 407) . . 164 Omaha First Nat. Bank v. Lierman (5 Neb. 247) 648 Omaha St. R. Co. v. Craig (39 Neb. 601) 1183 V. Larson ((Neb.) 97 N. W. Rep. 824) 403 V. Mathlesen ((Neb.) 103 N. W. Rep. 666) 428 O'Mahoney v. Belmont (62 N. Y. 133) 547 Omslaer v. Pittsburg, etc.. Traction Co. (186 Pa. St. 519) 263 O'Mullin V. McDonald (12 Nova Sco- tia 202) 508 O'Neil V. State (48 Ga. 66) 1180 O'Neill V. Interurban St. R. Co. (86 N. Y. Supp. 208) 1241 V. New York, etc., R. Co. (115 N. Y. 579) 300 V. Owen (17 Ont. 525) 1143 V. Third Ave. R. Co. (78 Hun (N. Y.) 183) 123 Ontario, The (2 Lowell (U. S.) 40). 826, 827 Orbona, The (1 Spinks Ecc. & Adm. 161) 5 Oregon, The (27 Fed. Rep. 751) . . . 274, 280, 288, 290, 422, 441, 442 , The (55 Fed. Rep. 666) 455 (133 Fed. Rep. 609) 554 Oregon Steamship Co. v. Otis (100 N. Y. 446) 525, 529, 574 O'Reilly V. Brooklyn Heights R. Co. (82 N. Y, App. Div. 492) . , , ,297, 533 OXXVUl TABLE OF CASES. [References are to pages.] O'Eeily v. Fitzgerald (40 III. 310) . . 1289 Orient Ins. Co. v. Weaver (22 111. App. 122) 81 Oriflamme, The (3 Sawy. (U. S.) 397) 1244 Orizaba, The (57 Fed. Rep. 247) . . . 344, 422, 441, 448, 450 Orleans v. Gauthreaux (32 La. Ann. 1126) 565 Ormshy v. Webb (134 U. S. 47) 1273 Orr V. Badger (Brun. Col. Cas. (TJ. S.) 536) 89, 554, 828 V. Orr (21 Grant Ch. (U. C.) 397) 1015, 1420 Orser v. Orser (24 N. Y. 51) 1022 Ort V. Fowler (31 Kan. 486).. 158, 680 Ortolano v. Morgan's Louisiana, etc., R., etc., Co. (109 La. 902) 408 Orton V. Smith (L. R. 3 P. & D. 23) 681, 714 Osborne v. Carey (5 Manitoba 237) . 1397 V. Glazier (31 Fed. Rep. 402) . . 88, 797, 973, 1279 J). London, etc., E. Co. (21 Q. B. D. 220) 305 !). Seligman (39 Misc. (N. Y.) 811) 1163, 1166 Oscoda, The (70 Fed. Rep. 111)... 225, 1121 Osseo, The (16 Blatchf. (U. S.) 537) 767 Oswego, The (36 Fed. Rep. 720) . . 1428 Ottawa, The (33 Fed. Rep. o2) 461 , The (3 Wall. (U. S.) 269).. 350, 351, 1415 Otterbourg's Case (5 Ct. CI. 430) . . 575, 596 Ottoman, The (74 Fed. Rep. 316) . . 278, 762, 991 Outlaw V. Hurdle (1 Jones L. (46 N. Car.) 150) 645, 689 Oval Wood Dish Co. v. Sandy Creek Wood Mfg. Co. (60 Fed. Rep. 285) 88, 1265 Overman v. Hibbard (30 Iowa 115) . 1417 Overtoom v. Chicago, etc., R. Co. (80 111. App. 515) 436 V. Chicago, etc., R. Co. (181 111. 323) 436, 1215 Overweight Counterbalance Elevator Co. V. Improved Order of Red Men's I-Iall Assoc. (94 Fed. Rep. ir.r.) 154, 1381 Owen «. James (4 N. W. Ter. 174) . 188 V. Presidio Min. Co. (61 Fed. Rep. 6) 570 Owens V. State (67 Md. 307)... 19, 93, V. U. S. (130 Fed. Eep. 279).. Oxendine v. Louisiana R., etc., Co. (119 La. 191) 960 96 1254 Paauhau Sugar Plantation Co. v. Palapala (127 Fed. Rep. 920) . . . 357, 736, 1419 Pacific, The (Deady (U. S.) 17)... 188 , The (53 Fed. Rep. 501).. 424, 455, 462, 479 Pacific Biscuit Co. v. Dugger (42 Oregon 513) 1268 Pacific Cable R. Co. v. Butte City St. R. Co. (55 Fed. Eep. 760) 88 Pacific Gold Co. v. SklUicorn (8 N. Mex. 8) 1215 Pacific Steam Whaling Co. v. Grls- more (117 Fed. Eep. 68) 1197 Factolus, The (Swab. 173) 98 Padower v. Interurban St. E. Co. (119 N. Y. App. Div. 135) 1240 Page I/. Ferry (1 Fish. Pat Cas. 298) 1356 V. Homans (14 Me. 4T8)...616, 642 ■u. Krekey (137 N. T, 307) 122 Paige V. Ponton (26 L. C. Jur. 155) . 644, 657 V. Stephens (23 Mich. 357) 580 Painter v. People (147 111. 444). 990, 1166 Palinurus, The (13 P. D. 14) 319 Palmer v. Baird (29 N. Bruns. 42) . 85, 1183, 1366 V. Lansburgh (102 Fed. Eep. 376) 835, 1211, 1266, 1408 V. Merchants', etc., Transp. Co. (154 Fed. Rep. 683). .422, 452, 1149 V. New York Cent., etc., E. Co. (112 N. Y. 234) 339, 553 V. Palmer (26 Fla. 215) 1335 t'. Ward (91 N. Y. App. Div. 449) 799 Palmetto, The-d Biss. (U. S.) 140) 1108 Palys V. Erie E. Co. (30 N. J. Eq. 604) 331 Pancake v. Cauffman (114 Pa. St. 113) 80 Panton v. People (114 111. 505) 1215 V. Williams (2 Curt. Ecc. 356) . 187, 693 Paoll, The (92 Fed. Rep. 940).. 485, 490 TABLE OF CASES. CXXIX [References a,re to pages.] Paquete Habana, The (189 U. S. 466) 1141 Paradise v. Reg. (1 Can. Exeh. 191) . 1225, 1229 Parham v. American Buttonhole, etc., Mach. Co. (4 Fish. Pat. Cas. 468) 833, 974 Park V. Metropolitan St. R. Co. (84 N. Y. Supp. 249) 1424 Park City, The (144 Fed. Rep. 527) 422 Parke v. Foster (26 Ga. 465, 470) . 821, 1063 Parker v. Brown (85 Fed. Rep. 595) 1406, 1407 V. Chambers (24 Ga. 518) 798, 802, 841 e. Hulme (1 Fish. Pat. Cas. 44) 829, 840 V. Johnson (25 Ga. 576) 57 V. Kenny (17 Nova Scotia 457) 59, 1407 e. Parker (12 N. J. Bq. 105).. 799, 982, 1054 V. Pierce (16 Iowa 227).. 1008, 1037 V. Prescott (86 Me. 241) 1008 V. Stiles (5 McLean (D. S.) 44) 1381 V. The Ship Calliope (2 Pet. Adm. 272) 1158 Parkcrsburgh, The (5 Blatchf. (U. S.) 247) 350, 354 Parkhurst v. McGraw (24 Miss. 134) 1157, 1263 Parks V. Caudle (58 Tex. 216) 1038 Parlin, etc., Co. v. Moline Plow Co. (89 Fed. Rep. 329) 89, 127«, 13.56 Parmelee v. Simpson (5 Wall. (U. S.) 81) 579 Parramore v. Taylor (11 Gratt. (Va.) 220) 1229, 1294, 1315 Parrish v. State (139 Ala. 16) 158 Parshall v. Klinek (43 Barb. (N. Y.) 203) 878 Parsons, In re (35 Mont. 478) 1167 Parsons v. Huff (41 Me. 410) 1213 «. New York Cent, etc., R. Co. (113 N. Y. 355) 265 Parthian, The (48 Fed. Rep. 175).. 277 Parulo V. Philadelphia, etc., R. Co. (145 Fed. Rep. 664) 119, 137, 1180, 1301 Parvis t. Philadelphia, etc., R. Co. (8 Houst. (Del.) 436) 1246 Pasman v. Montague (30 N. J. Eq. 385) 824 Patch V. Pitman (19 Nova Scotia ?98) 1410 Patria, The (92 Fed. Rep. 411) . .276, 344, 995, 1211 Patrick v. White (6 B. Mon. (Ky.) 330) 1212 Pattat V. Pattat (93 N. Y. App. Div. 102) 77 Patterson v. Gaines (6 How. (U. S.) 550) 1233, 1323, 1332 V. Maryland Ins. Co. (3 Har. & J. (Md.) 71) 1094 Pauley v. Steam Gauge, etc., Co. (131 N. Y. 90) 62 Paulison ». Van Iderstine (29 N. J. Eq. 594) 825 Pavonia, The (5 Ben. (U. S.) 279). 350 Paxton V. Marshall (18 Fed. Rep. 361) 520 Payne «. Chicago, etc., R. Co. (39 Iowa 523) 205 V. Chicago, etc., R. Co. (136 Mo. 562) 205, 235, 258 P. Caland, The ((1891) P. D. 313). 422, 764 , The ((1892) P. 191) 422 Peak 1). People (76 111. 289) 1216 Pearson v. Davis (41 Neb. 608) .... 1334 V. Wightman (Mill (S. Car.) 344) 896 Peart v. Grand Trunk R. Co. (10 Ont. App. 191) 1345 Pease Furnace Co. v. Kesler (21 N. Y. App. Div. 631) 154 Peck V. Belden (6 Dem. (N. Y.) 299) 723 V. Burns (5 Ben. (U. S.) 537). 820, 826 V. Hiler (30 Barb. (N. Y.) 655) 1198 u. Sanderson (17 How. (U. S.) 178) 353, 354 V. Valentine (94 N. Y. 569) . . . 1414 Peck, etc., Co. v. Atwater Mfg. Co. (61 Conn. 31) 852 Peckforton Castle, The (3 P. D.ll) 455, 912 Pedego V. Com. ((Ky.) 70 S. W. Rep. 659) 361, 362 Pedrick v. Pedrick ((N. J.) 3 Atl. Rep. 406) 1062, 1266 Peebles v. Case (2 Bradf. (N. Y.) 226) 654, 716, 1277 Peer v. Peer (11 N. J. Eq. 432) 1032, 1037 Peetz V. St. Charles St. R. Co. (42 La. Ann. 541) 558 Peirce v. Ray (24 Ind. App. 302) . . 297 Pelitier v. Chicago, etc., R. Co. (88 Wis. 521) 65 cxxx TABLE OF CASES. [References are to pages.] 998 936 Peltasohn, In re (4 Dill. (U. S.) 107) 219 Pemberton v. Pemberton (13 Ves. Jr. 290) 1295 Pence v. Chicago, etc., R. Co. (79 Iowa 389) 403, 1344, 1347 Pennland, The (23 Fed. Rep. 551). 382, 909, Penn Mut. L. Ins. Co. v. Mechanics' Sav. Bank, etc., Co. (72 Fed. Rep. 413) 517, Pennock v. Dialogue (4 Wash. (D. S.) 538) 1303 Pennoyer v. Allen (56 Wis. 502) ... 368 Pennsylvania, The (19 Wall. (TJ. S.) 125) 276. 288 Pennsylvania Co. v. Davis (4 Ind. App. 51) 336 ■u. Horton (132 Ind. 189) 267 V. Reidy (99 111. App. 477) 426 Pennsylvania Coal Co. «. Conlan (101 III. 93) 425, 1215 Pennsylvania R. Co. v. Ackerman (74 Pa. St. 265) 255, 1345 . Richardson (67 N. J. Eg. 437) 1111 V. State (90 Md. 109) 588 Richmond, The (114 Fed. Rep. 208). 767, 1358 Richmond v. Smith (117 Wis. 290). 39 Eickards v. Ladd (6 Sawy. (U. S.) 40) Ricketts v. Turquand (1 H. L. Cas. 472) Riddle v. Clabby (59 N. J. Eg. 573) 796, 1008, 1014, 1026, 1032, 1036, 1320, 1421 V. Dixon (2 Pa. St. 370) 1310 Rider v. Miller (86 N. Y. 507) 560 Ridge 1). Pennsylvania R. Co. (58 N. .1. Eg. 172) 927, 993, 995, 997 Ridgway i^. Wharton (6 H. L. Cas. 238) 1121, 1240 Ridley v. Ridley (1 Coldw. (Tenn.) 323) 824, 825 Rieben v. Hicks (3 Bradf. (N. T.) 353) 796 Eiecke v. Westenhoffi (10 Mo. App. 358) 883 Rlelle V. Reid (28 Ont. 497) 1314 Riley V. Daniels (20 Fed. Cas. No. 11,837) 828, 832, ». Jackson (56 Fed. Rep. 582) . 89, 92, V. New York, etc., R. Co. (90 Md. 53) 64, V. Salt Lake Rapid Transit Co. (10 Utah 428) 427 V. Shreveport Traction Co. (114 La. 135) 421, 428, lii45 Ringo V. Richardson (53 Mo. 385). . 1276, 1292 Rio Grande, The (38 Fed. Rep. 849) 998 Riordan v. New York Cent., etc., R. Co. (41 Misc. (N. Y.) 399) 373 904 153 265 Ripley v. Second Ave. R. Co. (8 Misc. (N. Y.) 449) 556 Eipstein v. British Canadian Loan, etc., Co. (7 Manitoba 119) 220 Rising Sun, The (2 C. Rob. 104) .59, 185 Kiska V. Union Depot R. Co. (180 Mo. 168) 533 Risley V. Indianapolis, etc., R. Co. (7 Biss. (U. S.) 408) 622, 688, 713, 1006, 1180 Risse V. Gasch (43 Neb. 287) 704 Riswick V. Goodhue (50 Md. 57)... 1334 Ritchie v. Krueger (102 111. App. 654) 530 V. McMullen (79 Fed. Rep. 522) 568, 1027 Ritter v. Springfield First Nat. Bank (30 Mo. App. 652) 978 R. J. Reynolds Tobacco Co. v. Allen Bros. Tobacco Co. (151 Fed. Rep. 819) 309 R. L. Alston, The (8 P. D. 5).... 447 Roanoke, The (45 Fed. Rep. 905) . . 485, 486 Roanoke, etc., Steamship Co. . Nixon (58 Hun (N. Y.) 121) 134 Rosecrance i>. Rosecrance (127 Mich. 322) 1427 Rose Culkin, The (52 Fed. Rep. 328) 510 TABLE OF CASES. CXXXIX [References are to pages.] 1399 85 12 Rosedale, The (88 Fed. Rep. 324).. 490 -^— , The (141 Fed. Rep. 1001) 769 Rosenbaum v. State (33 Ala. 354) . . 1220, 1392; 1398, Rosenberg v. Jett (72 Fed. Rep. 90) . Roseuberger v. Thomas (4 Grant Ch. (U. C.) 473) Rosenerans i). Schnacke (13 111. App. 216) 1042 Rosenmueller v. Lampe (89 111. 212) 1322 Rosevere v. Osceola Mills (169 Pa. St. 555) -.. 1332 Ross V. Central R. of N. J. (146 Fed. Rep. 608) 990 V. Cornell Steamboat Co. (143 Fed. Rep. 166) 250 V. Demoss (45 111. 447)... 1237, 1242, 1243, 1258, 1420 V. Montana Union R. Co. (45 Fed. Rep. 424) 90 V. New Jersey Cent. R. Co. (146 Fed. Rep. 608) 897 V. State (74 Ala. 532) 192 V. Williamson (14 Ont. 184)... 71, 211, 523, 970 Rosseau v. Hallenbeek (97 N. Y. App. Div. 394) 170 V. Rouss (180 N. Y. 116) 77 Roszczyniala v. State (125 Wis. 414) 96 Roth V. S. B. Barrett Mfg. Co. (96 Wis. 615) 211 Rothschild v. Central R. Co. (163 Pa. St. 49) 392, 576 Rothstein «. Pennsylvania R. Co. (171 Pa. St. 620) 438 Rouse V. Ledbetter (56 Kan. 348).. 733 Rover, The (33 Fed. Rep. 515) 1396 Rowe V. New York, etc.. Telephone Co. (66 N. J. L. 19)... 298, 1). Rowe (24 Misc. (N. Y.) 113) Rowell V. Fuller (59 Vt. 688).. 678, Rowena, The (Young (Nova Scotia) 255) Rowland v. Howard (75 Hun (N. Y.) 1) 74 Rowley v. Flannelly (30 N. J. Eq. 612) 1307 Rowt u. Kile (1 Leigh (Va.) 216).. 646, 647, 671, 735 Royal, The (54 Fed. Rep. 204) 374, 391, 1428 Royal V. Chandler (81 Me. 118) . . . 1274 V. Chandler (83 Me. 150) 978 Royal Arch, The (22 Fed. Rep. 457) 763 Royal Ins. Co. v. Jones (20 Nova Scotia 123) 79 306 161 680 85 Ruch V. Rock Island (97 U. S. 693) . 802, 1023 Ruckelshau v. Borcherliug (54 N. J. Eq. 344) 1033, 1034, 1266 Ruete V. Blwell (15 App. Cas. (D. C.) 21) 554,829, 830 Rulote V. People (18 N. Y. 179) 601 Rumford Chemical Works v. New York Baking Powder Co. (134 Fed. Rep. 385) 87, 797, 1375 Rumsey v. Boutwell (61 Hun (N. Y.) 165) 123 Runk V. Ten Eyck (24 N. J. L. 756) 1298 Runner's Appeal (121 Pa. St. 649) . . 1311 Ruppe V. Steinbach (48 Mich. 465) . 546, 547 Ruppert V. Brooklyn Heights E. Co. (154 N. Y. 90) 600, 601 V. Hurley ( (N. J.) 47 Atl. Rep. 280) 219 Rush V. Com. ((Ky.) 47 S. W. Rep. 585) 361 Rusk V. Steamboat Freestone (2 Bond (U. S.) 234) 971, 1095, 1106 Rusling V. Rusling (35 N. J. Eq. 120) 1421 V. Rusling (36 N. J. Eq. 603) . . 1295 Russell V. Baptist Theological Union (73 111. 337) 798, 802, 836, 891, 972, 974, 975, 1237, 1276 V. Coffin (8 Pick. (Mass.) 143). 896 V. Fagan (7 Houst. (Del.) 389) 1237 ■V. Jones (135 Fed. Rep. 929).. 1133, 1182 V. Maine Cent. R. Co. (100 Me. 406) 62, 596 V. McDowell (83 Cal. 70) 69 V. Miller (26 Mich. 1) 920, 1007, 1024, 10.32, 1276 V. Mitchell (223 111. 438).. 519, 884 V. Packard (9 Wend. (N. Y.) 431) 1100 V. Russell (60 N. J. Eq. 282).. 1314 Russell, etc., Mfg. Co. v. Mallory (10 Blatchf. (U. S.) 140) 102, 1407 Rutherford v. Maule (4 Hag. Tilcc. 213)... 524, 643, 825, 912, 965, 968, 1298 V. Morris (77 111. 397) 1386 Ryan v. Foster f(Iowa) 109 N. W. Rep. 1108) 306 V. La Crosse City R. Co. (108 Wis. 122) 1342 V. Manhattan R. Co. (121 N. Y. 126) 392 Ryder v. Bmrich (104 111. 470). 856, 1313 cxl tABLE Of CASES. Saale, The (59 Fed. Rep. 716).. 86, 391, 450, 485, 1258 Sackett, etc., Lithographing Co. v. Comstoek (4 N. Y. App. Div. 615) 1334 Safe Deposit, etc., Co. v. Turner (98 Md. 22) 547 Sage -u. McGulre (4 W. & S. (Pa.) 228) 1293 V. Winona, etc., E. Co. (58 Fed. Rep. 297) 17 Sager v. Tupper (42 Mich. 605) 1426 Saginaw, The (84 Fed. Rep. 705).. 287 Sagua, The, v. The Grace (42 Fed. Rep. 461) 505 Salem Bank v. Gloucester Bank (17 Mass. 1) 723 Salisbury v. Seventy Thousand Feet Lumber (68 Fed. Rep. 916) 1317 Salter v. Utica, etc., R. Co. (59 N. Y. 631) 268, 402, 432, 1344 Sam Rotan, The (20 Fed. Rep. 333) . 495 Sam Sloan, The (65 Fed. Rep. 125) 495 Samuel H. Crawford, The (6 Fed. Rep. 906) 907 San Antonio, etc., R. Co. v. Mertink ((Tex. Civ. App.) 102 S. W. Rep 153) Sanborn o. Babcock (33 Wis. 400) . . V. Detroit, etc., R. Co. (99 Mich. 1) 239, 1349 V. Sanborn (65 N. H. 179) 1151 Sandage v. State (61 Neb. 240) 1173 Sanders v. Parsons (21 Fed. Cas. No. 12,296) 1264 Sanderson u. Columbus (3 Am. L. J. (N. S.) 268) 997 V. McKercher (13 Ont. App. 561) 798, 1008, 1009 V. The Columbus (21 Fed. Cas. No. 12,299) 381, 933 Sandford v. Hestonville, etc., R. Co. (136 Pa. St. 84) 871, 1060 V. Weeden (2 Heisk. (Tenn.) 71) Sandringham, The (10 Fed. Rep. 556) 458, Sandwell ». Sandwell (Comb. 445) . . Sanford v. Bowles (9 Nova Scotia 305) Sanger v. McDonald (82 Ark. 432) . 570, 1243 V. Vail (13 How. Pr. (N. Y.) 500) 1307 [References are to pages.] Sankey v. Cook (82 Iowa 125) . . . 679, 724 Santa Claus, The (01c. Adm. (U. S.) 428) 383 , The (1 Blatchf. (tT. S.) 370). 341 Santiago de Cuba, The (4 Ben. (U. S.) 264) 348, 356 Santissima Trinidad, The (7 Wheat. (U. S.) 283) 1203, 1210, 1220 Santurce, The (136 Fed. Eep. 682). 454, 459 Saph V. Atkinson (1 Add. Ecc. 162) . 182, 614, 620, 641, 671, 712, 955, 970, 1115, 1151, 1254 Sappho, The (94 Fed. Rep. 545) 1426 Sarah B. Harris, The (Hask. (U. S.) 52) 569, 1173 Saranac, etc., R. Co. u. Arnold (167 N. Y. 368) 122, 124 Saratoga, The (37 Fed. Rep. 120) . . 354, 495 Sarbach v. Jones (20 Kan. 497) . . . 1092 Sardinian, The (14 Nova Scotia 499) 798, 907, 967 Sardis, etc., R. Co. v. McCoy (85 Miss. 391) 1215 Sargent v. Carter (1 Fish. Pat. Cas. 277) 1095, 1103, 1381 V. Owen (134 Iowa 365) 1422 Sarlouis v. Firemen's Ins. Co. (45 Md. 241) 1136 Sartor v. Bolinger (59 Tex. 411).. 649, 1401 Sarvent v. Hesdra (5 Redf. (N. Y.) 47) . .548, 022, 641, 642, 681, 714, 716, 796, 974, 1132, 1178, 1274, 1290, 1294, 1377 Sassenberg «. Huseman (182 111. 341) 689 Sater v. London, etc., R. Co. (L. R. 5 Q. B. 314) 588 Satter v. Ely (56 N. J. Bq. 357) .. . 550 Sauer v. Union Oil Co. (43 La. Ann. 699) 558 Saugerties Bank v. Mack (35 N. Y. App. Div. 398) 1409 Saunders v. Buckup (Blatchf. & H. Adm. 264).. 523, 594, 595, 1355 1). Davles (1 Add. Ecc. 291)... 186 V. Saunders (1 Rob. Ecc. 549). 1062, 1084, 1250, 1253 V. The Hanover (21 Fed. Cas. No. 12,374) 385, 1220, 1228, 1242 e. Toronto (26 Ont. App. 265) . 62 Saune ti. Tourne (9 La. 428) 422 258 107 1234 1211 961 130 TABLE OF CASES. cxli [References are to pages.] 64 1265 1095 170 973 980 580 Sauntry v. U. S. (117 Fed. Rep. 132) 542, 578 Savage v. Com. (84 Va. 619) 362 Savannah, etc., E. Co. v. Flannagan (82 Ga. 579) 400, 745, 1180 V. Gray (77 Ga. 440) 556 V. Holland (82 Ga. 257) 589 Saveland o. Green (40 Wis. 431)... 1312 Savings, etc., Soc. v. Davidson (97 Fed. Rep. 696) 1237 Savitz I). Lehigh, etc., R. Co. (199 Pa. St. 218) Sawyer v. Sawyer (Walk. (Mich.) 48) 1095, 1116, Sawyers v. Sawyers (106 Tenn. 597) Sawyer Spindle Co. v. W. G. & A. E. Morrison Co. (57 Fed. Eep. 653) . Sayles v. Chicago, etc., R. Co. (1 BisB. (U. S.) 468) 835, V. Hapgood (2 Biss. (TJ. S.) 189) 89, 979, Sayre v. Coyne ((N. J.) 33 Atl. Rep. 300) 219, Scammon v. Hobson (1 Hask. (TJ. S.) 406) 1211 Scanlan v. Tenney (72 Fed. Eep. 225) 312 Schaub V. St. Louis Transit Co. (112 Mo. App. 529) 297 Schechter v. Watson (35 Misc. (N. Y.) 43) 128 Scheir ». Quirin (77 N. Y. App. Div. 624) 1297 Schenck «. Wilson (2 Hilt. (N. Y.) 92) Schick, Matter of (2 Ben. (tT. S.) 5) Schick 0. Brooklyn City R. Co. (10 N. Y. Supp. 528) Schiehl, In re (179 Pa. St. 308) Schierbaum v. Schemme (157 Mo. 1) 1292, 1295 Schlerstein v. Schlersteln (68 Mo. App. 205) 1427 Schloemer v. St. Louis Transit Co. (204 Mo. 99, 112) 735, 760 Schmidt V. Balzley (19 Pa. Co. Ct. 83) 1273, 1294 V. Great Northern R. Co. (83 Minn. 105) 255, 259 V. North Jersey St. R. Co. (66 N. J. L. 424) 398 V. St. Louis E. Co. (149 Mo. 269) 1055 V. The Reading (43 Fed. Eep. 398) 382 580 568 99 187 Schmitt V. Milwaukee St. E. Co. (89 Wis. 195) 106, 966 V. Nelson Valve Co. (121 Fed. Eep. 93) 1183, 1310 V. Trowbridge (3 Cine. L. Bui. 1029) 521 Schmuck v. Hill ((Neb.) 96 N. W. Eep. 158) 70, 84 Schneider v. Market St. E. Co. (134 Cal. 482) 426 Schnier v. People (23 III. 17) 1413 Schock V. Olsen, etc., Mfg. Co. (147 Fed. Rep. 229) 559 Scholl V. Broadway E. Co. (28 Abb. N. Cas. (N. Y.) 205) 1241 Schooner Alaska, The (7 Ben. (U. S.) 183) 393 Schooner Bertie Calkins, The (2 Fed. Eep. 793) 998 Schooner Boston, The (1 Sumn. (N. Y.) 325) 1143 Schooner Catharine, The, v. Dickin- son (17 How. (U. S.) 170) 501 Schooner Ellen Tobln, The (8 Ben. (U. S.) 446) 508 Schooner Helen J. Holway, The (6 Ben. (U. S.) 536) 479 Schooner Jacob E. Eldgway, The (8 Ben. (U. S.) 179) 546 Schooner Job M. Leonard v. Whit- well (10 Ben. (U. S.) 638) 423, 473 Schooner Eeeside, The (2 Sumn. (D. S.) 567) 1244, 1376 Schooner Eellance, The, v. Con- well (31 Can. Sup. Ct. 653) 558, 1242 Schooner Sally, The (1 Gall. (U. S.) 401) 560 Schooner Sam Weller, The (5 Ben. (U. S.) 293) 763 Schooner Summit, The (2 Curt. (D. S.) 150) 1248 Schooner Sylvester Hale, The (6 Ben. (U. S.) 523 485 Schooner Thomas and Henry, The, v. V. S. (1 Brock. (U. S.) 367) 546, 1095, 1108, 1197 Schoonmaker v. Plummer (139 HI. 612) 1030 Schou V. Blum (104 N. Y. Supp. 887) 75 Schreibei' v. Schreiber (3 Misc. (N. Y.) 411) 1141, 1170 Schreiber's Estate (18 Phila. (Pa.) 69) 1280 cxlii TABLE OF CASES. Schrems v. Pere Marquette E. Co. ((Mich.) 108 N. W. Rep. 698).. 262, 338 Schreyer v. Turner Flouring Mills Co. (29 Oregon 1) 584 Schroeder v. Chicago, etc., R. Co. (108 Mo. 322) l!il •K. People (196 111. 211) 1379 V. Walsh (120 111. 403) 81 Schron v. Staten Island Electric R. Co. (16 N. Y. App. Div. Ill) 1344 Schuchhardt v. Schuchhardt (62 N. J. Bq. 710) 1315 Schultz V. Pacific Ins. Co. (14 Fla. 73) 836, 1266, 1382 V. Territory (5 Ariz. 239) 1215 Schulze V. Schulze (83 N. Y. App. Div. 375) 1169 Schum V. Pennsylvania R. Co. (107 Pa. St. 8) 534 Schuman v. Schuman (93 Mo. App. 99) 1427 Schutt V. Shreveport Belt R. Co. (109 La. 500) 442, 818 Schwachtgen v. Schwachtgen (65 111. App. 127) 1289, 1316 Schwantes v. State (127 Wis. 160) . 602, Schwartz v. Germania L. Ins. Co. (21 Minn. 215) 19, 169, Schwarz o. Delaware, etc., R. Co. (218 Pa. St. 187) 1345 Schwarzwaelder v. Detroit (77 Fed. Rep. 886) 107 Schweinfurth v. Cleveland, etc., R. Co. (60 Ohio St. 215) 1353 Schwenck v. Strang (59 Fed. Rep. 209) 1099 Schwier v. New York Cent., etc., R. Co. (90 N. Y. 558) 556 Scioto, The (2 Ware (U. P.) 360).. 355 Sciurba v. Metropolitan St. R. Co. (87 N. Y. App. Div. 614) 425 Scoland v. Scoland (4 Wash. 118).. 1427 Scotia, The (7 Blatchf. (U. S.) 308) 11, 14, 1207, 1248 Scott, In re (111 Fed. Rep. 144) ... 659 Scott Tj. Brunton (9 Nova Scotia 405) 222 V. Crerar (11 Ont. .^41) 61, 605, 644, 657, 898, l.'!7-l 1/. Crerar (14 Ont. App. 152).. 599, 644 e. Dunbar (1 Molloy 457).... 1388 V. New Brunswick Bank (31 N. Pruns. 21).. 630, 642, 681, 1117 [References are to pages.] Scott V. Pennsylvania R. Co. (130 N. Y. 679) V. Pennsylvania R. Co. (3 Silv. App. (N. Y.) 624) Scouler «. Plowright (10 Moo. P. C. 440) Scow Sloop Globe, The (11 N. Y. Leg. Obs. 327) Scully V. New York, etc., R. Co. (80 Hun (N. Y.) 197) Seaboard Air Line R. Co. o. Shanklin (148 Fed. Rep. 342) Sea Breeze, The (2 Hask. (U. S.) 510) 1270, Seacaucus, The (34 Fed. Rep. 68).. Seagrist, Matter of (11 Misc. (N. Y.) 188) , Matter of (1 N. Y. App. Div. 615) Sea Gull, The (16 Pittsb. Leg. J. (Pa.) 194) , The (23 Wall. (U. S.) 165).. 487, 495, Sea King, The (114 Fed. Rep. 535). 495, Sealy v. State (1 Ga. 213) Seaman v. Steamboat Crescent City (1 Bond (U. S.) 105)... 14, 1183, 1189, Searles v. Manhattan R. Co. (101 N. Y. 661) Seefeld ». Chicago, etc., E. Co. (70 Wis. 216) Seeley u. New York Cent., etc., E. Co. (8 N. T. App. Div. 402) V. Seeley (64 N. J. Eq. 1) Segaloff V. Interurban St. R. Co. (102 N. Y. Supp. 509) Segond's Succession (7 Rob. (La.) Ill) 1150, Seguranca, The (68 Fed. Rep. 1014) Soibert v. Brie R. Co. (49 Barb. (N. Y.) 583) Ill, 1347, V. McManus (104 La. 404) Seibert Cylinder Oil-Cup Co. ii. Michi- gan Lubricator Co. (34 Fed. Rep. 33) 88, V. Nightingale (32 Fed. Rep. 171) 90, Seibert's Estate (17 W. N. C. (Pa.) 271) 580, Seidman v. Long Island R. Co. (104 N. Y. .\pp. Div. 4) Selferd v. Meyer (93 N. Y. App. Div. 615) 59, eo, 799, 825, 1183, 992 580 268 1342 560 480 402 889 1271 495 1190 970 1185 496 507 303 1190 64 258 315 1407 1181 1187 1414 1354 1356 1279 828 902 566 1229 TABLE OF CASES. cxliii [References sure to pages.] 329 594 Seilheimer v. Seilheimer (40 N. J. Bq. 412) 212, 12T6 Selensky v. Chicago Great Western R. Co. (120 Iowa 113) 1346 Self V. State ((Miss.) 43 So. Rep. 945) 1354 1). State (6 Baxt. (Tenn.) 244) 1326 Seligman v. Ten Eyck (74 Mich. 525) 71 V. Victor Talking Mach. Co. ((N. J.) 63 Atl. Rep. 1098) 1230 Seller v. Jenkins (97 lud. 430) 1217 Senator Sullivan, The (IIT Fed. Rep. 176) 199 Senn v. Gruendling (218 111. 458).. 1420 Serano v. N. Y. Cent., etc., R. Co. ((N. Y. Ct. App.) 80 N. E. Rep. 1025) 300, Serfass's Dismissal (116 Pa. St. 455) Sergent v. Liverpool, etc., Ins. Co. (66 N. Y. App. Div. 46) .128, 143, 1008 Servla, The (30 Fed. Rep. 502) 422 Sessions v. Gould (49 Fed. Rep. 855) 1102 V. Gould (60 Fed. Rep. 753). 87, 91 Setterstrom v. Brainerd, etc., R. Co. (89 Minn. 262) 374, 430 Severn ». Severn (14 Grant Ch. (U. C.) 150) 1098, 1370 Seymour v. Bradfield (35 Barb. (N. Y.) 49) 778 V. Street (5 Neb. 85) 1419 Shaber v. St. Paul, etc., R. Co. (28 Minn. 103) 264, 314, 321 Shacklett v. Roller (97 Va. 639).. 929, 1265 Shaffer o. U. S. (24 App. Cas. (D. C.) 417) 671 Shannon, The (1 W. Rob. 468) 382 Shannon ». Swanson (96 111. App. 275) 1262 V. Swanson (104 111. App. 465) 1062 V. Swanson (109 111. App. 274) 1327 Sharb v. Kinzie (100 Ind. 429) 657 Sharland v. Washington L. Ins. Co. (101 Fed. Rep. 206) 542 Sharlock v. The Barque Globe (Crabbe (U. S.) 278) 778 Sharon v. Hill (26 Fed. Rep. 337). 551, 581, 613, 635, 641, 660, 683, 689, 693, 700, 705, 717, 1131, 1165, 1211, 1217, 1275, 1284 Sharpe v. Crispin (L. R. 1 P. & D. 615) 59 V. McPike (62 Mo. 300) 1421 Shatto «. Brie R. Co. (121 Fed. Rep. 678) ,..258, 268 Shattuck V. Hammond (46 Vt. 466) 1165 Shatzman v. New York City R. Co. (55 Misc. (N. Y.) 300) 1240 Shaw, In re (112 Fed. Rep. 947) . . . 222 Shaw V. Camp (163 111. 144) 1178 V. Georgia R. Co. ((Ga.) 55 S. E. Rep. 960) 426 V. Scottish Commercial Ins. Co. (2 Hask. (U. S.) 246) 1107 Shea V. Lexington, etc., St. R. Co. (188 Mass. 425) 272 Shearman ». Hart (14 Abb. Pr. (N. Y.) 358) 1109 Shedden v. Patrick (2 Sw. &Tr. 198) 56 Sheehan, In re ((Pa.) 20 Atl. Rep. 1003) 840, 841, 1048, 1371 Sheehan v. St. Paul, etc., R. Co. (76 Fed. Rep. 201) 386, 410, 439 Sheehan's Estate (139 Pa. St. 168). 840, 1083, 1422 Shekey v. Eldredge (71 Wis. 538) . . 1309, 1422 Shelburne Falls Nat. Bank v. Towns- ley (102 Mass. 177) 526 Sheldon v. Sheldon (133 N. Y. 1).. 1292 Shell V. State (88 Ala. 14) 1324, 1325 Shellabarger v. Nafus (15 Kan. 547) 1218 Shelly V. Brunswick Traction Co. (65 N. J. L. 639) 366, 421, 427 Shelp V. U. S. (81 Fed. Rep. 694) . . 1160 Shenuit V. Brueggestradt (8 Mo. App. 46) 1215 Shepard v. Lewiston, etc., St. R. Co. (101 Me. 591) 183 V. Parker (36 N. Y. 517).. 1154, 1165 Shepherd i;. Shepherd (13 N. Bruns. 382) 577 Sherburne v. Brown (43 N. H. 80) . 980 Sheridan B. Medara (10 N. J. Bq. 469) 1253 Sherlock v. German-American Ins. Co. (21 N. Y. App. Div. 18) 903 Sherrin v. Fllnn (155 Ind. 422) 1421 Sherwin v. Rutland R. Co. (74 Vt 1) 260, 262 Sherwood v. Judd (8 Bradf. (N. Y.) 267) 1291 V. Mcintosh (1 Ware (U. S.) 100) 1211, 1284 V. Sherwood (21 Fed. Cas. No. 12,780) 978 Shimp V. Cedar Rapids Ins. Co. (26 III. App. 254) 1313 Shinkle v. Crock (17 Pa. St. 159) . . 609, 610, 647 Shinn i). Tucker (37 Ark. 580) 8 cxliv TABLE OF CASES. 766 14 965 62 222 Ship British America, The (24 Fed. Cas. No. 14,347) 997 Ship Civilta, The (6 Ben. (U. S.) 309) 483, 508, Ship Compta, The (4 Sawy. (U. S.) 375) Ship Fortitude, The (3 Sumn. (TJ. S.) 228) 810, Ship Henry Bwbanlj, The (1 Sumn. (U. S.) 400) Ship Invincible, The (3 Sawy. (U. S.) 176) 188, Ship Shakespeare, The (4 Ben. (U. S.) 128) 485, 1407 Shipley v. Fink (102 Md. 219) 71 V. Fox (69 Md. 572) 560 Shipman v. Cook (16 N. J. Eq. 251). 143, 525, 547, 1032, 1276 Shirley v. Sanderson (8 Fed. Rep. 905) 554, 828 V. The Richmond (2 Woods (D. S.) 58) 768 Shltler «. Bremer (23 Pa. St. 413) . 694 Shoemaker v. Texas, etc., R. Co. (29 Tex. Civ. App. 578) 260 Shoninger v. Day (53 Mo. App. 147) 1264, 1274 Shook V. Lyon (16 Daly (N. Y.) 420) 1421 V. Shook (114 Iowa 592) 1427 Shorb V. Kinzie (100 Ind. 429) 678 Shorter 1>. Sheppard (33 Ala. 648) . . 796, 825, 1008, 1027, 1037, 1038, 1044 Shotwell V. Dixon (163 N. Y. 43) . . 63, 82, V. Shotwell (24 N. J. Bq. 378) . Shouse, Ex p. (Crabbe (TJ. S.) 482) 43, 120, Shove V. Rowe (42 111. App. 150) . . V. Wiley (18 rick. (Mass.) 5.18) Shroser v. Isaacs (28 N. J. Bq. 320) 1198 Shufeldt V. Shufeldt (86 Md. 519) . . 984, 1189 Shultz V. Third Ave. R. Co. (15 Daly (N. Y.) 05).... 1107, 1267, 1294 V. Wall (134 Pa. St. 262).. 137, 812 Sibley v. St. Paul F. & M. Ins. Co. (9 Biss. (U. S.) 31) 8, 103 Sickles D. Gloucester Co. (3 Wall. Jr. (C. C.) 186).. 47, 1006, 1115, 1117 V. Gloucester Mfg. Co. (1 Fish. Pat. Cas. 222) 954 V. Gloucester Mfg. Co. (4 Blatchf. (U. S.) 220) 1117, 1266, 1381 [References are to pages.] Sidway ». Sidway (4 Sllv. Sup. (N. Y.) 124) 1265 Siebert's Estate (17 W. N. C. (Pa.) 271) 1165 Siefke v. Siefke (6 N. Y. App. Div. 472) 123, 178 Siegel V. Milwaukee, etc., R. Co. (79 Wis. 404) 258, 267 Siegert v. Eiseman (157 Fed. Rep. 314) 1167 Slgur V. Burguieres (111 La. 1077) . 856, 938 Silberman v. Shulansky (16 Pa. Co. Ct. 131) 44 Sill V. Reese (47 Cal. 294) 671 SUva V. Low (1 Johns. Cas. (N. Y.) 184) 1270, 1273 Silver Bell, The (Young (Nova Sco- tia) 43) 1289 Silver Moon, The (Hask. (U. S.) 262) 564 Silver Spray's Boilers, The (1 Brown Adm. 349) 1320 Simeone v. Lindsay ((Del.) 65 Atl. Rep. 778) 1310 SImmonds v. Morrison (44 Fed. Rep. 757) 89 Simmons u. Standard OH Co. (62 Fed. Rep. 928) 88, 213, 564, 1275 Simmons' License (15 Pa. Co. Ct. 159) 1332 Simon I. Simon (163 Pa. St. 292).. 964 Simons v. Simons (13 Tex. 468) .... 1265 SImonseu v. Brooklyn Heights R. Co. (53 N. Y. App. Dlv. 478) 1380 Simpson, In re (119 Fed. Rep. 620) 96 Simpson v. WIggin (3 Woodb. & M. (LF. S.) 413) 1256 Sinclair v. Backus (4 Fed. Rep. 539) 87, 832, 954, 975, 1151 V. Sinclair (57 N. J. Eq. 222) . 1212 Sinclair and Town of Owen Sound, Rr (12 Ont. L. Rep. 488) 306 Singapore, The ». The Ilebe (4 Moo. P. C. C. N. S. 271) 462, 798, 963 Singer Mfg. Co. v. Cramer (109 Fed. Rep. 6."i2) 121a V. Jenkins ((Tenn. Ch.) 59 S. W. Rep. 660) 1418 V. Schenck (68 Fed. Rep. 191). 88, 802, 829, 8.f0, 1249, 1408 Sinnott t;. The Steamboat Dresden ' (Newb. Adm. (U. S.) 474) 382 Sioux City, etc., R. Co. v. Stout (17 Wall. (U. S.) 657) H 550 974 1180 1215 883 TABLE OF CASES. cxlv [References are to SIpp Electric, etc., Co. v. Atwoofl- Morrison Co. (142 Fed. Rep. 149) 91, . 832 Slpple 11. State (99 N. Y. 284). 124, 132 Slrius, The (57 Fed. Rep. 851) 1408 Sir Robert Fernie, The (96 Fed. Rep. 348) 455 Sir Robert Eee, The (96 Fed. Rep. 348) 454 Sisters of Loretto v. Catholic Bishop (86 111. 171) 547 Sitka, The (132 Fed. Rep. 861) 388, 407, 505, 784 Skeggs V. Horton (82 Ala. 352) 1039 SkiUern v. Baker (82 Ark. 86) 1334 Skillman v. Lanehart ((N. J.) 67 Atl. Rep. 182) 650, 714 V. Wiegand (54 N. J. Eq. 198). 1276 Skipper ». State (59 Ga. 63) 1215 Slater v. Merritt (75 N. Y. 268).. 63, 128 V. People (76 111. 217) 1302 Slattery v. Schwannecke (118 N. Y. 543) 944 Slave Duncan, The (2 Hag. Adm. 427) 1204 Slavers, The (2 Wall. (U. S.) 383) . 600 Sleeper e. Van Mlddleworth (4 Den. (N. Y.) 431) 1154 Slesslnger v. Buckingham (17 Fed. Rep. 454) 1112 Slim V. Croucher (1 DeG. & J. 518) . 943 Sllngerland «. Gillespie (67 N. J. L. 385) 990 S;oan V. Maxwell (3 N. J. Eq. 563) . 1280 V. New York Cent. R. Co. (45 N. Y. 125) 1274 Sloat «. Spring (22 Fed. Cas. No. 12,948o) 229, 981, 1279 Sloop Argus, The (01c. Adm. (U. S.) 304) 382, Sloop Julia, The (1 Gall. (U. S.) 233) Sluder v. St. Louis Transit Co. (189 Mo. 107) 403, 420, Small V. Brooklyn City, etc., R. Co. (10 Misc. (N. Y.) 266) . .98, 1255 V. Pittsburg R. Co. (216 Pa. St. 584) 1). Prentice (102 Wis. 256) Smedls v. Brooklyn, etc., R. Co. (88 N. Y. 14) 265, Smith, Matter of (18 Misc. (N. Y.) 139) 165, Smith V. Allen (2 Fish. Pat. Cas. 572) 90 488 567 442 540 525 532 1293 pages.] Smith V. Bedouin Steam Nav. Co. ((1896) A. C. 70) 778 ■V. Boston, etc., R. Co. (70 N. H. 53) 42, 1360 V. Burnham (3 Sumn. (U. S.) 435) 224, 1289 V. Carter (3 Rand. (Va.) 169). 1038 V. Clark (22 Fed. Cas. No. 13,027) 1382 V. Davis (34 Fed. Rep. 783) . . 59, 88, 190, 554, 559, 793, 892, 1152, 1279, 1285 V. Day (2 Penn. (Del.) 245).. 1375 V. Duncan (181 Mass. 435).... 569 ■u. Elliott (9 Blatchf. (U. S.) 400) 120, 153 V. Espy (9 N. J. Eq. 160) . .547. 1062 V. Fay (6 Fish. Pat. Cas. 446) . 88, 973, 1279 V. Firth (53 N. Y. App. Div. 36S,) 1261 ». Forbes (14 111. App. 477).. 1215 V. Gunn (12 N. Y. Supp. 808) . 107 V. Holmesburg, etc., Electric R. Co. (187 Pa. St. 451).. 167, 406, 1258 V. Huson (1 Phill. Ecc. 287) . . 807 V. Jones (15 Johns. (N. Y.) 229) 524 V. Lawrence (98 Me. 92) 62 V. Lee (84 Fed. Rep. 557) 976 V. Lehigh Valley R. Co. (170 N. Y. 394) 297, 330, 1181, 1182 V. Maine Cent. R. Co. (87 Me. 339) 235 V. McGuire (67 Ala. 34) 1237 ■I). McKenzie (2 Nova Scotia 228) 840 V. Metropolitan St. R. Co. (59 N. Y. App. Div. 60)... 548, 1244 V. Milwaukee Builders', etc., Exch. (91 Wis. 360) 1336 V. Newton (84 111. 14) 1153 V. New York Cent., etc., R. Co. (41 N. Y. App. Div. 614) . . 258, 267, 270 «. Nichol (23 Nova Scotia 382) 1320 V. Page (72 Ga. 539) 1311 V. People (2 Mich. 416) 1273 V. Roe (3 Penn. (Del.) 233)... 1266 V. Rio Grande Western B. Co. (9 Utah 141) 1346 1). Rust (112 111. App. 84) 80 V, Sixty Thousand Feet Yellow Pine Lumber (2 Fed. Rep. 398) 857 cxjTi TABLE OF CASES. 1422 1344 671 912 54 560 1156 Smith V. Slcicvm (62 111. 354).. 116, 1240 V. Smith (1 Gree^e (Iowa) 307 1400 1). Si»it^ (48 N. J. Eg. 566) . . 1(015, 1254, 1277 V. gmitl} (19 Phila. (Pa.) 389). 1277 V. Smith (29 Ont. 809) 912, 1008 ». State (23 Qa. 297) 194 ■0. State (63 Ga. 90) 33 V. Tebbitt (L. R. 1 P. & D. 398) 188, 962, 1133 V, Times Pub. Cp. (178 Pa. St. 481) ■V. Wabash, etc., E. Co. (19 Mo. App. 120) 1215, V. Walton (8 Gill (Md.) 77).. 645, 646, 655, V. Wert (,64 Ala. 34) . . , . , .823, ■u. Westfleld First Nat. Bank (99 Mass. 605) V. Whitpian (6 Allen (Mass.) 562) 543, 547, ,,. Wilson (31 How. Pr. (N. Y.) 272) Smith, etc., Mlg. Co. v. Sprague (123 U. S. 249) 86, 1401 Smoclj V. Smocls (11 N. J. Bq. 156) 1295 Sneed *. Craath (1 Hawks (8 N. ear.) 309) 1156 Snell V- Bray (56 Wis. 156) 588 Snelliug, Matter of (136 N. Y. 515) . 1167, 1271 Snelling V. TJtterbaek (1 Bibb (Ky.) 609) Snow t). Housatonic R. Co. (8 Allen (Mass.) 441) V. Perkins (89 Fed. Rep. 3.34) . Snowden v. Pope (Rice Eq., (S. Car.) 174) 790, 842, 854, Snyder v. Bougher (214 Pa. St. 453) 118, V. Harris (61 N. J. Bq. 480) . . 187, 813, 975, 1043, 1286 V. Mutual L, Ins. Co. (22 Fed. Caa. No. 18,164) 183, Sobey v. Thomas (39 Wis. 317) SociStg, etc., V. Allen (84 Fed. Rep. 812) V. Allen (90 Fed. Rep. 815) . . . Socola V. Chess-Carley Co. (39 La. Ann. 344) 797, 822, 855, 911, 1136 Solomon u. Miller (8 N. ¥. Supp. 660) 1316, 1819 V. Solomon (2 Ga. 18) 1202 Solomon R. Co. V. Jones (34 Kan. 443) 1028 [References are to pages.] Somers ». Cresse ((N. J.) 13 Atl. Eep. 23) , 836, 890 V, McCready (96 Md. 437).. 63, 547, 550, 559 Somerset County v. Minderlein (67 Md. 566) 1225, 1252 Somerset County Mut. P. Ins. Co. V. Usaw (112 Pa, St. 80) 85 Someryille, etc., R. Co. v. Doughty (22 N. J. L. 495) 1387 Sonnentheil v. Christian Moerlein Brewing Co. (172 U. S. 401) . .44, 130 Sonoma County «. Stoffen (125 Cal. 32) 136 Sootrugun Sutputty «. Sabitra Dye (2 Knapp 287) 552, 587, 1166 Soper V. Soper (29 Mich. 305) 1276 Sopwith V. Sopwith (4 Sw. & Tr. 248) 1168, 11T3 Sorenson d. Menasba Paper, etc., Co. (56 Wis. 388) 64, 304 Souders Bstate (169 Pa. St. 239).. 1408 Southard v. Ourley (134 N. Y. 148) 9, 80 South Bend v. Turner (156 Ind. 418) 1354 Southern Bank v. Goette (108 Ga. 796) 1402 Southern Finishing, etc., Co. v. Ozment (132 N. Car. 839) 568 Southern Indiana R. Co. v. Osborn ((Ind. App.) 79 N. E. Rep. 1067) 556 Southern R. Co. i). Bryant (95 Va. 212) 534, 1348, 1349 V. Carroll (138 Fed. Rep. 638). 266, 1343 V. Hall (102 Va. 135) 64, 515 V. Hobbs (121 Ga. 428) 140a V. Kendrick (40 Miss. 374) ... 904 V. Moore (115 Ga. 793) 1848 Southfleld, The (19 Fed. Rep. 841). 408, 85.'! Southwest, The (2 Flipp. (U. S.) 79) 379, 500 South West School Dist. ti. Williams (48 Conn. 504) 978, 975 Southwick V. Whipple (2 Fed. Rep. 770) 568 Southworth v. Adams (11 Biss. (U. S.) 265) 1041, 1179, 1296, 1313 Sovereign Camp, etc., i>. Hruby (70 N'-l>. 5) 542 Spalding «. Lowe (56 Mich. 366) .22, 1393 Rpnvk's Will, In re (63 N. J. Eq. 242) 118 Sparta v. Lewis (91 Tenn. 370) .... 85 1290 945 1270 1,507 1392 869 1310 1103 561 TABLE OF CASES. cxlvii [References are to pages.] Spanlding v. Tucker (Deady . Hopkins (50 Vt. 316) 652 V. Horn (43 Vt. 20) 680 V. Howard (118 Mo. 127) 1091 V. Hoxsie (15 R I. 1) 1171 V. Hughes (35 Kan. 626) 1326 V. Hutchings (30 Utah 319)... 1325 V. Hyer (39 N. J. L. 598) ll.jo V. Jim (1 Dev. L. (12 N. Car.) 508) 5, 23 V. Juneau (88 Wis. 180) 1059 V. Kansas City, etc., R. Co. (70 Mo. App. 634) 880, 1348 V. King (9 S. Dak. 149) 1214 n. King (88 Minn. 175) 1157 V. Knox (Phil. L. (01 N. Car.) 312) 95 V. Kuhn (117 Iowa 216) 1323 V. Lambert (97 Me. 51) . . .1000, 1256 V. lA! Blanc (3 Brev. (S. Car.) ••'••iO) 1060 V. LIndgrove (1 Kan. App. 51). 362 TABLE OF CASES. cxlix [References are to pages.] State V. Lodge (9 Houst. (Del.) 452) 1323, 1324 V. Magoon (68 Vt. 289) 588, 1300 V. Maney (54 Conn. 178) 1155 1). Maxwell (117 Iowa 482). .61, 1276, 1318, 1319 V. McCuUough (114 Iowa 532) . 669, 724 V. McDevltt (69 Iowa 549) 966 V. McLeod (35 Mont. 372) 1336 V. McMillan (20 Mont. 407)... 1055 V. McNinch (12 S. Car. 89).1414, 1416 e. Meals (184 Mo. 244) 1397 1,. Mickle (25 Utah 170) 1101 e. Miller (9 Houst. (Del.) 564) 597, 599, 974, 1174, 1180, 1250, 1325 V.Miller (53 Iowa 84) 361 e. Monich (74 N. J. L. 522) . . . 1323 V. Murpliy (16 R. I. 529) 1297 ». Nadal (69 Iowa 478) 1165 V. Nelson (13 N. Dak. 122)... 1171 V. Melville (6 Jones L. (51 N. Car.) 423) 1274 V. Nowells ((Iowa) 109 N. W. Rep. 1016) 1323, 1357 e. Oscar (7 Jones L. (52 N. Car.) 305) 96 V. Palmer (88 Mo. 568) 1215 V. Powell ((Del.) 61 Atl. Rep. 966) 1326 V. Rainsbarger (74 Iowa 196) . 745, 1373 V. Rawls (2 Nott & McC. (S. Car.) 331) 876, 896 V. Reed (60 Me. 550) 1032 V. Reed (62 Me. 129) 96 V. Roberts (63 Vt. 139).. 1268, 1294 1). Rome (64 Conn. 329) 597 V. Rosa (71 N. J. li. 316) . .836, 1266 V. Scanlan (58 Mo. 204) 1059 V. Schoenwald (31 Mo. 147)... 35 V. Scott (45 Mo. 302) 647 V. Scott (28 Oregon 331) 1155 «. Sejours (113 La. 676) 811 ». Sexton (10 S. Dak. 127) 1216 V. Shay (16 Ohio Dec. 446) .526, 527 V. Shields (13 Mo. 236) 1281 V. Shinborn (46 N. H. 497). 247, 671 V. Simmons (74 Kan. 799) 1082 V. Smith (9 Houst. (Del.) 588) 1325 0. Smith (7 Vt. 141) 1162, 1166 «. Stain (82 Me. 472) 852, 864 V. Strattman (100 Mo. 540)... 1214 V. Sullivan (20 R. I. 114) 1324 ti. Taylor (70 Vt. 1) 909 State V. Terrio (98 Me. 17) 219, 221 V. Thomas (103 Iowa 748) 1302 V. Thomas -(7 Ired. L. (29 N. Car.) 381) usi V. Thompson (14 Wash. 287).. 1413 t). Tice (30 Oregon 457) 609 V. Totten (72 Vt. 73) 590 «. Townsend (66 Iowa 741) 713 V. Twenty-five Packages Liquor (38 Vt. 387) 366 V. Van Tassel (103 Iowa 6) 724, 1174 V. Ward (39 Vt. 225) 678 V. Ward (61 Vt. 153) 1411 V. Wells (46 Iowa 662) 1212 V. White (10 Wash. 611) 811 V. Whittier (21 Me. 341) 1059 V. Williams (9 Houst. (Del.) 508) 857 V. Williams (2 Jones L. (47 N. Car.) 257) 5, 35, 1268, 1272 e. Woodside (9 Ired. L. (31 N. Car. ) 496) 1242 V. Zdanowicz (69 N. J. L. 619) . 96 State Bank v. McGuire (14 Ark. 530) 836, 1365 State Ins. Co. v. Schreck (27 Neb. 527) 1417 State of Alabama, The (17 Fed. Rep. 847, 862) 764, 765 Staunton v. Western Assur. Co. (23 Grant Ch. (U. C.) 81) 1420 Steamboat Bristol, The (6 Ben. (U. S.) 477) 422, 424 Steamboat Columbia, The (9 Ben. (D. S.) 254) 1247 Steamboat Delaware, The (6 Fed. Rep. 195) 382 Steamboat Elm City, The (6 Ben. (tr. S.) 58) 384 Steamboat Massachusetts, The (10 Ben. (U. S.) 117) 408, 4.'J2 Steamboat Narragansett, The (01c. Adm. 246) 495 Steamboat Neptune, The (Ole. Adm. 483) 494, 508, 1227, 1247 Steamboat New-Jersey, The (Ole. Adm. (U. S.) 415) 399, 1270 Steamboat Novelty, The (10 Ben. (U. S.) 349) 479, 1223, 1296 Steamboat Pleasant Valley, The (7 Ben. (U. S.) 72) 1230, 1231 Steamboat Rhode Island, The (01c. Adm. 505) 499, 871 Steamboat Swallow, The (01c. Adm. 4) 1258 cl TABLE OF CASES. 508 484 Steamboat W. C. Redfield, The (4 Ben. (D. S.) 227) 388, 1231 Steamer Ancon, The (6 Sawy. (U. S.) 118) 487, 474, 475, Steamer Cambridge v. Schooner Omega (5 Hughes (U. S.) 487).. Steamer Carroll, The (1 Ben. (U. S.) 286) 1409 Steamer City of Bedford, The (10 Ben. (U. S.) 17) 485, 508 Steamer Hammonia, The (4 Ben. (U. S.) 515) 469 Steamer Hansa, The (5 Ben. (U. S.) 501) 275, 278, 469, 472, 474, 1247 Steamer Magnolia, The (16 Fed. Cas. No. 8,958) 382, 784, 966 Steamer -New Philadelphia, The (1 Black (U. S.) 62) 1158 Steamer Oregon, The, ». Eocca (18 How. (U. S.) 570) 487, Steamer Pennsylvania, The (4 Ben. (TJ. S.) 257) 276, Steamer Western Metropolis, The (2 Ben. (TJ. S.) 399) Steam Gauge, etc., Co. v. Miller (8 Fed. Rep. 314) Steam Propeller J. L. Hasbrouck (4 Ben. (U. S.) 3S9) 379, 45S, 462, Steam Propeller Tillie, The (7 Ben. (TJ. S.) 382) 587 Steamship Aleppo, The (S Ben. (TJ. S.) 554) 274 Steamship C'ella, The (3 Ben. (TJ. S.) 168) 508 Steamship Cyphrenes v. Steamship La Flandre (Newfoundland' Ij. R. (18S4-18'96) 843) 827 Steamship Frankland v. Steamship Kestrel (L. R. 4 P. C. 529) 289 Steamship Gannet, The, v. The Steamship Algoa ((1900) A. C. 234) 1181, 1382, 1429 Steamship Idaho, The (5 Ben. (TJ. S.) 280) 546, Steamship Java, The (S Ben. (V. S.) 245) 74, Steamship Lebanon, The, v. The Steamship Ceto (L. R. 14 .Vpp. 670) 13, 2S9, 487, 1157 Steamship Oder, The (8 Fed. Rep. 172) 349, 382, 1413 Steamship Pereire, The (8 Ben. (TJ. S.) 301) 192, 558, 584, 912, 1222, 1253 [References are to pages.] Steamship Santiago 6e Cuba, The (4 Ben. (U. S.) 264) 558 Steamship Ville du Havre, The (7 Ben. (U. S,> 328).. 546, 764, 999, 1185, 1248 Sfeamsixip Westphalia, The (4 Ben. (U. S.) 404) 281, 28S, 443, 538, 582, 997 Staamship Zodiac, The (9 Beo. (TJ. S.) 171) 496 Steam Tvtg Favorite, The (5 Sawy. (U. S.) 226) 495 Steam Tug Luckenbach, The (50 Fed. Rep. 129) 419 Steam Tug Sampson, Ths (3 Wall. Jr. (C. C.) 14 480 Steam Tug Senator Mike Norton, The (10 Ben. (D. S.) 440) 382, 998 Stearns V. Stearns (33 N. Y. App. Dlv. KjM) , 1111 Stearns-Rogers Mfg. Co. v. Brown (114 Fed. Rep. 939) 1102 Stecher Lith. Co. v. Inman (175 N. Y. 124) 1300, 1301 Steele v. Helm (2 Marv. (Del.) 237. 1180 V. Price (2 B. Mon. (Ky.) 58). 1296 Steele-Smith GroceTy Co. v. Potthast (109 Iowa 413) 1294 Steen u. Sanders (116 Ala. 155)... 1180 Steffen v. Bauer (70 Mo. 399) 954 Steffens v. Steffeus (16 Daly (N. Y.) 363) 191, 1290, 1421 Stefnhofel v. Chicago, etc., R. Co. (92 Wis. 123) 1345 Steininger v. Hoch (42 Pa. St. 432) . 544, 585 Steinkeller v. Newton (0 C. cfc P. 313) 961 Stephen Decatur, The (108 Fed. Rep. 446) 761 Stephen Morgan, The (94 U. 3. 599) 381 Stephens v. People (4 Part. Crim. (N. r.) 396) 645, 655, 1250 V. Vroman (18 Barb. (N. Y.) 250') 1198, 1315 Stephens, etc., Transp. Co. c. Tuck- erman (33 N. J. L. 543) 453 Stephenson v. Arnold (89 Ind. 426) . 1090 Sternback v. Friedman (23 Misc. (N. Y.) 173) 187 Storrott V. Wright (27 Pa. St. 259). 59 Steuart i\ Robertson (L. R. 2 H. L. Sc. 521) 1227, 1320 Stevens r. Deats (41 N. J. L. 340). 1303 V. Felt (23 Fed. Cas. No. 13.397) 90 V. Hartley (13 Ohio St. 525).. 1187 V. McIObbin (68 Fbd. Rep. 406. 1317 510 539 302 93 471 585 317 TABLE OF GASES. oli [References are to pages.] 1322 1269 876 1307 266 1346 1350 Stevens v. Minneapolis (42 Minn. 136) 164, 166 V. Missouri Pac. B. Co. (67 Mo. App. 356) 265 V. Seibold (5 N. Y. St. Kep. 258) 648, 649 V. Stevens (72 N. H. 360).. 63, 822 V, Trask (18 N. Y. Supp. 117) . 19, 107, 938, 1277, 1). Vaneleve (4 Wash. (U. S.) 262) Stevenson v. Gunning (64 Vt. 601). 1178, 1336 V. Kurtz (116 Mich. 95).. 624, 716, V. Marble (84 Fed. Rep. 23) . . . Stever ». New York Cent., etc., R. Co. (7 N. Y. App. Div. 392) V. New York Cent., etc., R. Co. (7 N. Y. App. Div. 392) . . Steves B. Oswego, etc., R. Co. (18 N. Y.- 422) 270, 272, 1342, Stewart v. Baruch (103 N. Y. App/ Div. 577) ...230, 1256 V. De Loach (86 Ga. 729) . 1289 n. Lispenard (26 Wend. (N. Y.) 255) 1228 V. Long Island R. Co. (54 N. Y. App. Div. 623) 1344 V. Michigan Cent. R. Co. (119 Mich. 91) . . 426, 1341 V. Onthwaite (141 Mo. 562) ... 150 V. People (23 Mich. 63) .. 1151, 1265 v.- St. Paul City H. Co. (78 Minn. 110) ..•..• . V. State (>19 Ohio 302) 860, 1-. Stewart (56 N. J. Bq. 761). v.- Stewart (2 Swan (Tenn.) 591) V. Walker (6 Ont. L. Rep. 495) 1039, 1258 D. Woolman (26 Ont. 714) 1202 Stewart's Succession (51 La. Ann. 1553) ,.■ 662, Stickney v. Ward (21 Misc. (N. Y.) 449) .• .■ ,..■ Stiefel V. Stiefel ((N. J.) 35 Atl. Rep. 287) 188, 754, 1013 Stiles V. Stiles (14 Mich. 72)... 962, 1319 St-ilwell V. Carpenter (2 Abb. N. Cas. (N. Y.) 238) 128, 137 Stilwell, etc., Mtg. Co. «. Cincinnati Gaslight, etc., Co. (1 B. & A. Pat. Gas. 610) 90, 1279, 1336 Stimson V. Vroman (99 N. Y. 74) . . 560 Stines V. Hays (36 N. j. Bq. 364). 882! 1364 861 1272 1335 714 585 Stitt V. Huidekoper (.17 Wall. (U. S.) 384) .i t...-. ..-../. 357, 1338 Stitzle V. Evans (74 Tex. 596) ..... 137 Stockbridge Iron Co. v, Hudson Iron Co. (102 Mass. 45) .- 79 Stockslager v. Mechanics' Loan, etc.. Institute (87 Md. 232) .■ 219 Stockton V. Williams (Walk. (Mich.) 120) 911, 1013 Stoddard v. Kelly (50 Ala. 452) .... 1309 Stoffer V. State (15 Ohio St. 47)... 1212 Stokes V. Mowatt (23 Fed. Gas. No. 13,481) 174 Stone !). Boston, etC/, E; Co. (72 N. H. 206) , 263 V. Montgomery (35 Miss.- 83) . i 796, 1188 V. Ramsey (4 T. B. Mon. (Ey.) 238) 577 V. State (118 Ga. 705) 875 V. Stillwell (23 Ark. 444)..-.. 1180, 1322 V. Stone (94 Wis. 28) 1427 V. Union Pac. R. Co. ((Utah) 89 Pac. Rep. 7l5) 334 V. U. S. (29 Ct. Ci. 111). 523 Stoneburner v. Stoneburner (11 Idaho 603) . 1428 Stonemetz Printers' Machinery Co. ■u. Brown Folding Mach. Co. (57 Fed. Rep. 601)... 88, 570 Stoomvaart Maatschappy Nederland V. Peninsular, etc.. Steam Na-v. Co. (.5 App. Cas. 876) 742 Storey v. Veach (22 U. C. C. P. 164) 62 Storrs V. Barker (6 Johns. Ch. (N. Y.) 166) 74 Story V. Hope Ins. Co. (37 La. Ann. 254) 1309 V. Story ((Ky.) 61 S. W. Rep. 279) 1016, 1027 Stotler V. Chicago, etc., R. Co. (200 Mo. 107) . _. . 400, 402, 404 Stoutenburgh v. Hopkins (43 N. J. Eq. 577) 1027, 1036, 1156 Stowell u. Erie R. Co. (98 Fed. Rep. 520) 264, 312, 432 Strad'er v. Mullaue (17 Ohio St. 624) 81 Strand o. Chicago, etc., R. Co. (67 Mich. 380) 58 Stranger v. Searle (1 Esp. 14) 620 Strathdon, The (101 Fed. Rep. 600) 1211 Strathnevis, The (76 Fed. Rep. 855) 1265 Straubher v. Mohler (80 111. 2l) 1027 Strauch v. Hathaway (101 111. 11) . 825, 965 clii TABLE OF CASES. 428 427 Strauss V. Brooklyn Heights R. Co. (85 N. Y. App. Div. 613) . V. Newburgh Electric R. Co. (6 ■N. T. App. Dlv. 264).. 421, Strawn v. Missouri, etc., R. Co. (120 Mo. App. 135) 1335 Street -u. Sinclair (71 Ala. 110) ... 852 Streeter v. Marshaltown (123 Iowa 449) 1138 Stringert v. Ross Tp. (179 Pa. St. 614) 64 Strong V. Brewer (17 Ala. 706) . . 607, 609 V. Walton (47 N. Y. App. Div. 114) 128, 170 Strother v. Barr (5 Bing! 151) 547 Struver v. The Roderick Dhu (23 Fed. Cas. No. 13,552) 779 Stuart 0. McNab (10 Grant Ch. (U. C.) 234) 798, 1031 «. Thomson (23 Out. 503) 970, 1147, 1194 Stuettgen v. Wisconsin Cent. R. Co. (80 Wis. 498) 1245 Stuphen v. Cushman (35 111. 186) . . 1008 Sturdevant's Appeal (71 Conn. 392). 514 Sturgis I). The Joseph Johnson (23 Fed. Cas. No. 13,576) 472 Stuttgen V. Wisconsin Cent. Co. (80 Wis. 498) 137 Succession of Pififet (37 La. Ann. 871) 524 Suffern v. Butler (19 N. J. Eq. 202) . 716, 1074, 1193 Sugarman v. Brengel (68 N. Y. App. Div. 377) 551 Sugden v. St. Leonards (L. R. 1 P. D. 154) . .929, 1039, 1040, 1076, 1219, 1223, 1226, 1239, 1285, 1296, 1312 Suggett V. Kitchen (6 Yerg. (Tenn.) 425) 1295 Sulder v. Pennsylvania R. Co. (70 N. J. L. 196) 235 Sullivan V. Hannibal, etc., R. Co. (72 Mo. 195) 1.332 Sumner v. State (5 Blackf. (Ind.) 579) Summerman v. Interurban St. R. Co. (87 N. Y. Supp. 427) 421, Summers v. Bloomsburg, etc., R. Co, (24 Pa. Super. Ct. 615) . . V. McKlm 02 S. & R. (Pa.) 405) 1114, 1117 Summerville v. Hannibal, etc., R. Co. (29 Mo. App. 48) 1341 [References are to pages.] Summerville v. Summerville (31 Wash. 414) 718, 719 Summit, The (2 Curt. (U. S.) 150). 471 Sunday v. Gordon (Blatchf. & H. Adm. 569) 1028 Sunday Law Cases, The (30 Tex. 524) 1332 Sun Ins. Co. v. Earle (29 Mich. 406) 62, 528, 597 Sunnyside, 'ihe (1 Brown Adm. 227) 341, 346, 384 , The (91 U. S. 208).. 341, 352, 485 Supreme Council, etc., v. Murphy ((N. J.) 55 Atl. Rep. 497) 1230 Supreme Ct. of Honor v. Barker (96 111. App. 490) 542 Susquehanna, The (35 Fed. Rep. 320) 413 SutcllfCe II. Iowa State Traveling Men's Assoc. (119 Iowa 220) . . . 183, 1166, 1264 Sutherland v. Sutherland (69 111. 481) 79 Sutphin V. Seebas (12 Daly (N. Y.) 139) 548 Sutton I/. Chicago, etc., R. Co. (98 Wis. 157) 1342 V. Hayden (62 Mo. 101) 1293 V. Madre (2 Jones L. (47 N. Car.) 320) 63 V. Sutton (5 Harr. (Del.) 459). 1066 Suydam v. Hotchkiss (Hill & D. Supp. (N. Y.) 96) 224 Svea Ins. Co. v. Vicksburg, etc., R. Co. (153 Fed. Rep. 774, 784) . .771, 1236 Svend, The (1 Fed. Rep. 54) 1408 Swain v. Edmunds (53 N. J. Eq. 142) 10, 1157, 1183 Swan «. Adams (23 Grant Ch. (U. C.) 220) 1289 V. People (98 III. 610) 1215 V. Swan (15 Neb. 453)... 1320, 1406 Swanger r. Chicago, etc., R. Co. ((Iowa) 109 N. W. Rep. 308).. 267 Swanland, The (2 Splnks Ecc. & Adm. 107, 112) 13, 320, 1119. 1248 Swart V. New York Cent. etc.. R. Co. (81 N. V. App. Div. 402). 293, 326 Sweat ». Boston, etc.. R. Co. (156 Mass. 284) 374, 381 Swedish Bark Adolph, The (4 Fed. Rep. 7.30) 485, 918 Sweepstakes. The (Brown Adm. 509) 1242 Sweney v. Davidson (68 Iowa 386) . 1212 Swenson v. Erlandson (86 Minn. 263) 195, 600 602 258 TABLE OF CASES. cliii [References are to pages.] Swett V. Large (122 Iowa 267). 524, 912 Swift V. Brownell (Holmes (U. S.) 467) 349, 350, 351 V. Short (92 Fed. Rep. 567)... 965 Swope V. Donnelly (190 Pa. St. 417) 1295 Sylph, The (Swabey 233) 967 Sylvester ». Porter (11 Manitoba 98) 79, 1423, 1430, 1431 Sylvester Hale, The (6 Ben. (U. S.) 523) Sylvius V. Kosek (117 Pa. St. 67).. Symington v. Symington (L. R. 2 H. L. Sc. 415) 1271, 1275, Syms V. Vyse (2 N. Y. St. Rep. 106) . Synge ». Synge ((1900) P. 180)... 1275, 1322 349 80 1286 107 T. Tacke, In re (3 N. T. Supp. 198) . . . 1231 Tacoma R., etc., Co. t. Hays (110 Fed. Rep. 496, 500) 428 Taft V. Diamond (16 R. I. 584) 71 V. Kyle (15 Nev. 416) 1217, 1264 Taller ». M. J. Murphy Furnishing Goods Co. (24 Mo. App. 420) 560 Talbot V. Hamilton (4 Grant Ch. (U. C.) 200) 967 Talcott V. Harris (93 N. Y. 567).. 1301 Tanguay v. Grand Trunk R. Co. (20 Quebec Super. Ct. 90).. 397, 399, 429 Tanham v. Nicholson (L. R. 5 H. L. 561) 1394 Tanner ». Missouri Pac. R. Co. (161 Mo. 497) 541 Tarabochia v. American Sugar Refin- ing Co. (135 Fed. Rep. 424) 576 Tarpon, The (132 Fed. Rep. 277).. 86 Tasker's Estate (205 Pa. St. 455).. 560, 1148, 1271, 1272 Tatum V. Eby (60 Fed. Rep. 408).. 88 «. Gregory (41 Fed. Rep. 142) . 90, 828 Tauger «. New York City R. Co. (104 N. Y. Supp. 681) 866, 876 Tayloe v. Eiggs (1 Pet. (U. S.) 591) 1038 Taylor, Matter of (126 Cal. 97) 622, 624, 629 Taylor v. Coriell (66 N. J. Bq. 262) . 187, 800 ». Diplock (2 Phill. Ecc. 261). 1198 ^. General Ace. Assur. Corp. (208 Pa. St. 439) 815, 817 V. Harwood (Taney (U. S.) 437) 539, 784, 1182, 1197, 1248, 1380 V. Long Island R. Co. (16 N. Y. Taylor ». Security Mut. P. Ins. Co. (88 Minn. 231) 156, V. Shoie (3 Grant Ch. (U. C.) 153) 1197, K. Shoff (4 Grant Ch. (U. C.) 261) V. Smith (16 Ga. 7) V. Sutherland (24 Pa. St. 333) . 1/. Taylor (9 111. 303) 1302, V. Vanderveer (19 N. J. L. 22). 1190, V. Yonkers (105 N. Y. 202) Taylorville -u. Stafford (99 111. App. 419) Taylor Will Case (10 Abb. Pr. N. S. (N. Y.) 300).. 613, 623, 669, 700, Teachout v. People (41 N. Y. 7) Tedens o. Schumers (14 111. App. 607) V. Schumers (112 111. 263) 1162, Telephone Cases (126 U. S. 1) . . .15, 581, 582, 1275, Telfer v. Northern R. Co. (30 N. J. L. 188) 1341, V. Southern R. Co. (30 N. .1. L. 188) Temple Emery, The (122 Fed. Rep. 180) Ten Hogsheads of Rum (1 Gall. (D. S.) 188) Terhune v. Colton (12 N. J. Eq. 312) Terrill v. State (74 Wis. 286) Territory v. Duran (3 N. Mex. 134) . 1090, V. Pratt (6 Dak. 483) Tesch V. Milwaukee Electric R., etc., Co. (108 Wis. 608) Tesney v. State (77 Ala. 33) Texarkana, etc., R. Co. v. Frugla ( (Tex. Civ. App.) 95 S. W. Rep. 563) Texas, etc., R. Co. v. Ball (96 Tex. 622) V. Ball ((Tex. Civ. App.) 73 S. W. Rep. 420) V. Bryant (56 Fed. Rep. 799) . . V. Carlin (189 U. S. 354) ■u. Gentry (163 U. S. 353) V. Shoemaker (98 Tex. 451) . . . 260, T. F. Oakes, The (82 Fed. Rep. 759) Thallmann v. Thomas (111 Fed. Rep. 277) App. Dlv. 1) 1332 Thames, The (61 Fed. Rep. 1014).. 597 1198 1034 1262 694 1314 1410 64 306 710 132.3 1154 1205 1278 1347 289 455 3.-)n 822 812 loni 361 537 1357 537 389 442 271 1245 533 550 1401 72 367 dliv TABLE OF GASES. 495 879 904 Tliames TM7boat Co. V. Central H. Co. (SI Fed. Rep. 117)' .487, Thatcher v. Miller (13 Mass. 271) . . Thatcher Heating Co. v. Carbon Stove Co.- (4 B. & A. Pat. C'as.- 68) 90, 799, 831, Thau t>. New York City E. Go. (99 N. Y. Supp. 329) ............ .■ 1240 Thayer «. Hart (20 Fed. Hep. 693) . S8, 93, 798, 90S, 929, 9S2, 933, 981, 984, 1081, 1229 V. Spaulding (27 Fed. Rep. 66) 88, 830 Thebcrath v. Rubber, etc., Harness Trimming Co. (15 Fed. EeJ). 246) ...-..■...■. ,, . 554 Thom-a* V. Chicago, etc., 1$. Co. (86 Mich, 496) 403 .-. Kibble ((Va.) 24 S. E. Eep. 241) 71, 834, 857, 911, 929, 932, 1038, 1039, 1042, 1043, 1045, 1193, 1209, 1250 V. Paul (87 Wis. 607).- 16, 54 I,. State (18 Tex. App. 213) ... 616 Thomas Martin, The (3 Blatchf. (U. S.) 517) .■.-..■,.■ .■ Thompson v. Daritte (59 Ga.'472) . . V. Heflferman (4 Dr. & War 285) . V. Lynch (29 Cal. 189) 1015 V. Mecosta (141 Mich. 175)... 1274 V. National Exp. Co. (66 Vt. 358) 254 i;. Pioneer-Press Co. (37 Minn. 285) .• . 188, 1199, 1408 V. Kidelsperger (144 Pa. St. 416) .-... 1299, 1319 V. Simpson (128 N. Y. 281) 1032 V. Thompson (18 Ohio St. 73) . . 1032 t'. Torrance (9 Ont. App. 1) . . . 966, 968, 1420 V. West (56 N. J. Eq. 660)..., 1032 Thomson v. Hall (2 Rob. Ecc. 426) . 56, 210, V. Thomas (23 Nova Scotia 32.1) ,..,..■ t'. Torrance (2S' Grant Ch. (IT. C.) 253) 1190, 1251 -,.. Wolls (R4 N. J. Bq. 211) 979 Thomsiin-Honslon Electric Co. v. Exeter, etc., St. R. Co. (110 Fed. Rep. OSO) V. Lorain Stool Co. (llU Fed. Hop. 054) 19, 87, Tl'honpy v. Forward (Newfoundland (1884'-189!6) 119) 1217 [ReierencteS are to pages.] TBorntdii v. Britton (144 Pa, St. 126) ... V. Grange (66 Barb. (N. Y.) 507) ....,....•.■...,, TiiorOld V. Neelofl (18 Oat. App. 658) ..-.., Thorp V. Brookfleld (36 Contt. 320) . 1264, V. Leibtecbt (56 N.- J. Eq. 499) •K. The Defender (1 Bond (U. S.) 397) ./...-,...,.../ Three Thousand, etc., Gases Cham- pagne (1 Ben. (U. S.) 241),, Thresher v. Stoniiigtoil Siv. Bank (68 Conit. 201)... .;.■ ,.. Tirings *. Central Park E. Co. (7 Eobt. (N. Y.) 616) Throckmorton v. Chapman (65 Conn. 441) ...; ,...,.543, V. Thr6ek*iorton (86 Va. 768). 1168, 1251, 1262, Thum V. Andrews (53 Fed. Rep. 84) , ,...,,., Tiernan i/. Gibney (24 Wfs. 190).. 355 565 78 646 10 1103 974 Tillie, The (13 BlatcM. (U. S,) 514) Tillie A., The (84 Fed. Eep. 684).. TiUson V. Maine Cent. B. Go. (102 Me. 463) . . , 1265, Timolat v. Philadelphia Pneumatic Tool Co. (131 Fed. Eep. 257) 87, 169, 833, Tirzafr, The (4 Prob. D. 33) TIsdale v. Baird (29 N. Bruns. 42) . Tishman v. Kline (84 N. Y. Supp. 452) 123, Titania, The (19 Fed. Eep. 101)... Tittord V. Knott (2 Johns. Cas. (N. Y.) 211) TUus II. Ash (24 N. H. 319) . . V. Cairo, etc., E. Co. (46 N. J. L. 393) 19, 1237, 1265, ». Hoaglatfd (30 N. .T. Eq. 294) V. Phillips (18 N. J. Eq. 75).. t'obey p. Leonard (2 Cliff. (U. S.) 53) ■tocke* V. Ayre (3 Phill. Ecc. 539) . . 798; sni, 860, Todd i>. Hardie (5 .\Ia. 698, 702) . , V. Second .\vo. Traction Co. <192 Pa. St. 5S7).... V. Sykes (97 Va. 143) 219, 1162, 1204. V. Wlckliffe (12 B. Mon. (Ky.) 289). 790, 911, 10.",2. 1035. 1087, 103S, 1042, 1114 1141 19 1269 552 382 363 1242 40 1420 1263 88 1300 992 1313 1357 1267 764 1366 128 976 649 1253 1276 1235 1250 1263 1,307 746 1315 1278 1044 TABLE OF CASESi. clv [References are to pages.] Tolman V. Syracuse, etc., R. Co. (98 N. Y. 198) 993 V. Syracuse, etc., R. Co. (27 Hun (N. T.) 325) 1341 Tome V. Farkersburg Branch E. Co. (39 Md. 36) 706 Tomes, In re (19 Nat. Bankr. Reg. 36) 560 Tomlinson v. Chicago, etc., R. Co. (134 Fed. Rep. 233) 534 V. Derby (43 Conn. 562) 852 Tompkins County v. Bristol (99 N. Y. 316) 596 Tong V. Matthews (23 Mo. 437 )( 942 Tony 1). State (144 Ala. 87) 1420 Tooley v. Railway Pass. Assur. Co. (3 Hiss. (U. S.) 399) 1334 Toomey v. Lyman (15 N. Y. Supp. 883) S48, 585 Toronto v. McGlll (7 Grant Ch. (U. C.) 462) 1031 Torre «. Castle (1 Curt. Ecc. 303) . . 1296 Totten, In re (3 N. Y. Supp. 153) . . S80 Totten «r. Totten ((N. J.) 60 Atl. Rep. 1095) 1212 Touey v. McGehee (38 Ark. 419) ... 83 Toulman v. SWaIn (47 Mich. 82) . . . 1393 Towboat No. 1 (74 Fed. Rep. 906) . 769 Towle V. Hammond (99 Fed. Rep. 510) 594, 1015, 1017, 1197, 1211, 1252, 1275 Towne V. IVfflner (31 Kan. 207) 547 Towner e. Brooklyn Heights R. Co. (44 N. Y. App. Biv. 628) 421, 427 Townsena Mtg. Co. «. Foster (51 Barb. (N. Y.) 346) 1237 Township 13 S. R. 3 W. «. Misen- helmer (78 111. 22) 690 Tozer e. Hershey (15 Mflnn. 2S7) . . 1311, 1313 Tracy Peerage, The (10 CI. & F. 154) 587, 626, 690, 798, 822, 1031, 1229, 1376 Tracy V. Tracy (62 N. J. Efq. 807) . . 130 Trader, The (129 Fed. Rep. 462).. 1408 Trager v. Webster (IT4 Mass. 580). 98 Train v. The North America (23 Fed. Cas. No. 13,853) 322 Tralnor v. Adams (54 III. App. 523) 1276 Traphagen' v. Toorhees (44 N. .T. Bq. 21) 1269 Travelers' Ins. Co. v. Hunter (30 Tex. Clt. App. 489) 1033 V. McConftey (127 n. S. 661).. 542 V. Mosley (8 Wall. (U. S.) 397) 1297 V. Seldten (78 Ped. ffiep. 285) . . 27, 52, 67, 112 Trave, The (SS Fed. Kep. Il7) 276 Traver v. Spokane St. R. Co. (25 Wash. 225) 439, 442, 537 Travers v. Snyder (38 111. App. 379) 609, 1215 Travis V. Brown (43 Pa. St. 9) 619, 664, 671, 695 Treadwell v. Whittier (80 Cal. 574) . 54 Treschttao *. Treschman (28 Ind. App. 206) 1262 Trevaalon ». Tretanlon (1 Ciirt. Bctf. 406) 1216 Trial of James Watson (32 Ho-w. St. Tr. 513) 1155 Trial of Justice Johnson (29 pow. St. Tr. 488) 608, 642, 700 Trial . New York Cent., etc., R. Co. (124 N. y. 308) 297, 326 Tuf'nell V. Constable (3 Enapp 122) 554, 1240 Tnfts V. Hatheway (9 N. Bruns. 62) 560 V. Tufts (3 Woodb. & M. (U. S.) 456) 26 TuR Brothers, The (2 Blss. (0. S.) 104) 422 Tullv t. Fitchburg E. Co. (134 MasS. 409) 5S0, 1334 olvi TABLE OF CASES. [References are to pages.] Tunlson v. Weadock (130 Mich. 141) I Underwood v. Dugan (139 U. S. 380) 262, 409, 425 Tunnard «. Littell (23 N. J. Eg. 264) 1042 Tunney v. Carnegie (146 Pa. St. 618) 64 Turell, Matter of (47 N. Y. App. Div. 560) 1235, 1334 Tnrell v. Erie E. Co. (49 N. Y. App. Div. 94) 331 Turnbull v. Richardson (69 Mich. 400) 164 Turner v. Dewan (41 U. C. Q. B. 361) 840 V. Francis (10 Manitoba 330). 1420 o. Hand (3 Wall. Jr. (C. C.) 88) 84, 613, 687, 701, 712, 754, 858, 868, 869, 925, 966, 1080, 1131, 1190, 1204, 1288, 1295, 1415 t). Hardin (80 Iowa 693) 1240 1>. Keller (66 N. Y. 66).. 1206, 1237 V. Kouwenhoven (100 N. Y. 115) 520 Turner-Hudnut Co. «;. Vaupel (111 III. App. 146) 1420 Turney v. Turney (4 Edw. (N. Y.) 566) 1166 Tuttle V. Burroughs (9 La. Ann. 494) 1290 V. Russell (2 Day (Conn.) 201) 812 Twyman v. Knowles (13 C. B. 224). 547 V. Twyman (27 Mo. 383). 1278, 1305 Tyndale v. Old Colony R. Co. (156 Mass. 503) 66 Tyrrel ». Emigrant Industrial Sav. Bank (77 N. Y. App. Div. 131).. 1027, 1032, 1267, 1277 U U. & J. (L. R. 1 P. & D. 460) 1278 Udderzook v. Com. (76 Pa. St. 340) . 1361 Ueberweg v. La Compagnie G6n§rale Transatlantique (60 Fed. Rep. 461) 1197 Uhland v. Uhland (27 N. Y. Supp. 647) 1212 Uhlman v. Arnholdt, etc., Brewing Co. (53 Fed. Rep. 485) .526, 527 V. Bartholomae, etc., Brewing Co. (41 Fed. Rep. 132) . . . 1275 Ulmer v. Gentner (3 Penny. (Pa.) 453) 619, 620 Ulrey v. Ulrey (80 Mo. App. 48) . . . 121 Ulrlch V. People (39 Mich. 245) 1358 V. Tllrich (60 N. Y. Super. Ct. 237) 75 UnderhlU e. New Ynrl?, etc., R. Co. (21 Barb. (N. Y.) 489) 51 17, 523 V. Thurman (111 Ga. 325) 1273 V. Waldron (33 Mich. 232) 454 V. Wing (4 DeG. M. & 6. 633) 68 TJnger v. Philadelphia, etc., R. Co. (217 Pa. St. 106) 340, 534, 1346 Union, The (Blatchf. & H. Adm. 545) 996, 1010 Union Bank v. Elliott (14 Manitoba 187) 579 V. Stone (50 Me. 595) 561 Union Casualty, etc., Co. v. Mondy (18 Colo. App. 395) 129T Union Cent. L. Ins. Co. -i;. Skipper (115 Fed. Rep. 69) 601 Union Mill, etc., Co. v. Dangberg (81 Fed. Rep. 73) 573, 797, 974 Union Mut. L. Ins. Co. v. Masten (3 Fed. Rep. 881) 1311, 1314 V. Payne (105 Fed. Rep. 172).. 1321 Union Pac. E. Co. v. Rassmussen (25 Neb. 810) 440, 1346 V. Ruziclfa (65 Neb. 621) 403 Union Paper-Bag Mach. Co. v. Peck (9 Fed. Rep. 190) 153 V. Waterbury (58 Fed. Rep. 566) 120, 830 Union Square Nat. Bank v. Simmons ((N. J.) 42 Atl. Rep. 489) 219, 580, 938 Union Steamship Co. i>. Nottingham (17 Gratt. (Va.) 115) 561 Union Sugar Refinery v. Matthiesson (3 Cliff. (U. S.) 639).. 984, 1272. 1335 Union Traction Co. v. Vandercook (32 Ind. App. 621) 259 Union Trust Co. v. McClellan (40 W. Va. 405) 544 United Breweries Co. e. O'Donnell (124 III. App. 24) 435 United Railways, etc., Co. v. Sey- mour (92 Md. 425) 403 Universal Winding Co. v. Willimantic Linen Co. (82 Fed. Rep. 228) .. . 88, 1088, 1266 Untermeyer e. Freund (37 Fed. Rep. 343) 90, 1118 V. Freund (58 Fed. Rep. 205).. 90, 830, 973, 1223 Upper Canada College r. .Tackson (3 Grant Ch. (U. C.) 171) 858, 1204 Uransky v. Dry-Dock, etc., R. Co. (13 N, Y. Supp. 670) 123 Uibanek i\ Chicago, etc., R. Co. (47 Wis. 59) 1345 TABLE OF CASES, clvii [References are to pages.] Urlas V. Pennsylvania E. Co. (152 Pa. St. 326) 205, 240, 867, v. S. «. AlUs (73 Fed. Rep. 165).. 96, 1180, V. American Bell Telephone Co. (167 U. S. 224) ». Atkins (1 Sprague (U. S.) 558) V. Babcock (3 Dill. (U. S.) 581) Barrett (65 Fed. Rep. 62) . . Baxter (46 Fed. Rep. 350) . . Bernal (24 Fed. Cas. No. 14,581) Beiaal (HofEm. Land Cas. (U. S.) 50) 1999, Blackburn (1 N. Y. Wkly. Dig. 276) Blaisdell (3 Ben. (U. S.) 132) Borger (7 Fed. Rep. 193) . . Breese (131 Fed. Rep. 915). Brown (Deady (U. S.) 566). 1173, 1209, 1237, 1239, Budd (144 U. S. 154) Burr (25 Fed. Cas. No. 14,962) Butler (1 Hughes (U. S.) 457) Cambuston (7 Sawy. (U. S.) 575) Candler (65 Fed. Rep. 308) . 835, 1319, 1327, Carr (1 Woods (U. S.) 480). Chaftee (2 Bond (U. S.) 147) Clune (62 Fed. Rep. 798)... Cole (5 McLean (U. S.) 513) Collins (79 Fed. Rep. 65)... Cooms (1 Bond (U. S.) 1) . . Cooper (25 Fed. Cas. No. 14,864) Craig (4 Wash. (U. S.) 729) Crow (1 Bond (U. S.) 51) . . 646, 694, 696, Dartou (6 McLean (TJ. S.) 46) 96, 1142, Devlin (7 Int. Rev. Rec. 44) . 113, Dobbs (25 Fed. Cas. No. 14,972) Dodge (Deady (U. S.) 186). 1229, Dry Ox, etc., Hides (25 Fed. Cas. No. 14,995) 1342 1240 1108 1154 1154 1411 1319 1211 1161 1266 137 96 1249 79 1100 96 170 1358 96 819 1319 601 1109 1325 1325 671 726 1408 120 1325 1232 11 U. S. V. Emerson (6 McLean (U. S.) 406) 1252, 1257, V. iSvans (25 Fed. Cas. No. 15,061) i>. Fifty Barrels Whiskey (11 Int. Rev. Rec. 94) 119, 120, 143, V. Fifty-three Boxes Havana Sugar (2 Bond (U. S.) 346) V. Flint (4 Sawy. (U. S.) 42).. 926, 932, 1229, V. Foulke (6 McLean (U. S.) 349) ■V. Fourteen Packages Pins (Gilp. (U. S.) 235) V. Freeman (4 Mason (U. S.) 505) V. Gale (45 Fed. Rep. 107)... V. Gibert (2 Sumn. (U. S.) 19). 601, V. Gleasou (1 Woolw. (U. S.) 128).. 96, 797, 965, 1323, V. Gieason (37 Fed. Rep. 332) . 649, 650, V. Gunning (22 Fed. Rep. 653) . V. Hamilton (1 Cine. L. Bui. 27) V. Harbison (13 Int. Rev. Rec. 118) 113, V. Harries (2 Bond (U. S.) 311) ■v. Hodson (26 Fed. Cas. No. 15,376) V. Hodson (14 Int. Rev. Rec. 100) V. Howell (56 Fed. Rep. 21).. 601, 1257, 1260, V. Hughes (34 Fed. Rep. 732). 97, 900, 1125, V. Hung Chang (134 Fed. Rep. 19) „. Ingersoll (Crabbe (U. S.) 135) V. Johns (1 Wash. (U. S.) 363) V. .lue Wy (103 Fed. Rep. 795) V. Kenney (90 Fed. Rep. 257). 96, 1125, V. Kornmehl (89 Fed. Rep. 10) V. Lam Jung Sing (151 Fed. Rep. 715) V. Lee Huen (118 Fed. Rep. 442) 28, 113, 119, 129, 130, 135, 137, 146, 171, 172, 174, 546, 913, 939, 1126, 1159, 1221, 1256, 1413, 1423, V. Lee Pon (94 Fed. Rep. 827) 1261 1173 1180 120 1280 898 546 1158 825 652 1326 726 89 601 120 1409 219 1266 1263 1326 1354 27 601 119 1238 1266 1302 1429 1311 olnii TABLE OF CASES. [Keferences are to pages.] TJ. S. V. Leung Shue (126 Fed. Bep, 423) 119, 170 i>. Limantour (26 Fed. Cas. No. 35,601) 580, 1205 V. Louie Juen (128 Fed. Kep. 522) 983, 984 V. Lumsden (1 Bond (U. S.) 5) 1167 V. Macomb (5 McLean (XT. S.) 286) 1023 V. Marshall (26 Fed, Cas. No. 15,726) 96, 366 V. Mai-tin (2 McLean (U. S.) 256) 601 V. Martin (26 Fed. Cas. No. 15,730) 1173, 1328 V. Mathoit (1 Sawy. (U. S.) 142) 546 V. Matthews (26 Fed. Caa. No. 15,7416) 1301 I/. Mayer (Deady (U. S.) 127). 927, 1208, 1212 V. McGIue (1 Curt. (U. S.) 1). 157, 964, 1307, 1383 V. McKee (26 Fed. Cas. No. 15,683) 910, 1013, 1036 V. McKee (3 Cent. L. J. 258).. 798, 1261, 1263 V. McKenjle (35 Fed. Rep. 826) 796, 1325 V. Meldrum (146 Fed, Rep. 390) 1430 v. Molloy (31 Fed. Rep. 20) . . 158, 685, 702 V. Montgomery (3 Sawy. (U. S.) 544) 96, 798, 954, 1036, 1173, 1212 V. Moore (2 Lowell (U. S.) 232) 1108, V. Murphy (84 Fed. Rep. 609). V. Myers (3 Husheg (U. S.) 239) 1). Niemeyer (94 Fed. Rep. 147) I/. Nine Pacljages Linen (1 Paine (D. S.) 129) V. Nott (1 McLean (U. S.) 499) 1325 V. Nunez (82 Fed. Rep. 599).. 96 V. One Distillery, etc. (2 Bond (U. S.) 399) 1155 V. One Pearl Necklace (105 Fed. Rep. 857) 1294, 1299 V. Osgood (27 Fed. Cas. No. in. 701a) 1155,1211,1266 V. Pendergast (32 Fed. Rep. 201) LiiS, 702, 725, 726 V. Polael! (27 Foci. Cas. No. 16.161) 816, 1408 V. Pnlltzor (nn Fed. Rep. 273) . 96 V- Post (128 Fed. Rep. 053)... 194 1109 96 601 599 U. S. V. Pry or (3 Wash. (0, S.) 234) 1319 V. Richards (149 Fed. Eep. 443) 96 V. Rose (27 Fed. Cas. No. 16,195) 837, 1266 fl. Boss (92 V. S. 281) 600 V. Eycrart (27 Fed. Cas. No. 16,211) 907, 988, 991, 1180, 1332 «/. Sacia (2 Fed. Kep, 754) .... 1154 V. San Jacinto Tin Co. (125 U. S. 279) 1131 V. Searcey (26 Fed. Eep. 435). 513, 601 V. Shapleigh (54 Fed. Bep. 126) 84, 94 V. Shellmire (Baldw. (TJ. S.) 370) 1212 V. Smith (19 Law Eep. 91) 1108 V. Steamboat Henry C. Homeyer (2 Bond (U. S.) 217) 1252 V. Stevens (2 Hask. (U. S.) 164) 113, 120 V. Stlnson (197 U. S. 200). 822, 823 V. Swett (2 Hask. (U. S.) 310) 930 V. Sykes (58 Fed. Bep. 1000).. 516 V. Sing Lee (125 Fed. Eep. 628) 130, 171 V. Tarr (4 Phila. (Pa.) 405).. 1173 V. Taylor (3 McCrary (TJ. S.) 500) ii-j V. The Barque Anna (2 Am. L. Beg. 421) 735, 1280, 1282 V. The Barque Anna (Taney (U. S.) 549) 860, 912, 932 V. Three Thousand Eight Hun- dred and Eighty Boxes, etc. (12 Fed. Rep. 402) . . . 552, 560, 580, 1252 V. Whalan (2S Fed. Cas. No. 16,669) 1154 V. White (150 Fed. Rep. 379) . . 1257 V. Wong Du Bow (133 Fed. Rep. 326) 1160 V. Yee Mun Sang (03 Fed. Rep. 365) 1314 V. Youtsey (91 Fed. Bep. 864) . 97, 855, 1180 U. S. Electric Lighting Co. v. Edi- son Lamp Co. (51 Fed. Rep. 24) . . 87, 91, 93, 973, 1279 TJ. S. Express Co. i>. Donohoe (14 Ont. .333).... 84, 06, 1154, 1167 V. Jenkins (73 Wis. 471) 567 TJ. S. Fidelity, etc., Co. r. Des Moines Nat. Bank (14.'-i Fed. Rep. 273) 600 TABLE OF CASES. clix [References are to pages.] U. S. National Bank v. National Park Bank (59 Hun (N. Y.) 495)... 606, 671, 716 U. S. Stamping Co. v. Jewett (7 Fed. Rep. 869) . .88, 830, 915, 973, 981, 985, 1256 Usticke i>. Bawden (2 Add. Eoc. 116) 1295 V. Valentine v. Cleugh (8 Moo. P. C. 167) 1339 Valin V. Milwaukee, etc., R. Co. (82 Wis. 1)..260, 270, 400, 428, 537, 1246 Valley Forge, The (124 Fed. Rep. 192) 1242 Van Alstine o. Standard Light, etc., Co. (116 N. Y. App. Div. 100)... 1300 Van Blarcom v. Kip (26 N. J. L. 351) 840, 1027, 1032 Vance e, Campbell (8 Humph. (Tenn.) 524) 1335 Vandegrift v. Vandegrlft (30 N. J. Bq. 78) 1104 Van Der Aa v. Van Druen (208 III. 108) 1420 Vanderbeck v. Vanderbeek (30 N. S. Eq. 265) 1008 Vanderbilt v. Central R. Co. (71 N. J. L. 67) 1139, 1407 Vandereook, The (65 Fed. Rep. 251, 74 Fed. Rep. 648) 461 Vandergrift v. Herbert (18 N. J. Bq. 466) 913 Vanderslice ». The Steam Towboat Superior (28 Fed. Cas. No. 16,843) 14, 385, 909 Vanderveer, Matter of (20 N. J. Eq. 463) 186, 1155, 1156 Vandervere v. Reading (9 N. J. Eq. 446) 1095 Vandervoopt v. Fouse (52 W. Va. 214) 220, 545, 548 Vandewater v. Westervelt (28 Fed. Cas. No. 16,846a) 1247 Van Doran v. -Armstrong (28 Wis. 236) 1424 Van Dyke v. Van Dyke (31 N. J. Eq. 176) 1306 Van Epps v. Van Epps (6 Barb. (N. Y.) 320) 979 Van Btten v. Westport (60 Fed. Rep. 579) 768 Van Hook v. Wood (28 Fed. Cas. No. 16,855) .1104, 1251 Van Horn v. Burlington, etc., B. Co. (59 Iowa 38) 431 V. Munnell (145 Pa. St. 497). 71 Van Houten v. Post (33 N. J. Eq. 344) 836, 1007 Van Keuren v. McLaughlin (19 N. J. Eq. 187) 547 Vannatto v. Mitchell (13 Grant Ch. (U. C.) 665) 1162, 1304 Van Nostrand v. Hubbard (35 N. Y. App. Div. 201 ) 123, 128 V. Long Island R. Co. (51 N. Y. App. Div. 608) 134'. Van Patten v. Schenectady St. R. Co. (80 Hun (N. Y.) 494) 1351 Vanpelt ». Hutchinson (114 111. 435) 1306 Van Salvellergh v. Green Bay Trac- tion Co. ((Wis. 1907) 111 N. W. Rep. 1120) 1054, 1059, 1409 Vansickle o. Wells (105 Fed. Hep. 23) 965, 970 Van Slooten v. Wheeler (140 N. Y. 624) 74, 1016, 1189, 1204, 1238, 1266, 1293 Van Slyke -o. Chicago, etc., R. Co. (80 Iowa 620) 556 Van Tassel v. New York, etc., R. Co. (1 Misc. (N. Y.) 299) 520, 1008 Van Tine v. Hilands (131 Fed. Rep. 124) 1263 Van Voorhis v. Van Voorhis (94 Mich. 60) 590 Van Wagenen v. Hopper (8 N. J. Eq. 684) 566, 1261 Van Wyck v. Mcintosh (14 N. Y. 439) 645, 654, 656, 671 Varick v. Hitt ((N. J.) 55 Atl. Rep. 139) 219, 552, 1312 Varnon v. Varnon (67 Mo. App. 534) 10'!:) Vaughan «. Parr (20 Ark. 600) 102 Vaughn ». I-Iann (6 B. Mon. (Ky.) 342) 591, 1095, 1097, 1117, 1321 Veatch v. State (56 Ind. 584) 1240 Vedamore, The (131 Fed. Rep. 154). 275, 282 Vedder «. Fellows (20 N. Y. 126) . . 881 Veghte V. Rarltan Water Power Co. (19 N. J. Eq. 142) 1040, 1042 Venezuela, The (55 Fed. Rep. 416) . . 797, 1270 Verelst v. Verelst (2 Phill. Ecc. 145) 822, 976, 1081 Vermont Street M. B. Church v. Brose (104 111. 206) 761 Vernon v. Vernon (69 N. J. Eq. 759) 1411 V. Young (Litt. Sel. Cas. (Ky.) 351) 1421 clx TABLE OF CASES. [References are to pages.] Vesper, The (9 Fed. Rep. 569) . .480, 1211 Vicksburg, etc., E. Co. ». Hedrick (62 Miss. 28) 1215 Victor, Tlie (Brown Adm. (U. S.) 449) 250 Victoria, The (95 Fed. Eep. 184) . . 454, 459, 929, 1211, 1242 Vietz V. Toledo, etc., R. Co. (55 Mich. 120) 430 Vlllalobos V. Mooney (2 La. 331).. 1387 Villa Y Herman, The (101 Fed. Rep. 132) 552 Vincent v. Cole (3 C. & P. 481) 1039 t;. State (3 Heisk. (Tenn.) 120) 1133 Vindomora, The (14 P. D. 172) 289 Vinton v. Peck (14 Mich. 287) . .645, 671 Viola, The (59 Fed. Eep. 632) 353, 764 Vipond V. Findlay (35 Lower Can. 278) 1010, 1239 Virginia, The (49 Fed. Eep. 84) . . 388 Vitrified P. & P. Brick Co. v. Snead, etc., Iron Works (56 Fed. Eep. 64) 910 Vogler V. Central Crosstown E. Co. (83 N. Y. App. Div. 101) 425, 435 Voglesong's Estate (196 Pa. St. 194) 913 Vojta V. Pelikan (15 Mo. App, 471) . 136, Volkmar v. Manhattan R. Co. (134 N. Y. 418) 122, 131 Vollmer «. Simon (196 Pa. St. 481) 1409 Volunteer, The (149 Fed. Eep. 723) 767 Voorheis v. Bovell (20 111. App. 538) 1033 Vooth II. McBachen (91 N. Y. App. Div. 30) 547, 548 Vorbrich v. Gender, etc., Mfg. Co. (96 Wis. 277) 203 Voss V. Prier (71 Ind. 128) 1116 Vreeland v. Bramhall (28 N. J. Eg. 85) 912 V. Vreeland (48 N. J. Eq. 56) . 59, 70, 137, 182, 187, 222, 931, 1237 ■i;. Vreeland (53 N. J. Eq. 387). 60, 1285 Vulcanite Co. v. American Artificial Stone Pavement Co. (34 Fed. Rep. 320) 91 W. W. V. R. (1 P. D. 405) 1134 Wabash E. Co. v. Billings (105 III. App, 111) 329 V. De Tar (141 Fed. Eep. 9ri2) , 533, 53-1, -)35, 540 Wabash R. Co. ». Misener (38 Can. Sup. Ct. 94) 205, 520, 1343 V. Prast (101 III. App. 167).. 366, 740 V. Hicks (13 III. App. 407).. 1223, 1339 V. Weisbeck (14 111. App. 525). 537 Waco Tap R. Co. v. Shirley (45 Tex. 355) 80 Waddell v. New York Cent., etc., R. Co. (98 N. Y. App. Div. 343). 235, 258 Waddingham v. Waddingham (21 Mo. App. 609) 1163 Waddington v. Buzby (43 N. J. Eg. 154) 1273 Wadsworth v. Dunnam (117 Ala. 661) 362 Wagers v. Dickey (17 Ohio 439) .802, 1023 Waggoner v. German-American Title Co. ((Ky.) 56 S. W. Rep. 961).. 1316 Wagoner v. Wagoner ((Md. ) 10 Atl. Rep. 221) 1164, 1167, 1169, 1212 Wahl t>. St. Louis Transit Co. (203 Mo. 261) 1421 Wait V. M'Neil (7 Mass. 261) 135 Wakeman v. Akey (29 Mich. 308).. 1418 Walbaum v. Heaney (104 N. Y. App. Div. 412) -. 75 Walcott V. Holcomb (31 N. Y. 125). 69 V. Ochterlony (1 Curt Ecc. 580) 182 Waldele v. New York Cent., etc., R. Co. (95 N. Y. 274) 819, 1324 V. New York Cent., etc., E. Co. (4 N. T. App. Div. 549).. 402 Waldron, Matter of (19 Misc. (N. Y.) 333) 1386 Waldron v. Greenwood First Nat. Bank (60 Neb. 245) 1426 i;. Rensselaer, etc., R. Co. (8 Barb. (N. Y.) 390) 520 Wales V. Newbould (9 Mich. 45)... 72, 547, 1120, 1292 Walker, In re (1 Lowell (U. S.) 237) 1141 Walker v. Boughner (18 Ont. 448) . . 77, 825, 840, 842, 1015 V. Cunningham (12 Nova Scotia 1) 568 V. Harvey (108 Fed. Eep. 741). 524 V. Hill (21 N. .T. Eq. 191). 1212, 1320 V. Houghtellng (120 Fed. Eep. 928) 1275 V. Terre Haute (44 Fed. Eep. 70) 90, 127U Walker Glass Co. v. Souweine (24 Fed. Rep. 603) 978, 979 Wall 1.. New York Cent., etc, R, Co. (56 N, Y. App. Div. 599) 817 TABLE OF CASES. clzi [References are to pages.] Wallace, Matter of (49 N. J. Eq. 530) 1315 Wallace t?. Berdell (97 N. Y. 13). 525, 1258 V. Bergen (14 Iowa 182).. 580, 1088, 1291, 1313 V. Harris (32 Mich. 380)... 59, 543, 1276 Wallamet R. T. Co. v. Oregon S. N. Co. (29 Fed. Cas. No. 17,106) . . . 1154 Walleda, The (64 Fed. Rep. 807).. 472 Walling V. Burroughs (1 Jones Bq. (54 N. Car.) 21) 1388 Wallis V. Truesdell (6 Pick. (Mass.) 455) 1311 Walmsley v. Griffith (10 Ont. App. 331) 18, 820, 932, 1027, 1037, 1254, 1420 Walsh V. Boston, etc., R. Co. (171 Mass. 52) 532 V. Missouri Pac. R. Co. (102 Mo. 582) 402, 407 V. Rogers (13 How. (U. S.) 283) 188, 481, 970, 1098, 1116, 1137, 1247, 1428 Walsh's Will (Tuck. (N. T.) 132).. 610 Walter's Appeal ((Pa.) 8 Atl. Rep. 406) 1290 Walters v. Syracuse Rapid Transit R. Co. (178 N. Y. 50) 198, 1196 Walton V. Walton (34 Kan. 195)... 1333 Walton's Estate (194 Pa. St. 528). 1230 Wampatuck, The (Young (Nova Scotia) 75) 547 Wanger ». Hippie ((Pa.) 13 Atl. Rep. 81) 1032 Wanmaker v. Van Buskirk (1 N. J. Eq. 685) 1320 Wapello County o. Brady (118 Iowa 482) 1212 Warburton v. Camp (112 N. Y. 683) 1302 Ward V. Armstrong (14 111. 283) ... 351 V. Chamberlain (5 Am. L. Reg. 330) 704, 1264 V. Chicago, etc., R. Co. (85 Wis. 601) 251,394,402, 439 V. Cooke (17 N. J. Bq. 93). .12, 932 V. Tallman (65 N. J. Eq. 310). 528, 1406 V. The Brig Fashion (Newb. 8) 495, 1274 e. The Schooner M. Dousman (6 McLean (U. S.) 231).. 1248, 1408 V. The Ship Yosemlte (4 Canada Exch. 241) 347, 413 Ward V. Valentine (7 La. Ann. 184) 1250, V. Ward (25 Colo. 33) Ware v. Stephenson (10 Leigh (Va.) 161) Warehime v. Graf (83 Md. 98) Waring s. Clarke (5 How. (U. S.) 441) 14, 538, 1242, V. Pennsylvania R. Co. (176 Pa. St. 172) V. D. S. Telegraph Co. (44 How. Pr. (N. Y.) 76) V. Waring (2 Phill. Ecc. 132). 1^. Waring (6 Moo. P. C. 341). . 1226, Warmoth v. Durand (57 N. J. Bq. 160) 893, Warner v. Crandall (65 111. 195)... Warren u. Booth (53 Iowa 742)... Warren v. Haight (62 Barb. (N. Y.) 490) 1106, V. Warren (8 Misc. (N. Y.) 89) Warren Featherbone Co. v. Ameri- can Featherbone Co. (133 Fed. Rep. 304) Warwick v. Marlatt (25 N. J. Bq. 188) 822, Washburn v. Gould (3 Story (U. S.) 122) V. People (10 Mich. 372) Washburn & Moen Mfs. Co. «. Beat- em-all Barb-Wire Co. (33 Fed. Rep. 261) 852, 980, 1183, 1190, 1). Grinnell Wire Co. (24 Fed. Rep. 23) 828, 1136, V. Haish (4 Fed. Rep. 900). 88, Washington, etc., R. Co. v. McLane (11 App. Cas. (D. C.) 220) Washington Ice Co. v. Bradley (70 HI. App. 313) 750, Waterbury i). Merchants' Union Ex- press Co. (50 Barb. (N. Y.) 157). Waterhouse v. Lee (10 Grant Ch. (U. C.) 176). 964, 976, 1001, 1065, 1193, 1205, Waterman v. Waterman (42 Misc. (N. Y.) 195) Watermolen v. For River Electric R., etc, Co. (110 Wis. 153) Waters «. Metropolitan St. R. Co. (85 N. Y. Supp. 1120) Waters-Pierce Oil Co. v. Kniael ((Ark.) 96 S. W. Rep. 342) 194, V. Van Blderen (137 Fed. Rep. 557). 746, 1029, 1282, 1358, 1292 1215 1398 1332 1247 523 1301 1084 1227 1041 58 19 1113 1332 87 835 88 1059 1191 1355 830 1297 970 1111 1262 138 390 421 205 1361 clxii TABLE OF CASES. 1212 552 694 434 [References are to pages.] Watkins «. Wallace (19 Mich. 57).. 82 Watklnson v. Watkinson (67 N. J. Bq. 142) 973, Watson, The (128 Fed. Eep. 201) .. . Watson V. Brewster (1 Pa. St. 384) . 158, 625, i>. Erie E. Co. (10 Ohio Dec. 454) V. Hastings (1 Penn. (Del.) 47) 1180 V. Interurban St. B. Co. (84 N. Y. Supp. 556) 265 V. M'AUister (7 Mart. (La.) 368) 656, 686, 695 ... M'Bwan ((1905) A. C. 480). 1138 ^. Munro (6 Grant Ch. (U. C.) 385) 576, 1036 e. Walker (23 N. H. 471).. 821, 961 Watts V. Kilburn (7 Ga. 356) 609 Weatherby v. Slack (16 N. J. Eq. 491) Webb V. Haycock (19 Beav. 342) . . 859, 1012, 1202, V. Haynes (75 N. Y. App. Div. 620) Weber v. New York Cent., etc., R. Co. (58 N. Y. 451) 260, V. Third Ave. R. Co. (12 N. Y. App. Div. 512)... 116, 123, Webster v. Ovens (39 Fed. Rep. 388) Webster Loom Co. v. Higglns (15 Blatchf. (U. S.) 446) V. Higglns (105 U. S. 580) 1358 Weeks e. McNulty (101 Tenn. 495). 561 i>. State (79 Ga. 36) 1336 Weems v. Weems (19 Md. 334) 796 Wega, The ((1895) P. 136) 998, 1226 W. E. Gladwish, The (17 Blatchf. (U. S.) 77) Weigand v. Weigand (41 N. J. Eq. 202) Weigel V. Weigel (60 N. J. Eq. 322). Weller v. Manhattan R. Co. (53 Hun (N. Y.) 372) 65, Weimer v. Sloane (6 McLean (U. S.) 259) Welnhard v. SummervUle ((Wash.) 89 Pae. Rep. 490) Weir 1). Fitzgerald (2 Bradf. (N. Y.) 42) Weisgerber v. Clowney (131 Fed. Rep. 477) V. Clowney (131 Fed. Rep. 477) 797, 930, 979, Welch V. Phillips (1 Moo. P. C. 299) 1006 Weldon v. Third Ave. R. Co. (3 N. Y. App. Div. 370) 810 222 1298 64 532 157 89 93 399 188 1212 816 1263 78 807 00 980 Wellbroek v. Long Island R. Co. (31 Misc. (N. Y.) 429) 520, 1258 Welle V. Celluloid Co. (52 N. Y. App. Div. 522) 64 Weller v. Chicago, etc., R. Co. (120 Mo. 635) 533 V. Chicago, etc., R. Co. (164 Mo. 180) 314 Wellman v. Blood (1 McArthur Pat. Cas. 432) 588, 1408 Wells, Appellant (96 Me. 161). 1228, 1234 Wells V. Chazy (95 N. Y. App. Div. 618) 64 V. Plitcraft ((N. J.) 43 Atl. Rep. 639) 1044, 1232 V. Leek (151 Pa. St. 431) 1375 V. JVew York Cent., etc., R. Co. (78 N. Y. App. Div. 1) 329 V. Rahway White Rubber Co. (19 N. J. Bq. 402) 1143 V. Stackhouse (17 N. J. L. 335) 860, 908 V. The Anne Caroline (29 Fed. Cas. No. 17,389o) 827, 1242 V. Wells (116 Iowa 59) 1427 Wells-Fargo, etc., Eixpress v. Waltes (29 Tex. Civ. App. 560) 1143 Welsh V. Brown (50 N. J. Eq. 387). 568 Welty o. Welty (8 Md. 15) 796 Wenchell v. Stevens (30 Pa. Super. Ct. 527) 711, 1375 Wendell ». New York Cent., etc., R. Co. (91 N. Y. 420) 235 Wennerstrom v. Kelly (7 Misc. (N. Y.) 173) 548 Wenona, The (19 Wall. (U. S.) 41). 381, 495 , The (8 Blatchf. (U. S.) 499). 188, 346, 352, 498, 1278, 1408 Werdenfels, The (150 Fed. Rep. 405) 485 We're Here, The (Young Adm. Dec. (N. S.) 318) 388, 109S Werner o. Hearst (76 N. Y. App. Div. 375) 560, 576, 1077 Werr v. Kohles (86 N. Y. App. Div. 122) 580, 585 West V. Rutledge (17 N. Bruns. 674) 560 V. State (22 N. J. L. 212) 654 V. Wheatley (59 Ga. 559) 104 West Branch Lumberman's Bxch. t. American Cent. Ins. Co. (9 Pa. Dist. S6S) 19, 903, 962 West Brooklyn, The (103 Fed. Rep. 691) 762 , The (106 Fed. Bep. 761).... 422 TABLE OF CASES. clxiii 490 [References are to pages.] West Chicago St. E. Co. v. Brown (112 HI. App. 351)... 210, 1276 «!. Byrne (85 111. App. 488) . . . 1138, 1240 V. Lieserowitz (99 111. App. 591) 557, 1241, 1420 e. Lieserowitz (197 111. 607).. 104 Western Ins. Co. v. Steamboat Goody Friends (1 Bond (U. S.) 459).. 120, 370, 488, Western v. Pollard (16 B. Mon. (Ky.) 315) 1313 Western, etc., E. Co. v. Evans (96 Ga. 481) 1235, 1402, 1409 Western Twine Co. ». Wright (11 S. Dak. 521) 529 Western Union Tel. Co. v. Cook (61 Fed. Eep. 624) 1414 D. Guernsey, etc., Electric Light Co. (46 Mo. App. 121) 154 V. James (31 Tex. Civ. App. 503) 54 Westfield, The (38 Fed. Uep. 366) . . 764 Westinghouse, etc., Co. v. Ins. Co. (129 Fed. Rep. 213) 886 Westinghouse Electric, etc., Co. i). Catslilll Illuminating, etc., Co. (121 Fed. Eep. 831).. 553, e. Montgomery Light, etc., Co. (139 Fed. Eep. 868) 1103 V. Mutual L. Ins. Co. (129 Fed, 213) 93, 890 V. Roberts (125 Fed. Rep. 6) . . 89, 92, 832, 904, 959, 979, 1279 V. Saranac Lake Electric Light Co. (108 Fed. Rep. 221).. 92 V. Stanley Instrument Co. (133 Fed. Rep. 167) 832 West Jersey R. Co. v. Thomas (23 N. J. Bq. 431) 1009, 1013 Westmeath v. Westmeath (2 Hag. Bcc. Supp. 1) 822, 834 West Pub. Co. V. Lawyers' Co-opera- tive Pub. Co. (79 Fed. Eep. 756) 579 Westhall, The (153 Fed. Eep. 1010). 1242 Weston V. Troy (139 N. T. 281)... 305 Wetherell v. Keith (27 Fed. Eep. 364) 1255, 1256 Wetzel V. Minnesota R. Transfer Co. (65 Fed. Rep. 23) 74, 137, 835, 842, W. G. Mason, The (131 Fed. Eep. 632) 408, 762, Whalen, Ex p. (32 N. Bruns. 274) . . 976 931 870 807 Whalen v. MilhoUand (89 Md. 199) . 77, 837, 1027, 1311 V. New York Cent., etc., E. Co. (15 N. Y. Supp. 941) 333 Wharram v. Wharram (10 Jur. N. S. 499) 1037, 1039 Wheat V. Croom (7 Ala. 349) 1300 Wheaton, Matter of (68 N. J. Eq. 562) 1230 Wheelan v. Chicago, etc., R. Co. (85 Iowa 167) 64, 201, 517, 601 Wheeler v. Alderson (3 Hag. Ecc. 574) 1139, 1230, 1231, 1280 V. Buck (23 Wash. 679) 1329 Wheeling v. Hawley (18 W. Va. 472) 544 Wheeling, etc., E. Co. v. Suhrwiar (12 Ohio Clr. Dec. 809) 262 Whelen v. Osgoodby (62 N. J. Bq. 571) 79, 222, 223 Whelpley v. Loder (1 Dem. (N. Y.) 368) 700 Whetmore v. Murdock (3 Woodb. & M. (U. S.) 380) 546 W. H. Gratwick, The (81 Fed. Rep. 590) 280, 285 Whlcher ». Whlcher (11 N. H. 348) . 1115, 1120 Whilton V. Eichmond, etc., E. Co. (57 Fed. Rep. 551) 99 Whish V. Hesse (3 Hag. Bcc. 659) . 182, 1226, 1251 Whispell V. Whlspell (4 Barb. (N. Y.) 217) 1265 Whitaker v. Parker (42 Iowa 585). . 5 V. Parker (42 Iowa 585).. 16, 21, 190, 713, 724, 1212 V. Parker (116 Mich. 95) 716 V. Staten Island Midland E. Co. (72 N. Y. App. 468) 1307 White V. Chicago, etc., E. Co. (102 Wis. 489) 205 V. Commonwealth Nat. Bank (4 Brews. (Pa.) 234) 798, l'!Hl V. Fisher (77 Ind. 65) 882, nt2 V. Moore (23 S. Car. 456) 1032 1). Perry (14 W. Va. 66) 220 ■u. Prudential Ins. Co. (120 N. Y. App. Dlv. 260) 542 V. St. Louis, etc., E. Co. (202 Mo. 539) 404, 421, 440, 1408, 1409 V. Starr (47 N. J. Eq. 244) .. . 1157, 1198, 1204 V. State (52 Miss. 216) 1215 cliiv Table of CAsfeg. -White V. White (64 N. J. Eq. 84), . 979, 982, 984, 1192, 1195, 1202 ». White (4 DeT. & B. L. (20 N. Car.) 404) 178 V. WUllamB (3 N. J. Eq. 376) . . 857, 1036, 1136 ti. WllBon (13 Ves. Jr. 87) 1114 Whitehall, The (68 Fed. Eep. 1022). 287 Whitehouse v. Edwards (152 Fed. Rep. 72) 1135 Whltenack i^. Stryker (2 N. J. Eq. 8) 1219, 1281 Whiteside v. State (4 Coldw. (Tenn.) 175) 1263, 1327 Whitfield V. Aland (2 C. & K. 1015) 961 V. Browder (13 Ark. 143) 1400 Whitlatch e. Fidelity, etc., Co. (21 N. Y. App. DiT. 124) 600, 601 Whitman v. Foley (54 Hun (W. Y.) 634) 1293 V. Morey (63 N. H. 448) 1411 Whitney v. Emmett (Baldw. (U. S.) 303) 90 V. Houghton (127 Mass. 527).. 1302 V. Jasper Land Co. (119 Ala. 497) 1042, 1043, 1098, 1101, 1105, 1106 V. Lyon (18 La. 26) 19 V. National Exch. Bank (84 Fed. Rep. 377) 559 V. Olsen (108 Fed. Rep. 292).. 1419 V. Eobbins (17 N. J. Eq. 360). 550 1). Rose (43 Mich. 27) 566 V. Sterling (14 Johns. (N. Y.) 215) ■u. The Steamboat Empire State (1 Ben. (U. S.) 57) Whlttaker ». New York, etc., R. Co. (51 N. Y. Super. Ct. 287) 1335 Wlckes V. Lockwood (65 Fed. Rep. 610) 88, 796, 828 Wiekham v. Chicago, etc., R. Co. (95 Wis. 23) 1342 Wiekwlck V. Powell (4 Hag. Ecc. 328) 905, 952, 801 Wldmayer v. Davis ((111.) 83 N. W. Rep. 87) 1420 Wlede V. Insurance Company of North America (29 Fed. Cas. No. 17,617) 25 Wiggins V. Plumer (31 N. H. 251). 694, 1302 Wllber V. Elcholtz (5 Colo. 240) 698 V. New York Cent,, etc., R. Co. (17 N. Y. App. Div. 623). 103, 333 [References are to pages.] Wilbur V. Flood (16 Mich. 40) 1153 V. Grover (140 Mich. 187) 1133 V. Hubbard (35 Barb. (N. Y.) 304) 1373 e. Jones (21 N. Bruns. 4).. 578, 1292 Wllcoi K. Green (23 Barb. (N. Y.) 639) 1421 c. Hill (11 Mich. 256) 911, 1091, 1189, 1244 V. New York, etc., R. Co. (88 Hun (N. Y.) 263) 1344 V. Selleck (92 Hun (N. Y.) 37) 123, 134 Wllcoxson V. Wilcoxson (165 111. 454) 20 Wlldcroft, The (130 Fed. Eep. 521). 601 Wilder I). Franklin (10 La. Ann. 279) 1292 Wilder's Steamship Co. v. Low (112 Fed. Rep. 161)... 539, 1376, i407, 1426 Wlldrlek v. Swain (34 N. J. Eq. 167) 223 Wilds V. Hudson River R. Co. (24 N. Y. 430) 428 V. Hudson River E. Co. (29 N. Y. 315) 239, 409, 414, 1246 V. Hudson Elver E. Co. (33 Barb. (N. Y.) 503)... 262, 426, 437, 532 Wilhelm, The (47 Fed. Eep. 89).. 460, 870 WUhelml v. Thorington (14 Iowa 537) 1290 Wilkes V. Maxwell (14 Manitoba 599) 798, 1306, 1308 Wilkle o. Sassen (123 Iowa 421)... 1421 Wilklns V. Earle (44 N. Y. 172) 1215 Wilkinson v. Gordon (2 Add. Ecc. 152) 1264, 1285 V. Greely (1 Curt. (D. S.) 439) 1378 V. Payne (4 T. E. 468) 63 V. People (226 111. 135) 1242 V. Sherman (45 N. J. Eq. 413) . 975 Willamette Valley, The (71 Fed. Rep. 712) 552 Wlllard *. Fralick (31 Mich. 431) . . 1006 WiUard Saulsbury, The (1 Lowell (U. S.) 194) 764 Wlllcox e. Hines (100 Tenn. 524).. 104 WlUett V. Fister (18 Wall. (U. S.) 91) 143, 186, 890, 973, 974, 981, 982, 1079 WlUetts (!. Buffalo, etc., E. Co. (14 Barb. (N. Y.) 585) 881 Wllley V. Portsmouth (35 N. H. 303) 1417 Willfong V. Omaha, etc., E. Co. (116 Iowa 548) 264 582 495 *rABLE OF CASES. olxT [References are to pages.] Wlllford, In re ((N. J.) 51 Atl. Rep. 501) 938, 1214 William and Mary, The (4 C. Rob. 381) 1191 William Chlsholm, The (153 Fed. Rep. 704) 14, 86, 422, 1247 William Crane, The (11 Fed. Rep. 436) 508, 767 WUliames v. Barnard (41 Fed. Rep. 358) 88, 828 William Gray, The (1 Paine (U. S.) 16) 138 Williams, In re (19 N. Y. Snpp. 778) 630 Williams, Matter of (128 Cal. 552) 1298 - — , Matter of (2 Connoly (N. Y.) 579) 713 Williams v. Bishop (17 Colo. App. 503) 1145 V. Carle (10 N. J. Eq. 543)... 797, 1235, 1306 V. Champion (39 N. J. Eq. 350) 1066, 1307 V. Davis Co. (54 111. App. 200) . 1240 V. Delaware, etc., R. Co. (155 N. Y. 158) 1196 V. Delaware, etc., R. Co. (66 N. Y. App. Dlv. 336) 1267, 1426 ti. Diclienson (28 Fla. 90).. 84, 589, 1153 ». Pelker (7 Grant Ch. (U. C.) 845) 79 0. Goude (1 Hag. Bee. 577).. 965, 1227, 1251 V. Hall (1 Curt Ecc. 597) 798, 917, 970, 1083, 1306, 1307 V. Huntington (68 Md. 590) . . 136, 547 V. Kansas City, etc., R. Co. (96 Mo. 275) 397, 402, 432 V. Keyser (11 Fla. 234) 1321 V. Kirbman (3 Lea (Tenn.) 510) 1336 V. Lee (47 Md. 321) 20 V. Miles (68 Neb. 463)... 1292, 1295, 1426 V. Riches (77 Wis. 569) 625 V. Robson (6 Ohio St. 510) 523, 802, 822, 1032 V. State (47 Ala. 659) 113 V. State (61 Ala. 33) 610, 718 V. State (50 Ark. 511) 158 V. Southern R. Co. ((Ga.) 55 S. B. Rep. 948) 314 V. The Vim (29 Fed. Cas. No. 17,744a) 306, 1007, 1220 Williams v. U. S. Mutual Ace. Assoc. (133 N. Y. 366) 67 0. Van Norden Trust Co. (104 N. Y. App. Div. 251) 177 V. Waterman (29 Fed. Cas. No. 17,745) 560 r. Williams (23 Fla. 324) 1322 V. Williams ((Ky.) 21 S. W. Rep. 529) 1428 Williams Patent Crusher, etc., Co. v. St. Louis Pulverizer Co. (104 Fed. Rep. 795) 87 William's Case (Crabbe (U. S. 243) 973, 978 Williamson v. Monroe (101 Fed. Rep. 322) 584, 1321 V. Seely (22 N. Y. App. Div. 389) 574 V. Southern R. Co. (104 Va. 146) 200 Williford, In re ((N. J.) 51 Atl. Rep. 501) 1253 Willis V. Baker (75 Ohio St. 291). 72 V. Lance (28 Oregon 371) 467 V. Long Island R. Co. (34 N. Y. 669) 40 0. Mott (36 N. Y. 485) 1421 V. State (12 Ga. 444) 1225 V. Willis (18 Ga. 13) 1420 Willman v. Worrall (8 C. & P. 380) . 162 Willson ». Betts (4 Den. (N. Y.) 201) 649 Wilmer v. Farris (40 Iowa 309) .... 1290 Wilmot V. Cornwell (2 N. Bruns. 61) 1284 Wilmurth v. Illinois Cent. R. Co. ((Ky.) 76 S. W. Rep. 193) 270 Wilshusen v. Blnns (19 Misc. (N. Y.) 547) 1300 Wilson, In re (116 Fed. Rep. 419) . . 584 Wilson V. Anderson ((Tenn. Ch.) 37 S. W. Rep. 1101) 580, 974 V. Beauchamp (50 Miss. 24).. 663 V. Boerem (15 Johns. (N. Y.) 286) 1323 V. Cobb (28 N. .T. Eq. 17-7, 182) 796, 799, 821, 824, 1306 V. Heath (23 Misc. (N. Y.) 714) 59, 823, 1267 V. Howe (5 Ont. L. Rep. 323) . 1284 V. Metropolitan El. R. Co. (120 N. Y. 145) 123 ■u. Noonan (35 Wis. 321)... 19, 1023 V. Smith (5 Yerg. (Tenn.) 379) 1392, 1411 V. South Park Com'rs (70 III. 46) 1151 clxvi TABLE OF CASES. [References are to pages.] WilBon V. Terry (70 N. J. Bq. 231). 1292 Wittenbrock 133 655 1398 528 1377 889 679 1406 1322 998 ■V. Townley Shingle Co. (125 Fed. Rep. 491) 559 V. United Traction Co. (94 N. Y. App. Div. 539).... 128, V. Van Leer (127 Pa. St. 371) . . V. Wilson (66 N. J. Eg. 237).. V. Wilson (24 Grant Ch. (U. C.) 377).. 980, 1230, 1231, 1304 Wiltse, Matter of (5 Misc. (N. Y.) 105) Winans -o. New York, etc., E. Co. (21 How. (U. S.) 101) V. Winans (19 N. J. Bq. 220). Winch V. Norman (65 Iowa 186) . 657, Winchell v. Edwards (57 111. 41).. 587, Winchester «. Grosvenor (44 III. 425) Wineman v. The Ship Hiawatha (7 Canada Bxch. 446) Wing V. Richardson (2 Cliff. (U. S.) 449) 90, 973, 1335 Wingert'B Estate (199 Pa. St. 427) . 1155, 1295 Winne, Matter of (50 Misc. (N. Y.) 113) 1204 Winona Second Nat. Bank v. Donald (56 Minn. 491) 121, 140 Winstanley v. Chicago, etc., R. Co. (72 Wis. 375) 271, 1424 Winston v. Winston (165 N. Y. 553) 1106, 1169, V. Winston (34 N. Y. App. Div. 460) Winter v. Federal St., etc.. Pass. R. Co. (153 Pa. St. 26) . .206, V. Steamer Hercules (Holmes (U. S.) 465) 998 Winterbottom v. Philadelphia, etc., R. Co. (217 Pa. St. 574) 1342 Wintermute, Matter of (27 N. J. Eq. 447) Wirt V. Farrelly (84 Fed. Rep. 892) Wise V. Fuller (29 N. .T. Eq. 2.->7) . . V. Tong Ong (16 Hawaii 457). Wisener ». Maupin (2 Baxt. (Tenn.) 342) 934, Wlswall V. Ayres (51 Mich. 324) . . 19, 581, 836, 9.30, Withaup V. V. S. (127 Fed. Rep. 530) 516, Withee V. Rowe (45 Me. 571).. 652, Withrow V. Warner (66 N. J. Eq. 795) 219, 553 1285 1168 379 1280 88 12.'i3 1160 1137 1276 685 671 Parker (102 Cal. 93) Wiwirowski v. Lake Shore, etc., R. Co. (124 N. Y. 420) Wm. M. Hoag, The (101 Fed. Rep. 846) Woarms v. Becker (84 N. Y. App. Div. 491) Wodock V. Robinson (148 Pa. St 503) Woey Ho v. U. S. (109 Fed. Rep. 888) 168, 1160, Wohlfahrt v. Beckert (92 N. Y. 490) 123, 131, 137, 138, Wolcott V. Heath (78 111. 433) V. Holcomb (31 N. Y. 125) 523, 823, Wolf V. Schooner Bertie Calkins (2 Fed. Rep. 793)... 14, 382, 481, 487, Wolflnger v. McFarland (67 N. J. Eq. 687) 1008, Wood V. Agostines (72 Vt. 51) V. Alpaugh (43 N. J. Bq. 455). V. Barker (49 Mich. 295) V. Boston El. R. Co. (188 Mass. 161) 420, V. Chetwood (44 N. J. Eq. 64). V. Cleveland Rolling-Mill Co. (4 Fish. Pat. Cas. 550) . . . V. Cooper (1 C. & K. 645) ». Davis (108 Fed. Rep. 130). 72, V. Goodlake (2 Cart Ecc. 82). V. Hubbell (10 N. Y. 479) . .31, 58, 579, 12,^-.. 1244, 1302, V. Mann (2 Sumn. (U. S.) 316) V. Medley (1 Hag. Ecc. 645).. 1295, V. New Orleans R., etc., Co. (117 La. 119) 425, V. Pennsylvania R. Co. (177 Pa. St. 306) 235, 297, V. Sewall (128 Fed. Rep. 141). t). Tallman (05 N. J. Eq. 310). V. Wood (63 N. .T. Eq. 688)... «. Wood (4 Brewst. (Pa.) 75). V. Wood (1 PhiU. Ecc. 357).. Wooden v. Western New York, etc., R. Co. (147 N. Y. 508) Woodhouse v. Balfour (13 P. D. 2). Woodman v. Dana (52 Me. 9) . . . . 662, 670, Woodrop-Sims, The (2 Dodson Adm. 83) Woodrow V. Hawving (105 Ala. 240) 945 532 1314 102 797- 1419 1245 903 1109 495 1290 554 1276 165 427 1.322 915 961 1261 1426 1198 1319 541 534 552 1298 1276 1129 1295 65 876 471 1420 TABLE OF CASES. olxvii [References are to pages.] Woods V. Wabash R. Co. (188 Mo. 229) 1407 Woodward o. Goulstoue (11 App. Cas. 469) 1295 V. Squires (39 Iowa 435) 129 V. Woodward (8 N. J. Eq. 779) 1032 V. Woodward (41 N. J. Bq. 224) 989 WoodwortU V. New York Cent., etc., R. Co. (55 N. Y. App. Div. 23) . . 234, 265, 557 Wool, Matter of (36 Mich. 299) .. . 5, 23, 221, 872, 884, 919, 1104, 1165, 1406 Woolacott V. Winnipeg Electric St. R. Co. (10 Manitoba 482) 52 Wooster V. Muser (20 Fed. Rep. 162) 1235 V. Trowbridge (115 Fed. Rep. 722) 824, 1266 V. Trowbridge (120 Fed. Rep. 667) 1264, 1285 Wope V. Hemenway (1 Sprague (U. S.) 300) 1256 Worden v. Van Gieson (6 Dem. (N. Y.) 237) 610 Works V. Steyens (76 Ind. 181) 1116 Worley v. Dryden (57 Mo. 226) 1290 Worswick Mfg. Co. v. Buffalo (20 Fed. Rep. 126) 88 V. Kansas City (38 Fed. Rep. 239) 89, 858, 1355 Wright V. Boston, etc., R. Co. ((N. ' H.) 65 Atl. Rep. 687) 67, 531, 532, 596 V. Brown (67 N. Y. 1, 7) 4 V. Flynn (69 N. J. Bq. 753).. 615, 663, 714, 1132 V. New York Cent. R. Co. (28 Barb. (N. Y.) 80) 338 V. Paige (36 Barb. (N. Y.) 438) 1162 V. Rogers (L. R. 1 P. & D. 678) 800 V. Sanderson (9 P. D. 149) . . . 798, 1420 V. Saunders (65 Barb. (N. Y.) 214) 99 V. Southern Express Co. (80 Fed. Rep. 85) 50, 1377 V. State (35 Ark. 639) 1036 V. Tatham (5 CI. & F. 670) ... 595 V. Wright (4 N. J. Eq. 28) 1307 V. Wright (4 Redf. (N. Y.) 345) 796, 1007 Wrynn v. Downey (27 R. I. 454) . . 1074 Wurmser v. Frederick (62 Mo. App. 634) 1363 Wyanoke, The (40 Fed. Rep. 702) . 289, 485 WyckofC V. Wagner Typewriter Co. (88 Fed. Rep. 515) 47 V. Wyckoft (16 N. J. Eq. 404). 1039 Wygant v. Brown (9 N. Y. Supp. 372, 374) 548, 975 Wyland v. Frost (75 Iowa 209) 974 Wylde V. Northern R. Co. (53 N. Y, 156) 573^ 581 Wylie «. Charlton (43 Neb. 840). 70, 73 Wyman «. Babcocfc (2 Curt. (U. S.) 386) 12, 834, 932, 1229 Wynn v. Garland (16 Ark. 440).. 834, 953, 1315 Yaggle ». Allen (24 N. Y. App. Dlv. 594) 62, 64 Yale V. Dart (17 N. Y. Supp. 179) . . 250 Yale Lock Mfg. Co. «. Berkshire Nat. Bank (26 Fed. Rep. 104) 1279 Yardley v. Cuthbertson (108 Pa. St. 395) 1237 Yarmouth, The (100 Fed. Rep. 067) 433 Yates V. People (32 N. Y. 509) . . . 322, 1332, 1409 Yeatman v. Yeatman (L. R. 1 P. & D- 489) 1230 Yerger v. Barz (56 Iowa 77) 944 Yingst V. Lebanon, etc., St. R. Co. (167 Pa. St. 438) 437 Yoe V. People (49 III. 410) 1326 York V. Maine Cent. R. Co. (84 Me. 117) 1183, 1290 V. Washburn (118 Fed. Rep. 316) 568 Yorkshire Guarantee, etc., Corp. v. Cooper (10 British Columbia 65). 1307 Young «. Barner (27 Gratt. (Va.) 96) 1411 V. Brown (1 Hag. Ecc. 556) . . 630, 631, 698, 979 V, Canadian Pac. R. Co. (1 Mani- toba 205) 878, 1298, 1310 V. Com. (8 Bush (Ky.) 367).. 990 «. Herrmann (119 N. Y. App. 445) 321 V. Johnson (123 N. Y. 226) . . . 1276 77. Stephens (9 Mich. 500) 69 V. Wolfe (120 Fed. Rep. 956) . . 73, 86, 87, 796, 797, 830, 1376, 1408 V. Young (51 N. J. Eq. 491) . . 1018, 1194 V. Young ((N. J.) 27 Atl. Rep. 687) 973 clxviii TABLE OF CASES. [References are to pages.] Young ». Young (1 Has. & War. (P. E. Island) 98) 1137 Youngs V. Youngs (130 111. 230)... 1302 Yula V. New York, etc., R. Co. ((Supm. Ct. Tr. T.) 39 Misc. (N. Y.) 59) 555 Z. Zabrlskie v. State (43 N. J. L. 640) 118 Zacharlas v. Collis (3 Phill. Ecc. 176) 882 Zachary v. State (7 Baxt (Tenn.) 1) 1212 ■'aflok. The (9 P. D. 114).. 287, 290, 452 Zambesi, The (3 Canada Exch. 67) . 276 800 138 320 Zampa, The (113 Fed. Rep. 541)... Zane v. Peck (9 Fed. Rep. 101) . .91, 153, Zimmerman v. Bannon (101 Wis. 407) 137, Zodiac, The (9 Ben. (U. S.) 171).. Zoliewski v. New York Cent., etc., R. Co. (1 Misc. (N. Y.) 438) 340 Zolpher v. Camden, etc., R. Co. (69 N. J. L. 417) 427 Zunz V. New York (103 N. Y. Snpp. 222) 455 Zwack V. New York, etc., R. Co. (160 N. Y. 362) 267 V. New York, etc., R. Co. (8 N. Y. App. DlT. 483) 414, 1344 FACTS OR THE WEIGHT OF EVIDENCE VOLUME I CHAPTEE I. INTEODUCTOEY. § 1. Inclination to Give Too Much Weight to Testimony. 2. No Standard of Belief for Triers of Facts. 3. Judicial Statements Concerning Standard of Belief. 4. Instructions Concerning Standard of Belief. 5. Belief Unnecessary Except in Criminal Cases. 6. Some Rules for Weighing Evidence. 7. The "Admitted Facts" Rule. 8. "Admitted Facts " Rule in Collision Cases. 9. Admitted Facts in Will Cases. 10. Other Applications of "Admitted Facts " Rule. 11. Written Evidence Superior to Oral — Sententious Judicial Statements. 12. Written Evidence Superior — Examples. 13. Above Rule, When Applied with Caution. 14. Testator's Letters, etc., as Superior Evidence of Capacity or Incapacity. 15. Juries Apt to Favor Oral Testimony. 16. Instructions as to Superiority of Written Evidence. 17. High Character of Witness No Exemption from Cautionary Rules. 18. Testimony May Be Partly Credited and Partly Rejected. 19. Are Juries Best Judges of Facts? — Views of Mr. Justice Miller and Judge Dillon. 20. Relative Capacity of Judges and Jurors — Views of Various Judges. 81. Peculiar Fitness of Juries in Negligence Cases, 22. Juries Specially Qualified to Detect Fraud, FAOTS — 1 [I] INTRODUCTORY. [§1 § 23. Competency of Juries in Will Cases. 24. Competency of Juries in Patent Cases. 25. Sympathy or Prejudice of Juries — In General. 26. Prejudice of Juries Against Corporations. § 1. Inclination to (Jive Too Much Weight to Testimony. — " The simple believeth every word; but the prudent man looketh well to his going." ^ In his " Eationale of Judicial Evidence " Bentham says : " Among mankind at large the general propensity is to give to evidence too much rather than too little credence." ^ In passing upon excep- tions to a master's report, Chancellor Spragge of Ontario took occasion " to make this observation (in which, I believe, my learned brothers concur), that there is perhaps a proneness, with some, at any rate, of the masters of the court, to give overmuch weight to oral testimony, and too little weight to conduct and to circumstances. The tendency of almost .ill minds," he continued, "is to place faith in witnesses whose appearance and bearing indicate truthfulness ; but circumstances 1 Prov. xix. 15. "The primitive impulse is to afBrm immediately the reality of all that is conceived." James, Principles of Psychology, vol. 2, p. 319, where the author, in a note, quotes a passage from Bain, The Emotions and the Will, pp. 511, 512, which begins as follows: "The lead- ing fact in belief, according to my view of it, is our primitive credulity. We begin by believing everything." 2 Rationale of Judicial Evidence, IV., S 1, note. As to the disposition of juries to give preference to oral testimony, see infra, § 15. In " The Prisoner at the Bar," p. 232, Mr. Train, assistant district at- torney of New York, says: "The lay- man chancing to listen to a criminal trial finds himself gasping with aston- ishment at the deluge of minute facts which pour from the witnesses' mouths in regard to the happenings of some particular d.ay a year or so be- fore. He knows that it is humanly impossible actually to remember any such facts, even had they occurred the day before yesterday. He may ask himself what he did that very morn- ing and be unable to give any satis- factory reply. And yet the jury be- lieve this testimony, and because the witness swears to it, it goes upon the record as evidence of actual knowl- edge. In ninety-nine cases out of a hundred counsel's only recourse ia to argue to the jury that such a memory is impossible. But in the same pro- portion of eases the jury will take the oath of the witness against the law- yer's reasoning and their own common sense. This is because of the fictitious value given to the witness's oath by talesmen who attach little significance to their own. ' He swears to it,' says the juryman, rubbing his forehead. 'Well, he muM remember it, or he wouldn't swear to it! ' And the wit- ness probably thinks he does remem- ber it." § 2] INTRODUCTORY. 3 may show that witnesses apparently truthful are really false, and no one who has been conversant with the examination of witnesses can fail to have observed how his faith in an apparently truthful witness has been shaken upon his being subjected to the test of a searching cross-examination, or confronted with the evidence of other witnesses, or with proved circumstances; when, if his evidence had been left unassailed, it would have been considered perfectly reliable. Conduct and circumstances are crucial tests of the truthfulness of testimony,^ and should be very carefully considered, and due weight should be given to them by those who, in a judicial position, have to draw their conclusions upon matters of fact from all the evidence of whatever nature that is before them." * The largest and most important division of the law of evidence con- sists of rules adopted for the measurement of probative force. '^ Part of the philosophy of exclusion rules of evidence is thus stated by Starkie : " There is a general tendency among mankind to speak the truth, for it is easier to state the truth than to invent ; the former requires simply an exertion of the memory, whilst to give to false assertions the semblance of truth is a work of difficulty. It is equally apparent that the suspicion of mankind would usually depend on their ordinary experience of human veracity; if truth were always spoken, no one would ever suspect another of falsity, but if he were frequently deceived he would frequently suspect. Hence it is that jurors, sitting in judg- ment, would usually be inclined to repose a higher degree of confidence in ordinary testimony than would justly be due to it in the absence of peculiar guards against deceit; for as the temptations to deceive by false evidence in judicial inquiries are far greater than those which occur in the course of the ordinary transactions of life, they would be apt to place the same reliance on the testimony offered to them as jurors, to which they would have trusted in ordinary cases, and would consequently, in many instances, overvalue such evidence." " § 2. No Standard of Belief for Triers of Tacts, — Secret and complicated transactions, such as are usually the subject of judicial investigation, are too various in their circumstances to admit of de- 3 As to inconsistent conduct of wit- ^ Salmond, Essays in Jurisprudence nesses see post, § 1139. and Legal History, | 2. «Day V. Brown, 18 Grant Ch. (U. oStarkie on Evidence 20. See also C.) 682, 683. poet, § 1046. 4 INTRODUCTORY. [§ 3 cision by any systematic and formal rules ; the only sure guide to truth, whether the object be to explore the mysteries of nature, or unravel the hidden transactions of mankind, is reason aided by experience.' Where inquiry is made into the circumstances of a past transaction, before a jury or other tribunal, the evidence must be judged of and estimated to a great extent by the same rules that would be resorted to and applied by any individual whose business or whose interest it was, in the ordinary course of human events, to institute such an inquiry.' § 3. . Judicial Statements Concerning Standard of Belief. — " There is no standard for the sufficiency of evidence to induce belief, and the various degrees of more and less must, ordinarily, be left to the unprejudiced consideration of the jury," said Judge Wardlaw of South Carolina." " There is no standard by which the weight of conflicting evidence ^° can be ascertained," said Mr. Justice Sutherland, speaking for tlie old Supreme Court of Kew York.^^ In estimating the weight of evidence we cannot mark it as so many ounces, pounds, or tons, and yet we Icnow that it may have all degrees of weight from the lightest feather to the most absolute moral cer- tainty, said Judge Vredenburgh of New Jersey. " All we can do," he continued, " is to note all the facts and circumstances carefully, and estimate its absolute and relative weight by the lights of conscience and experience." '- Speaking of the function of jurors in criminal cases, Judge Pearson- of North Carolina said : " When the credit of a witness is to be passed 7 Starkie on Evidence 8, 9. absurd." Duv.ale r. Duvale, (N. J. 8 Starkie on Evidence 16. 1896) 34 Atl. Rop. 888, 896, per Vice- Means v. Means, 5 Strobh. L. (S. Chancellor Pitney. Car.) 167, 189. See also infra, § 4. m The italics are the court's, and " Belief is rarely the consequence of the context of the opinion indicates strictly logical processes. It is either that the court did not mean to include partially or entirely the outgrowth of such cases as are described post, education, bias, affection, fear, or some §S 67, 69 ct seq., 80 et seq. other influencing passion. We believe n People r. Superior Ct, 5 Wend. what we wish to believe, and what we (N. Y.) 114, 126, quoted in Wright are in the mood for aocpptinf; as tnip. v. Brown, 67 N. Y. 1 7. The aama evidence which to one may i2 Boylan v. Meeker, 28 N, J. L. 274, be convincing, to another may seem 333, §3] INTRODUCTORY. on, each juror is called on to say whether he believes him or not; this belief is personal, individual, and depends upon an infinite variety of circumstances ; any attempt to regulate or control it by a fixed rule is impracticable, worse than useless, inconsistent and repugnant to the nature of a trial by jury, and calculated to take from it the chief excellence on account of which it is preferred by the common law to any other mode of trial, and to adopt in its place the chief objection to a fixed tribunal. Do I believe what that witness has sworn to? is a question for each juror." ^' " We have no test of the truth of human testimony, except its con- formity to our knowledge, observation, and experience," said Vice- Chancellor Van Fleet of New Jersey.^* "It is one of the difficulties attending all tribunals passing upon facts, that the reasons for believing particular witnesses or particular testimony in preference to others cannot be defined," said Judge Camp- bell of Michigan.^' " Nothing is more difficult than to prescribe rules of faith ; perhaps every man has one peculiar to himself," said Judge Henderson of North Carolina.^^ 13 State V. Williams, 2 Jones L. (47 N. Car.) 257, 269. 14 Daggers v. Van Dyek, 37 N. J. Eq. 130, 132, and Jersey City Second Nat. Bank v. O'Rourke, 40 N. J. Bq. 92, 94. " The effect, then, which all evidence has upon the mind is determined by observation and experience, the only original instructors of wisdom." Whitaker v. Parker, 42 Iowa 585, 587, per Beck, J. "Matter of Wool, 36 Mich. 299, 302. Carlyle says somewhere: "It is a mysterious indescribable process, that of getting to believe; indescrib- able as all vital acts are.'' " It is always difficult to determine, when one set of persons who stand precisely in the same degree of veracity as an- other are directly at issue, which are speaking correctly." The Orbona, 1 Spinks Ecc. & Adm. 161, 165, per Dr. Lushington. "State V. Jim, 1 Dev. L. (12 N. Car.) 508, 511. Sir James Fitzjames Stephen said : " Why is a judge re- quired to listen with gravity to con- flicting medical theories of the cause of a death, and to state to a jury the grounds on which they are to decide whether a man died of this disease or that, and yet to treat with contempt the notion that he died of witchcraft, and to reject all evidence tendered to prove it? Probably no more difficult question can be asked, and I doubt whether there is any which, if fully solved, would be of greater practical importance." General View of the Criminal Law of England, p. 193. The context of the passage is quoted post, § 133. In the first chapter of his " Rationalism in Europe," Lecky says : " We have now passed so completely out of the modes of thought which predominated in the sixteenth and 6 INTRODUCTORY. [§3 Judge Beck, speaking for the Supreme Court of Iowa, said : " It is impossible, from the nature of things, for the law to provide rules which shall determine the quantity or amount of evidence necessary to seventeenth centuries, and we are so firmly convinced of the unreality of witchcraft, that it is only by a strong effort of the imagination that we can realize the position of the defenders of the belief. Yet it is, I think, diffi- cult to examine the subject with im- partiality without coming to the con- clusion that the historical evidence establishing the reality of witchcraft is so vast and so varied that it is impossible to disbelieve it without what, on other subjects, we should deem the most extraordinary rashness. The defenders of the belief, who were often men of great and distinguished talent, maintained that there was no fact in all history more fully attested, and that to reject it would be to strike at the root of all historical evi- dence of the miraculous. The belief implied the continual occurrence of acts of the most extraordinary and impressive character, and of such a nature as to fall strictly within human cognizance. The subject, as we have seen, was examined in tens of thousands of cases, in almost every country in Europe, by tribunals which included the acutest lawyers and ecclesiastics of the age, on the scene and at the time when the alleged acts had taken place, and with the assist- ance of innumerable sworn witnesses. The judges had no motive whatever to desire the condemnation of the ac- cused ; and, as conviction would be fol- lowed by a fearful death, they had the strongest motives to exercise their power with caution and deliberation. The whole force of public opinion was directed constantly and earnestly to the question for many centuries; and, although there was some controversy concerning the details of witchcraft, the fact of its existence was long con- sidered undoubted. The evidence ia essentially cumulative. Some cases may be explained by monomania, others by imposture, others by chance coincidences, and others by optical de- lusions; but, when we consider the multitudes of strange statements that were sworn and registered in legal documents, it is very difficult to frame u, general rationalistic explanation which will not involve an extreme im- probability. In our own day, it may be said with confidence, that it would be altogether impossible for such an amount of evidence to accumulate round a conception which had no sub- stantial basis in fact. The ages in which witchcraft fiourished were, it is true, grossly credulous; and to this fact we attribute the belief, yet we do not reject their testimony on all mat- ters of secular history. If we con- sidered witchcraft probable, a hun- dredth part of the evidence we possess would have placed it beyond the region of doubt. If it were a natural but a very improbable fact, our re- luctance to believe it would have been completely stifled by the multiplicity of the proofs. . . . It ia, I think, impossible to deny that the books in defense of the belief are not only far more numerous than the later works against it, but that they also represent far more learning, dia- lectic skill, and even general ability. For many centuries the ablest men were not merely unwilling to repudi- § 4] INTRODUCTORY. 7 establish a fact in judicial proceedings." There can be devised no standard, no unit of measurement, whereby we may determine just what measure of evidence shall be required to prove a fact in issue. . . . As a matter of fact, evidence can usually be brought before a jury only thtough the medium of human testimony; there must, of necessity, be a witness, or one standing in that position, through whom the fact can be brought to the mind of a court or jury. . . . But this rule gives no measure for the quantity of evidence; for knowledge, intelligence, qualities of memory, and all other attributes that make up ability, together with those moral qualities which constitute credi- bility, are most unequally united in men, so that one possessing all the attributes of ability and credibility in the highest degree, and so known to the tribunal before whom he testifies, would, in his evidence, out- weigh an indefinite number of witnesses who possess the same attributes in the lowest degree. It is also true that a witness, in order to prove a fact by his evidence, must be credible — he must be such a witness as will be entitled to receive the belief, the faith of others. But here again, from the very nature of the case, there are indefinite degrees in this character we call credibility. One may possess it in the highest degree, another in the lowest degree. It follows, therefore, that when evidence is weighed, to determine whether a fact has been proven thereby, all the qualities going to make up what is termed ability and credibility in a witness must be fully considered in order to arrive at a truth." 18 § 4. Instructions Concerning Standard of Belief. — Mr. Justice Davis of the United States Supreme Court, instructing a jury at circuit, said : " The credibility of witnesses is for the jury. The court cannot instruct you whom to believe and whom to disbelieve. There is no artificial rule of belief to control the minds of a jury. Some wit- nesses, by their appearance on the stand, impress the jury that they are impartial between the parties and tell the truth. Other witnesses who ate the superstition; they often pecial pains to throw the weight of pressed forward earnestly, and with their authority into the scale." the most intense conviction, to defend i' See also Felch v. Concord E. Co., it. Indeed, during the period when 66 N. H. 318, 323, 29 Atl. Eep. 657, witchcraft Was most prevalent, there 558, per Blodgett, J. were few writers of real eminence who is Callanan v. Shaw, 24 Iowa 441, did not, on some occasion, take es- 444. 8 INTRODUCTORY. [§ 5 testify show such bias and tell their story in such a way that the mind hesitates to place implicit reliance on what they say. To such witnesses you should apply the best [test] of your common sense. How did they bear themselves on the stand? Was the evidence favorable? Was it consistent with ordinary human conduct ? Did they stand the test of cross-examination? Have they been successfully contradicted or impeached? Have they shown malice? These are matters proper to be considered in examining the value of the testimony on which the case turns." ^' § 5. Belief TJnnecessary Except in Criminal Cases. — " The true opposites of belief, psychologically considered, are doubt and inquiry, not disbelief." '"* But the degree of proof which excludes doubt or even "reasonable doubt," and therefore constitutes belief, is not de- manded in ordinary civil cases.^^ " It is never necessary m a civil case that a jury should be satisfied of the truth of their verdict, in the sense of resting upon it confidently," said Judge Eakin, speaking for the Supreme Court of Arkansas.^^ Judge Thomas of the federal District Court said: "When events are entangled in the confusion that results from unintelligent and inaccurate observation and perverse and careless statements, no conclusion, at all points logically defensible, can be attained, and an element of doubt accompanies and survives the decision. Hence the court must consider and weigh the evidence and probabilities, and strike such balance as his judgment and the rules of law require." ^^ It has been held erroneous to instruct a jury without qualification that the evidence of any necessary fact must be sufficient to " satisfy " "* or to " convince " ^° them. The rule prescrib- ing the degree of proof required is stated in the followiag chapter.-^ But it is a rule of the criminal law that the guilt of the accused must be fully proved; that neither a preponderance of the evidence 18 Huchberger v. Merchants' F. Ins. 22 Shinn v. Tucker, 37 Ark. 580, 689. Co., 4 Biss. (U. S.) 265, 267, 12 Fed. 23 The George L. Garllck, 88 Fed. Cas. No. 6,822, quoted in instructions Rep. 553, 554. to a jury by Blodgett, D. J., in Sibley =* Ahibama G. S. R. Co. v. Burgess, V. St. Paul F. & M. Ins. Co., 9 Biss. 119 Ala. 555, 25 So. Rep. 251. (U. S.) 31, 22 Fed. Cas. No. 12,830. 2s Murphy «'. Waterhouse, 113 Cal. 20 James, Principles of Psychology, 467, 45 Pae. Rep. 866. See also vol. 2, p. 284. French v. Day, 89 Me. 441, 36 Atl. 21 See post, § 27, and compare §§ Rep. 909. 44, 56. 20 See post, § 27. § 6] INTRODUCTORY. 9 nor any weight of preponderant evidence is sufficient for the purpose, unless it generate full belief of the fact, to the exclusion of all reason- able doubt.-' § 6. Some Rules for Weighing Evidence. — '■ In the preface to this work we have adverted to the tendency of the judicial mind to formu- late and adhere to rules for weighing evidence,^^ and the inclination of judges to approve and adopt the views of their experienced prede- cessors upon questions of fact as far as they can be applied to new cases and novel conditions.-" Some of these rules are of self-evident validity, alike to the nonprofessional man and, the skilled advocate or erudite judge. Others are the product of reason combined with ex- perience, and some of these have been greatly elaborated and refined pursuant to ordinary professional habit, with an occasional tendency to crystallize into inflexible precepts. Among rules of the first or axiomatic class is this: Evidence which is justly open to criticism derogating from its trustworthiness is inferior in weight to opposing evidence free from perceptible defects.^" Common reason, and there- fore justice, requires that the weak shall not be pronounced equal to the strong ; that the robust shall prevail" over the feeble ; that the perfect shall receive the award in preference to that which is even slightly imperfect. It is this rule which, in a conflict of evidence, justifies observation and exposure of faults so slight that they would pass unheeded but for the imperative necessity of making a comparison. Por example, one witness says he saw something happen within plain view of him. Another witness, with apparently equal facility for observation, declares that it did not happen. But the latter was en- gaged in conversation at the time, while the former was not in any way occupied. Now, it would be absurd to contend that a person can- not converse with another and simultaneously observe what is going on within his range of vision, and in the absence of contradiction his state- ment might well be accepted without hesitation. The witness being contradicted, however, we must take notice of the fact, which the author believes to be well authenticated, that conversation exacts a degree of *' Per Parker, J., in Southard v. 2» See ante, Preface. Curley, 134 N. Y. 148, 31 N. E. Rep. 3o In u, conflict of testimony " it be- 330. See further post, §§ 59, 60. comes important to determine where 28 See also infra, § 20, at pp. 28, the trnth lies from such testimony aa 34, 36. is least liable to mistake or miscon- 10 INTRODUCTORY. [§ 6 attention not unlikely to impair accuracy even of visual observation of what is going on before one's eyes.'^ But the experienced judge does not stop there. He deems it useful for his purpose and clearly legiti- mate to note that " men instinctively and unconsciously look towards those with whom they talk." '^ Throughout this work it will be seen that a wise trier of facts never spurns considerations of slight magni- tude if they actually increase or diminish the weight of evidence in a case where it is a delicate question to determine on which side the preponderance of evidence rests. In a close case Chancellor McGill of New Jersey mentioned the fact that a woman whose testimony was of vital moment, and whose entire good faith was unquestioned, was attended to, from, and at the court by the parties in whose favor she testified.^' It was surmised that she had failed to observe or remember an incident to which another witness testified, and which she declared did not occur, and it is well known that the memory of the most upright person is often warped by the importunities of interested parties or his desire to serve a friend.'* It may be here remarked as a universal truth, that when testimony of a witness, not formally impeached, is under severe scrutiny,'^ courts are astute to discover slight circumstances appearing in the case — even in his demeanor upon the witness stand '* — which dis- close flaws in his character, and to turn them upon his testimony with fatal effect. Some of the opinions of Sir WiUiam Scott (Lord Stow- ell) and of Sir John NichoU reveal marvelous sagacity and skill in co-ordinating little circumstances, separately innocent to the untrained mind, so as to produce a powerful special impeachment of a witness. Some species of evidence are so weak and decrepit as hardly to mei'it any consideration at all, and are overcome by very slight opposing evidence. Thus, " testimony as to declarations of a deceased person should undoubtedly be disregarded upon the least conflict with the probabilities of the case." '^'' Handwriting opinion evidence is noto- ception." Dickie v. Van Vleek, 5 Redf. s* See post, §§ 824, 826. (N. Y.) 284, 292, per Surrogate Cal- s 6 Such cases, for example, 33 are vin. cited post, §§ 877, 1150. 31 See post, § 775. 3o See post, §§ 923, 1002. 82 See The George W. Childs, 67 37 Matter of Burtis, (Surrogate Fed. Kep. 269, 272, per Butler, D. J. Ct.) 43 Misc. (N. Y.) 437, 89 N. Y. 33 Swain v. Edmunds, 53 N. J. Eq. Supp. 441, 457, per Surrogate Woodin. 142, 32 Atl. Rep. 369. See generally post, §§ 877, 1150. § 7] INTRODUCTORY. 11 rionsly unsatisfactory.** Bentham characterized ex parte affidavits as the "most miserable species of evidence/' and the courts echo that sentiment.*" In a conflict of evidence direct or circumstantial it is often difficult and sometimes impossible *'' to decide which is the stronger and more convincing, and judges themselves frequently fail to agiee in their views of the facts.*^ It is the purpose of this treatise to point out some of the arguments that have been or can be made for or against various kinds of evidence, and evidence coming from various sources imder various circumstances. § 7. The " Admitted Facts " Kule. — A rule for weighing testi- mony which receives assent the moment it is stated is this : Evidence of whatever description must yield to the extent that it conflicts with admitted or clearly established facts.*^ These latter were happily termed by Lord Stowell " presiding " facts, and again " master " f acts.*^ Judge Brown of Minnesota characterizes them as " the broad daylight facts." ** Judge Putnam of the federal Circuit Court speaks of a fact which " overlaps all the other facts." *'' Pacts gathered by necessary inference from others satisfactorily proved may likewise be employed as test facts.*" In a ease tried by Mr. Justice Curtis at 38 See post, § 629. that is so flatly contrary to the ad- s' See post, § 938. mitted facts of the case, that they *o In which last case, of course, the are either mistaken about the vessel party having the burden of proof fails they loaded, or intentionally false in in his contention. But " very few a very material matter concerning the cases are decided by the burden of same." The Nith, 36 Fed. Rep. 86, 89. proof, because the jury usually finds As to testimony inconsistent with that one side or the other has made physical facts, see post, § 149 et seq. out the best case." U. S. v. Dry Ox, *8 The Eliza Ann, 1 Hag. Adm. etc., Hides, 25 Fed. Gas. No. 14,995, 257, 261. per Lowell, D. J. ** Medcalf v. St. Paul City R. Co., 41 See post, § 727. 82 Minn. 18, 84 N. W. Rep. 633. 42 Conclusions which best accord "A jury is apt to be guided by with the probabilities arising from the broad general features of a case." indisputable facts, and which recon- Hoguet v. Berkman, (Supm. Ct. Gen. cile, as nearly aa it can be recon- T.) 6 N. Y. Supp. 214, per Judge Bar- ciled, the conflicting evidence, are the rett. most satisfactory. Mitchell Transp. *» Morse v. St. Paul F. & M. Ins. Co. V. Green, (C. C. A.) 120 Fed. Rep. Co., 124 Fed. Rep. 451, 455. 49, 64. "The two stevedores, father leThe Scotia, 7 Blatchf. (U. S.) and son, and their foreman, tell a 308, 21 Fed. Gas. No. 12,513 (at p. story about the stowage of the iron 791). 12 INTRODUCTORY. [§ 8 circuit, his first step was " to test ... the proofs by their con- sistency with facts admitted or clearly proved." *' In a divorce case where adultery was alleged, Dr. Lushington said : " The veracity of many witnesses is called in question, and the evidence is contradictory to a very great extent, and much time must necessarily be consumed in the investigation requisite to the discovery of the truth. I must commence with stating a few of the admitted facts." ** Chancellor Blake of the Court of Chancery of Upper Canada pointed out that in a ease under consideration the defendant's testimony was irreconcil- able with that of another witness, and remarked that " it will be proper to examine the evidence a little further, for the purpose of seeing how far the defendant's narrative is consistent with the admitted facts." *" In weighing contradictory statements, said Sir Christopher Eobinson in a f alvage case, " it will be proper to consider what agrees best with the facts of the case, as they may be collected from the situation of the parties, and from sources liable to no suspicion." ^^ Notwithstanding the simplicity of the " admitted facts " rule, its applicability in a particular case may possibly not be realized until more cumbrous and less conclusive tests have been employed, con- suming time and thought, or it may be overlooked altogether by one who is not alert. It is conceivable that there may be no conflict between a conceded fact and any one of a set of contested facts, while if the contested facts be regarded, for the sake of argmnent, as estab- lished, their combined and logical result will not be reconcilable with the conceded fact ; in which case it is evident that one or more of the alleged facts in the combination must be dismissed. § 8. " Admitted Pacts " Rule in Collision Cases. — Dr. Lushing- ton, addressing the Elder Brethren in a collision case, alluded to some tests by which the witnesses should be tried, and said: "There is another test of which we must not lose sight; having ascertained what iTWyman v. Babcock, 2 Curt. (U. evidence, to determine where the truth S.) 386, 388, 30 Fed. Caa. No. 18,113 lies." Ward v. Cooke, 17 N. J. Eq. (at p. 742). "As the character of 93, 95, per Chancellor Green, both witnesses is unimpeaehpd, and i Btesaey «. Bostwick, 13 Grant Oi. Brown ». Boole, 1 Nova, Seolia 137, (U. C.) 279, 291. 138. 102 See post, J 46i »5See post, § 729. los See post, § 1151. §§ 18, 19] iNtKODUCTOkV. 23 defeeJtes iv^hefl it is glteH by a -vv-itness of -vtrfell-ktio-s^n integrity and pfudent judgflielit."* § 18, Testimony May Be Pairtly Credited and Partly Rdjeeted. -^ Triers of facts arei not bound to believe all that any witiiess has said ; ^"° they may accept some portions of his testiiaony and reject otheT portions, according to what seems to them, tipon other facts and oirciunstanees, to be the trath:^"" " Counsel may propeTly argue that the jury shotild find in accordance with pa,vt of his client's testimony, and in othfer partictilars should rfeject it and find in accordance with the testifnony of other ■fritnesfees, on whateveT side called. In bther words^ the law recognizes the fact that parties, as well as tfther well- nesses, may honestly mistake the truth, and requires juries to find the facts by weighing all the testimony, whatever may be its source. . . . Even when witnesses are found to have deliberately falsified in some material particulars, the jury are not required to reject the whole of their micorroboratid testimony^ but may credit such portion's as they deem worthy of belief:^"^ . . . They are to Weigh all the evideacfe,- and while they may not pervert or distort it by rejecting integral parts of a statem'ent,-^"* they may accept or reject each dis- tinct stattement.' Tbey may thus find j)r'oved a staite of fatts to' which as a> whole no single ■^^^itnesS has tes^tified', a!nd which in som'e' pat- tieilidar is- contrary to the aecouiit givfen by every individual wit- ness." "" § 19. Are Juries Best Judges of Facts? — Views of Mr. Justice Sfiller aild ifn^ge Billon. — In Ms lectures to Yale University, Judge iiS'i S'e'6', as to nonexpert opinion los " While it is doubtless true that eVid'fili'Cfe" to handwriting, post, § 652. a portion of the testimony of a wit- I'liS tJnless it ia entirely uncoAtra- ness may be credited by a jury, and dieted' 6y 6ther iiestimony or by cir- a portion discredited, still, when a cUm'siiances. See post, § 67. part of the evidence is modified or i'<>o 6om. i>. Keiidall, 162 Mass. 221', qualified' by anothei* portion, it is far 38 it. B. !feep. 504'; Afatter of W661, from clear that one portion may be ^ff Mieli. 29^, 302; State v. Jim, 1 rejected and the other given credit." Dev. £. (N'. Car.)' 508', SlO; Louis- Laidlaw v. Sage, 158 N. Y. 73, 91, v'lfle, 6t6., S. Co. V. truett, (C. C. 52 N. E. Rep. 679, 689, per Judge A.)' I'll Fed'. Rep. 876, 86'0. See also Martin. itfetJallic Hoofing Co. v. Jose, 14 Ont. looHill v. West End St. R. Co., i. fop. Id'd', 159'. 158 liass. 458, 33 lif. f. Rep. 582; per WrS^e posi, 4 10731 M'r. Justice Barker. 24 INTRODUCTORY. [§ 19 Dillon said : " I have tried literally thousands of cases with juries, and the instances are few where I had reason to be dissatisfied with their verdicts. I recall with interest the views of the late Mr. Justice Miller and the change of opinion on his part on the subject of trial by jury. His opinions are of value, for by general consent he ranks among the ablest judges who have ever held a seat on the bench in this or in any country. He said to me at one time that his notion of an ideal trial court was a court composed of three judges to try all civil issues of law or fact. Some years afterwards, as the result of more observation and experience, he told me he had changed his views, and that he thought juries better judges of fact than judges." ^^° Mr. Justice Miller himself said : " In my experience in the con- ference room of the Supreme Court of the United States, which con- sists of nine judges, I have been surprised to iiad how readily those judges come to an agreement upon questions of law, and how often they disagree in regard to questions of fact which apparently are as clear as the law. 1 have noticed this so often and so much that I am willing to give the benefit of my observation on this subject to the public, that judges are not pre-eminently fitted over other men of good judg- ment in business affairs to decide upon mere questions of disputed fact." ^^^ Judge Dillon stated his own strong conviction in this con- cluding sentence of his fifth lecture to the Yale students : " Twelve good and lawful men are better judges of disputed facts than twelve learned judges." ^^^ 110 Laws and Jurisprudence of tegrity in the benches of our courts England and America, Lecture IV., is a. common and almost universal p. 122. possession. Such legislation therefore 111 " The System of Trial by Jury," implies a, distrust of the capacity of 21 Am. Law Rev. 859, at p. 863. the judge to deal with the evidence 112 Laws and Jurisprudence of in summing up so as not to be likely England and America, p. 168. At to do more harm than good, and it page 129, speaking of statutes which overlooks the need on the part of the forbid judges to charge upon the evi- jury for intelligent judicial instruc- dence or express any opinion upon the tion and guidance." In setting aside value of the testimony, Judge Dillon a verdict against a Are insurance com- says : " Soften or disguise the fact pany because it was rendered for an as best one may, such legislation im- amount far in excess of the plaintiff's plies a distrust either of the capacity loss as clearly demonstrated, Judge or of the integrity of the judges. Dillon said: "The law has invested Doubtless it is the former; for in- judges with certain powers, inquir- § 20] INTRODUCTORY. 25 § 20. Eelative Capacity of Judges and Jurors — Views of Various Judges — Judge Caldwell's Opinion. — After serving on the bench of the United States District and Circuit Courts for the Eighth Circuit nearly thirty-five years, Judge Caldwell, a jurist of exceptional ability, said : " The constitutional mode of ascertaining the sense of reason- able men on disputed questions of fact in common-law actions is by the verdict of twelve jurymen, and not by the opinions of the judges. It was because the people knew the judges were poor judges of the facts that they committed their decisions to a jury, and every day's experience confirms the wisdom of their action." *^* Mr. Jxistice Story's Views. — On a motion for new trial after a verdict on the issue of fraudulent overvaluation of property insured, Mr. Justice Story said : " In considering questions of this nature, I confess I am among those judges who are very reluctant to inter- meddle with the verdicts of juries in mere matters of fact. There was a time when courts were disposed to go to an extravagant length on this subject, and to set aside the verdict of the jury merely because, in the opinion of the court, the weight of evidence was on the other side. This was, indeed, substituting the court for the jury in trying the credibility of testimony and the weight of evidence. For one, I am not disposed to proceed far upon this dangerous ground. . . . And upon a question of fraud in fact, which is made up of so many ingredients, and is so peculiarly within the province of a jury, I do not hesitate to say I would be more reluctant to interfere than in many other cases." In a chancery case for injunction and relief on account of diversion of a watercourse, where there was a large body of evidence and it was contradictory or conflicting in its most important bearings, Mr. Justice Story said : " The weight which ought to be attached to it, therefore, must, in a great measure, depend upon the comparative credibility of the respective witnesses. It appears to me that under these circumstances, and in matters connected with the common busi- ing them to be so exercised that ver- isfied, and it is the experience of diets rendered against the law and every lawyer, that these powers are against the evidence should be set exercised by the courts by far too aside. A judge who fails to perform seldom." Wiede v. Insurance Co. of that duty is not fit to sit upon the North America, 3 Chicago Leg. N. 353, bench; and so essential is this power 29 Fed. Gas. No. 17,617 (at p. 1153). in courts that without it juries would "s Myers v. Chicago, etc., R. Co., not be in existence to-day. I am sat- 95 Fed. Rep. 406, 414, 37 C. C. A. 137. 26 iNTRODUCtORt. tl 20 ness of practical life, whete the expfefience of a jnry tttigbt he oi great advantage' to aid the conift in its ttltimSte decisioil, it is exactly eacll a ease as aaght id be subiaitted to a juty upon &ti i^sue to be framed for that purpose." "* Mr. Justice Woodbury's Vieivs. — Mr. Justice Wdddbtiry ^aid, as to granting new trials for TerdictS against the weight df efidetce: " In some states the courts Seem inclined td go farther than appears td me Justifiable, consistent with the power afld general wisdom of jttrieS, as to facts, and their high integrity," and he declared that Jtiries are " peculiarly fitted to decide " questions depending upon the verSclty of witnesses. ^^^ In a chancery case Mr. Justice Wotidbttry, deciding upon conflicting testimofly whether a party made an agreeftient in terms as alleged, said : " The questidc, as one df fact, iS diffictilt, afid I wish a jury had passed on it rather than the court." ^^^ JiCdffe GooUy's Opinion. — In a Criminal case, Jtldge Cddley of Michigan said J " The Jurors, Md they aldiie, are to Jtfdge di the facts and weigh the evidence. The law has established this tribunal because it is believed that, from its numbers, the mode of their Selettiidn, and tlie fact that the jurors come from all classes of society, they are better calculated to judge ol motives', weigh probabilities', and take what may be called a common-sense view of a set of circumstances involving both act and intent, than any Si&gle man, hoWeVef pure, wise, and em'itient he may be: This is the theory of \M laV, and, as arpplied to criminal aecu'satiofi'S, it iS eminently wise', and favorable alike' to liberty and to justice." "^ Tiews of Yaiious Federal Judges: — SpeaMWg for th« Fniteii} StStes" Circuit Court of Appeals, Jud'ge Shelby said : " The experience of f h«' jtrdieiary, as shown: by h-istory, should teach tolerance ffind humility, Wh'e'ii we recall' that the ben'Ch once accdttnted for familiar physical and mental conditions by witchcraft, and that, too, at the expenisft' o1 the lives of innocent men and women'. In that day i?i! *as Sai^ from the bench that to deny the existence of witchcraft was to deny the Christian religion. Juries would have done tetter.^'' Then afld' 114 Dexter v. Providencfe Aqueduct (f. S.) 456, 46^, 2'4' Jecf. Cdi. ]Sfo'. Co., 1 Story (tr. S.) 387, 394, 7 Fed. 14,233 (at p. 292)'. Cas. No. 3,864' (at p. 619)'. unpeople v. Gai'bvrf);, l'7 Mfch'. S; iiB Fearing v. EeWolf, 3 'Woodb. & quoted in Lillie v. State, (S'et. I'9i0'^)' M. (U. S.) 185, 8 Fed. Cas. No. 4,711 100 N. W. Rep. 316, 322. (at pp. 1119, 11'20). "sin the Mtassaclb'seffe witcAttrtff? 110 Tufts v. Tufts, 3 Woodb. & M. episode the juries recovered from their § 20] INTRODUCTORY. 27 now questions of fact were best tried by jtiry." "' Judge Brawley, speaking for the United States Citeiiit CoTirt of Appeak, Said : " In all cases where there is conflict of testimony, or qttestion as to the credibility of witnesses and preponderance of proof, and in actions of negligence, where the line which separates questions of law from questions of fact is so close that it cannot be accurately delimited, and Hiindg equally intelligent and equally impartial might draw different CMielusions,. the judgment of twelve impartial men, of the averagfe of the community, applying their separate experiences of life to the solu- tion of such doubts as may arise, is more likely to be wise mi safe than the conclusion of any single judge, and the practice is not to be encouraged which would substitute the eoQcIusions of on© mind for that average judgment which it is the object of our system of juris- prudence to obtain in all preper cases." ^™ In the course of his instructions to a jury Judge HopMnson of the federal District Court remarked that questions of fact " arc referred to a j^iry, whose natural intelligence and knowledge of men, and the business of men, make them excellent judges fff the credibility and effect of evidence.""^* A federal judge, sitting in admiralty, dismissed a libel in personam for assauilt, remittijog the- parties to the courts of common law,, becanase th© ease was not clear on the CTidence. "Wlien the cage is made doubtful by the character of the witnesses or the conilict of their testimony," said he, " there is safety in the intervention of a jury." "== In a bankruptcy ease where the pivotal question depended upon the testimony of two witnesses' of apparently equal veracity who directly contradicted each other, Judge Lowell said : " I cam only regret that the parties did not see fit to submit the decision of this question to a jury." "^ Mr. Justice Holmes has said : " A judg.e who has long sat at nisi prims ought gradually to> acquire a fund of experience which enables ym to repiPesent the common sense of the community in ordinaary delusion qmidfcer fcan the judges. 12* U. S. v. IngersOlT, CVabbe (U. ? ElTiott, TRe New England History, S.) 135, 26 Fed. C&s. No. 15,440 fat cJap. 3. p. ^Sa'}. 11!) Post V. U. S:, 135 Fed. Rep. I, 1^2 MtDri^y »• Donnelly, 3 Leg. Int. II, 67 C. C. A. 569. fPa.J' 41, 17 Fed. Cas. No. ^,958', per 120 Travelers' Ins. Co. v. Selden, 78 Kane, D. J. Ffed. Rep. 28S, 2S7, 42 V. S. App. 253, 123 Ex p. Fit*, 2 Lowell fC. S.} 24 C. C. A. 92. 519, 9 Fed. Cas. No. 4,837. 28 INTRODUCTORY. [§20 cases far better than an average jury." ^" Judge Eay of the federal District Court says: "An intelligent and experienced judge often detects the falsehood of a witness who tells a story which, reduced to writing, reads smooth as the psalms of David." ^'^ Views of English Judges. — In a divorce case on the ground of adultery, "the question is whether that charge is made out by evi- dence on which the court ought to act; I should have preferred having the case tried by a jury, for the question is one of credibility, for which a jury is the fittest tribunal," said Lord Penzance. ^^^ Lord Tenterden, speaking of criminal cases, said : " It is one of the peculiar advantages of our jurisprudence, that the conclusion is to be drawn by the unani- mous judgment and conscience of twelve men, conversant with the affairs and business of life, and who know that where reasonable doubt is entertained, it is their duty to acquit; and not of one or more lawyers, whose habits might be suspected of leading them to the indulgence of too much subtilty and refinement." ^" In a case where a husband sought to prove that a child borne by his wife after wedlock was not his own, the question depending largely upon inferences and 124 The Common Law, p. 124. 120 U. S. V. Lee Huen, 118 Fed. Rep. 442, 464. In his entertaining and instructive book " The Prisoner at the Bar," at p. 181, Arthur Train, Esq., assistant district attorney of New York county, says : " A judge who has sat for ten or fifteen years on the criminal bench is usually keener to detect a liar or see through a ' faked ' defense than any twelve men drawn indiscrimi- nately from different walks of busi- ness activity. A timely question from him may demolish a perjured explanation which, but for his inter- ference, would have acquitted a guilty criminal." (But no timely question from the experienced judge presiding in the famous Barbara Aub case ex- posed the perjury of that woman. ) In another place in the same book (at p. 230) Mr. Train says: "Most juries instinctively know a liar when they see and hear one; " though he also says : " Few of them can determine, in the case of an honestly intentioned witness, how much of his evidence should be discarded as unreliable, and how much accepted as true." Again, at p. 205, he says : " There can be no question as to the capability of the ordinary juryman to perform his duties. The independent American is singularly adapted to just this form of investigation. If the English be ' a nation of shopkeepers ' we are a nation of natural cross-examiners. You will find fully as good verbal fencing in a New England corner grocery store about mail time as you will in most courts of justice." 1=1 Ginger v. Ginger, L. R. I P. & D. 37. 127 Rex V. Burdett, 4 B. & Aid. 95, 102, 6 E. C. L. 404, 433. § 20] INTRODUCTORY. 29 probabilities and credibility of witnesses, " I must confess that I greatly regret that a case of this kind should not rather have been submitted to a jury than brought before the judges sitting as judges both of fact and of law," said Lord Hatherley, speaking for the House of Lords.^^° Lord Brougham, in discussing the propriety of sending an issue to a jury in the last stage of a great chancery case, said : " I do not think the case, from the nature of the question, is well adapted to a trial by jury, and I will mention two circumstances which appear to me to render it ill adapted for that mode of litigation. First of all, though no person has more respect than I have for the institution of trial by jury, and no person is better aware than I am, from long experience, how well adapted that mode of investigation is in certain cases — such as where there are damages to be assessed, or conflicting testimonies to be sifted, and where it is very material to see the witnesses and to mark their demeanor under examination, and where various minds brought together to discuss the weight of the same testimony are pretty sure to arrive at an accurate conclusion, either as to the value of the testimony, or as to the amount to be awarded upon that testi- mony — yet it is not to be denied that there is a great risk attending such trials, more especially when, a very great litigation having taken place beforehand, the weak points are well known to each party, both of his own case and of his adversary's, and great scope and facility is afEorded for preparing the testimony which is to be presented to the jury. The party preparing the testimony comes before the jury with great advantage in such cases; he may have been weeks or months in making his preparations, and his adversary who has to meet him may be taken by surprise, without one moment's preparation to meet that prepared testimony. But also it is to be observed that a single expression, a showy case made out upon a single loose phrase, such as ' Go into the room and tell them that I have got a man here to bid,' it being untrue that he has any man to bid — I am giving this as a specimen — or such a phrase as ' a set of old fools in the next room,' used by one party to the other, a thing of that sort, as we all know, coming before a jury, has always much greater force than its real value entitles it to, in finally disposing of the whole matter. It is a fault incident to the nature of the investigation, in a limited time, imder the heat and pressure of the moment, upon the evidence of the 128 Gardner v. Gardner, 2 App. Gas. 723, 733. 30 INTRODUCTORY. [§ 20 witnesses and tb^ coujisers comjnents ; it is a defect to wkiah the trial by jury is inevitably subject." ^^' Views of Canadian Judges. — In approving a vprdict which passed upon the credibility and accuracy of witnesses who testified tp a pon- yersatipn with a deceased person, Judg? Weatherhe of the Nova ^cotia Supreroe Court said : " Pistinguished English judges, who have had ^^o^t experience with Juries, haye taken pains to express their opinion th^t they are seldom wrong in finding the facts, especially where they are unanimous. For myself I have seldom fonnd thejn wrong except where I had to regret, on reflection, that I had not taken sufScient pains in directing them," ^^° Chief Justice Armour of Ontario said that the mind of a judge " by education and habit is trained to reject i^jferences and to require strict proof of every fact, and is thereby rendered less competent to draw reasonably inference? than minds not 80 trained," "^ However, in thp Ontario Court pf Appeals jt was said that at leagt as much effect as is conceded to the verdict of a jury " should be given to the decision of a judge who has spent many years of his life in weighing testimony and determining the proper value to be placed on it." "^ In granting a new trial, Judge Johnstone of the Nova Scotia Supreme Court said ; " I am jealous to maintain the just authority of juries, and therefore I have gone into the details pf this case that the reasons might appear on which, I believe, the jury have gone far astray. While the system of trial by jury demands that the just authority of juries should be maintained, it no less requires the exercise of a pontTPUing power when that authority is exceeded. In many counties of this province the majority of the jurors are little conversant with the language in which they are addressed, and may be excused 128 Attwood V. Small, 6 CI. & F. 232, opinion. Jurymen " are not selected **?• as being necessarily people who rea- Jso Mftrka v. Dartmouth Ferry Com- son with the most absolute and per- mission, 36 Nova Scotia 158, 163. feet adherence to the rules of logic, In Bates V. Lyon, 2 N. Bruns. 12?, but njen who reason as practiqal men 124, Parker, J., denying a motion for of common sense, applying their judg- new trial said: "I think the jury ment and reason to the ordinary came to a more correct decision than affairs of life." Dumphy v. Montreal, I did Bt the trial, and I am not dis- Light, etc., Co., 28 Quebec Super. Ct. Sfitiefled with the verdict." 18, 26, per Doherty, J, 131 Robinson v. Toronto R. Co., 2 is2 Peterkin v. McFarlane, 9 Ont. Ont. L. Rep. 18, 20, in a dissenting App. 420, 476, per Proudfoot, J. § 20] INTRODUCTORY. 31 if they epr or are lecl astray through jgoorance; and, in wrowvioitiea where party epirit is virulent, it may not be matter pf gwprise jf, sometimes, reason and justice should be sacrificed to prejudice. In sieh cases this oomi roupt preserve the admwstration of justjc? Irom Views of New Yor^ Judges, ^- One of the reasons wby a court ia reluctant to disturb the verdict of a jury pn a mere question pf fact is that "from their intercourse with the world, and observation of hupian conduct, they are more capable than a more secluded tribunal to appreciate the force of the various circumstances which attend a transaction," said Judge WHlard of the Ifew York Court of 4ppgals,^'* In a case where the New York Court of Appeals reversed a judgment of nonsuit in an action against a railroad company for th^ killing of plaintiff's intestate at a crossing, Ju^ge Porter said ; " If it be true, as is gpnietimes intiniated> even from the bench, that false verdicts are occasionally rendered on questions like this, the remedy is to set them aside, and not to usurp the prerogative of the jury. EJven among the cases which have been held so plain as to justify a nonsuit, there have been few in which the judges have not themselves disagreed; and the inqniry naturally occurs to the mind, whether we are less liable than jurors to err on questions of pure fact pertaining to the ordinary affairs of life- Qnr law is framed upon the theory that, on such questions, the citizen can rely with more security on the con- current judgment of twelve jurors than on the majority vote of a divided bench, Unanimity is not required in our decisions on ques- tions of law; it is otherwise with jurors charged with the duty pf determining issues of fact; and such issues should not be withheld from the usual arbiters, unless the evidence leads so clearly to one result that there is no room for honest difference between intelligent and upright men. A nonsuit should always be granted where the proof is so clear as to warrant the assumption, in good faith, that, if the question were submitted to the jury, they would find that the culpable negligence of the plaintiff contributed to the injury. But we have had occasion, recently, to hear nonsuits of this kind justified on the novel ground that unless the fact be determined in one way by the judge, it will be sure to be determined the other way by the jnry, 133 Campbell v. McCaskell, 7 Nova Scotia 36, 41. 134 Wood V. Hubbell, 10 N. Y. 479, 481, 32 INTRODUCTORY. [§ 20 The correctness of judicial opinions on mere questions of fact may well be distrusted when we find them confessedly opposed to the common sense of mankind." "^ On appeal from a judgment of nonsuit in an action against a rail- road company for the killing of the plaintiff's intestate at a railroad crossing, E. Darwin Smith, J., speaking for the New York Court of Appeals, said: "Jury trial is justly regarded as a most invaluable mode of deciding disputed issues of fact, where there is contrariety and conflict in the evidence. But its value chiefly depends upon the fact that the trials are had under the direction and supervision of educated and experienced judges, who have devoted a lifetime to the study of the law and to the practical administration of public justice. Jurors, on the contrary, are selected from the body of the people, for a single occasion, and, as a general rule, are unfamiliar with the rules of evidence, and with the principles of law, and the processes of legal investigation. When the points in dispute are simple and single, and the facts are presented and discussed by able counsel, and the issues involved clearly presented by the presiding judge, the verdicts of juries are generally very satisfactory, and probably more so than the decisions of the courts on questions of fact, or any other mode of trial ever practiced among men. . . . The argument that the opinion of twelve men in the jury box is of higher authority upon a question of fact, and better evidence of the truth, than the opinion of the judges, is more specious than sound. So far as mere opinion is concerned, the opinion of twelve men of equal intelligence and capability, and means of knowledge and of judgment, is, doubtless, of superior weight to that of four or eight men, a smaller number than twelve. But that consideration does not meet the case. The decisions of courts and juries stand upon a very different footing. Aside from the difference in capacity to decide correctly, arising from professional education and practice, and judicial experience, the judges act and decide deliberately, after patient and careful investigation, and give the reasons for their decisions, which are open to the careful scrutiny of the parties, and the vigilant criticism of an educated and enlightened bar, and of the public. Juries will certainly act and decide more or less hastily, without time, in most instances, for much reflection, and also act and decide in secret; and from this consideration, and their 136 Ernst V. Hudson River R. Co., 35 N, Y. 9, 40. § 20] INTRODUCTORY. 33 large number, they certainly act under much less personal and indi- vidual responsibility than the judges; and besides, common observa- tion and experience show that they are far more liable to be swayed by passion and excitement, and other undue influences. ^^^ Their verdicts are therefore notoriously many times founded upon mistakes, miscon- ceptions, and other errors, which make it indispensable, to secure to this mode of trial the public confidence, that a power of supervision and review of the verdicts should exist in the courts, and should be exercised with fidelity and firmness." ^^' Justice Gaynor of the Hew York Supreme Court speaks of " the trained minds " of equity judges in contradistinction to " the untrained minds of jurors." ^^^ Judge Denio of the New York Court of Appeals, in a dissenting opinion, spoke of " the jury sitting without the conveniences for taking minutes, and not possessing habits to qualify them for making a discriminating analysis of the evidence." ^^^ Views of Various Other Judges. — Chief Justice Bleckley of Georgia, disapproving an instruction that the interest of a witness affects his credit, and suggesting as a better instruction that it may have that effect, said: "Where there is a possible doubt as to the effect of villainy upon veracity, the jury ought to be left to decide it. As coming from the average of society, they know best what to think on such a ques- tion." "" " I would take the liberty of suggesting . . . that the general diffusion of knowledge and education among the people of this country much better fits them for weighing and comparing the evidence than in any other nation or age since the institution of trial by jury," said Judge Lumpkin of Georgia."^ " The jury are taken from the various walks of life, and their com- bined knowledge and experience afford the very best opportunity for safe and wise conclusions," said Chief Justice Hazelrigg of the 136 See infra, §§ 25, 26. all probability, because of his train- isT Ernst v. Hudson River R. Co., ing and experience," the trial judge (Ct. App. ) 24 How. Pr. (N. Y.) 105, was better qualified to estimate the 106. credibility of witnesses than the jury. 138 Covert V. Brinkerhoff, (Supm. iss Beal v. Finch, 11 N. Y. 128, Ct. Spec. T.) 41 Misc. (N. Y.) 230, 148. 84 N. Y. Supp. 4, 7. In Foreman v. i*" Davis v. Central R. Co., 60 Ga. New York City R. Co., (Supm. Ct. 329, 333. See also Smith v. State, App. T.) 104 N. Y. Supp. 932, 934, 63 Ga. 90, 92. Mr. Justice Goff remarked that " in "i Potts v. House, 6 Ga. 324, 345. FACTS — 3 34 INTRODUCTORY. [§ 20 Kentucky Court of Appeals.^*^ A Jury having passed upon the question whether water flowing into a river was sufficient to deflect the current across the plaintiff's land on the other side. Judge Hobson of Kentucky said: "A jury of practical men from the different walks of life, putting together their common experiences, seeing the witnesses, and having more or less personal knowledge of the river and vicinity, are better qualified to pass on such questions of fact than a court of last resort whose members, from the nature of their calling, cannot have as much practical acquaintance with such matters." "^ Judge Provosty of Louisiana intimated that it may be much easier for a trained judge than for an ordinary jury to disregard iacom- petent evidence which has been admitted but subsequently ruled out."* In a criminal case Judge Campbell of Michigan said : " The jury system is generally regarded as deriving one of its chief advantages from having the law applied to the facts by persons having no per- manent offices as magistrates, and who are not likely to get into the habit of disregarding any circumstances of fact, or of forcing cases into rigid forms and arbitrary classes. It is especially important, where guilt depends on a wrong intent, to give full weight te every circum- stance that can possibly affect it; and professional persons are under a constant temptation to make the law symmetrical by disregarding small things." "' "The jury, from their experience and knowledge of the conmion concerns of life, are presumed to be the best triers of facts," said Judge Scott of the Missouri Supreme Court. "They take with them into the jury box their experience in life, which has enabled them to form the rules by which they will ascertain the weight to be given to the "2 Hudson V. Adams, (Ky. 1899) —or nine, if less than the whole jury 49 S. W. Rep. 192, question of testa- make the verdict — is not a thing to mentary capacity. be lightly set aside." Lexington R. 1*3 Illinois Cent. R. Co. v. Bom, Co. v. Herring, (Ky. 1906) 96 S. W. (Ky. 1903) 76 S. W. Rep. 352. Rep. 558, 560, per Carroll, C. "Jurors are clearly as competent i** State v. Armstrong, (La. 1907) and well qualified in ordinary cases 43 So. Rep. 57. to determine correctly simple ques- i4o Hamilton t). People, 29 Mich, tions of fact as are judges, and the 173, 190. average judgment of twelve good men § 20] INTRODUCTORY. 35 evidence of any one who speaks in their sight and hearing, having due consideration of the circumstances by which he is surrounded, his character, if known, and any influences which may operate upon him." "« " The more I see of juries and their verdicts, the more I am satisfied that it is the best mode of determining disputed facts ever devised by the wit of man. I mean, of course, where the jury act as fair men, uninfluenced by passion or prejudice. . . . One mind is apt to go astray in its conclusions, unless checked and moderated by the views of some other who looks at the question from another station, seeing it in another light, and having attended to another part of the subject perhaps overlooked by the other," said Judge Whelpley of the Kew Jersey Court of Errors and Appeals.^*'' " Without discussing the relative merits of a fixed tribunal for the trial of facts, and the trial by jury," said Judge Pearson of the North Carolina Supreme Court, " suffice it that the common law prefers the latter, and considers it safer, in the investigation of facts, to depend upon the good sense of a jury, than upon the Jcnowledge of a judge; for the reason that juries take a common-sense view of every question, according to its peculiar circumstances, whereas a judge generalizes and reduces everything to an artificial system formed by study. . . . Jurors are not lawyers, or men acquainted with formal pro- ceedings, but they are supposed to be men of ordinary good sense, somewhat acquainted with human nature, and with the motives and views that usually influence parties and witnesses, and it is presumed that if the question to be decided is pointed out to them, and all incompetent evidence is excluded, they are more apt to arrive at the truth than any other tribunal." ^** In reversing a judgment because of a biased instruction to the jury, Judge Dean of the Pennsylvania Supreme Court said : " We 1*8 State V. Sehoenwald, 31 Mo. 147, cumstances relied upon were susoepti- 155. ble of diflferent interpretations, the 1*7 Black V. Shreve, 13 N. J. Eq. amount involved was large, and he 455, 469, as to fact and terms of parol could not decide the question with a agreement. In Black v. Lamb, 12 N. consciousness that he had decided J. Eq. 108, where Chancellor Wil- right. llamson sent an issue to a jury sua i*8 State v. Williams, 2 Jones L, sponte, he said the recollection of the (47 N. Car.) 257, 269. witnesses differed as to facts, the cir- 36 INTRODUCTORY. [§ 20 know, the learned judge of the court below and every lawyer knows, how unfavorable may be the impression made upon, generally, untrained thinkers, who must deliberate and form conclusions within a very few hours, by prominently presenting, as the last word to them, only one side of a disputed cause, and this, too, by a judge eminent because of his judicial integrity and ability. Under such circum- stances, the probability is they will assume there is but one side to the case, and that the one to which the court has called their attention specially and at length." ^^^ Author's Comments. — It is well known that on appeals in chancery cases where the evidence is sent up in the record the admission of illegal evidence by the chancellor does not cause a reversal of his decree upon the facts, if there remains in the record sufficient legal evidence, in the judgment of the appellate court, to sustain the findings of fact.^^" The judges of the appellate court, after reading and digest- ing the illegal evidence, deem themselves capable of weighing the legal evidence without partiality or prepossession; while in common-law cases tried by a jury, the same judges frequently declare a mistrial, grant new trials, or reverse on appellate review, upon the ground that illegal evidence was heard by the jury and gained such lodgment in their minds that no instruction by the trial judge to disregard it could possibly be faithfully executed by conscientious jurymen. The same judges who profess to regard jurors as pre-eminently qualified to decide questions of fact write opinions in appellate courts in law cases pointing out in stirring language the prejudicial evidence which they believe must have fatally infected the judgments of jurors, but never suggest recusing themselves after pondering any kind or quantity of illegal evidence in chancery appeals.^" We have already seen that juries are notoriously eager to learn what is the opinion of the judge upon the facts in dispute,"" which seems to indicate a consciousness "»Lerch v. Bard, 177 Pa. St. 197, witnesses oper.ite rather on their 206, 35 Atl. Rep. 714. credibility than their competency," "0 See Blease v. Garlington, 92 U. and declared that " more especially °- ^- might a judge hear all, and weigh all 1" In Ferson v. Sanger, 1 Woodb. without great risk." See also Covert & M. (U. S.) 138, 8 Fed. Cas. No. v. BrinkerhofT, (Supm. Ct. Spec. T.) 4,752 (at p. 1172), Mr. Justice 41 Misc. (N. Y.) 230, 84 N. Y, Woodbury remarked " the inclination Supp. 4. in modern times to let objections to 162 See ante, Preface. § 20] INTRODUCTORY. 37 on the part of juries that their ability to weigh the evidence is inferior to that of the judge. One decided advantage that judges possess is that they have abun- dant time for examination of the evidence and for reflection before pronouncing judgment. In a great ejectment case in New Jersey where the validity of a will was in dispute, and a vast mass of evi- dence was taken in the course of a long trial, the jury rendered a verdict against the will. On a motion for new trial before the full court several of the judges discussed the evidence minutely in long opinions and concurred in granting a new trial. Judge Vredenburgh said : " There is no evidence against this will. The evidence of the plaintiffs, brought from different places, at different times, given by different persons, when placed in its true relation, fits unexpectedly into that of the defendants like counterparts of the same indenture. No apology is necessary for the jury for coming to the result they did. In their situation, we might have done the same. If we have come to a truer result, it is because we have had advantages which the jury had not. We have had the printed evidence before us, with time and opportunity to collate, reflect, compare." ^°^ The truth is that questions of fact are often extremely difficult to decide with strong confidence that the decision is correct, and both judges and juries must occasionally make mistakes. The following (to the end of this section) is an extract from an article by the author of this work, published in Law Notes for September, 1903 : A fortnight ago the Eecorder of New York City, addressing a prisoner in the presence of the jury who had acquitted him, said: "How the jury arrived at such a verdict in face of the evidence of your guilt is only explainable by insanity getting into the jury-box." He may have been right, but remarkable wisdom has not hitherto characterized that Eecorder's comments to juries. He instructed the jury in the Marie Barberi case that women had certain natural gifts, which we need not describe, and his statement was condemned by the Court of Appeals as "incorrect in point of fact and according to common experience." People v. Barberi, 149 N. Y. 278, 43 N. B. Eep. 635. He and the jury were both wrong in the famous Barbara Aub case, where the defendant was convicted of an atrocious crime upon testimony which not only turned out to be false, but which since iBsBoylan v. Meeker, 28 N. J. L. 274, 476. 38 INTRODUCTORY. [§ 20 the time of Lord Hale, at least, has always been submitted to a jury with a warning of its extremely dangerous character. In Pironi v. Corrigan, 47 N. J. Eq. 135, 20 Atl. Eep. 318, a case in equity tried by a New Jersey vice-chancellor, the defendant, a Eoman Catholic priest, testified that he had paid the complainant, an old woman parishioner, $1,000 in bills for certain real estate. The com- plainant absolutely denied the payment. There was some other evi- dence bearing upon that issue of fact. The vice-chancellor considered the testimony at great length and declared the priest a liar. On the same testimony the case was taken to the Court of Errors and Appeals, which decided in short order that the priest had not cormnitted perjury, that his story bore all the marks of truth, and that the testimony of the complainant was glaringly false. Corrigan v. Pironi, 48 N". J. Eq. 607, 33 Atl. Eep. 355. In a divorce case the same vice-chancellor wrote an opinion which covers thirty-seven pages of the report, and upon an exhaustive review of the testimony adjudged the wife guilty of adultery and granted her husband a divorce. Brown v. Brown, 63 N. J. Eq. 29, 49 Atl. Eep. 589. On appeal to the Court of Errors and Appeals the same evidence was discussed with consummate ability by Judge Vredenburgh, the decree of the vice-chancellor was reversed, and the wife's name saved from dishonor. " Her reputation under the proofs stands without a stain or blemish upon it," was the unanimous opinion of the fifteen judges. 63 N. J. Eq. 348, 50 Atl. Eep. 608. By the way, when the " happy low " are fined or sent to jail for violat- ing a chancellor's injunction, no tribunal can adjudge the conviction erroneous on the facts. There the " Eoman one-man power " of a court of equity is supreme. Why does not some chancellor improve the opportunity to win honorable fame by trying the experiment of Bending an issue to a jury for an advisory verdict in contempt cases? In Graham v. Graham, 50 N. J. Eq. 701, 85 Atl. Eep. 360, a woman testified that, peeking through the crack between a door and the floor, she saw certain acts committed within the room, and the vice-chancellor declared that "the very improbability of this act . . . goes far to prove its truth. No person inventing such a story would invent one that was the most improbable of three which she might have told." Why not? The witness may have counted upon the vice-chancellor's wonderful predilection for the improbable.^ We have no invidious purpose in thus selecting for animadversion the opinions of New Jersey vice-chancellors. On the contrary, it is § 21] INTRODUCTORY. 30 our belief, based upon extensive reading of their opinions, that nowhere in this country is the evidence on questions of fact habitually examined so carefully and discussed so shrewdly and ably as in the New Jersey Court of Chancery. Some of their opinions of this sort give a reader the same intellectual thrill that he feels after perusing one of Chief Justice Marshall's arguments on constitutional law or the construction of statutes. At this moment of writing we turn and take from the shelf the last bound volume of the Northwestern Eeporter, and look through the index title " Divorce." One of the paragraphs is as follows : " Evidence held not to show fraudulent intent in hus- band's grantee taking conveyance pending wife's divorce suit," citing Eichmond v. Smith, (March 21, 1903) 117 Wis. 290, 94 N. W. Eep. 35. Lo and behold, the Wisconsin Supreme Court in that case says: " After careful consideration of all the evidence, we are forced to the conclusion that the finding of the trial court that the sale to appellant was without consideration, and for the purpose of defrauding Mrs. Boucher, was so clearly opposed by overwhelming preponderance of the evidence that we must believe that the Circuit Court either erroneously applied rules of law thereto, or through mistake or other cause did not give to the evidence due consideration. Judgment reversed and cause remanded." Usually where an appellate court grants a new trial for a verdict against evidence — and we admit such cases are common — the trial judge has previously denied a motion for new trial on the same ground, 60 that the ruling of the appellate court convicts the judge of error not less than the jury. Where, as in New York and one or two other states, a stay may be obtained on a certificate of reasonable doubt after conviction, application for such certificate is generally made to a judge other than the trial judge, for the reason that the latter probably concurs in the verdict. Hence, if the certificate is granted one or the other of the judges is in error, and quite likely on the question of guilt or innocence. Every lawyer of extensive practice can name learned judges whom experience has taught him to regard as unreliable on questions of fact. § 21. Peculiar Fitness of Juries in Negligence Cases. — " Within the whole range of judicial inquiry there are but few questions that are more peculiarly and exclusively within the province of the jury than those of negligence and the want of contributory negligence," 40 INTRODUCTORY. [§ 21 said Judge Lotz of the Indiana Appellate Court. "The jurors in their callings and experiences have usually come in contact with and observed the conduct of men under varied conditions. It is this diversity which gives value to their unanimous judgment. Collectively, they are more capable of determining how an ordinarily prudent man would act under given conditions than judges of courts, whose experiences are usually confined to one calling and who are proverbially prone to generalize and follow precedents." ^°* " The wisdom of the time-honored rule of the common law which refers questions of fact to the jurors, and questions of law to the judge, is not more conspicuous in any class of civil cases than in those which involve questions of negligence," said Judge Smith of the New York Court of Appeals. " Cases of that nature frequently come before the courts, in which men of equal intelligence and judgment differ in their conclusions, simply because they differ in experience and habits, in temperament or mental organization. A course of conduct which seems sufficiently careful to a self-reliant man, who is accustomed to act promptly, may appear reckless to one who is unusually circumspect or hesitating. That average judgment which is the result of the deliberations of twelve men of ordinary sense and experience is recognized by our jury system as a juster standard than the judgment of one man of equal experience and sense in the determination of questions of fact, and it is especially valuable in the decision of questions of negli- gence. " ^^° " If such a state of facts exists as that one sensible, impartial man would infer that proper care had not been used and that negligence existed, while another man, equally sensible and equally impartial, would infer that proper care had been used, and that there was no negligence, it is said to be the highest effort of the law to 154 Louisville, etc., Consol. E. Co. v. los Willis v. Long Island E. Co., Berry, 9 Ind. App. 63, 35 N. E. Rep. 34 N. Y. 669, 679. Judge McCunn of 565, 36 N. E. Rep. 646. In this case, the Superior Court, speaking of the which was a negligence case, the same opinion in the foregoing case as quoted judge said: "The jury is selected in the text, said he thought the " line from the body of the community, and of reasoning about the judgment of is generally composed of men of varied twelve jurors, against the sound dis- vocations and experiences. It ia as- cretion and experience of the judge, Bumed that they know more of the is a little overdrawn." Thrings V. common affairs of life, and can draw Central Park R. Co., 7 Robt. (N. Y.) wiser and safer conclusions than can 616. any one man." § 21] INTRODUCTORY. 41 obtain the judgment of twelve men of the average of the commnnity, comprising men of learning, men of little education, men whose learn- ing consists only of what they have themselves seen and heard, the merchant, the mechanic, the farmer, and the laborer, as to whether negligence does or does not exist in the given case. Such Judgment is supposed to be more valuable in such cases than the judgment of a single judge," said Judge Coffey of the Indiana Supreme Court.^^" In a case involving the question of negligence of a city in failing to keep its streets in safe condition for ordinary travel. Chief Justice Daly of the New York Court of Common Pleas said : " It is a question which a jury composed of persons living in the city, and who are acquainted with the public streets and the daily use that is made of them, are quite as competent to determine as the court. Indeed, having this experience to aid them, their united and unanimous judg- ment in the disposition of such a question is, in my opinion, entitled to greater weight." ^^'' As to the peculiar qualifications of jurors to decide questions of con- tributory negligence, Judge Gill of the Texas Court of Civil Appeals said : " No general rules have ever been formulated for the control of courts and juries in arriving at a conclusion on the question. It is addressed almost entirely to the common sense and sound judgment of the jury in the light of their everyday experience, and, as the jury is made up of men taken from the everyday walks of life, and are sup- posed to bring to bear upon the case their judgment and experience untrammeled by legal training or technicality, they are admirably fitted to determine a question which is so purely one of fact. They are better fitted for the task than the trial judge, for their conclusion is the result of the average judgment of twelve average men, fresh from participation in the practical affairs of everyday life." ^°^ On the question of contributory negligence of a workman who was injured by the explosion of a blast. Judge Sanborn, speaking for the United States Circuit Court of Appeals, said : " It was a debatable question — one upon which the minds of reasonable men might honestly reach opposite conclusions — and hence one peculiarly appropriate for the 156 Mann p. Belt E,., etc., Co., 128 etc., R. Co. v. Walborn, 127 Ind. 142, Ind. 138, 26 N. E. Rep. 819, citing 26 N. E. Rep. 207. Sioux City, etc., R. Co. v. Stout, 17 ist Gubasko v. New York, 12 Daly Wall. (U. S.) 657; OMo, etc., R. Co. (N. Y.) 183, 191. V. Collarn, 73 Ind. 261, and Baltimore, les Gulf, etc., R. Co. v. Holland, 27 42 INTRODUCTORY. [§ 21 detennination of a jury of men of the vicinage, who are necessarily familiar with the methods of life and action in the country where the accident occurred, and of the course of action which men of ordinary sagacity usually pursue when they are notified that a heavy charge of powder to blast out rock, which has been falling from such blasts all about the place they are occupying, is about to be exploded." ^^° Deny- ing a motion for new trial after verdict for the defendant, a young boy, in an action for injury by the bite of the defendant's dog. Judge Powers of the Maine Supreme Court said the question of contributory negligence "was for the jury to determine, and it was submitted to them under instructions to which no exception was taken. Fo reason can be perceived why they should entertain any bias or prejudice against the infant plaintiff or sympathy for the defendant. They saw the boy and had an opportunity to observe and note his intelligence. Certainly jurors ought to know as much as any tribunal about boys and the care they exercise in their conduct with dogs. The question was one which they were peculiarly qualified to decide, and they found the issue against the plaintifE." ^°" The question whether a traveler exercised proper care before crossing a railroad track " oftentimes must be determined by an exercise of sound common sense, in the light of one's general knowledge acquired by observation and experience. A jury, composed as it is of twelve impartial men, drawn from different walks in life, is as capable of correctly determining such a question as a court composed of a less number of men whose training, occupation, and experience have not been so favorable for fitting them to form a sound judgment on the question," said Judge Chase of the New Hampshire Supreme Court.^"^ As to whether the traveler's manage- ment of his frightened horses was judicious, " a judge in his chambers or a lawyer in his office without the experience may surmise what he would do or what another would do under those circumstances, but it would simply be a guess on his part, lacking the confirmation of a practical test, and hence without the weight and deference due the finding of twelve intelligent men whose experience in the everyday affairs of life fits them more certainly to judge of what a prudent man Tex. Civ. App. 397, 399, 66 S. W. Rep. "o Garland r. Hewes, 101 Me. 649, 68. 64 Atl. Rep. 914. 160 Gary v. Morrison, 129 Fed. Rep. i" Smith v. Boston, etc., R. Co., 70 177, 183, 63 C. C. A. 267. N. H. 63, 47 Atl. Rep. 290. § 22] INTRODUCTORY. 43 would do under such circumstances," said Judge Mestrezat of the Pennsylvania Supreme Court.^'^ In a dissenting opinion in the United States Circuit Court of Appeals, Judge Caldwell quoted a passage from the majority opinion, and said : " The court assumes to know more about the proper way for brakemen to discharge their duties than the brakemen themselves know, and levels its censures at them for not conforming to the court's idea of the proper mode of discharging their duties, but has no word of censure for the railroad company for carrying on its cars an insecure handhold, certain to result in death or great bodily injury to any brakeman who attempted to use it ia the discharge of his duties in the customary mode. It would seem that in such case, if the life and limb of a brakeman are esteemed of any consequence, and their protection thought to be desir- able, it is the conduct of the railroad that ought to be ' discouraged ' by the court's decision, rather than to require the brakemen to adopt some novel and unusual mode of discharging their duties, prescribed by a court which has no more knowledge of the proper and customary mode of discharging those duties than the brakemen have of the intricacies and mysteries of special pleading." ^^^ § 22. Juries Specially Qualified to Detect Fraud. — In a bank- ruptcy case where the question of fraudulent intent in the dissolution of a partnership was in dispute and much depended on the credibility of witnesses, Judge Eandall of the federal District Court said : " It is necessary to examine more minutely the details of the evidence as to the acts and doings of the parties at and about the time it took place, and as this is more a question of fact than of law, I would be glad if I could at once refer it to a jury foi- determination." '"* " A practice of a quarter of a century has convinced us that human wisdom has never yet devised any better method of settling disputes between men, of unraveling the most intricate and contradictory causes, of uncovering the most secret and unjust schemes of oppression and fraud, and of insuring the due administration of justice, than that of trial by jury under the direction of an intelligent and upright judge," said Presiding Judge Miller of the Court of Common Pleas of Law "JBickel V. Pennsylvania R. Co., 114 Fed. Rep. 870, 873, 52 0. C. A. (Pa. 1907) 66 Atl. Rep. 756. 286. 163 Dawson v. Chicago, etc., R. Co., i'* Ex p. Shouse, Crabbe (U. S.) 44 INTRODUCTORY. [§ 23 rence county, Pennsylvania."^ Mr. Justice Brown of the United States Supreme Court said : " Parties contemplating a fraud fre- quently pursue such devious courses to conceal their designs, and resort to such subtle practices to mislead their unsecured creditors, that the fraud becomes impossible to detect unless the door be swung wide open for the admission of all testimony having any possible bear- ing upon the question. Pacts which to the court might seem of no pertinence and be rejected as having no legal tendency to show knowledge of the fraud, might be considered by the jury as significant and indicative of a guilty participation." ^°® § 23. Competency of Juries in Will Cases. — The question of testamentary capacity in will cases is often " one of the most difficult to decide in all the range of human investigation," said Surrogate Tucker of New York; "I must here repeat my regrets, so often asserted, that our system gives no authority for the submission of such issues of fact to a jury in the first instance, and imposes the responsi- bility of a decision upon a single oflScer." ^"^ " The question of forgery [of a will] is one of the most difficult and delicate issues which can come before a tribunal of law," said the same surrogate in another case. " It is one which ought never to be tried before a single judge. It is essentially a question for a jury, and I have unsuccessfully endeavored for years to get the legislature to allow the summoning of jurors in surrogates' courts, or the sending of feigned issues by surrogates to courts of law, for the decision of such questions as this." "« Speaking of a charge of undue influence over a testator, Chief Justice Hazelrigg of the Court of Appeals of Kentucky said: 482, 22 Fed. Cas. No. 12,815 (at p. 4 How. (Miss.) 459, 478. "With UB, 35). unfortunately it may be, a judge or i«5 Silberman v. Shulansky, 16 Pa. court cannot have the assistance of a Co, Ct. 131, 140. jui'.V. as is elsewhere afforded in con- loo Sonnentheil v. Christian Moer- testations of this nature," said the l«in Brewing Co., 172 U. S. 401, 410, Supreme Court of Newfoundland, in 19 U. S. Sup. Ct. Rep. 233. See also the case of a will contested on the. Aisop V. Commercial Ins. Co., 1 Sumn. ground of testamentary incapacity. (U. S.) 4.51, 472, 1 Fed. Cas. No. 262 In re Ashley, Newfoundland L. Rep. (ftt p. 571), per Mr. Justice Story. [1884-1896] 447, 453. I'TLangton'a Will, Tuck. (N. Y.) los Merchant's Will, Tuck. (N. Y.) 301, 325. See also Brock v. Luckett, 15 i, 167. § 23] INTRODUCTORY. 46 " No general rule may be laid down by which this obnoxious force may be detected. We can easily say that the force must be such as to control the mental operations of the testator, and amount to a sub- stitution of the will of the dominant over the weaker mind. But this is merely a statement of the effects of the inhibited influence. The question is, how shall we detect its presence? Manifestly this may best be done by that tribunal to which is afforded the opportunity of meeting the witnesses face to face, and hearing them testify in any given case. Before such, the general bearing and conduct of all the witnesses, and especially the mental characteristics of those who are charged with having controlled another, become matters of personal observation and oversight. To a jury of the vicinage, therefore, must be left in a large measure the detection of this refined and subtle, though reprehensible, power. They may not determine its presence without evidence of it, but we may well hesitate to determine the absence of such evidence when in their wisdom it is found to be present. " "» On the other hand, juries, " as the experience of all judges must inform them, are too apt to consider that an influence, undue, from some source, prompts all wills not made in accordance with the dictates of natural justice and fairness, to all having equal claims, by kinship, blood, or service, upon the bounty of the testator," said Judge Eobin- son of the Missouri Supreme Court. ^^^ " Sometimes juries err, not in judging of the facts, but in applying the facts as they find them to the law, either misapprehending the law or refusing to administer it," said Judge Wardlaw of the South Carolina Court of Appeals. " On particular subjects this tendency of juries to usurp legislative power arises from prejudices general in the community, and in noth- 100 Fry u. Jones, 95 Ky. 149, 24 of the jury evidence that is incompe- S. W. Rep. 6, quoted by Burnam, J., tent or irrelevant to establish the in Lischy v. Schrader, 104 Ky. 657, charge. The very nature of the issue, 47 S. W. Rep. 611. as well as the lack of experience and But see Kaufman's Estate, 117 Cal. of mental training on the part of the 288, 297, 49 Pac. Rep. 192, 195, where jurors in reference thereto, renders Harrison, J., said : " When the valid- them less able than the court to weigh ity of a will is contested upon the the sufHciency of any evidence that ground of undue influence in its ex- may be offered upon this issue." ecution, a court cannot be too careful i'» Doherty v. Gilmore, 136 Mo. 414, in excluding from the consideration 37 S. W. Rep. 1127, 46 INTRODUCTORY. [§ 24 ing has it been more strongly exhibited to the view of the court than in setting aside such wills of old persons as have defeated the seem- ingly just claims of some worthy expectants." ^'^ § 24. Competency of Juries in Patent Cases. — Mr. Justice McLean said that a controversy in patent equity cases involving " the structure of complicated machinery, the suiSciency of its description, and its identity in principle with other machines," there being great diversity of opinion among the expert machinists examined as wit- nesses, " is most appropriately referred to a Jury." ^'^ In a patent ease in equity, after verdict of a jury on an issue, Mr. Justice Grier said : " Where the question depends wholly on the credibility of witnesses as to matters of fact and not of opinion, the court will always be disposed to yield even their own convictions, unless very strong and clear, to the force of the verdict. In this case I would have been satisfied with a verdict either way, having no clear opinion of my own on the question after hearing the testimony, and am glad to be relieved from guessing at the truth from the frail recollections of conflicting witnesses." "^ " However valuable may be the conclusions of a jury in ordinary causes, it certainly seems to be the universal opinion of the bar in this circuit, as it undoubtedly is of this court, that such a method of determining the issues of fact in patent causes is most unsatisfactory," said Judge Lacombe of the federal Circuit Court for the Second Cir- cuit. "During the eleven years the writer has sat on the circuit bench, there has not been in this court a single Jury trial in a patent cause. When one remembers the careful study of intricate machinery, the manipulation of models, the reading and re-reading of technical evidence, the elaborate comparison of documents couched in language which certainly is not that of common speech, the close, hard think- ing, sometimes prolonged for weeks, wliicli, in the case of a com- plicated patent, has to be gone through witli before a judge, however long his experience with such causes, is able to reach a conclusion on the issues of fact, which, even if erroneous, presents at least the 171 Means v. Means, 5 Strobh. L. (U. S.) 70, 72, 4 Fed. Cas. No. 1,946 (S. Car.) 167, 189. (at p. 257). ITS Brooks V. Bicknell, 4 McLean "3 New York Wire-Railing Co. ». Cake, 18 Fed. Cas. No. 10,217. §24] INTRODUCTORY. 47 appearance of a logical train of reasoning ia its support, it seems safe to say, a priori, that the decision of such questions by an ordinary jury, imprisoned for a few hours, with naught but their vague recol- lections of the evidence, would be a lottery. Their verdict might some- times be correct, but it would rarely be intelligent." "* Mr. Justice Grier said that " in many questions of originality and infringement of patents, the concurrent opinion of twelve men, with little knowledge of the principles of science and philosophy, may give but little satisfac- tion to the conscience of a chancellor. Hence it is becoming more common to examine these questions in courts of equity without the aid of a jury, unless where the issue depends rather on the credibility of witnesses than the value of their opinions as experts or philoso- phers. " "^ In denying a motion to refer the issues in a patent infringement suit to a jury, under an Act of Congress, Judge Brewer said : " It is easier for one man than for a half-dozen to come to a decision upon a question of this kind; and questions of the validity of a patent or in mechanics, or the state of the art, are ordinarily 174 Wyckoff V. Wagner Typewriter Co., 88 Fed. Rep. 515, 516. The same judge instructing a jury in a later case said: "It is a very mistaken system of jurisprudence that leaves the decision of the issues of fact that arise in a patent case to a. jury. In the very nature of things, it is extremely awkward and difficult, and many times practically impossible, for twelve laymen, untrained in the ex- amination of the intricate questions which so frequently arise in patent causes, without any facilities for tak- ing notes, and with no opportunity for the lengthened reflection which is frequently necessary to reach a wise conclusion in cases of this kind, — I say it is many times practically im- possible for them to dispose of such questions. Nevertheless the law does allow the trial of these issues by a jury, and we have one to try here. It very rarely happens. I have sat on the bench for fifteen years, and this is the first patent cause that I have tried with a, jury. But, very fortu- nately for you and for the interests of the litigants in this case, the patent before you ia quite a simple one — easy to understand — and the issues presented are easy of compre- hension, and may be presented to you, I think, sufficiently well for you to understand them, and perhaps will not give you much trouble." Interna- tional Tooth Crown Co. v. Hanks Dental Assoc, 111 Fed. Rep. 916, 917. "5 Sickles V. Gloucester Co., 3 Wall. Jr. (C. C.) 186, 22 Fed. Cas. No. 12,840. In another case he said: "It is no reflection on trial by jury to say that cases frequently occur in which ten out of twelve jurors do not under- stand the principles of science, mathe- matics, or philosophy necessary to a correct judgment of the case." Good- year V. Day, 2 Wall. Jr. (C. C.) 283, 10 Fed. Cas. No. 5,569. 48 INTRODUCTORY. [§ 25 much more capable of solution by a chancellor than a Juryj and, speaking for myself, I should much prefer, in a question of that kind, to determine it myself than to attempt to get the opinion of a jury." "^ § 25. Sympathy or Prejudice of Juries — In General. — The com- petency of juries is not to be confounded with their dispositions. It sometimes happens that reviewing courts are compelled to speak, and with reference to the instant case, of " verdicts of irresponsible juries, who, caring nothing for law, nothing for justice, nothing for the plain teachings of common sense, choose to gratify their prejudices or their passions by plundering their fellow citizens in the forms of law." "'' " There are, of course, cases in which juries are so carried away by either sympathy or passion or prejudice, that they lose sight of the testimony, and the weight it is entitled to, and base their conclusion upon their personal conviction of the right or wrong of the case." ^'^ " Juries may sometimes yield, honestly, to excitements which judges must not feel. To correct such errors is a prominent use of the cahn review of a case on a motion for a new trial." "^ In granting a new trial after a verdict for the plaintiff in an action for slander brought against magistrates of the Court of Session in Scotland, Lord Wyn- ford, speaking for the House of Lords, said : " I am glad to see that the trial by jury is to be still further extended in Scotland. But it is an institution that must be regulated, and prevented from becoming arbitrary, otherwise trial by jury, instead of being a blessing, would become one of the most intolerable of nuisances; for our persons and property would not be under the protection of law, but left at the dis- cretion and mercy of an arbitrary and capricious tribunal. The tri- bunal is the best assistant under heaven in the investigation of facts, I'oKeyes v. Pueblo Smelting, etc., a jury in this class of eases than in Co., 31 Fed. Rep. 561. In patent cases other civil cases." Roberts v. Schuy- the subject-matter involved often re- ler, 12 Blatchf. (U. S.) 444, 20 Fed. quires a, patient and quiet examina- Cas. No. 11,915. tioTi of different structures, and an i7' Richards v. Willard, 176 Pa. St. investigation of the modes of operation 181, 35 Atl. Rep. 114, per Green, J. of machinery, for which the hurried I's Lexington R. Co. i\ Herring, and imperfect scrutiny which the jury (Ky. 1906) 90 S. W. Rep. 558, 560, can give during the trial of a case is per Carroll, C. sometimes inadequate, and Judge I'o Blydonburgh v. Welsh, Baldw. Shipman said that "less weight and (U. S.) 331, 3 Fed. Cas. No. 1,583 authority is given to the decision of (at p. 776), per Hopkinson, D. J. § 25] INTRODUCTORY. 49 when under proper regulation, but without such regulation it would be a curse and not a blessing. The magistrates have duties to perform which often render them unpopular with a certain class, and they cannot perform those duties unless they are protected; and if a jury were to find one hundred verdicts against them without evidence, these verdicts must be set aside." ^^° In a wife's suit for divorce on the ground of adultery, the husband pleaded that his domicil was in Austria and never in England, and that he had obtained a divorce in Austria. The wife denied the jurisdiction of the Austrian court, and applied for trial by jury of the issue of domicil. Although the application was granted, for reasons not necessary to be stated here, Sir F. H. Jeune said : " In this case I have to determine whether the wish of one of the parties that the case should be tried by jury ought to prevail. I approach the question with some hesitation, because the learned counsel tells me, and I dare say tells me quite truly, that there are certain matters in which he thinks the feelings of a jury can be worked upon, and no doubt will be worked upon, in order to induce them to give a verdict on what really is a question of mixed law and fact, namely, the question of domicil. I am afraid I must say he has a perfect right to do that ; and I suppose many people who come before a jury do not rely entirely on the law of the case, but they think their feelings may be influenced to some extent, and that a jury may be induced to give a decision that a judge perhaps would not give." And he expressed it as his "own natural feeling that a case of this kind can be better tried, in the interests of the parties, by a judge." ^*' In denying an application for a certificate of reasonable doubt in a criminal case, Mr. Justice Gaynor of the Few York Supreme Court 18" Allardiee v. Robertson, 1 Dow. & nessea, I cannot think that such a CI. 495, 517. question as this, involving not merely isi Lowenfeld v. Lowenfeld, (1903) facta, and the credit of witnesses, but P. 177, 179. In a warmly contested points of law, and very nice considera- divorce suit against a husband on the tions, requiring great deliberation, ground of cruelty, tried on deposi- could be safely left under any direc- tions, Dr. Lushington said : " To the tion to the comparatively hasty judg- argument that the decision of this ment of twelve inexperienced persons; case should have been left to the jury a case, too, in which it would have I cannot accede, for highly as I value been easy to appeal to the feelings ahd that institution and greatly as I passions rather than the understand- should have desired to have had the ings." Dysart v. Dysart, 1 Rob, Ecc. benefit of seeing and hearing the wit- 106, 138. FACTS — 4 50 INTRODUCTORY. [§ 26 said : " A strong tendency exists in our appeal courts to regard jury- men as below par in intelligence and judgment, and quite incapable of resisting prejudice, whereas the theory of our system of government and laws is to the very contrary, i. e., that they are better fitted to judge the facts, and less likely to be unduly influenced, especially in criminal prosecutions, than judges. . . . For a bench of judges to com- plaisantly say, ' Of course this error would not have affected us, but we cannot say that it did not possibly affect the jury,' not only 'puts the jury below the learned judges in intelligence and common sense, but seems to put them below average intelligence and common sense, whereas the law rates them to the very contrary." ^'^ § 26. Prejudice of Juries Against Corporations. — " We cannot shut our eyes to the fact that in certain controversies between the weak and the strong, between a humble individual and a gigantic corporation, the sympathies of the human mind naturally, honestly, and generously run to the assistance and support of the feeble and apparently oppressed; and that compassion will sometimes exercise over the deliberations of a jury an influence which, however honorable to them as philanthropists, is wholly inconsistent with the principles of law and the ends of justice." ^*^ Judge Hammond of the federal District Court said : " There is some foundation for the constantly recurring criti- cism which we see everywhere arising out of this fact, that the juries cannot be implicitly trusted to do even-handed justice in personal injury cases " against corporations. " I am glad to say," he con- tinued, " that sometimes they do act with the utmost impartiality, but often they clearly do not. I have seen them act unjustly towards the plaintiff, and have set aside their verdicts on that account." ^^* In actions for personal injuries caused by alleged negligence, especially in actions against railroad companies, experience has shown that when juries find that the defendant has been guilty of carelessness, and that a person has been injured by such carelessness, they are inclined to overlook the question whether the injured party was free from con- tributory fault.^*° " It is not always easy to account for the verdicts 182 People V. Smith, (Ct. Gen. Sesa.) i84 Wright v. Southern Express Co., 44 Misc. (N. Y.) 379, 89 N. Y. Supp. 80 Fed. Rep. 85, 04. 1098- "5 Collins v. Alb.any, etc., R. Co., 18S Haring t). New York, etc., R. Co., 12 Barb. (N. Y.) 492, 494, per 13 Barb. (N. Y.) 9, 15, per Barculo, J. Harris, J, § 126] INTRODUCTORY. 51 of juries, particularly against railroad companies." ^^" Actions against railroad companies for death by wrongful act have been spoken of as being " a class that peculiarly imposes on the judge the duty to repress natural sympathy with the injured and the suffering, and to hold the jury firmly down to the consideration of strict rights and responsi- bilities." ^*^ In granting a nonsuit in a personal injury action against a railroad company. Justice Marean of the New York Supreme Court said : " If juries always fairly epitomized the intelligence of the people, all cases might safely enough be left to them ; but the need in cities, at least, is growing, and is every day more imperative, that the court should not, in favor of the jury, abdicate any of its preroga- tives." ^^° On a motion to direct the trial of issues by a jury in an action for personal injuries arising from negligence of a street railway company. Judge Killam of the Court of Queen's Bench for Mani- toba said : " Having got away from the old doctrine of the right to a trial by jury, once held so sacred, the real question to be considered in any particular case is. which tribunal is more likely to come to a correct and just conclusion. There are many cases involving matters with which jurymen are usually more familiar than judges, and upon which the concurrent opinion of several of them may be more likely to be correct than that of one judge. For myself I incline to the view that cases in which the evidence is very contradictory should rather, unless there be other circumstances tending to the opposite view, be tried by juries. Some attempt is made to show that this will be such a case, but the evidence upon the point is very weak and unsatisfactory. It is extremely probable — and it is a question of weighing probabili- ties — ^that the testimony will be conflicting, rather from the dif- ferences in the accuracy of judgment or observation of witnesses than from want of veracity on the part of some. Considering that there ISO Underhill v. New York, etc., E,. sufficient in law to carry the question Co., 21 Barb. (N. Y.) 489, 497, per to the jury. As to positive and nega- Strong, J. The author has observed tive testimony in this class of cases, that the question whether locomotive see post, § 1196 et seq. signals were given when a railroad is' Cookson v. Pittsburg, etc., R. train was approaching a crossing is Co., 179 Pa. St. 184, 36 Atl. Rep. almost invariably decided by juries 194. in the negative to support a verdict iss Lewis v. Long Island R. Co., for a plaintiflf who was struck at the (Supm. Ct. Tr. T.) 31 Misc. (N. Y.) crossing, if the negative testimony is 546, 65 N. Y. Supp. 595, 597. 52 INTRODUCTORY. [§ 26 is nothing in the subjeet-matter of the suit calling fox the judgment of a jury rather than that of a judge, that there is a tendency on the part of jurors in such a case as this to be swayed by feelings of sym- pathy for the plaintifl rather than by impartial judgment, that new questions of law will not improbably arise at the trial, and that the case for the applicant is so weak, I concur in thinking that the applica- tion should be dismissed." ^°° In an action on a life insurance policy the court should be careful not to leave a question of law to the arbi- trary determination of a jury, " for everybody knows that a case of this kind can have but one result if left to a jury, moved, as it must be, by the natural and creditable instincts of human nature, to sympa- thize with the afHicted." ^^° In granting a new trial after verdict for the plaintiff against a national bank for alleged deficit in plain- tiff's account as a depositor. Chief Justice Daly of the New York Court of Common Pleas said : " In my opinion, this was one of those extreme cases in which the discretion of the court to order a new trial, where there has been conflicting testimony, was properly exercised. I feel as fully as the counsel for the appellant has expressed it, that this is a power to be discreetly exercised, in view of the weight that is to be attached to the verdict of a jury upon a fair trial. I have frequently, in opinions hereto delivered, expressed, as the result of a long experience, my high estimate of the verdicts of juries in general; of the great value I attach to that mode of determining questions of fact, and that the conclusion of twelve disinterested men, upon what is merely a question of fact, is entitled to so much weight that it is not to be set aside because the judge who tried the cause, or the judges who sat in review, are of the opinion that, upon the facts, the verdict ought to have been otherwise. But juries are not infallible. They are, individually and collectively, subject to the ordinary infirmities of human nature, and cases do occur where, if the court did not inter- pose and set aside the verdict, it would amount to a denial of justice." "1 ISO Woollacott V. Winnipeg Electric L. Ins. Co. v. Stevena, 71 Fed. Rep. St. R. Co., 10 Manitoba 482, 489. 258, 264, 36 U. S. App. 401, 18 C. C. 100 Travelers' Ins. Co. v. Selden, 78 A. 107, pei- Sanborn, C. J., where a Fed. Rep. 285, 290, 42 U. S. App. 263, verdict for a widow and children in 24 C. C. A. 92, per Brawley, D. J. an action on a life insurance policy " Juries are none too anxious to di- was set aside. vest themselves of passion, prejudice, loi Clark r. Merchants' Nat. Bank, and sympathy," Northwestern Mut. 8 Daly (N. Y.) 481, 503, CHAPTEE II. DEGREE OF PROOF. S 27. The " Preponderance of Evidence " Rule. 28. Opposing Presumptions to Be Overcome. 29. Consideration of Probabilities. 30. Instructions to Juries in Terms of " Probability." 31. Proof of Probable Facta. 32. Proof of Improbabilities. 33. Mere Suspicion. 34. Mere Conjecture, Guess, or Surmise. 35. Conjecture as to Cause of Injury or Death. 36. Surmising Negligence in Admiralty Cases. 37. Guessing Concerning Contributory Negligence. 38. Conjecture in Accident Insurance Cases. 39. Conjectura) Estimates of Damage. 40. Conjecture as to Survivorsliip in Common Disaster. 41. Proof Beyond Suspieinn. 42. Proof in Support of Interlocutory Motions. 43. Proof of Negative Facts. 44. Requirement of More than Preponderance. 45. Cases Where One Party Controls the Evidence. 46. Claims Against Decedents' Estates. 47. Oral Contracts to Devise Property. 48. Gifts Causa Mortis. 49. Reformation of Instruments — Presumption to Ee Overcome. 50. Reformation of Instruments — Strong Proof Required. 51. Charge of Fraud. 52. Mere Suspicion of Fraud. 63. Suspicion of Fraud — Mr. Justice Grier's Prophylactic Instruction. 64. Charge of Crime in Civil Suit. 55. Evidence to Exonerate from Responsibility in Collision Cases. 66. Defense of " Prior Use," etc., in Patent Suits. 57. Anticipation of Anticipation in Patent Suits. 58. Application for Preliminary Injunction in Patent Suits. 59. Proof Beyond Reasonable Doubt in Criminal Cases. 60. Definition of Reasonable Doubt. 61. Preponderance in Number of Witnesses. 62. Argument in Favor of Many Witnesses Against Few. 63. When Numerical Preponderance Controls. 64. Instructions to Jury Concerning Numerical Preponderance. 66. Equality in Number of Witnesses. 54 DEGREE OF PROOF. [§27 § 27. The " Preponderance of Evidence " Eule. — The general rule in civil cases is that the party having the burden of proof of any essential fact must produce a preponderance of evidence thereon.^ The rule governs in collision cases in admiralty courts.' And " the evidence in a lawsuit, like a line of battle or a chain of military defenses, is ' no stronger than its weakest point. ' " ^ When the evi- dence tends equally to sustain either of two inconsistent propositions, a judgment or verdict in favor of the party bound to maintain one of them against the other party is necessarily wrong.* " Preponderance means the most weight. It is as correct a definition as can be given." " By " preponderance," however, it is not meant that the evidence shall merely weigh a trifle more than the opposing evidence, for if that were the rule " a case too weak to stand alone when unopposed by a defense may become invigorated and helped out by a still weaker defense." " As was said in Wisconsin, " the jury should be told in terms or in effect: You should find accordiag as you shall be satisfied of the truth of the matter in controversy by a preponderance of the evidence." ' 111 Am. and Eng. Encyc. of Law (2d ed. ) 491, and cases cited. 2 See The Charles L. Jeffrey, 55 Fed. Rep. 685, 5 U. S. App. 370; The Comet, 1 Abb. (U. S.) 451, 6 Fed. Cas. No. 3,050; Corks v. The Belle, 6 Fed. Cas. No. 3,231a. 3 Bennett v. Rogers, 12 Neb. 382, 11 N. W. Rep. 314, per Cobb, J. * St. Louis, etc., R. Co. v. Hender- son, 57 Ark. 402, 21 S. W, Rep. 878; Chicago City R. Co. v. Osborne, 105 111. App. 462; Renard v. Grande, 29 Ind. App. 579, 64 N. E. Rep. 644; Smith V. Westfield First Nat. Bank, 99 Mass. 605; Rogers v. Trader's Ins. Co., 6 Paige (N. Y.) 583. " When the scale shall stand upon an equipoise and there is nothing in the evidence which shall incline it to the one side or the other, the jury will find for the defendant," was an instruction by Mr. Justice McLean in Ray V. Donnell, 4 McLean (U. S.) 504, 20 Fed. Cas. No. 11,590. B Thomas v. Paul, 87 Wis. 607, 613, 58 N. W. Rep. 1031, per Orton, C. J. " By preponderance of evidence is meant tlie greater weight of the evi- dence; that it outweighs the evidence of the adverse party." Nickey v. Steuder, 164 Ind. 189, 73 N. E. Rep. 117, per Monks, J. See also Heidel- baugh V. People's R. Co., (Del. 1907) 65 Atl. Rep. 587, 588, per Spruanee, J., charging a jury; \\estern Union Tel. Co. V. James, 31 Tex. Civ. App. 503, 73 S. W. Rep. 79. o Guinard v. Knapp, 95 Wis. 482, 70 N. W. Rep. 671, per Newman, J. 7 Grotjan v. Rice, 124 Wis. 253, 102 N. W. Rpp. 551, per Marshall, J. See also Pullman Palace Car Co. t'. Adams, 120 Ala. 581, 24 So. Rep. 921; Alabama Mineral R. Co. v. Marcus, 115 Ala. 389, 22 So. Rep. 135; Tread- §§ 28, 29] DEGREE OF PROOF. 55 § 28. Opposing Presumptions to Be Overcome. — To create a pre- ponderance of evidence, the evidence must be sufficient to overcome the opposing presumptions, if any there are, as well as the other opposing evidence.' Presumptions, like probabilities,' are of different degrees of strength,^" and the weight of various presumptions is con- sidered in a subsequent chapter. ^^ To overcome a strong presumption requires more evidence than to overcome a weak one. To fasten upon a man a very heinous or repulsive act requires stronger proof than to fasten upon him an indifferent act, or one in accordance with his known inclinations.^^ § 29. Consideration of Probabilities. — The subject of " incredi- bilities and improbabilities" is discussed at large in another chapter." " Quantitative probability, or the greater chance, " is not proof, nor even probative evidence, of the proposition to be proved. That in one throw of dice, there is a quantitative probability, or greater chance, that a less number of spots than sixes will fall uppermost, is no evi- dence whatever that in a given throw such was the actual result. Without something more, the actual result of the throw would still be utterly unknown. The slightest real evidence that sixes did in fact fall uppermost would outweigh all the probability otherwise." ^* " Mere probability, founded on general presumptions, however they may incline the private judgment of the man, caimot amount to that well V. Whittier, 80 Cal. 574, 22 Pac. Reg. 258, 4 Fed. Cas. No. 1,936 (at p. Rep. 266 ; Richardson v. Burleigh, 3 235 ) . See ante, § 5. Allen (Mass.) 479; Pelitier v. Chi- s Decker v. Somerset Mut. F. Ins. cage, etc., R. Co., 88 Wis. 521, 60 N. Co., 66 Me. 406, 408; Knowles v. Scrib- W. Rep. 250 ; Grant v. Canadian Pac. ner, 57 Me. 495 ; Elwood v. Western R. Co., 36 N. Bruns. 528 ; Brewer Union Tel. Co., 45 N. Y. 549. See also V. Humble, 26 N. Bruns. 495, 498. infra, §§ 49, 64. Compare Donley v. Dougherty, 174 » See generally post, chap. IV. 111. 582, 51 N. E. Rep. 714. lo Decker v. Somerset Mut. F. Ins. " This is a civil action, and you are Co., 66 Me. 406, 408. See also post, to decide according to the weight or chap. VIII. preponderance of the evidence where " Post, chap. VIII. there is a conflict, but are to be rea- 12 Decker v. Somerset Mut. F. Ins. sonably satisfied in any case that any Co., 66- Me. 406, 408. fact is proven before you find it so," is gee post, chap. IV. was an instruction by Judge Deady ^* Day v. Boston, etc., R. Co., 98 in Brooke v. Scoggins, 11 Nat. Bankr. Me. 207, 52 Atl. Rep. 771. 56 DEGREE OF PROOF. [§ 39 judicial proof that is required to satisfy the magistrate." ^° The sum of several mere probabilities is only a probability. " Or, to state the same thing in a more precise way, a conclusion logically drawn from premises which are themselves mere probabilities must of necessity be only a mere probability ; also, because a conclusion, to be formal, must always be contained in the premises, and probabilities can never con- tain a certainty." ^^ However, it is frequently said that in order to get at the truth, probabilities derived from established facts may and ought always to be considered ; ^^ that "probability is the chief guide in placing a proper estimate upon evidence ; " ^^ that " the rules and probabilities of human conduct should not be disregarded ; " '■^ that " one must judge of things somewhat according to probabilities and one's inter- course with the world ; " ^° that " where the testimony of the parties is in conflict, it becomes the duty of those who have the responsibility of determining the facts to take into consideration the surrounding cir- cumstances and probabilities; " -^ and that " if there is any substantial evidence, the jury are to decide upon the balance of probabilities." ^^ It has sometimes been said that the term " preponderance of evidence " means such evidence as when weighed with that opposed to it "has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden rests." ^^ 16 Carleton «7. Davis, 2 Ware (U.S.) experience." People v. Donohue, 114 225, 5 Fed. Gas. No. 2,408 (at p. 70), N. Y. App. Div. 830, 100 N. Y. Supp. per Ware, D. J. 202, per Jenks, J. i« Bowman v. Little, 101 Md. 273, 20 ghedden v. Patrick, 2 Sw. & Tr. 61 Atl. Rep. 223, 657, 1084, per Mc- 198. Sherry, C. J. 21 Healy v. Clark, 120 N. Y. 643, 24 « Roberts v. The St. Jamea, 20 Fed. N. E. Rep. 316, per cur. " In deciding Cas. No. 11,914 (at p. 923). In upon disputed questions of fact the construing or considering evidence, court must be governed by the weight said Dr. Lushington, it is the duty of of evidence, takMi in connection with the trier of facts, " in the first place surrounding circumstances and prob- to look to all the witnesses have abilities." Aahe «. Mutual Lasting Co., sworn, and to weigh the whole proba- 42 Fed. Rep. 841, per Colt, J. See bilities of the ease." Thomson v. Hall, also Church v. Cheape, 64 Fed. Rep. 2 Rob. Eoe. 426, 432. 975, 080. 18 Cass County p. Green, 06 Mo. 498, 22 Felch v. Concord, etc., R. Co., 06 S06, per Sherwood, C. J. N. H. 318, 29 Atl. Rep. 557, per Blod- 10 Harris v. Vanderveer, 21 N. J. gett, J. See the following section. Eq. 561, 674. "Proof is weighed by 2s Hoffman v. Lovd, 111 Mich. 156, probability and is tested by general 69 N. W. Rep. 231, per Montgomery, § 30] DEGREE OF PROOF. 57 In a collision case Judge Thomas said : " When events are entangled in the confusion that results from unintelligent and inaccurate observa- tion and perverse and careless statements, no conclusion at all points logically defensible can be attained, and an element of doubt accom- panies and survives the decision. Such seems to be the persistent condition of actions involving collisions betvreen vessels. Hence the court must consider and weigh the evidence and probabilities, and strike such balance as his judgment and the rules of law require." ^* § 30. Instructions to Juries in Terms of " Probability." — In- structing a jury that they are authorized to find according to the " balance of probabilities " is generally deemed objectionable, because the phrase is vague and indefinite and might lead the jury to infer that they might form their verdict on a guess at the truth '"^ gathered from the evidence rather than on a real solid conviction of it, founded on a careful scrutiny and examination of the proof.^" An instruction to the jury that " if after having considered all the facts, including the number of witnesses and circu;iistances appearing upon this trial, you feel that from the testimony it is more probable that any fact is true or not, then such fact is proven by the preponderance of testimony, however slight that preponderance may be," was pronounced errone- ous.^' The jury should not thus be left to speculate on probabilities, J. See also Gallagher v. Crooks, 132 of probability, they were authorized N. Y. 338, 30 N. E. Rep. 746. to find a verdict,' they may have 2* The George L. Garlick, 88 Fed. found the verdict rendered in the Rep. 553, 554. See also The Iroquois, cause. Upon weighing probabilities, 91 Fed. Rep. 173, 174, 62 U. S. App. it might be found that there was the 361, per cur. preponderance of a slight probability 20 See infra, § 34. in favor of one of the parties, but not 20 Haskins v. Haskins, 9 Gray of that decided character to satisfy (Mass.) 390, 393. As was said in a the mind that the right was with that Georgia case, " the jury might have party. The evidence should so pre- coUected, on each side, every circum- ponderate in favor of the party for stance which they considered as giv- whom the verdict is rendered, as to ing rise to a probability, and, putting satisfy the jury that he is entitled to them in opposite scales, there might it." Parker v. Johnson, 25 Ga. 578, have been a slight preponderance in 585, per McDonald, J. See also Dun- favor of the plaintiff, but not suffi- bar v. McGill, 64 Mich. 676, 31 N. W. cient to satisfy them that he was en- Rep. 578. titled to a verdict; and yet under the ar Chicago v. Webb, 102 111. App. charge ' that according to the weight 232. See also Butler v. Chicago, etc., 58 DEGREE OF PROOF. [§ 31 but must be satisfied by the greater weight of evidence.^' But the jury may properly be instructed to weigh the probabilities upon the whole evidence, in determining which of the stories told by different witnesses is correct.^" And so there may be no error in an instruction that a jury may find the existence of a fact from a preponderance of probabilities in its favor, if it appears that the jury must have under- stood that the conclusion was actually to be drawn by their judgment,'" § 31. Proof of Probable Facts. — " In weighing evidence intro- duced to prove or disprove a given hypothesis, the intrinsic probability of the fact sought to be established is not to be overlooked. It requires less evidence to prove a fact that is highly probable in itself, and which is in accordance with the general course of business, than one which is improbable, or which stands in a state of indifference." "^ Probability that a fact occurred aids direct evidence that it occurred. Thus, " it would ordinarily take much less evidence to prove that an act has been done by a person if such person has previously expressed his intention and desire to do the act. A man is very likely to do any reasonable thing which his heart strongly inclines him to do, and especially if the performance of the act imposes no unwilling burden or responsibility upon himself." '^ On the same ground of probability less evidence suffices in patent cases to prove anticipation by a com- petent mechanic in something that is little more than a mechanical detail of a device in familiar use by him than if the improvement had been a new and complex mechanism."'' Proof that a married man had a manifest disposition and constant proclivity to commit adultery would persuade a court that he was guilty of the offense in a specific instance upon less evidence than might be necessary under other cir- cumstances."'' R. Co., 71 Iowa 206, 32 N. W. Rep. 32 Grant v. Bradstreet, 87 Me. 583, 262- 33 Atl. Rep. 165, per Peters, 0. J. 28 Warner v. Crandall, 65 111. 195. as Lee v. Upson, etc., Co., 43 Fed. 20 Strand v. Chicago, etc., R. Co., Rep. 670. See also Ansonia Brass, 67 Mich. 380, 34 N. W. Rep. 712. etc., Co. v. Electrical Supply Co., 32 30 See Dunbar v. McGill, 64 Mich. Fed. Rep. 81, 85. And see generally 676, 31 N. W. Rep. 578. as to degree of proof of prior use or "Wood V. Hubbell, 10 N. Y. 479, anticipation, hifra, §§ 56, 57. 481, per Willard, J. As to test of S4 Adams 1). Adams, 17 N. J. Eq. probability, see post, §§ 133, 134. 324, 336. § 32] DEGREE OF PROOF. 59 § 32. Proof of Improbabilities. — Improbabilities are considered in their substantive aspects in a separate chapter/^ and the right- of courts and juries to disbelieve improbable statements, even where they are not directly contradicted, is set forth in another part of this work.'" " The measure of proof required to establish any proposition must necessarily vary with its degree of probability," ^'^ and must be strong in proportion to the degree of improbability.^^ " The evidence that a man desires to resign his domicil of origin ought to be cogent in proportion to the improbability of such a desire. And the converse is true, that if the probability is great, far less evidence may suffice." ^^ So " a rich man might easily be supposed to have given to his son-in- law what scarcely any amount of evidence could make us believe a poor man had given to a stranger." *" Where witnesses testified to highly improbable occurrences, " we should have to feel great confi.dence in the candor and truthfulness of the witnesses before giving credence to their statements," said the court.*^ An alleged contract by a man of sound mind may be so improvident that it " should have credence in nothing less than the most convincing 3s See post, chap. IV. Bisel Co. v. Welsh, 131 Fed. Rep. 564, 86 See post, § 92 et seq. 566; Fry v. Piersol, 166 Mo. 429, 66 37Haworth v. Stark, 88 Fed. Rep. S. W. Rep. 171; Brewer v. Wilson, 17 612, 514, per Lacombe, C. J. N. J. Eq. 180, 184; Harrison v. New 38 M'Carthy v. Judah, 12 Moo. P. C. Jersey R., etc., Co., 19 N. J. Eq. 488, 47, 70; The Rising Sun, 2 C. Rob. 496; Vreeland v. Vreeland, 48 N. J. 104, 107; Armstrong v. Gage, 25 Eq. 56, 21 Atl. Rep. 627; Seiferd v. Grant Ch. (U. C.) 1, 37; Parker v. Meyer, 93 N. Y. App. Div. 615, 87 Kenny, 17 Nova Scotia 457, 466; The N. Y. Supp. 636, 639; Wilson v. Cutch, 2 British Columbia 357, 360; Heath, (Supm. Ct. Tr. T.) 23 Misc. May V. Steam-Ship Powhatan, 5 Fed. (N. Y.) 714, 53 N. Y. Supp. 166 Rep. 375, 378; Murray v. White, 9 (almost incredible ingratitude); Fed. Rep. 564; The Gratitude v. The Hagan v. Yates, 1 Dem. (N. Y.) 584, Eutaw, ^ 14 Fed. Rep. 481 ; The El 593. Dorado, ^27 Fed. Rep. 763; Smith v. 3" Sharpe v. Crispin, L. R. 1 P. 4 D. Davis, 34 Fed. Rep. 783, 784; The 615, 621, per Sir J. P. Wilde. City of Alexandria, 40 Fed. Rep. 697, « Sterrett v. Wright, 27 Pa. St. 701; The America, 95 Fed. Rep. 192; 259, 261, per Black, J. Merritt, etc.. Derrick, etc., Co. v. *» Wallace v. Harris, 32 Mich. 380, North German Lloyd, 120 Fed. Rep. 395, per Graves, C. J. See also post, 27 (charge of gross inhumanity not § 139. readily to be believed) ; George T. 60 DEGREE OF PROOF. [§ 32 proofs." And the testimony of a highly interested party of doubtful veracity does not fulfil that requirement.*^ Strong evidence would be required to prove so unusual a transaction from a business standpoint as an agreement that a chattel mortgage given to secure a debt was to be released as to more than one-half the property covered by it when less than one-third of the debt should be paid.*^ Evidence to establish a settlement of a well-founded claim for a large amoxint by the payment of a ridiculously small sum should be " clear and satisfaetoiy." ** In the case of a New York policeman dismissed for intoxication the Court of Appeals said the excuse of sickness and of brandy taken as a medicine is " always suspicious and doubtful xmless imder the clearest and strongest proof," and that " almost invariably sickness is made the excuse for intoxication ; it is right to suspect it, to challenge it severely, to reject it almost uniformly." *° " It would require unusually strong evidence to convince the court " that a rock or other submerged obstruction to ordinary navigation could exist in a cliannel only 250 feet in width and traversed daily by a multitude of vessels *" A theory whicli is based upon several very unlikely acts requires strong evidence to justify its acceptance " In a case in the House of Lords where a Inishnnd prayed for a judicial declaration that bis wife's cliild was not his own he testified to a statement she made to him, after which he married her. Lord Chancellor Cairns said : " It is a statement which I am bound to say appears to me, as it is given, to be one of the most improbable state- ments, one of the most difficult of belief, that it is well easy to imagine. The statement is this, that a lady in a respectable position of life made this statement to the appellant, also in a respectable position of life, before marriage, that she had been forced and ravished; and that he made no further inquiries about it than to ask her by whom, and 42 Vreeland v. Vreeland, 53 N. J. i* Home Ins. Co. v. Western Transp. Eq. 387, 303, 32 Atl. Rep. 3, per Mc- Co., 51 N. Y. 93, 100. Gill, Ch. But corroboratius evidence is People v. French, U9 N. Y. 496, estal)lishcd the fact in that ease. As 498, 23 N. E. Rep. 1058, prr Gray, J. to improvident contracts inconsistent 4o The Florence, 88 Fed. Rep. 302, with probability, see post, § 174 rt 304, per Coxe, D. J. «"7- ♦TRoifcrd v. Meyer, 93 N. Y. App. 43 Fry !i. Riersol, 166 Mo. 429, 66 Div. 615, 87 N. Y. Supp. 636, 639. S. W. Rep. 171. § 33] DEGREE OF PROOF. 61 she said she did not know — a low person, a blackguard; and that thereupon all inquiry on his part ceased, and that he, in a temper of romantic attachment, married the lady under those circumstances in order to shield her from the scandal which would arise from her pregnancy becoming known, and the birth of her child being made public. It does appear to me that upon the mere statement of that story, without more, it is so contrary to the mode in which man- kind generally act,*^ that, although it is impossible to say that it can not be true, it is not too much to say that it is in the highest degree unlikely; and very strong corroboration would be required, or at all events it would be necessary to see that those upon whose testimony that story is to be accepted have always spoken with veracity and con- sistency, and in a manner which shows that their recollection and their accuracy of speech is entirely to be accepted. I will ask your lordships to try the evidence by those tests." *" § 33. Mere Suspicion. — " Suspicion cannot give probative force to testimony which in itself is insufficient to establish or to justify an inference of a particular fact." °'' " The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass." °^ It may be the natural instinct of the mind to conclude that the liquid in glasses set before customers at a bar was intoxicating, but in the absence of any description of it as to color or otherwise it might well be a matter of pure conjecture. ^^ Conclusion that a defendant infringed a patent cannot be based upon suspicion and inference drawn from the fact that he occupied the same office with another defendant who was conclusively proved to have infringed. " One may occupy the same room, or, indeed, the same bed, with an infringer, and yet not be guilty of infringement. In- fringement is not contagious." °^ Nor in any case is the burden of proof satisfied merely by showing a state of facts from which infringe- ment may be conjectured."* 48 See post, § 171. 5 1 Boyd v. Glucklioh, (C. C. A.) <« Gardner v. Gardner, 2 App. Gas. 116 Fed. Rep. 131, per Caldwell, 723, 730. See also State v. Maxwell, J. 117 Iowa 482, 91 N. W. Rep. 772. b2 People v. Owens, 148 N. Y. 648, s» People V. Van Zlle, 143 N. Y. 372, 651, 43 N. E. Rep. 71. 373, 38 N. E. Rep. 380, per Andrews, es King v. Anderson, 90 Fed. Rep. G. J. See also Seott v. Crerar, 11 500, 506, per Coxe, D. J. Ont. 541, 551. o* Morgan Envelope Co. v. Albany 62 DEGREE OF PROOF. [§ 34 § 34. Mere Conjecture, Guess, or Surmise. — " Neither juries nor courts are permitted to render verdicts or judgments upon guesses or surmises " ^^ " It is not the habit of any courts of justice to yield themselves up in matters of right to mere conjectures and possibili- ties." °^ " A mere conjecture built upon a bare possibility will not suflBce to transfer the money or property of one man to the possession and profit of another." ^' " A proposition is not proved until the evi- dence becomes inconsistent with the negative." °* It has often been declared prejudicial error to instruct the jury directly or by implica- tion that they may cast loose from the evidence, and guess or conjecture that some event occurred as to which evidence is entirely wan ting. ■*" The mere fact that a plaintiff becomes nonsuit does not show, in an action against him for malicious prosecution, that he did not honestly believe that he had a cause of action when he instituted it. " A great Tariety of reasons exist which may induce a plaintiff to become non- suit, one of which may be that he has discovered or become con- vinced that he has no case. This, however, is but a mere conjecture. It is but one of a large number of sufficient reasons for such action. It cannot even be said to be the common or ordinary reason that induces a plaintiff to become nonsuit. In a particular ease it may or Perforated Wrapping Paper Co., 40 Pa. St. 259, 17 Atl. Eep. 443; Baker Fed. Rep. 577, 581. v. State, 47 Wis. Ill, 2 N. W. Rep. =5YaggIe V. Allen, 24 N. Y. App. 110; The Nellie Flagg, 23 Fed. Rep. Div. 594, 48 N. Y. Supp. 827. See 672. also Love v. New Fairview Corp., 10 5c The Ship Henry Ewbank, 1 Sumn. British Columbia 330, 341; Storey v. (U. S.) 400, 11 Fed. Caa. No. 6,376, Veaeh, 22 U. C. C. P. 164, 176; Gray- per Mr. Justice Story, stock V. Barnhart, 26 Ont. App. 545 ; bt Pauley r. Steam Gauge, etc., Co., Saunders v. Toronto, 26 Ont. App. 131 N. Y. 90, 100, 29 N. E. Rep. 999, 265 ; Garland v. Toronto, 23 Ont. App. per Finch, J. 238, 243; Russell v. Maine Cent. R. 58 Smith v. Lawrence, 98 Me. 92, Co., 100 Me. 406, 61 Atl. Rep. 899; 56 Atl. Rep. 455, syllabus by the Sun Ins. Co. v. Earle, 29 Mich. 406, court. 413; Minneapolis Sash, etc., Co. v. oo Menn v. State, (Wis. 1907) 112 Great Northern R. Co., 83 Minn. 370, N. W. Rep. 38, and cases there cited. 86 N. W. Rep. 451 ; Horan v. Byrnes, It is proper to instruct a jury that 70 N. H. 531, 49 Atl. Rep. 5GS; Leh- they have no right to substitute a man v. Oschmann, 89 N. Y. App. Div. fanciful hypothesis to .account for 620, 85 N. Y. Supp. 864; Matthias v. facts which are explained by direct Matthias, 3 Jones L. (48 N. Car.) testimony. Card r. Fowler, 120 Mich. 132; Erie, etc., R. Co. v. Smith, 125 646, 79 N. W. Rep. 925. § 34] DEGREE OF PROOF. 63 it may not be the true reason. Unconnected with other evidence, it is pure conjecture." °° Where two plaintiffs sued in trespass quare clausum, one of them having the legal title, it was not proved that the other was in posses- sion with him merely by evidence that both together ploughed and removed crops, etc. It was just as consistent with the supposition that the one permitted the other to crop with him on shares, as that there had been any letting of the land."' Positive evidence that the cause of a vessel's injury was her coming in contact with the bottom in shallow water overcomes any theory based on mere conjecture that she struck on an unknown rock or other obstruction.^- It is no evidence of revocation of a will that the seal thereto, con- sisting of a disk of paper attached by mucilage, was not on the will when found. It may have fallen off by having lost its power of adhesion after a lapse of time, just as likely as to have been removed intentionally."' If a plaintiff has produced sufficient evidence to establish his case he is not to be defeated upon mere surmise or conjecture. Lord Chief Justice Kenyon said he remembered an instance, " bordering on the ridiculous, where in an action on the game laws it was suggested that the gun with which the defendant fired was not charged with shot, but that the bird might have died in consequence of the fright; and the jury having given a verdict for the defendant, the court refused to grant a new trial." "'' Evidence which only gives rise to suspicion or conjecture acquires no additional weight from the neglect of the party affected by it to take the witness stand and give an explanation.'"' But a conclusion is not necessarily guesswork because it is derived from gravely contradictory testimony."" 00 Cohn V. Saidel, 71 N. H. 558, 53 05 Somers v. McCready, 96 Md. 437, Atl. Rep. 800, per Walker, J. 53 Atl. Rep. 1117; Shotwell v. Dixon, 01 Sutton V. Madre, 2 Jones L. (47 163 N. Y. 43, 57 N. E. Rep. 178. See N. Car.) 320. also, as to necessity of prima facie 02 The Florence, 88 Fed. Rep. 302, case, post, § 565. Compare Slater v. 304. Merritt, 75 N. Y. 268, 272. 03 Stevens p. Stevens, 72 N. H. 360, 00 Bamford v. Pittsburg, etc., Trac- 56 Atl. Rep. 916. tion Co., 194 Pa. St. 17, 44 Atl. Rep. «< Wilkinson v. Payne, 4 T. R. 468. 1068, 64 DEGREE OF PROOF. [§35 § 35. Conjecture as to Cause of Injury or Death. — " Where there are two or more possible causes of an injury [or of death] for one or more of which the defendant is not responsible, the plaintifE, in order to recover, must show by evidence that the injury was wholly or partly the result of that cause which would render the defendant liable. If the evidence in the case leaves it just as probable that the injury was the result of one cause as of the other, the plaintifE cannot recover." *' Thus in an action by a servant against a master the jury should not be permitted to guess, without proof, that the plaintiff's injury was «' Grant v. Pennsylvania, etc., Canal, etc., Co., 133 N. Y. 657, 31 N. E. Rep. 220, per cur. [citing Searles V. Manhattan R. Co., 101 N. Y. 661, 5 N. E. Rep. 66, and Taylor v. Yonk- ers, 105 N. Y. 202, 209, 11 N. E. Rep. 642]. See also Montreal Rolling Mills Co. V. Corcoran, 26 Can. Sup. Ct. 595 ; Farmer v. Grand Trunk R. Co., 21 Ont. 299, 305; Badgerow v. Grand Trunk R. Co., 19 Ont. 191; Wheelan V. Chicago, etc., R. Co., 85 Iowa 167, 82 N. W. Rep. 119; Hughes v. Louis- ville, etc., R. Co., (Ky. 1902) 67 S. W. Rep. 984; Curtin v. Boston El. R. Co., (Mass. 1907) 80 N. E. Rep. 522; Baltimore, etc., B. Co. o. State, 101 Md. 359, 61 Atl. Rep. 189; Riley v. New York, etc., R. Co., 90 Md. 53, 44 Atl. Rep. 994; Peppett v. Michigan Cent. R. Co., 119 Mich. 640, 78 N. W. Rep. 900; Olsen v. Montana Ore Pur- chasing Co., (Mont. 1907) 89 Pac. Rep. 731; Reynolds v. Burgess Sul- phite Fibre Co., 73 N. H. 126, 59 Atl. Rep. 615; Dame v. Laconia Car Co. Works, 71 N. H. 407, 52 Atl. Rep. 864; Deschenes v. Concord, etc., R. Co., 69 N. H. 285, 46 Atl. Rep. 407; Reiss V. New York Steam Co., 128 N. Y. 103, 107, 28 N. E. Rop. 24; Dobbins v. Brown, 119 N. Y. 188, 194, 23 N. E. Rep. 537; Olive v. Whitney Marble Co., 103 N. Y. 292, 302, 8 N. E. Rep. 552; Wells v. Chazy, 95 N. Y. App. Div. 618, 88 N. Y. Supp. 54; Webb V. Haynes, 75 N. Y. App. Div. 620, 78 N. Y. Supp. 95; Groarke v. Laemmle, 56 N. Y. App. Div. 61, 67 N. Y. Supp. 409; Welle v. Celluloid Co., 52 N. Y. App. Div. 522, 65 N. Y. Supp. 370; Hanrahau v. Brooklyn El. R. Co., 17 N. Y. App. Div. 588, 45 N. Y. Supp. 474; Yaggle v. Allen, 24 N. Y. App. Div. 594, 48 N. Y. Supp. 827 ; Trout ■;;. Waynesburg, etc.. Turn- pike Co., 216 Pa. St. 119, 64 Atl. Rep. 900; Morgan v. Pennsylvania R. Co., 209 Pa. St. 25, 58 Atl. Rep. 116; Savitz V. Lehigh, etc., R. Co., 199 Pa. St. 218, 48 Atl. Rep. 987; Stringert v. Ross Tp., 179 Pa. St. 614, 36 Atl. Rep. 345; Brunner v. Blaisdell, 170 Pa. St. 25, 32 Atl. Rep. 607; Tunney v. Car- negie, 146 Pa. St. 618, 23 Atl. Rep. 207; Hazel v. People's Pass. R. Co., 132 Pa. St. 96, 18 Atl. Rep. 1116; Southern R. Co. v. Hall, 102 Va. 135, 45 S. E. Rep. S67; Norfolk, etc., R. Co. J'. Poole, 100 Va. 148, 40 S. E. Rep. 027; Chesapeake, etc., R. Co. v. Sparrow, 98 Va. 630, 37 S. E. Rep. 302; Gardner r. Porter, (Wash. 1906) 88 Pac. Rep. 121; Sorenson v. Me- nasha Paper, etc., Co., 56 Wis. 338, 14 N. W. Rep. 440; Moit v. Illinois Cent. R. Co., 153 Fed. Rep. 356; Leonard v. Miami Min. Co., (0. C. § 36] DEGREE OF PROOF. 65 caused by the incompetency of a superior servant "' or by defendant's neglect to provide suitable appliances for the work,"' instead of the negligence of a fellow servant. In the case last cited, the court said: " To allow the jury to infer, because of the testimony of a witness that he had casually observed rotten ties in the roadbed, that this train, rushing down this steep grade, beyond the control of its brakes and with increasing momentum, would not have been wrecked except for the presence of some rotten ties, would be to allow them to indulge in very wild guesswork. A track safe for the ordinary operation of trains might, and probably would be, inadequate to meet the strain of a train running headlong down a steep grade, and it could not reasonably be said, in the absence of some evidence that the roadbed was actually unsafe for the operation of trains, that the proximate cause of the accident was other than the loss of control of the train " by the negligence of the train crew, of which there was other competent evidence.'"' On the other hand, if the facts in evidence will sustain a verdict that the defendant's negligence caused the injury complained of, the plaintiff is not to be defeated by a conjecture that the injury might have been due to some other cause.'^ § 36. Surmising Negligence in Admiralty Cases. — In the case of a libel to recover damages for a personal injury on the ground of negligence, Judge Thomas said that the evidence "must be suffi- ciently clear, distinct, and preponderating to convince the court, with- out resort to conjectures or surmises, that the claimant was negligent. When, after a careful study and consideration of the case, a judge cannot state candidly that his reason is convinced by the weight of evidence that the respondent, in some particular pointed out, has negli- gently done, or omitted to do, some act, in breach of his duty, the libelant has not fulfilled the burden resting upon him. Courts are A.) 148 Fed. Rep. 827, 829, per Goff, 'o Wooden v. Western New York, C. J.; Bell Tel. Co. v. Detharding, etc., R. Co., 147 N. Y. 508, 519, 42 (C. C. A.) 148 Fed. Rep. 371, 373. N. E. Rep. 199, per Gray, J. «s Central R. Co. v. Keegan, 82 Fed. 'i Kern v. Snider, (C. C. A.) 145 Rep. 174, 176, 51 U. S. App. 489. Fed. Rep. 327; Weller v. Manhattan 09 Wooden v. Western New York, R. Co., 53 Hun (N. Y.) 372, 6 N. Y. etc., R. Co., 147 N. Y. 508, 42 N. E. Supp. 320, affirmed 127 N. Y. 669, 28 Rep. 199. N. E. Rep. 255; The Alvena, 74 Fed. FACTS — 5 66 DEGREE OF PROOF. [§ 37 required to examine, compare, analyze, infer, weigh, and strike the balance of probabilities, but they are not required to hazard opinions that a person has done wrong, without the presentation of intelligible and substantiated facts which tend to establish the accusation. A question of fact may be refined to s»ch a degree that an accurate solution is beyond any reliable intellectual process. At such point of mystification, the court is justified in holding that the libelant has not sustained the burden of proof ; that the domain of reasoning has been passed, and that of pure surmise entered." '^ § 37. Guessing Concerning Contributory Negligence. — In an action against a railroad company for death by wrongful act, it appeared that the body of the deceased was found on the railroad a short distance from a permissive crossing, and blood marks at the crossing indicated that he had been struck there. This was all the evidence, and no witness saw the accident. The testimony further showed that deceased had made an -engagement the previous evening to go to a house near the railroad crossing, and that his habit was to go first to his place of employment from which he might get to the place of his appointment on the other side of the tracks, by either of two routes, one of which would lead him to the tracks at the crossing, while the other would require a walk of some little distance along the tracks before reaching the crossing. The case was tried in a state where the burden of proof of freedom from contributory negligence rests upon the plaintiff." " If the deceased was walking the tracks longitudinally, he was guilty of plain contributory negligence," said the court, " and as the testimony was that he was in the habit of using both ways, the jury could only guess which way he took on that occasion. The plaintiffs, therefore, failed to show a case clear of con- tributory negligence."'* In another case where a verdict was set Rep. 252, 255. See also Guinea v. t4 Grant v. Philadelphia, etc., E. Campbell, 22 Quebec Super. Ct. 257, Co., 215 Pa. St. 265, 64 Atl. Rep. 463. 259- Evidently if the burden of proof of 72 The Baron Innerdale, 93 Fed. contributory negligence had rested Rep. 492. upon the defendant, the latter would '3 As to conflicting doctrines on that have failed for the same reason. In point, see 7 Am. and Eng. Eneyc. of support of the text see also Tyndale Law (2d ed.) 453 et seq.; 5 Encyc. of v. Old Colony R. Co., 150 Mass. 503, PI. and Pr. 1, 4. 31 N. E. Rep. 055. §§ 38, 39] DEGREE OF PROOF. 67 aside because plaintiff's exercise of due care was not proved, the court said : " Verdicts must stand upon evidence and not upon mere con- jecture, however plausible, and if the situation be such that the plain- tiff cannot furnish the requisite evidence, the misfortune is his." ''^ But the absence of any fault on the part of a plaintiff may be inferred from circumstances; and the disposition of men to take care of themselves and keep out of difficulty may properly be taken into consideration.'* § 33. Conjecture in Accident Insurance Cases. — In accident insurance cases the jury cannot be allowed to conjecture that the cause of death was accidental in the face of uncontradicted and credible evidence that death was caused by disease." " Mental speculation and guesswork " will not support a verdict that death wa,s caused otherwise than by voluntary exposure to unnecessary danger, where the latter aspect of the evidence is not changed by any relevant fact.'' § 39. Conjectural Estimates of Damage. — Speculations and con- jectures of witnesses as to the amount of expected profits which a party lost by reason of the unlawful acts of the other party, no facts being stated from which a reasonably accurate estimate could be made, were held insufficient to support a verdict. " Litigants cannot be permitted to estimate the money out of the coffers of their opponents in this reckless way." '° In determining the amount of damage to a vessel by collision, esti- mates of depreciation founded in speculative opinions of the probable effect of a collision — ■ such as that vessels sustain a damage that " will show when they grow old " — where no such effect is known or dis- cernible, and estimates of diminished value, founded as they sometimes 75 Babcoek v. Pitehburg R. Co., 140 also post, § 555, as to weight of in- N. Y. 308, 311, 35 N. E. Rep. 596, per ferences from the instinct of self- Earl, J. For other cases where the preservation. evidence of freedom from contribu- ^t Travelers' Ins. Co. v. Selden, 78 tory negligence was only " food for Fed. Rep. 285, 288, 42 U. S. App. 253. speculation," see Bond v. Smith, 113 '« Williams v. U. S. Mutual Ace. N. Y. 378, 385, 21 N. E. Rep. 128; Assoc, 133 N. Y. 366, 371, 31 N. E. Wright V. Boston, etc., R. Co., (N. H. Rep. 222. 1907 ) 65 Atl. Rep. 687. '» Central Coal, etc., Co. v. Hart- '0 Johnson t\ Hudson River R. Co., man, (CCA.) Ill Fed. Rep. 96, 20 N. Y. 65, 71, per Denio, J. See 102, per Sanborn, C J. 68 DEGREE OF PROOF. [§§ 40-42 are upon the idea that although the vessel is as serviceable as she was before, yet she will not sell for so much as she would before, are not of sufficient reliability to warrant the taking of the money of one party and awarding it to another.'" § 40. Conjecture as to Survivorship in Common Disaster. — Evi- dence merely that two persons differing in age, sex, or physical con- dition perished in a common disaster is not sufficient to prove that either survived.'^ " We may guess, or imagine, or fancy," in such a case, said Mr. Justice Wightman, "but the law of England requires evidence." '^ § 41. Proof Beyond Suspicion. — There is nothing which is required to be proved beyond suspicion. " If there is anything, that particular fact can never be proved at all, for suspicion may exist wholly without evidence, in opposition to the most clear and cogent proof, and may remain after even the last reasonable doubt is removed. It may be founded upon the mere personal appearance of the party or witnesses, upon something in their manner, real or imagined, or even upon nothing except a suspicious temperament of the observer. It is amenable to no rules, it perverts simple and harmless actions, and sees mischief where none exists. To put such a standard before a jury is to take away all measurement of or control over the volume of proof required, and leave the verdict to an irresponsible and undiscoverable impulse." *' § 42. Proof in Support of Interlocutory Motions. — In collateral proceedings or matters of practice, where orders in the progress of actions are applied for, judges frequently act upon facts stated upon information and belief. " In such proceedings absolute certainty is not expected; the evidence is sufficient if convincing and satisfactory, is usually by affidavit, ex parte,^^ and is not subjected to the test of 80 Petty V. Merrill, 9 Blatclif. (U. 82 Underwood v Wing, 4 DeG. M. & S.) 447, 19 Fed. Gas. No. 11,050, per Q. 633, 657. Woodruff, C. J. 83 Lewis v. Merritt, 113 N. Y. 380, siMiddeke v. Balder, 198 111. 590, 3;,0, 21 N. E. Rep. 141 {donatio caum 04 N. E. Rep. 1002, and cases thoro mortis), per Finch, ,T. cited. See also Wigmore on Evidence, 84 Weight of ex parte affidavits, see § 2532. pout, chap. XVTT. §§ 43, 44] DEGREE OF PROOF. 69 cross-examination. All that is required is that the information fur- nished by the affidavit shall be such that a person of reasonable pru- dence would be willing to accept and act upon it. The mere averment, however, of a fact upon information and belief, without more, is not sufficient; but the sources of the information and the grounds of the belief must be stated so that the judicial officer to whom the affidavit is presented may judge whether the information and belief have a proper basis to rest on; and if he is satisfied that they have, then the affidavit is sufficient to invoke his jurisdiction and to be submitted to his determination." *° § 43. Proof of Negative Facts. — It is not necessary nor, in gen- eral, feasible for the party having the burden of proof to produce such full and clear evidence of a negative fact as where proof of an affirm- ative is required. Frequently a negative fact can be established only by proving some affirmative fact or state of facts which is inconsistent with the affirmative of the proposition to be negatived, and which, therefore, raises a presumption that the negative is true. Any evi- dence which creates a fair and reasonable presumption of the existence of the negative is sufficient until overcome by some evidence to the contrary, especially where the affirmative fact is peculiarly within the knowledge of the opposite party so that he can easily prove it if neces- sary to establish his contention.*" § 44. Requirement of More than Preponderance. — The strong tendency of the later authorities is to hold that " a preponderance of the evidence is all that is required in any civil case to sustain a verdict, judgment, or decree," although on account of opposing presump- tions *' or for other reasons ** it may require more evidence in some cases than in others to satisfy the trier of facts that there is a pre- ponderance.*" It was said by Judge Graves of Michigan that between 8=Buell V. Van Camp, 119 N. Y. 70, 23 Pac. Rep. 183), eapeoially where 160, 165, per Earl, J. See also Wal- the transaction is of ancient date, cott V. Holcomb, 31 N. Y. 125, 129. Fisher v. Carter, 1 Wall. Jr. (C. C.) 86 Young V. Stephens, 9 Mich. 500, 9 Fed. Gas. No. 4,815 (at p. 119). 504, per Christianey, J. «' See swpra, § 28. " Slight proofs make out a prima ss gee, for example, supra, § 32, and facie case where a negative is to be infra, §§ 45-47, 54. proved " (Russell v. McDowell, 83 Cal. "' The quotation in the text is from 70 DEGREE OF PROOF. [§44 the rule which has always obtained in civil actions, and that universally applied in trials for crime, no middle course sufficiently definite and practical to be recognized and adopted seems to have been discovered; and that judges in speaking of the degree of truth advanced or needed on particular occasions have sometimes used qualifying words not found in an exact statement of the rules above mentioned, but that " this has been done generally, if not always, either to mark a proposi- tion with judicial emphasis, or denote the amount of evidence given or required in cases of discretion." "" But in numerous classes of eases courts of chancery have required that the evidence shall be " clear, strong, and convincing," or have used an equivalent phrase, studiously avoiding the expression " preponderance of evidence," and sometimes, indeed, demanding proof beyond a reasonable doubt: for example, to prove an intention to abandon an easement ; "^ to prove notice of an unrecorded deed in order to defeat the title of a subsequent purchaser;'^ to prove that a deed found in the possession of the grantor had never- theless been delivered ; "^ to prove delivery of a gift not at any time found in the absolute possession of the donee ; ^* to prove that a bill Fiteh V. Vatter, 143 Mich. 568, 107 N. W. Rep. 106. See generally in support of the text Sehmuok v. Hill, (Neb. 1901) 96 N. W. Rep. 158; Wylie V. Charlton, 43 Neb. 840, 62 N. W. Rep. 220; Stall v. Jonea, 47 Neb. 706, 66 N. W. Rep. 653; Roberge V. Bonner, 185 N. Y. 265, 77 N. E. Rep. 1023. «o Aikin v. Week -rly, 19 Mich. 482, 502. Judge Mount of the Supreme Court of Washington haa expressed the opin- ion that the distinction between the quantum of proof necessary to raise a reasonable doubt and that neces- sary to constitute a " fair preponder- ance " of the evidence is more fanciful than real. " When evidence is suf- ficient to raise a reasonable doubt, as such doubt is usually defined and un- derstood, it may also be said in a sense to preponderate. The distinc- tion, therefore, while it may be fruit- ful of philosi _ hical and theoretical discussion, is o* little practical value." State V. Clark, 34 Wash. 485, 497, 76 Pae. Rep. 98. 91 Hennessy v. Murdock, 137 N. Y. 317, 326, 33 N. E. Rep. 330. 02 Flagg V. Mann, 2 Sumn. (U. S.) 486, 551, 9 Fed. Gas. No. 4,847; Kelly V. New Brunswick R. Co., 33 N. Bruns. 310, 318. See also Hollywood v. Waters, 6 Grant Ch. (U. C.) 329; Robertson v. Wheeler, 162 111. 566, 580, 44 N. E. Rep. 870; M'Meohan V. Griffing, 3 Pick. (Mass.) 149, 155. The reason for the rule is that the charge of purchasing with notice im- putes it fraud to the purchaser. But see infra, § 51, as to proof of fraud. »3Vreeland v. Vreeland, 48 N. J. Eq. 56, 21 Atl. Rep. 627. »* Chambers r. McCreery, ( C. 0. A.) 106 Fed. Rep. 367, 368. §44] DEGREE OF PROOF. 71 of sale "^ or a deed absolute on its face "" is a mortgage ; to establish a parol trust;"' to establish a lost instrument by parol evidence of its contents in order to found a right thereon ; "^ to establish the right to specific performance of parol contracts in general/" and especially of such contracts concerning an interest in land ^"^ or oral contracts to »B 4 Am. and Eng. Encyc. of Law (2ded.) 566, 567. But see Seligmanv. Ten Eyck, 74 Mich. 525, 42 N. W. Rep. 134. 98 Dexter v. Arnold, 3 Sumn. (U. S.) 152, 7 Fed. Caa. No. 3,859; Me- Micken v. Ontario Bank, 20 Can. Sup. Ct. 548; Greenshielda v. Barnhart, 3 Grant Ch. (U. C.) 1; McElroy v. Davis, 1 Manitoba 53; Gannon v. Moles, 209 111. 180, 70 N. E. Rep. 689 ; McAnnulty v. feeiok, 59 Iowa 586, 13 N. W. Rep. 743; Hyatt v. Cochran, 37 Iowa 309, and cases cited; A. J. Dwyer Pine Land Co. v. Whiteman, 92 Minn. 55, 99 N. W. Rep. 362. »7 Moore v. Crawford, 130 U. S. 122, 9 U. S. Sup. Ct. Rep. 447; Neely v. Boyd, (C. C. A.) 145 Fed. Rep. 172, 175; McManus v. McManus, 24 Grant Ch. (U. C.) 118, 124; Emfinger v. Emfinger, 137 Ala. 337, 34 So. Rep. 346; Mason v. Harkins, (Ark. 1907) 102 S. W. Rep. 228; Cline v. Cline, 204 111. 130, 68 N. E. Rep. 545; Brink- man V. Sunken, 174 Mo. 709, 74 S. W. Rep. 963; Dailey v. Dailey, 125 Mo. 96, 28 S. W. Rep. 330; Johnson V. Quarles, 46 Mo. 423, 426; Krauth V. Thiele, 45 N. J. Eq. 407, 18 Atl. Rep. 351; Grouse v. Frothingham, 97 N. Y. 105; Taft v. Dimond, 16 R. I. 584, 18 Atl. Rep. 183. 98 Renner v. Columbia Bank, 9 Wheat. (U. S.) 581, 597; McCarn v. Rundall, 111 Iowa 406, 82 N. W. Rep. 924; Edwards v. Noyes, 65 N. Y. 125; Van Horn v. Munnell, 145 Pa. St. 497, 22 Atl. Rep. 985; Moses v. Trice, 21 Gratt. (Va.) 556; Ross V. Williamson, 14 Ont. 184; Bessey v. Bostwick, 13 Grant Ch. (U. C.) 279; Ee MeLeod, 23 Nova Scotia 154, 165. See also Brown v. Capron, 24 Granl Ch. (U. C.) 91, and supra, § 17. The greater the value of the in- strument, the stronger should be the proof of its existence and contents; " and where the instrument rises to the dignity and importance of a muni- ment of title, every principle of pub- lic policy demands that the proof of its former existence, its loss, and its contents, should be strong and con- clusive before the courts will establish a title by parol testimony to prop- erty which the law requires shall pass only by deed or will." Thomas v. Ribble, (Va. 1896) 24 S. E. Rep. 241. Parol evidence to prove the destruc- tion and contents of lost records should be of the most satisfactory character, for " in such eases the temptation to fraud and perjury would be very great, and the diffi- culty, if not the impossibility, of a conviction for perjury, and of rebut- ting such evidence, would be an en- couragement to an unscrupulous wit- ness." Mays V. Moore, 13 Tex. 85, 88, per Lipscomb, J. 99 Dalzell V. Dueber Watch-Case Mfg. Co., 149 U. S. 315, 13 U. S. Sup. Ct. Rep. 886; Farley v. Hill, 150 U. S. 572, 14 U. S. Sup. Ct. Rep. 186; McCann v. iEtna Ins. Co., 3 Neb. 198; Rockecharlie v. Rockecharlio, (Va. 1898) 29 S. E. Rep. 825. 100 Gould V. Hamilton, 5 Grant Ch. (U. C.) 192, 195; Shipley v. Fink, 72 DEGREE OF PROOF. [§ 44 devise property ; ^"^ to prove that the offspring of cohabitation apparently matrimonial is not legitimate ; ^"^ to set aside a government land patent on the ground of mistake ; ^"^ to impeach an oflBcer's return of service of process ; "* to falsify the statements in an officer's certificate of acknowledgment ; ^"^ to controvert a certificate of resi- dence issued to a Chinaman under the provisions of the Chinese Exclusion Act; "" to establish a contract by a parent to pay for ser- vices of an adult child living with him ; ^"^ to establish as against the representatives of a deceased wife a parol gift by her to her hus- band ; ^"^ to establish on behalf of a mortgagor that he did not receive the amount stated in his mortgage and that the latter was usurious ; ^'"' to annul a judgment or decree for fraud; ^'^ to prove that a probate court's grant of administration is void for want of jurisdiction ; ^^^ and in other cases considered in the following seetions.^^^ Wherever clear and unequivocal evidence is required, this does not mean that it must be undisputed. The practical operation of such a rule would be that no contested claim could ever be established.^^' It has been intimated that where an issue is tried in an action at law upon which courts of equity habitually require clear, strong, and 102 Md. 219, 62 Atl. Rep. 360 (citing 43 N. E. Rep. 427, and cases there 26 Am. and Eng. Encyc. of Law (2d cited; 1 Am. and Eng. Eneyc. of Law ed.) 131); Jones v. Patrick, 145 Fed. (2d ed.) 560. Rep. 440, 442; Chicago, etc., R. Co. io« Jew Sing v. U. S., 97 Fed. Rep. V. Chipps, 226 111. 584, 80 N. E. Rep. 583. 1069; Gibbs v. Whitwell, 164 Mo. ""Conway v. Cooney, 111 N. Y. 387, 64 S. W. Rep. 110. App. Div. 864, 98 N. Y. Supp. 171; 101 See infra, § 47. Matter of Milligan, 112 N. Y. App. i02Adger v. Aekerman, (C. C. A.) Div. 373, 98 N. Y. Supp. 480. See 115 Fed. Rep. 124, 126, and eases cited also 21 Am. and Eng. Encyc. of Law (mere preponderance insufficient). (2d ed.) 1061. 103 Thallmann v. Thomas, (C. C. los Wales v. Newbould, 9 Mich. 45, A.) Ill Fed. Rep. 277, 282 (mere 89. preponderance insufficient); Atty.- loo Morris v. Taylor, 22 N. J. Eq. Gen. V. Garbutt, 5 Grant Ch. (U. C.) 438. 181. 110 Wood V. Davis, 108 Fed. Rep. i04Loeb V. Waller, 110 Ala. 487, 18 130, 132. So. Rep. 268, citing 22 Am. and Eng. m Boston, etc., R. Co. r. Hurd, (C. Eneyc. of Law (1st ed.) 196. C. A.) 108 Fed. Rep. 116, 123. 106 Willis V. Baker, 75 Ohio St. 291, ns Sec infra, § 45 ct seq. 79 N. E. Rep. 466; Albany County us Bovington t'. Bevington, (Iowa Sav. Bank v. McCarty, 149 N. Y. 71, 1907) 110 N. W. Rep. 840, 843. § 45] DEGREE OF PROOF. 73 couvineing testimony, the party supporting the negative is entitled to have the jury instructed " on the lines indicated " by the rule adopted in equity cases.^^* It has been held that the rule requiring " clear, strong, and convinc- ing proof " in various classes of cases is a rule " to be observed upon the trial of the action, and it does not apply to the intensity of proof to be offered in the prosecution of a remedy ancillary to the real object of the action. A party seeking an interlocutory injunction is not required to establish his right vs^ith the same precision and certainty that is required upon a final hearing." ^^° § 45. Cases Where One Party Controls the Evidence. — It is " easy to fabricate or color testimony vi^hich lies almost wholly in the control of the person producing it," ^^" and this is one of the reasons assigned for the rule requiring proof beyond a reasonable doubt on certain issues in patent infringement cases.^^' It is well known that " a facile conscience may stretch itself like india-rubber " when a party is testifying in his ovtm interest to oral admissions of a deceased per- son.^^' Where the person by whom alone an interested witness can be contradicted is dead, a degree of proof formally greater than a pre- ponderance of evidence is probably not required, but the circumstance affects the weight of the evidence and is proper for consideration in determining on which side the preponderance of the evidence lies.^^" 1" Fitzpatrick v. Graham, (C. C. S. G. Marshall, 1 Has. & War. (P. E. A.) 122 Fed. Rep. 401, 404, per La- Island) 316, 324, a ease of seizure for combe, C. J. Contra, McAnnulty v. violation of a British shipping act, Seick, 59 Iowa 586, 13 N. W. Rep. 743. the owner alleging that he was a In Hyndman v. Montreal Ins. Co., natural born British subject by birth, 2 Has. & War. (P. E. Island) 132, even though his father had taken the 136, Judge Peters of the Supreme United States oath of allegiance. Court said: "The cogency of the Judge Peters said: "My experience evidence necessary to establish a fact has led me in eases like this, where to be so and so must be precisely the the temptation to state what Is un- same whether the inquiry is made in true is great, and the means of de- ft court of law or equity, or any other tection and contradiction are difficult tribunal." to be obtained, to assign no appreci- 115 Faison v. Hardy, 114 N. Car. 58, able weight to such testimony." 19 S.- E. Rep. 91, per MacRae, J., i" See infra, § 56. citing 2 High Inj., § 1581. us Harbold v. Kuntz, 16 Pa. St. ii« Young V. Wolfe, 120 Fed. Rep. 212, 214, per Coulter, J. 956, 959, per Coxe, C. J. See also "» Wylie v. Charlton, 43 Neb. 840, post, § 97. In the Queen v. Schooner 62 N. W. Rep. 220, per Irvine, C, 74 DEGREE OF PROOF. [§ 46 In a chancery ease where laches was set up as a defense and the plaintiff alleged ignorance of his rights and of the wrongs committed as an excuse. Chancellor Kent observed that " such an assertion is easily made, and difiBcult to contradict; " "" and Judge Thayer, speak- ing for the federal Circuit Court of Appeals, said that " the testimony tending to show ignorance of the transaction in question, as an excuse for the long years of delay, should be received and acted upon by a chancellor with great caution." ^^^ In collision cases in admiralty courts "when all on one vessel are lost, it is not too much to require that an account derived wholly from the other shall be in its essential features consistent, rational, and probable ; and that in so far as it involves serious departures from these conditions, it should not be accepted, unless sustained by proof about which there could be no mistake." ^^* Where a vessel is found to have been in fault, in a collision which destroyed all the persons on the other vessel who could give testimony as to the condition of the lights on such other vessel, clear and satisfactory proof is required of the absence of such lights, if the want of them is relied on as inculpating such other vessel.^^' § 46. Claims Against Decedents' Estates. — " Public policy requires that claims against the estates of the dead should be estab- lished by very satisfactory evidence, and the courts should see to it that such estates are fairly protected against unfounded and rapacious raids," said the New York Court of Appeals."* "And it is right now Dean of the Cornell University las The Steamship Java, 6 Ben. (U. College of Law. See also MoMicken S.) 245, 13 Fed. Cas. No. 7,232 (at V. Ontario Bank, 20 Can. Sup. Ot. 548, p. 381), per Blatehford, J. 586, and post, § 97. "4 Van Slooten v. Wheeler, 140 N. 120 Storrs v. Barker, 6 Johns. Ch. Y. 624, 633, 35 N. E. Rep. 583. To (N. Y.) 166, 169. To the same point the same point see Kearney v. Mc- see Foster v. Mansfield, etc., R. Co., Keon, 85 N. Y. 136, 140; In re Rala- 146 U. S. 88, 99; Halstead v. Grin- ton, 3 Nova Scotia 195, 197. "This nan, 152 U. S. 412, 417. court is fully committed to the doe- "1 Wetzel V. Minnesota R. Transfer trine that claims against the estate Co., 65 Fed. Rep. 23, 27, 27 U. S. of a dead man cannot be sustained App. 594. See also In re Baxter, ( C. upon' doubtful proof." Dougall v. C. A.) 152 Fed. Rep. 137, 140. Dougall, 61 N. Y. App. Div. 282, 70 122 The Columbia, 27 Fed. Rep. 704, N. Y. Supp. 336, per Smith, J. See 711, per Brown, J. also Rowland v. Howard, 75 Hun (N. § 4:6] DEGREE OF PROOF. 75 that the estates of the dead should be narrowly watched," said Judge Lumpkin of Georgia. " It is a most commendable vigilance, for they are no doubt often plundered by spurious claims. Every man living has a personal interest in this matter, for it is appointed unto all men once to die." ^'^ When it further appears that a subsequent dealing existed in which the pretended creditor was to some extent a debtor, never once presenting his claims in reduction of his debt, the weight of suspicion becomes very great, and justifies a demand for distinct and definite proof, and the clearest indication of honesty and fair- ness.^"® Where there was abundant opportunity to commence a suit against the decedent in his lifetime, and he was well able to pay and could have spoken on his own behalf, but the plaintifE who was in need of money all the time waited to bring his suit until the man with whom he had the dealings could give no testimony, the Supreme Court of New Brunswick said : " In a case like this, where there are circum- stances open to suspicion, with a law allowing plaintifE and defendant to be witnesses in their own behalf, a jury ought to weigh most care- fully all the facts, and feel well assured that the claim is an honest one, before giving a verdict against the estate of a deceased person." ^^' So the Louisiana Supreme Court said : " A stale claim, pertinaciously and long withheld from presentation or prosecution until he against whom it is to be preferred has died, must be established with more than reasonable certainty. An unfavorable presumption is created by the delay. It can be removed only by peculiarly strong and exceptionally conclusive testimony." ^^* The rule requiring strict proof will not be relaxed in favor of a Y.) 1, 26 N. y. Supp. 1018; Davis baum v. Heaney, 104 N. Y. App. Div. V. Seaman, 64 Hun (N. Y.) 572, 19 412, 414, 93 N. Y. Supp. 640; N. Y. Supp. 260; Ulrich v. Ulrioh, 60 Matter of Milligan, 112 N. Y. App. N. Y. Super. Ct. 237, 17 N. Y. Supp. Div. 373, 98 N. Y. Supp. 480. 721 ; Sohou ». Blum, (Supm. Ct. App. 125 Belcher v. Grey, 16 Ga. 208, Div.) 104 N. Y. Supp. 887; Stafford 212. V. Brown, 104 N. Y. Supp. 801 (citing 120 Kearney v. McKeon, 85 N. Y. the following eases: Matter of Mar- 136, 140, per Finch, J. cellus, 165 N. Y. 70, 76, 58 N. E. Rep. 127 Graves v. Dunfield, 28 N. Bruns. 796; Conway v. Cooney, 111 App. Div. 143, 145, per Tuck, J. See also ag to 864, 869, 98 N. Y. Supp. 171 ; Lin- effect of laches, post, § 550. den V. Thieriot, 105 N. Y. App. Div. 128 Bodenheimer v. Bodenheimer, 35 405, 406, 94 N. Y. Supp. 246) ; Wal- La. Ann. 1005. 76 DEGREE OF PROOF. [§ 47 plaintiflE whose character and standing are such as to relieve him from any suspicion of presenting an unfounded claim.^^° But there is no rule of law that in the case of a conflict of evidence there must be corroboration of the claimant to establish a claim advanced against the estate of a deceased person. " The statement of a living man is not to be disbelieved because there is no corroboration, although in the necessary absence through death of one of the parties to the transaction, it is natural that in considering the statement of the survivor we should look for corroboration in support of it; but if the evidence given by the living man brings conviction to the tribunal which has to try the question, then there is no rule of law which pre- vents that conviction being acted upon." ^^" § 47. Oral Contracts to Devise Property. — Alleged oral contracts to devise property have become so frequent in recent years as to cause alarm, and the courts have grown conservative as to the nature of the evidence required to establish them to the detriment and disinherit- ing of lawful heirs who otherwise would be entitled to the estate, and in enforcing them by specific performance when established. " Such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises," said the New York Court of Appeals. " They are the natural resort of unscrupulous persons who wish to despoil the estates of decedents. . . While such contracts are sometimes enforced by the courts, it is only when they have been established by evidence so strong and clear as to leave no doubt and when the result of enforcing them would not be inequitable or unjust. . . Such contracts are dangerous. They threaten the security of estates, and throw doubt upon the power of a man to do what he wills with his own. The savings of a lifetime may be taken away from his heirs by the testimony of witnesses who speak under the strongest bias and the greatest temptation, with all the dangers which, as experience shows, surround such evidence." ''^ 120 Forbes V. Chichester, (Supm. Ct. per Sir J. Hannen. Quoted with ap- Gen. T.) 8 N. Y. Supp. 747. (See proval in Eastern Trust Co. v. Jack- this ease on appeal, 125 N. Y. 769, 26 son, 3 N. Bruns. Eq. 180, 184. See N. E. Rep. 914.) See also Keillor v. also Rawlinson v. Scholes, 79 L. T. Charters, 23 N. Bruns. 493, 502 ; and N. S. 350 ; Re Blank Est., 5 Northwest supra, § 17. Territory 230. Compare post, § 1187. "o/re re Hodgson, 31 Oh. D. 177, "i Hamlin v. Stevens, 177 N. Y. 39, § 48] DEGREE OF PROOF. 77 Some courts hold that such contracts and other transactions of a similar nature cannot be established against the personal representa- tives or heirs of a deceased person solely on the uncorroborated testi- mony of interested witnesses.^*^ § 48. Gifts Causa Mortis. — Speaking of evidence to establish a donatio causa mortis. Lord Chelmsford said : " So many opportuni- ties, and such strong temptations, present themselves to unscrupulous persons to pretend these deathbed donations, that there is always danger of having an entirely fabricated case set up. And, without any imputation of fraudulent contrivance, it is so easy to mistake the mean- ing of persons languishing in a mortal illness, and, by a slight change of words, to convert their expressions of intended benefit into an actual gift of property, that no case of this description ought to prevail unless it is supported by evidence of the clearest and most unequivocal character." ^'^ " I should require not a mere general statement of the fact of a gift having been made, but to be informed of the most minute particulars," said Lord St. Leonards: "the amount, how it was given, when, 69 N. E. Rep. 118, per Vann, J. Quoted 132 gee post, § 1187. Compare with emphatic approval in Ide v. supra, § 46. Brown, 178 N. Y. 26, 70 N. E. Eep. 133 Cosnahan v. Grice, 15 Moo. P. V. 101, per O'Brien, J. See also Croaa v. 215, 223, cited and approved in Hall Cleary, 29 Ont. 542 ; Walker v. Bough- v. Hall, 20 Ont. 684, 689. See also ner, 18 Ont. 448; McElvain v. MeBl- Blain v. Terryberry, 9 Grant Ch. (U. vain, 171 Mo. 244, 71 S. W. Rep. 142; C.) 286, 289; McDonald v. McDonald, Kinney 1;. Murray, 170 Mo. 674, 71 S. 33 Can. Sup. Gt. 145, 153; Eastern W. Rep. 197; McTague v. Finnegan, Trust Co. v. Jackson, 3 N. Bruna. Eq. 54 N. J. Eq. 454, 35 Atl. Rep. 542; 180; Morris " Murphy, Newfound- Eosseau v. Rouss, 180 N. Y. 116, 72 land [1884-1896] 295; Leahy v. N. E. Rep. 916; Roberge v. Bonner, O'Keefe, Newfoundland [1884-1896] 185 N. Y. 265, 77 N. E. Rep. 1023; 527; Hassell v. Basket, 8 Bias. (U.S.) Pattat V. Pattat, 93 N. Y. App. Div. 303, 11 Fed. Cas. Wo. 6,198 (at p. 102, 87 N. Y. Supp. 140. See also 790); Whalen v. Milholland, 89 Md. Spencer v. Spencer, 26 R. I. 237, 58 199, 43 Atl. Rep. 45; Devlin v. Grenn- Atl. Rep. 766; Richardson v. Orth, 40 wich Sav. Bank, 125 N. Y. 756, 26 Oregon 252, 66 Pac. Rep. 925, 69 Pae. N. E. Rep. 744; Grymes v. Hone, 49 Rep. 455; Maddiaon v. Alderson, 8 N. Y. 17, 23; Davis v. Davis, 104 N. App. Caa. 467, 487. Aa to testimony Y. Supp. 824; Conaghan v. German to declarations and admissions of de- Sav. Bank, 104 N. Y. Supp. 829; Mat- ceased persons, see post, §§ 877, 1150. ter of Bailey, 111 N. Y. App. Div. 78 DEGREE OF PROOF. [§§ 49, 50 where, ia whose presence, and in what condition of mind and body the alleged donor was; in fact, all such particulars as might be expected ia a fair transaction." ^^* Chancellor Spragge of Ontario said that more evidence is required than is necessary to establish a gift inter vivos.^^^ But the gift need not be proved " beyond suspicion." ^^° § 49. Keformation of Instruments — Presumption to Be Over- come. — The very purpose of written instruments is to put the agree- ment of the parties in a definite and permanent form, which will pre- vent those difficulties which arise from the imperfections of human memory,^'' or other human weaknesses more reprehensible.^^* A written contract must be regarded as a solemn and deliberate admis- sion as to what the terms of the contract actually were.^^° Like other written admissions,^*" it is evidence of a very high character and will be presumed to express the intention of the parties,^*^ and this pre- sumption can be overcome only by cogent evidence.^''^ § 50. Keformation of Instruments — Strong Proof Required. — " There is no more undeniably sound, wholesome, and well-founded rule of evidence in proceedings in equity than that written agreements will not be varied or reformed on the ground of mistake or fraud, except upon the most clear and positive proof that mistake or fraud in reducing them to writiag was in fact committed," said Chief 909, 98 N. Y. Supp. 725 ; Citizens Sav. is* Thompson v. Hefferman, 4 Dr. Bank v. Mitchell, 18 R. I. 739, 30 Atl. & War. 285. Rep. 629, 14 Am. and Eng. Encyo. of iss Rg Murray, 9 Ont. App. 369, 379. Law (2d ed.) 1067. See post, s o77. i^s See supra, § 41. " Undoubtedly in such cases the is' See post, § 873 ct seq. proof must be clear and convincing, '^s Weinhai-d i'. Summerville (Wash, and strong and satisfactory." Lewis w. 1907) 89 Pao. Rep. 490, at p. 491, Merritt, U3 N. Y. 386, 391, 21 N. E. per Root, J. Rep. 141, which was an action at law. ia» Pope v. Hoopes, 84 Fed. Rep.' " Such gifts afford tempting oppor- 927, 929, per Kirkpatriek, J. tunities for fraud, and therefore the i*" See post, § 1178, Roman law requires them to be exe- wi Nevins v. Dunlap, 33 N. Y. 676, euted in the presence of five wit- 680. nesses." Chaney v. Basket, 5 Fed. 142 See supra, § 32, and infnt, Cas. No. 2,595, per Gresham, D. J. § 50. And see post, §§ 9S, 139. §50] DEGREE OF PROOF. 79 Justice Dixon of Wisconsin.^''''' And he said that although he might " think it is probable " in the case before him that a mistake occurred, yet he was not " well and clearly convinced from the parol proofs, as against the presumption of correctness which the law attaches to the instrument itself," so as to permit him to decide that a mistake was made. " We take the general doctrine to be," said Mr. Justice Miller of the United States Supreme Court, " that when in a court of equity it is proposed to set aside, to annul, or to correct a written instrument for fraud or mistake in the execution of the instrument itself, the testimony on which this is done must be clear, unequivocal, and con- vincing, and that it cannot be done upon a bare preponderance of evidence which leaves the issue in doubt." ^** In many other jurisdictions, and in some of them with iterations which make it difBcult to believe that the courts do not mean exactly what they say, proof " beyond a reasonable doubt " has been expressly required.^*° On the other hand, the Kew York Court of Appeals has 143 Lake v. Meaoham, 13 Wis. 355, 362. See also Meier v. Bell, 119 Wis. 482, 97 N. W. Rep. 186. "4 Maxwell Land Grant Case, 121 U. S. 325, 381, 7 V. S. Sup. Ct. Rep. 1015, followed in U. S. v. Budd, 144 U. S. 154, 161, 12 U. S. Sup. Ct. Rep. 575; Nantahala Marble, etc., Co, v. Thomas, 76 Fed. Rep. 59, 63. See also Heame v. Marine Ins. Co., 20 Wall. (U. S.) 488, 490; Howland v. Blake, 97 U. S. 624, 626; Pope v. Hoopes, 84 Fed. Rep. 927; Hoover v. Reilly, 2 Abb. (U. S.) 471, 12 Fed. Cas. No. 6,677. 145 Canada. — Clarke v. Joselin, 16 Ont. 68, 78 ; Cotton v. Corby, 7 Grant Ch. (U. C.) 50, 61; Livingstone v. Acre, 15 Grant Ch. (U. C.) 610, 618; Williams v. Felker, 7 Grant Ch. J. W. Rep. 909. (at p. 362). Contra, in respect of some charges i»3 U. S. V. Shapleigh, 54 Fed. Rep. of crime in a few states, Merk v. Gelz- 126, 134, 12 U. S. App. 26, and numer- haeusor, 50 Cal. 631; Williams v. ous cases there cited; Atlanta Journal Dickenson, 28 Fla. 90, 9 So. Rep. 847; V. Mayson, 92 Ga. 640, 18 S. E. Rep. People r. Sullivan, 218 111. 419, 75 1010, citing numerous cases; Sehmuok N. E. Rep. 1005. 1011; Fowler r. Wal- V. Hill, (Neb. 1901) 96 N. W. Rep. l.noe, 1:11 Ind. 347, 31 N. E. Rep. 53; 158; Kurz t). Doerr, 180 N. Y. 88, 72 Eurckhalter r. Coward, 10 S. Car. N. E. Rop. 926; Dean v. Raplee, 145 435 (justification of slanderous charge N. Y. 319, 39 N. E. Rop. 952 (civil of crime). action for rape). "The proof is re- i«*U. S. Express Co. t\ Donohoe, quired to be clear and satisfactory, 14 Out. 333, 352. Ros;\ J., dissented, though a preponderaneo of the evi- and Gait, J., expressed no opinion on dence, if it meets that test, is sulTl- t1ip poiiit. § 55J DEGREE OF PROOF. 85 ol sufficient weight and character to satisfy the court or jury that a crime has been committed. There should be no guessing at it." ^*° In New York it is settled that where a party in a civil action is charged with the commission of an act constituting a crime the pre- sumption of innocence does not obtain, and the court may properly refuse to instruct the jury that the party is presumed to be innocent until he is proved guilty.^"" But generally courts hold that the party is entitled to have the pre- sumption weighed in his favor and that his opponent is required to overcome it by evidence.^*" The presumption is strong in proportion to the heinousness of the oSense.^"* Thus, the proof must be stronger to support a charge of wilful and malicious burning of buildings than one of negligent burning merely; for there are more careless persons than there are malicious ones.^"" In a case where a person was charged with the fraudulent suppression of a will. Sir John Nicholl said that " when a party imputes such iniquitous conduct, he must be prepared to support his case by clear and indisputable evidence." "" § 55. Evidence to Exonerate from Responsibility in Collision Gases. — In collision cases in admiralty courts " where fault on the part of one vessel is established by uncontradicted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. There is some presumption at least adverse to its claim, and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its favor." "^ iss Baird v. Abbey, 73 Mich. 347, Bliss, 35 Vt. 326, 328. See also Arm- 41 N. W. Rep. 272, per Morse, J. See strong v. Gage, 25 Grant Ch. ( U. C.) also Palmer v. Baird, 29 N. Bruns. 42, 1, 36; The Rowena, Young (Nova 62. Scotia) 255, 259. leo Kurz v. Doerr, 180 N. Y. 88, 72 iss Continental Ins. Co. v. Jach- N. E. Rep. 926. Compare Hoffman v. nichen, 110 Ind. 59, 63, 10 N. E. Rep. Hoffman, 6 N. Y. App. Div. 84, 39 636. See also Rosenberg v. Jett, 72 N. Y. Supp. 494, per Pratt, J. See Fed. Rep. 90, 92. also Grant v. Riley, 15 N. Y. App. ie9 Knowles v. Scribner, 57 Me. 495, Div. 190, 44 N. Y. Supp. 238. 497. See also Decker v. Somerset 16T Somerset County Mut. F. Ins. Mut. F. Ina. Co., 66 Me. 406, 408. Co. V. Usaw, 112 Pa. St. 80, 4 Atl. "o Huble v. Clark, 1 Hag. Ecc. 115. Rep. 355; Sparta r. Lewis, 91 Tenn. "i The City of New York, 147 U. S. 370, 23 S. W. Rep. 182; Bradish v. 72, 85, 13 U. S. Sup. Ct. 211, per 86 DEGREE OF PROOF. [§ 56 § 56. Defense of " Prior Use," etc., in Patent Suits. — In a suit for infringement of a patent where the court had to deal with certain unpatented devices, claimed to be complete anticipations of the plain- tiff's patent, the existence and use of wMch were proved only by oral testimony, Mr. Justice Brown said : " In view of the unsatisfactory character of such testimony, arising from the forgetfulness of wit- nesses, their liability to mistakes, their proneness to recollect things as the party calling them would have them recollect them, aside from the temptation to actual perjury, courts have not only imposed upon defendants the burden of proving such devices, but have required that the proof shall be clear, satisfactory, and beyond a reasonable doubt." "^ In a subsequent case it was said that " granting the wit- nesses to be of the highest character, and never so conscientious in their desire to tell only the truth, the possibility of their being mis- taken as to the exact device used, which, though bearing a general resemblance to the one patented, may differ from it in the very par- ticular which makes it patentable, is such as to render oral testimony peculiarly imtiustworthy." ^"^ The requirement of proof beyond a reasonable doubt has been laid down in a great number of cases in respect of the defense of prior use,^'* anticipation, or prior inven- Brown, J. See also The William are cited in the general list in the Chisholm, (C. C. A.) 153 Fed. Rep. next note. 704, 713, citing numerous cages; The As to defense of "public use or on Tarpon, 132 Fed. Rep. 277, 280; The sale" under the latter part of the Saalc, 59 Fed. Rep. 716, 719. section, some cases hold that it must i'-! Barbed Wire Patent, 143 U. S. be proved beyond reasonable doubt. 275, 284, 12 U. S. Sup. Ct. Rep. 443, Bradley r. Eecles, 138 Fed. Rep. 911, 450. 915 (proved); Anderson r. Monroe, i73Deering v. Winona Harvester 58 Fed. Rep. 401, 17 U. S. App. 195 Works, 155 U. S. 286, 301, 15 U. S. (proved); Graham v. McCormick, 11 Sup. Ct. Rep. 118 (proof beyond rea- Fed. Rep. 859, 863. See also Camp- sonable doubt required). " The reason bell v. New York, 47 Fed. Rep. 515, for the rule is obvious. It is so easy 517 (proved), and cases cited in to fabricate or color testimony which Bryce Bros. Co. r. Seneca Glass Co., lies almost wholly in the control of the 140 Fed. Rep. 101, 173. Others seem person producing it," etc. Young v. to require only that the proof be Wolfe, 120 Fed. Rep. 950, 959, per clear and convincing. American Coxe, C. J. Featherbone Co. i\ ^^•arrcn Feather- iTi Cases where prior use under the bone Co., (C. C. A.) 141 Fed. Rep. first part of U. S. Rev. Stat., § 4886, 655, 659 (proved) ; Smith, etc., Mfg. 5 Fed. Stat. Annot. 421, was alleged Co. v. Sprague, 123 U. S. 249, 264, 56] DEGREE OF PRUOF. 87 tion."" In a patent infringement suit in the United States Circuit 8 U. S. Sup. Ct. Eep. 122, per Mat- thews, J.; Lay v. Indianapolis Brush, etc., Mfg. Co., (C. C. A.) 120 Fed. Rep. 831 (proved). See also Ide v. Trorlioht, etc.. Carpet Co., (C. C. A.) 115 Fed. Rep. 137, 144 (not proved), and cases citea in Bryce Bros. Co. v. Seneca Glass Co., 140 Fed. Rep. 161, 173 (not proved) ; Thomson-Houston Electric Co. v. Lorain Steel Co., 110 Fed. Rep. 654. The defense was proved in Covert v. Covert, 106 Fed. Rep. 183, 185; Delemater v. Heath, 58 Fed. Rep. 414, 20 U. S. App. 14; U. S. Electric Lighting Co. v. Edison Lamp Co., 51 Fed. Rep. 24; Root v. Third Ave. R. Co., 37 Fed. Rep. 673. It was not proved in Sinclair v. Backus, 4 Fed. Rep. 539. It has been suggested, however, that the apparent conflict may be recon- ciled to some extent, upon the proposi- tion that the burden is upon the de- fendant, asserting prior use, to prove it beyond reasonable doubt, but, when he has done so, the burden is then upon the patentee to show by proofs " full, unequivocal, and convincing," that such prior use was for the pur- pose of experimentation. Bryce Bros. Co. V. Seneca Glass Co., 140 Fed. Rep. 161, 173, per Dayton, D. J. A party having the burden of proof in any case must overcome inherent improbabilities in his contention (see supra, § 32), and in this behalf it is deemed improbable that an experi- enced inventor would thus throw away the fruits of his invention. Ses- sions V. Gould, 60 Fed. Rep. 753, 755. wscantrell v. Wallick, 117 U. S. 689, 696, 6 U. S. Sup. Ct. Rep. 970; Standard Sanitary Mfg. Co. v. J. L. Mott Iron Works, 152 Fed. Rep. 635, 640; American Salesbook Co. v. Car- ter-Crume Co., 145 Fed. Rep. 939, 942; Bradley v. Eccles, (C. C. A.) 144 Fed. Rep. 90; Koerner v. Deuther, 143 Fed. Eep. 544, 548; Kelley v. Diamond Drill, etc., Co., 142 Fed. Rep. 868; Charmbury v. Walden, 141 Fed. Rep. 373, 377; Killeen v. Buffalo Furnace Co., 140 Fed. Rep. 33, 36; Keasbey, etc., Co. V. Philip Carey Mfg. Co., 139 Fed. Rep. 571, 577; Bonsall v. Hamil- ton-Noyes Co., 139 Fed. Rep. 403, 404 ; Atwood-Morrison Co. v. Sipp Electric, etc., Co., 136 Fed. Rep. 859,. 861; Rum- ford Chemical Works v. New York Baking Powder Co., (C. C. A.) 134 Fed. Rep. 385, 389; Warren Feather- bone Co. V. American Featherbone Co., 133 Fed. Rep. 304, 307; Albright v. Langfeld, 131 Fed. Rep. 473, 476; Arrott V. Standard Sanitary Mfg. Co., 131 Fed. Rep. 457, 458; Timolat v. Philadelphia Pneumatic Tool Co., 131 Fed. Rep. 257, 263; Merrimac Mat- tress Mfg. Co. V. Brown, 122 Fed. Rep. 87, 89 ; Young v. Wolfe, 120 Fed. Rep. 956, 959; Durfee v. Bawo, 118 Fed. Rep. 853, 859; Emerson Electric Mfg. Co. V. Van Nort Bros. Electric Co., 116 Fed. Rep. 974, 980; National Hol- low Brake-Beam Co. v. Interchange- able Brake-Beam Co., (C. C. A.) 106 Fed. Rep. 693, 703 ; Brown v. Zaubitz, 105 Fed. Rep. 242; Williams Patent Crusher, etc., Co. v. St. Louis Pul- verizer Co., 104 Fed. Rep. 795, 801; Acme Flexible Clasp Co. v. Gary Mfg. Co., (C. C. A.) 101 Fed. Rep. 269; Lein v. Myers, 97 Fed. Rep. 607; Badische Anilin, etc., Fabrik v. Kalle, 94 Fed. Rep. 163, 166; McEwan Bros. Co. V. McEwan, 91 Fed. Rep. 787, 791; Nelson v. Farmer Type-Founding Co., 91 Fed. Rep. 418, 421; Bowers V. 88 DEGREE OF PROOF. [§ 56 Court, Judge Coxe said that the defense of prior use " must be estab- San Francisco Bridge Co., 91 Fed. 24 Fed. Rep. 855, 858; Jennings v. Kep. 408, 409; Wirt V. Farrelly, 84 ICibbe, 24 Fed. Rep. 697, 698; Ameri- Fed. Rep. 892, 893; Universal Wind- can Bell Telephone Co. v. People's ing Co. V. Willimantic Linen Co., 82 Telephone Co., 22 Fed. Rep. 309, 313; Fed. Rep. 228, 236; New York Filter Thayer v. Hart, 20 Fed. Rep. 693; ivifg. Co. V. Niagara Falls Waterworks Worswick Mfg. Co. v. Buffalo, 20 Fed. Co., 77 Fed. Rep. 900, 905; Standard Rep. 126, 128; Green v. French, 11 Cartridge Co. v. Peters Cartridge Co., Fed. Rep. 591, 594; U. S. Stamping 69 Fed. Rep. 408, 410; Singer Mfg. Co. v. Jewett, 7 Fed. Rep. 869, 872; Co. V. Schenck, 68 Fed. Rep. 191, 193; Washburn, etc., Mfg. Co. v. Haish, 4 Wickesf. Lockwood, 65 Fed. Rep. 610; Fed. Rep. 900, 904; Washburn v. Simmons v. Standard Oil Co., 62 Fed. Gould, 3 Story (U. S.) 122, 142, 29 Rep. 928, 930; Tatum v. Eby, 60 Fed. Fed. Cas. No. 17,214; Campbell v. Rep. 408, 409; Oval Wood Dish Co. James, 17 Blatchf. (U. S.) 42, 4 Fed. V. Sandy Creek Wood Mfg. Co., 60 Cas. No. 2,361 (at p. 1169); Crouch Fed. Rep. 285, 288; Converse v. Mat- v. Speer, 1 B. & A. Pat. Cas. 14.), 6 thews, 58 Fed. Rep. 246, 248 ; Edison Fed. Caa. No. 3,438 ; McMillin v. Bar- Electrio Light Co. v. Electric Mfg. clay, 4 Brews. (Pa.) 275, 16 Fed. Co., 57 Fed. Rep. 616, 618; Stonemetz Cas. No. 8,902 (at p. 308) ; Smith v. Printers' Machinery Co. v. Brown Pay, 6 Fish. Pat. Cas. 446, 22 Fed. Folding Maeh. Co., 57 Fed. Rep. 601 Cas. No. 13,045. See also Morgan v. (affirmed 58 Fed. Rep. 571, 17 U. S. Daniels, 153 U. S. 120, 123, 14 U. S. App. 225 ) ; Pacific Cable R. Co. v. Sup. Ct. Rep. 772 ; Eastern Paper Bag Butte City St. R. Co., 55 Fed. Rep. Co. v. Continental Paper Bag Co., 142 760, 764 {reversed on other grounds Fed. Rep. 479; Kemp v. McBride, 129 60 Fed. Rep. 410, 15 U. S. App. 341 ) ; Fed. Rep. 382, 385 ; Cleveland Target Francis v. Kirkpatrick, 52 Fed. Rep. Co. v. Empire Target Co., 97 Fed. 824, 827; Mack v. Spencer Optical Rep. 44, 72; AUington, etc., Mfg. Co. Mfg. Co., 52 Fed. Rep. 819, 821; i). Lynch, 71 Fed. Rep. 409, 410; Phila- Rocker Spring Co. v. Flinn, 46 Fed. delphia Trust, etc., Co. v. Edison Elec- Rep. 109, 113; Harmon v. Struthers, trie Light Co., 65 Fed. Rep. 551, 553, 43 Fed. Rep. 437, 440; Celluloid Mfg. 28 U. S. App. 325; Edison Electric Co. V. Russell, 37 Fed. Rep. 676, 679; Light Co. i\ Beacon Vacuum Pump, Smith V. Davis, 34 Fed. Rep. 783, 785; etc., Co., 54 Fed. Rep. 678, 693; Knox American Bell Telephone Co. v. Ameri- Rock-Blasting Co. v. Drake, 53 Fed. can Cushman Telephone Co., 35 Fed. Rep. 790; Thum v. Andrews, 53 Fed. Rep. 734, 739; Roosevelt i'. Law Tel. Rep. 84; Haughey v. Meyer, 48 Fed. Co., 33 Fed. Rep. 505, 507; Osborne r. Rep. 670; Williames t>. Barnard, 41 Glazier, 31 Fed. Rep. 402; Cary v. Fed. Rep. 358, 361; Seibert Cylinder Lovell Mfg. Co., 31 Fed. Rep. 344, Oil-Cup Co. i\ Michigan Lubricator 347; Cohansey Glass Mfg. Co. v. Co., 3'4 Fed. Rep. 33, 37; Thayer v. Wharton, 28 Fed. Rep. 189, 191; Spaulding, 27 Fed. Rep. 66, 68; Hicks Adams, etc., Mfg. Co. v. Rathbone, 26 v. Otto, 19 Fed. Rep. 749, 752. Fed. Rep. 262, 264; Duffy c. Reynolds, In the following cases where the § 56] DEGREE OF PROOF. 89 lished by proof as explicit and convincing as that required to convict rule of reasonable doubt was also ex- pressly recognized the defense was nevertheless successful : Coffin v. Og- den, 18 Wall. (U. S.) 120, 124; American Writing Maeh. Co. v. Wag- ner Typewriter Co., (C. C. A.) 151 Fed. Rep. 576; Buser v. Novelty Tuft- ing Mach. Co., (C. C. A.) 151 Fed. Rep. 478, 482; Clark v. Harmon S. Palmer Hollow Concrete Bldg. Block Co., (C. C. A.) 149 Fed. Rep. 1001; Bradley v. Eccles, (C. C. A.) 144 Fed. Rep. 90; Bragg Mfg. Co. v. iNew York, 141 Fed. Rep. 118, 123; Pennsylvania Steel Co. V. Pettibone, (C. C. A.) 141 Fed. Rep. 95, 100; Australian Knit- ting Co. V. Gormly, 138 Fed. Rep. 92, 107; Decker v. Sanford, 135 Fed. Rep. 112, 117; Merrimac Mattress Mfg. Co. V. Feldman, 133 Fed. Rep. 64, 67; Rodwell Sign Co. v. F. Tuch- farber Co., (C. C. A.) 127 Fed. Rep. 138, 142; Westinghouse Electric, etc., Go. V. Roberts, 125 Fed. Rep. 6, 9; Campbell Printing-Press, etc., Co. v. Duplex Printing-Press Co., 86 Fed. Rep. 315, 328; Muller v. Lodge, etc., Mach. Tool Co., 77 Fed. Rep. 621, 628, 47 U. S. App. 189 ; Forgie v. Oil-Weil Supply Co., 58 Fed. Rep. 871, 878, 17 U. S. App. 254; Rochester Coach- Lace Co. V. Schaefer, 46 Fed. Rep. 190; U. S. V. Gunning, 22 Fed. Rep. 653. See also Brush v. Gondii, 20 Fed. Rep. 826, 835. In the following cases the defense was successful, but the court did not discuss the degree of proof required: Lovell Mfg. Co. V. Gary, 147 U. S. 623, 13 U. S. Sup. Ct. Rep. 472; George Frost Co. v. Cohn, (C. C. A.) 119 Fed. Rep. 505; Parlin, etc., Co. V. Moline Plow Co., 89 Fed. Rep. 329, 60 U. S. App. 297; Flomerfelt v. Newwitter, 88 Fed. Rep. 696, 697; Haworth v. Stark, 88 Fed. Rep. 512; International Tooth-Crown Co. v. Ben- net, 77 Fed. Rep. 313, 45 U. S. App. 171 ; American Tubing, etc., Co. v. Nicholls, 70 Fed. Rep. 1009; Riley v. Jackson, 56 Fed. Rep. 582, 15 U. S. App. 108; Carter v. Fry, 54 Fed. Rep. 883; American Roll Paper Co. v. Weston, 51 Fed. Rep. 237, 243; Sim- monds v. Morrison, 44 Fed. Rep. 757; Lee V. Upson, etc., Co., 42 Fed. Rep. 530 (rehearing denied 43 Fed. Rep. 670) ; Olds V. Brown, 41 Fed. Rep. 698, 702; Webster v. Ovens, 39 Fed. Rep. 388; MacDonald v. McLean, 38 Fed. Rep. 328, 330; Worswick Mfg. Co. V. Kansas City, 38 Fed. Rep. 239, 245; Ansonia Brass, etc.. Go. v. Elec- trical Supply Co., 32 Fed. Rep. 81; Rheubottom v. Loomer, 26 Fed. Rep. 698; Gibson v. Scribuer, 22 Fed. Rep. 840; New Process Fermentation Co. V. Koch, 21 Fed. Rep. 580; Havemeyer V. Randall, 21 Fed. Rep. 404; Forn- crook V. Root, 21 Fed. Rep. 328; Peters v. Active Mfg. Co., 21 Fed. Rep. 319; Clark Pomace-Holder Go. V. Ferguson, 17 Fed. Rep. 79; Double- day V. Beatty, 11 Fed. Rep. 729; Boy- kin V. Baker, 9 Fed. Rep. 699; Miller V. Force, 9 Fed. Rep. 603; Allis v. Stowell, 9 Fed. Rep. 304; Crandall v. Richardson, 8 Fed. Rep. 808; McNish V. Everson, 2 Fed. Rep. 899; Orr v. Badger, Brun. Col. Caa. (U. S.) 536, 18 Fed. Gas. No. 10,587; Pickeringe V. MeCullough, 3 B. & A. Pat. Cas. 279, 19 Fed. Cas. No. 11,121; Sayles V. Hapgood, 2 Biss. (U. S.) 189, 21 Fed. Cas. No. 12,420. See also Cun- dell V. Parkhurst, 1 McArthur Pat. Cas. 63, 6 Fed. Cas. No. 3,477; Monce V. Woodworth, 4 B. & A. Pat. Cas. 90 DEGREE OF PROOF. [§56 a person charged with crime," "^ and the rule applies in an action at law for infringement.^'^ It has been said that " because of the high character of proof required, it is a defense that seldom succeeds," "" but this is incorrect.'^"' 307, 17 Fed. Gas. No. 9,706. See also Moore v. Thomas, 3 B. & A. Pat. Gas. 13, 17 Fed. Gas. No. 9,776. In the following cases the defense was held not proved, without discus- sion of the degree of proof required: Agawam Go. v. Jordan, 7 Wall. (U. S.) 583; Louden Machinery Co. v.' Janesville Hay Tool Co., 141 Fed. Rep. 975, 984; Weisgerber v. Glowney, 131 Fed. Rep. 477; Bettendorf Patents Co. V. J. R. Little Metal Wheel Co., (G. C. A. ) 123 Fed. Rep. 435 ; Allington, etc., Mfg. Co. V. Globe Co., 89 Fed. Rep. 865; Campbell Printing-Press, etc., Co. V. Marden, 64 Fed. Rep. 782; Un- termeyer v. Freund, 58 Fed. Rep. 205, 20 U. S. App. 32; Cutcheon v. Her- rick, 52 Fed. Rep. 147; Walker v. Terre Haute, 44 Fed. Rep. 70; Tatum V. Gregory, 41 Fed. Rep. 142; Hussey Mfg. Co. V. Deering, 40 Fed. Rep. 87, 88; Consolidated Electric Light Co. v. McKeesport Light Co., 40 Fed. Rep. 21, 28; Graham v. Piano Mfg. Co., 33 Fed. Rep. 917; Johnson v. Forty- Second St., etc., R. Co., 33 Fed. Rep. 499, 502; Seibert Cylinder Oil Cup Go. V. Nightingale, 32 Fed. Rep. 171; Al- bany Steam Trap Go. v. Felthousen, 20 Fed. Rep. 633; Matteson v. Gaine, 17 Fed. Rep. 525, 528; Atwood v. Portland Co., 10 Fed. Rep. 283; Spring V. Domestic Sewing-Mach. Co., 9 Fed. Rep. 505 ; Coburn v. Schrooder, 8 Fed. Rep. 519, 521 ; American Whip Co. V. Hampden Whip Co., 4 Fed. Rep. 536, 538; Blake v. Eagle Works Mfg. Co., 3 Biss. (U. S.) 77, 3 Fed. Cas. No. 1,494; Gottfried v. Phillip Best Brewing Co., 5 B. & A. Pat. Cas. 4, 10 Fed. Cas. No. 5,633; Howe v. Underwood, 1 Fish. Pat. Cas. 160, 12 Fed. Cas. No. 6,775; Masury v. Tie- mann, 8 Blatehf. (U. S.) 426, 16 Fed. Gas. No. 9,271; Smith v. Allen, 2 Fish. Pat. Cas. 572, 22 Fed. Gas. No. 12,999; Stevens v. Felt, 23 Fed. Gas. No. 13,397; Stilwell, etc., Mfg. Go. v. Cincinnati Gaslight, etc., Co., 1 B. & A. Pat. Gas. 610, 23 Fed. Cas. No. 13,453; Thatcher Heating Go. v. Car- bon Stove Co., 4 B. & A. Pat. Gas. 68, 23 Fed. Gas. No. 13,864; Whitney v. Emmett, Baldw. (U. S.) 303, 29 Fed. Cas. No. 17,585; Wing v. Richardson, 2 Cliff. (U. S.) 449, 30 Fed. Cas. No. 17,869. See also cases cited infra, note 180. I'cCluett V. Claflin, 30 Fed. Rep. 921, 922, which was quoted in Dodge V. Post, 76 Fed. Rep. 807, 809. To the same point are Ross v. Montana Union R. Co., 45 Fed. Rep. 424, 425, and Lalance, etc., Mfg. Co. v. Haber- mann Mfg. Co., 53 Fed. Rep. 375, 378; Brown v. Zaubitz, 105 Fed. Rep. 242, per Coxe, C. J.; Untermeyer v. Freund, 37 Fed. Rep. 343. 1" Hunt Bros. Fruit Packing Co. v. Cassidy, 53 Fed. Rep. 257, 260, 7 U. 5. App. 424; Ross v. Montana Union R. Co., 45 Fed. Rep. 424, 425, per Knowles, J., instructing a jury. Com- pare Proctor V. Brill, 4 Fed. Rep. 415, 419. 178 Brown v. Zaubitz, 105 Fed. Rep. 242, per Go.xe, G. J. I'o See the numerous cases cited supra, note 175. § 56] DEGREE OF PROOF. 91 But " if it were an open question," said a federal court in one case, " we might consider whether the presumption arising from the grant- ing of the letters patent could not be overthrown, as any other pre- sumption at law is overthrown, by the preponderance of evidence." ^^ In the Circuit Court of Appeals for the Third Circuit, after referring to the " oft-repeated declarations of courts, that the burden of proof as to prior use rests upon the defendant, and that every reasonabl-e doubt should be resolved against him," Circuit Judge Gray said : " It is undoubtedly the duty of courts to exercise, as in nearly all cases they are careful to declare, the utmost caution in scrutiniziiag and con- sidering the testimony offered to establish a prior use. Courts have frequently taken the ground, under the particular circumstances of the case before them, that where a long time has elapsed since the alleged use, and the fact depends upon the fading recollection of a single witness, an exhibit of the device or thing actually used must accompany the affidavit. There is, however, no hard and fast rule as to this. In this, as in other cases, the weight and effect of testimony must be passed upon, and a conclusion as to the existence of an alleged prior use will be reached if the evidence thereof is clear and satisfac- tory to the judicial mind." ^^^ The defense of prior use, etc., in patent cases frequently fails because of actual or presumed infirmity of memory of the alleged anticipating structure or device, or of uncertainty in memory of dates at which the witness saw it.^^^ " It is well settled that evidence of prior use, when the thing used is not produced, is of little weight, after 180 Forgie v. Oil- Well Supply Co., 317; Eogera v. Beecher, 3 Fed. Eep. 58 Fed. Rep. 871, 878, 17 U. S. App. 639 (not proved). See also Sessions 254, per Green, D. J. For cases v. Gould, 60 Fed. Rep. 755 (not where the court spoke of the degree proved) ; Zane v. Peck, 9 Fed. Rep. of proof as " explicit and convincing," 101, 104 (not proved). Preponder- etc, without specifying that it must ance of evidence seems to have been be beyond reasonable doubt, see Pratt held sufficient by a majority of the V. Sencenbaugh, 64 Fed. Rep. 779, court in the Driven-Well Cases, 16 781; U. S. Electric Lighting Co. v. Fed. Rep. 402, 411 (proved). Edison Lamp C6., 51 Fed. Rep. 24, 28 "i Sipp Electric, etc., Co. v. At- ( not proved) ; Vulcanite Co. f. Ameri- wood-Morrison Co., (C. C. A.) 142 can Artificial Stone Pavement Co., 34 Fed. Rep. 149, 154 (prior use proved), Fed. Rep. 320, 321 (not proved) ; reversing 136 Fed. Rep. 859. Bostock V. Goodrich, 21 Fed. Eep. 316, isa See post, §§ 95, 678a, 753. 92 DEGREE OF PROOF. [§ 57 a long interval, as to its identity with the patent in evidence." ^*' If the witness on whose testimony the defense of prior use chiefly depends shows an exceedingly defective memory in other matters, the court is not likely to be convinced beyond a reasonable doubt.^'* So, too, " it often happens that the gross improbability of an alleged occurrence outweighs and overcomes the affirmative testimony of many wit- nesses.^^'' Especially is this true as to the defense of anticipation in patent suits." ^'° The fact that an alleged prior inventor did not apply for a patent is deemed, in the absence of satisfactory explana- tion, to operate with great force against the defense,^^' and, on the other hand, production of the alleged anticipating device may con- clusively establish the defense.^** But the evidence need not exclude all possibility of conjecture to the eontrary,^^* nor are courts required to go out of their way to dis- credit evidence coming from a reliable source.^'" The court may be convinced beyond a reasonable doubt notwithstanding testimony opposed to that conclusion.^"^ And if the testimony to prior use is uncontradicted, not suspicious or incredible, and the witnesses not impeached, it must be accepted as conclusive,^"^ pursuant to the general rule."' § 57. Anticipation of Anticipation in Patent Suits. — In patent infringement suits, where the defendant succeeds in proving prior use or anticipation, the burden is then transferred to the plaintiff to furnish the court with " convincing proof," ^" or " at least a fair 183 Pratt V. Sencenbaugh, 64 Fed. isi Merrimac Mattress Mfg. Co. v. Eep. 779, 781, per Jenkins, C. J. Feldman, 133 Fed. Rep. 64, 69. 184 Keasbey, etc., Co. v. Philip 102 Pennsylvania Steel Co. r. Petti- Carey Mfg. Co., 139 Fed. Rep. 571, bone, (C. C. A.) 141 Fed. Rep. 95, 577. See also post, § 813. 100 (prior use proved). See also 185 See post, §§ 92 et seq., 139. Riley v. Jackson, 56 Fed. Rep. 582, 180 Cleveland Target Co. v. Empire 586, 15 U. S. App. 108. Target Co., 97 Fed. Eep. 44, 72, per las See post, §§ 69, 80, 104, 1047. Bradford, D. J. 194 New England Motor Co. v. B. F. 187 See post, § 1140. Sturtevant Co., (C. C. A.) 150 Fed. 188 See post, § 1208. Rep. 131; Westinghouse Electric, etc., 180 Anderson v. Monroe, 58 Fed. Co. t\ Saranac Lake" Electric Light Rep. 401, 402, 17 U. S. App. 195. See Co., 108 Fed. Rep. 221. 222, per Coxe, supra, § 41. D. J. See also Clark Thread Co. v. i»o Westinghouse Electric, etc., Co. Willimantic Linen Co., 140 U. S. 481, V. Roberts, 125 Fed. Rep. 6, 11. 492, 11 U. S. Sup. Ct. Rep. 840 (not §g 58, 59] DEGREE OF PROOF. 93 balance of proof," "° or, as declared in several cases, by proof beyond a reasonable doubt,^"" that such anticipation was anticipated by his own prior invention.^" § 58. Application for Preliminary Injunction in Patent Suits. — A preliminary injunction will not be granted in a patent case when the defendant is responsible, if there is a reasonable doubt whether the defendant is guilty of infringement or whether the plaintiff's patent is valid.^"* But if the validity of the patent has been sustained by prior adjudication, it has been held that the defense of prior use, anticipa- tion, etc., when offered in resistance to an application for a preliminary injunction, must be established beyond a reasonable doubt.^"" . § 59. Proof Beyond Reasonable Doubt in Criminal Cases. — It is a rule so familiar that we may omit citation of authorities in support of it, that proof beyond a reasonable doubt is necessary to convict a defendant in a criminal prosecution. " The presumption that every man is innocent until the contrary appears, and a consideration of the irreparable injury to the defendant that must result from an unjust conviction, tended to the establishment of this rule, but doubtless the proved) ; Westinghouse Electric, etc., (U. S.) 416, 17 Fed. Gas. No. 10,042; Co. V. Mutual L. Ins. Co., 129 Fed. Eoemer v. Headley, 19 Fed. Rep. 205. Eep. 213, 216; Rogers v. Fitch, 81 iss Bradley v. Eccles, 120 Fed. Rep. Fed. Rep. 959, 963, 51 U. S. App. 517 947; Hallock v. Babcock Mfg. Co., 124 (not proved); U. S. Electric Lighting Fed. Rep. 226; Rogers Typographic Co. V. Edison Lamp Co., 51 Fed. Rep. Co. ■;;. Mergenthaler Linotype Co., 58 24, 28 (not proved). Fed. Rep. 693; Standard Elevator Co. 195 Webster Loom Co. v. Higgins, 15 v. Crane Elevator Co., 56 Fed. Rep. Blatchf. (U. S.) 446, 4 B. & A. Pat. 718, 9 U. S. App. 556; Steam Gauge, Gas. 88, 29 Fed. Cas. No. 17,342, per etc., Co. v. Miller, 8 Fed. Rep. 314; Wheeler, J. Edison Electric Light Co. v. Beacon 190 Columbus Chain Co. v. Standard Vacuum Pump, etc., Co., 54 Fed. Rep. Chain Co., (C. C. A.) 148 Fed. Rep. 678; Stahl v. Williams, 52 Fed. Rep. 622, 630; Brooks v. Sacks, 81 Fed. 648, 651. Rep. 403, 405, 50 U. S. App. 151; loo Philadelphia Trust, etc., Co. v. Thayer v. Hart, 20 Fed. Rep. 693. Edison Electric Light Co., 65 Fed. 1!" Anticipation of anticipation was Rep. 551, 28 U. S. App. 325; Electric proved, without discussion of the de- Mfg. Co. v. Edison Electric Light Co., gree of proof required, in Macdonald v. 61 Fed. Rep. 834, 18 U. S. App. 637, Blackmer, 4 B. & A. Pat. Cas. 78, 16 affirming 57 Fed. Rep. 616. Contra, Fed. Cas. No. 8,757; National Filter- Edison Electric Light Co. v. Columbia ing Oil Co. V. Arctic Oil Co., 8 Blatchf. Incandescent Lamp Co., 56 Fed. Rep. 94 DEGREE OF PROOF. [§ 59 controlling consideration was the inequality of the parties in power, situation, and advantage, in criminal cases where the government, with its unlimited resources, trained detectives, willing officers, and counsel learned in the law, stood arrayed against a single defendant, unfamiliar with the practice of the courts, imacquainted with their officers or attorneys, often without means, and frequently too terrified to make a defense if he had one, while his character and his life, liberty, or property rested upon the result of the trial." ^"^ " All experience has shown that a party may be wholly innocent of the oiiense of which he is accused, although appearances may be against him. The law, therefore, to guard against injustice requires that the offense be established by evidence beyond a reasonable doubt. It is a serious matter, not only to a party, but to the state as well, to take a person from the ordinary avocations of life, brand him as a felon, and deprive him of his liberty, appropriate his labor, and cast a cloud upon his future life, and humiliate his relatives and friends; and to authorize the state in doing this there should be no reasonable doubt of his guilt." ""^ In some jurisdictions the presumption of innocence is regarded as having substantive weight. Thus in Vermont the court said : " It is undoubtedly true that there is danger of prejudice against a respond- ent because he stands in court under arrest charged with a criminal offense, since it is well understood that under our system he could not be in that situation unless there was some evidence or supposed evi- dence against him. It is for this reason, more than any other, that the doctrine of the presumption of innocence is mainta-ined in this jurisdiction as something distinct from the doctrine of reasonable doubt. And so in this case the court not only charged fully and correctly with regard to reasonable doubt and the presumption of innocence, but also particularly charged tlie jury that the facts that the charge for which the respondent was on trial had been brought against him, and that he was on trial therefor, were not to be taken 496, holding that a defense which comparison of disputed handwriting, puts the plaintiff's case in doubt is as against the accused, must be proved sufficient to defeat the application. beyond I'casonable doubt. See post, § 200 U. S. V. Shapleigh, .54 Fed. Rep. G37. 12G, 129, 12 U. S. App. 20, per San- =oi Einldey v. State, 34 Neb. 757, born, C. J. In criminal cases the .^S N. \V. Rep. 708, opinion by ]\tnx- genuineness of standards used for well, J. § 60] DEGREE OF PROOF. 95 against him." ^"^ But the question whether the presumption of inno- cence is to be used as a piece of evidence and thrown into the scale and weighed as such in favor of the accused, or merely operates to cast upon the state the duty of going forward in the production of evidence of guilt, has been the subject of much discussion by the courts ""^ and by an eminent text writer ^°* and remains unsettled. "What amount of evidence in any particular case will remove reason- able doubt is a question solely for the jury, and will be met by the parties with more or less success as they know more or less of human nature in general, or of the particular temper of the jury before them," said Judge Eeade of North Carolina. "Whatever be the difficulty involved in it, it is not met by any rule of law. In one case it may be simply the greater improbability of the commission of such an offense that will suggest the necessity of introducing more evidence than in a different case. As an example of this we see that in practice some misdemeanors require more evidence than others, although, as regards punishment, of the same grade: more than this, assaults have been charged that were of an enormity so great as to demand for their proof more testimony than in some cases probably would have secured a conviction of murder. So again a knowledge of the consequences of a conviction to a prisoner may of itself arouse in the jury so keen a sense of their responsibility to the truth as reasonably to induce the prosecutor to add other evidence to what would have sufficed for a con- viction in a case of less consequence. For instance, as a matter of law it is not easy to say why a charge of horse stealing should require more evidence for its establishment now than it did before the passage of the late act rendering it capital; yet in practice it may be safe to presume that it will." ="'= § 60. Definition of Reasonable Doubt. — In his instructions to the jury in a celebrated murder case. Chief Justice Shaw said : " What is reasonable doubt? It is a term often used, probably pretty well 202 State V. Costa, 78 Vt. 198, 204, 203 See cases cited in In re Cowdry, 62 Atl. Rep. 38, 40. See also In re 77 Vt. 359, 60 Atl. Rep. 141. Cowdry, 77 Vt. 359, 60 Atl. Rep. 141 ; 204 gee Thayer, Prelim. Treat, on Coffin V. U. S., 156 U. S. 432, 452, 15 Ev., 5C6, 570. U. S. Sup. Ct. Rep. 394; Kirby v. 205 State v. Knox, Phil. L. (61 N. U. S., 174 U. S. 55, 19 U. S. Sup. Ct. Car.) 312. Bep. 574. 96 DEGREE OF PROOF. [§60 understood, but not easily defined. It is not mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge, ... a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it." ^'"' The foregoing instruction has often been quoted and approved.^"' In a prosecution for embezzlement. Circuit Judge Taft instructed a jury as follows : " A reasonable doubt of guilt is a doubt growing reasonably out of the evidence or the lack of it. It is not a captious doubt ; not a doubt engendered merely by sympathy for the unfortunate position of the defendant, or a dislike to accept the responsibility of 200 Com. V. Webster, 5 Cush. (Mass.) 295, 320. 207 for definitions of reasonable doubt given in instructions to juries, see U. S. V. Rieliards, 149 Fed. Eep. 443, 454; U. S. v. Breese, 131 Fed. Rep. 915, 917; Owens v. U. S., (C. C. A.) 130 Fed. Rep. 279, 283; Alexis v. U. S., (C. C. A.) 129 Fed. Rep. 60, 64; In re Simpson, 119 Fed. Rep. 620; U. S. V. Niemeyer, 94 Fed. Rep. 147, 149; U. S. V. Kenney, 90 Fed. Rep. 257, 262; U. S. v. Murphy, 84 Fed. Eep. 609, 621; U. S. v. Nunez, 82 Fed. Rep. 599, 610; U. S. 1'. Allia, 73 Fed. Rep. 165, 167; U. S. v. Polit- zer, 59 Fed. Rep. 273, 279; U. S. v. Babcoek, 3 Dill. (U. S.) 581, fi'22, 24 Fed. Caa. No. 14,487 (at p. 926), per Dillon, C. J.; U. S. V. Butler, 1 HugHes (U. S.) 457, 25 Fed. Cas. No. 14,700; U. S. V. Carr, 1 Woods (U. S.) 480, 25 Fed. Cas. No. 14,732; U. S. )'. Darton, 6 McLean (U. S.) 46, 25 Fed. Cas. No. 14,919 (at p. 770) ; U. S. V. Glcason, 1 Woolw. (U. S.) 128, 25 Fed. Cas. No. 15,210 (at p. 1,338); U. S. V. Marshall, 1 Cine. L. Bui. 36, 26 Fed. Caa. No. 15,726 (at p. 1172) ; U. S. V. Montgomery, 3 Sawy. (U. S.) 544, 26 Fed. Cas. No. 15,800; Gainey v. State, 141 Ala. 72, 37 So. Rep. 355; State r. Adams, (Del. 1906) 65 Atl. Rep. 510; State V. Fleetwood, (Del. 1906) 65 Atl. Rep. 772; State i-. Brinte, 4 Penn. (Del.) 551, 58 Atl. Rep. S.'iS; State r. Di Guglielmo, 4 Penn. (Del.) 33G, 55 Atl. Rep. 350; State v. Rood, 02 Me. 129, 144; State v. Zdanowiez, 69 N. J. L. 619, 55 Atl. Rep. 746; People i'. Guidici, 100 N. Y. 503, 510, 3 N. E. Rep. 493; People r. Friedland, 2 N. V. App. Div. 332, 37 N. Y. Supp. 974; State r. Oscar, 7 Jones L. (52 N. Car.) 305; Clark v. State, 12 Ohio 494, note, at p. 496, apprnrcd in Mor- gan V. State, 48 Ohio St. 371, 27 N. E. Rop. 710; McC.-ibe r. Com., (Pa. 1886) 8 Atl. Rep. 45, 47; Roszcz.yiiiala r. State, 125 Wis. 414, 104 N. W. Rep. 113, and cases cited in 11 Am. and Eng. Rncyc. of Law (2(1 cd.) 493. See also V. S. Express Co. r. Donohoe, 14 Ont. 356, 357, per Rose, J. § 60] DEGREE OF PROOF. 97 convicting a fellow man. If, having weighed the evidence on both sides, you reach the conclusion that the defendant is guilty, to that degree of certainty that would lead you to act on the faith of it in the most important and critical affairs of your life, you may properly convict him. Proof beyond a reasonable doubt is not proof to a mathematical demonstration. It is not proof beyond the possibility of mistake." ^os Speaking of reasonable doubt, another federal judge instructed the jury as follows : " Great stress is laid upon this rule by cousasel for the accused in all criminal cases, and a highly exaggerated idea of its meaning is sought to be impressed upon the minds of the jury. It does not require that all possible doubt should be excluded from the mind; it is not mathematical certainty that is required, for such a degree of certainty cannot be produced by the force of human testi- mony. The doubt must be a substantial one, arising from the testi- mony or from the want of testimony on a material point. It must be a reasonable doubt, such as would cause a reasonable and cautious man of average intelligence to hesitate in reaching a conclusion in a serious matter upon which he was called to decide affecting his private affairs. You are to consider the evidence tending to show guilt offered you in the jury box just as you would consider the same amount and character of evidence submitted to you in your everyday life, • touching any serious matter in your business or domestic affairs ; and if it would be sufficient to make you decide and act in such matters, feeling satisfied that you were deciding and acting rightly, then it is sufficient to support a conviction and to require a verdict of guilty; and unless it would make you so decide and act, you must acquit the accused." '°^ Upon the question of reasonable doubt we suggest as an argument for the accused in a criminal case, that the jury ought not to deprive a person of life or liberty if they would be unwilling to stake their own lives or liberty on the verity of his guilt; that they ought not to con- vict if they entertain a doubt which would make them decline to offer to subject themselves to the legal punishment for the offense in the event of erroneous conviction. Of course the argument does not present a legal test of reasonable doubt, but it might induce very grave reflections by jurors. 208 u. S. V. Youtsey, 91 Fed. Rep. 864, 868. 2»i> U. S. V. Huglicg, 34 Fed. Rep. 732, 734, per McCormick, D. J. FACTS — 7 %& DEGREE OF PROOF. [§61 § 61. Preponderance in Number of Witnesses. — " The weight of evidence in these days," said Mr. Justice Holmes, " is measured by more delicate tests than a simple count of witnesses ; " ^^° for " it is a canticle of courts of justice," said Lord Kenyon, " that witnesses non numerantur sed ponderantur ; they are not to be numbered but weighed." ^^^ Lord Stowell spoke of a judgment based upon a numeri- cal majority of witnesses alone as " a sort of rusticum judicium." "^^ " A decision numero non pondere is worth very little," said Dr. Lush- ington.^^^ Not only is the integrity of the witnesses to be considered, but witnesses may be equally entitled to credit in so far as their being truthful is concerned, and still their testimony may be of unequal value as proof of certain facts although the circumstances may be equally consistent with the testimony of each ; for the reason that their intelligence, their means of observation, their strength of memory, and many other elements may be entirely different.^^* " The mere fact that a great number of witnesses are introduced to prove a certain state of facts, and a lesser number to disprove it, is not sufficient to authorize a court to disturb the conclusion reached by the jury." ^^^ aioTrager v. Webster, 174 Mass. 580, 55 N. E. Rep. 318. 211 Rex V. Rusby, Peake N. P. Cas. (1800) 193. "The maxim of law is ' ponderantur testes, non numeran- tur.' " Per Savage, C. J., in Bakeman V. Rose, 14 Wend. (N. Y.) 105, 109. See also Harris v. Harris, 109 111. App. 148. 212 Dalrymple v. Dalrymple, 2 Hag. Cons. 54. 213 The Pactolus, Swab. 173, 175. 214 Madden v. Saylor Coal Co., (Iowa 1907) 111 N. W. Rep. 57. See also Green v. Maloney, 7 Houst. (Del.) 22, 30 Atl. Rep. 672, per Comegys, C. J., charging a jury; St. Louis, etc., R. Co. i\ Union Twist, etc., Bank, 209 HI. 459, 70 N. E. Rep. 651 (approved instruction quoted) ; Chubb I'. New York Cent., etc., R. Co., 116 Fed. Rep. 902, 904 (one witness prevailed against several). 216 Lexington R. Co. v. Herring, (Ky. 1906) 96 S. W. Rep. 558, per Carroll, C. See also Mullane v. Hous- ton, etc.. Ferry R. Co., (N. Y. City Ct. Gen. T.) 20 Misc. (N. Y.) 434, 45 N. Y. Supp. 1039, affirmed (Supni. Ct. App. T.) 21 Misc. (N. Y.) 10, 46 N. Y. Supp. 957; Ennis t\ Dudley, (N. Y. City Ct. Gen. T.) 22 Misc. (N. Y.) 4, 48 N. Y. Supp. 622; Fried r. Stein, (N. Y. City Ct. Gen. T.) 16 Miee. (N. Y.) 494, 38 N. Y. Supp. 971; Camp- bell V. Delaware, etc., Tel., etc., Co., 70 N. J. L. 195, 56 Atl. Rep. 303; Herring v. Poritz, 6 111. App. 208, 212; Truman r. Bishop, 83 Iowa 697, 50 N. W. Rep. 278; Casey-Swasey Co. v. Treadwell, 32 Tex. Civ. App. 4S0, 74 5. W. Rep. 791 ; Oraco r. Moseley, 112 111. App. 100; Coles v. Wveckor, 2 Shannon Tenn. Cas. 341 ; North Alton V. Dorsott, 59 111. App. 612; Kulman V. Erie R. Co., 65 N. J. L. 241, 47 Atl. Rpp. 497; Campbell v. Delaware, etc., Tel., etc., Co., 70 N. J. L. 195, 56 Atl. § 62] DEGREE OF PROOF. 99 The fewer witnesses may be satisfactorily, and even conclusively, corroborated by photographs of premises or in a multitude of other ways not necessary to enumerate here.''^'' " In its last analysis," said Judge Simonton, " the verdict of a Jury depends upon what witnesses they believe. You may pile up testi- mony, Pelion upon Ossa, on one side, and produce but a single vital fact on the other, and the verdict of the jury is fixed. They do not go balancing testimony, setting up this witness against that, discussing their age, the color of their eyes, the length of their noses, or the trim of their beards. They simply believe one man; they do not believe a multitude of others who contradict him." -" Where a fact is to be determined by the testimony of expert wit- nesses, preponderance in number of such witnesses is possibly entitled to more attention than in cases of direct testimony by observers.''^* § 62. Argument in Favor of Many Witnesses Against Few. — In a case in the New Jersey Court of Chancery, the complainant on one side and the defendant and his two grandsons on the other side were in flat disagreement as to the terms of an oral contract between the parties. Each of the witnesses seemed entitled to equal credit, said Vice-Chancellor Van Fleet. " In testifying, they all spoke with apparent candor and truthfulness," he continued, " and seemed to utter what their consciences told them was the truth. Awarding equal credit to each, it is obvious that the weight of the evidence inclines strongly against the complainant. The knowledge, recollection, and veracity of three credible witnesses, two of whom are without the least pecuniary interest in the result of the suit, stand opposed to him. He is not only alone, but he stands contradicted by three witnesses, each of whom is his peer in credit and respectability. Where the evidence of Eep. 303; Adams v. Chicago, etc., R. 796, 32 U. S. App. 613; Fremont, etc., Co., 89 Wis. 645, 62 N. W. Eep. 525; R. Co. v. French, 48 Neb. 638, 642, 67 Schick V. Brooklyn City R. Co., N. W. Rep. 472; Spenee v. Windsor, (Brooklyn City Ct. Gen. T.) 10 N. Y. etc., R. Co., 10 Nova Scotia 106, Supp. 528; Huber v. Miller, 41 Ore- 111. gon 103, 68 Pac. Rep. 400; Small v. 216 La Salle v. Evans, 111 111. App. Brooklyn City, etc., R. Co., (Brooklyn 69. See generally as to photographs City Ct. Gen. T.) 10 Misc. (N. Y.) post, § 1216 et seq. 266, 30 N. Y. Supp. 1076; Wright v. 217 Whilton v. Richmond, etc., R. Saunders, 65 Barb. (N. Y.) 214, 216; Co., 57 Fed. Rep. 551, 554. The City of Naples, 69 Fed. Rep. 794, 218 See post, § 1240. 100 DEGREE OF PROOF. [§ 62 several witnesses, giving positive testimony to the same fact, stands in irreconcilable conflict, the question of numbers, if the witnesses are of equal credit, becomes one of the highest importance; for, as a general rule, the evidence of the greater number is more likely to be true than that of the smaller number. And the reason this is so is that it is much easier for one person to get a wrong impression about a fact, or to fall into a mistake concerning it, than it is for three, or even two ; and if two or more persons do become mistaken about a fact it is highly improbable that they will all fall into the same mistake. And it is also much more improbable that two or more persons will conunit perjury than that one will.^^" All that one person need do who resolves to commit perjury is to invent and arrange a story so as to give it the appearance of truth, and if, while he is under the trial of cross-examination, he discovers that his story is improbable or incom- plete, he may at once, without serious danger of detection, make such changes in it as he may think will cure its defects ; but where several persons conspire to commit perjury, there must be concert; they must first be persons so depraved that they are willing to join in the com- mission of a high crime, and so lost to all sense of shame as to be willing to confess their infamy to one another; they must likewise agree, not only upon the main body of their story, but upon its details, and upon the order in which they occurred, and if, while they are tmdergoing the ordeal of cross-examination, defects in their story are exposed, they will not dare to change it, for if they do they will run the risk of being contradicted by their associates, and if they adhere to it they laiow that they will incur the hazard of detection, together with all of its dangerous consequences. So that in a case like the present, where the testimony of three witnesses stands in direct con- tradiction of a single witness, the probabilities are so overwhelmingly in favor of the truth of the evidence of the three that it must be believed." ^^o Much in the same line, Starkie says : " It is much easier to suborn a limited number of witnesses to swear directly to the fact than to procure a greater number to depose falsely to circumstances, or to prepare and counterfeit such circumstances as will without detection yield a false result. The increasing the number of false witnesses 2i» See also post, § 1054. 820Kentner v. Kline, 41 N. J. Bq. 422, 4 Atl. Rep. 781. § 63] DEGREE OF PROOF. 101 increases the probability of detection in a very high proportion ; for it multiplies the niimber of points upon which their statements may be compared with each other, and also the number of points where their testimony comes in contact with the truth; and therefore multiplies the danger of inconsistency and variance in the same proportion." ^'^^ The argument in favor of the many against the few is generally irresistible where, as sometimes occurs in weighing positive testimony against negative, the positive witnesses are not only more numerous, but the trier of facts can perceive that they cannot possibly be mis- taken, and are guilty of wilful perjury unless their testimony is true, while the negative witnesses may be mistaken or at least free from danger of conviction for perjury if their testimony is untrue.^^^ § 63. When Numerical Preponderance Controls. — The frequent and great difficulty that even well-seasoned triers of facts have in deciding controverted questions satisfactorily has been mentioned in another place,"'' and will bear repeating here. A judge may not have a high degree of confidence in the correctness of his decision when it is based upon numerical preponderance of witnesses. But when the dis- parity in number is considerable the argument in favor of depending upon the greater number "'* is as convincing, and the conclusion as far from mere guess-work, as many of the arguments and conclusions de- duced in everyday practice from the demeanor of witnesses, their bias or impartiality, slight differences in their opportunities for observa- tion, inferences from conduct, etc. Any one who contends that in no case should the greater number arbitrarily control must needs be care- ful, or presently he will find himself insisting that the fewer ought to govern the decision merely because they are fewer; or assuming the equally untenable position that the court ought to scrutinize the testi- mony of the majority so closely as to discern some whimsical or attenuated reason for inferring that they may be mistaken or corrupt. The Supreme Court of Alabama has said that "undoubtedly, if 221 Starkie on Evidence, 875. " It 222 Culhane v. New York Cent., etc., is easy to perceive that two witnesses R. Co., 67 Barb. (N. Y.) 562. See may be more readily obtained to further as to this case post, § 1202; testify untruly from corrupt motives and see generally post, § 1048. than twenty." Mullen v. McKelvy, 5 223 See post, § 727. Watts (Pa.) 399, 401, per Kennedy, 224 The argument is stated supra, § J. 62. 102 DEGREE OF PROOF. [§ 63 all the witnesses are equally intelligent, and equally truthful and free from influence or bias, and have the same opportunities for knowing the facts testified to, and testify from such knowledge, a court could safely and ought to credit the greater number, on the ground that none are presumed to have testified falsely, and the many would be less likely to be mistaken than a less number." ^^^ In a chancery case in Tennessee two complainants testified one way, and one defendant the other way, making a square issue of fact between them. " Neither of the parties being in any way impeached as to their veracity," said the court, " it is not a difficult matter to determine where the preponderance of the evidence is. Obviously, nothing else appearing, the weight of the evidence is with the complainants." ^^° In a patent infringement case where one witness was contradicted by three who were clear and distinct in their testimony, Circuit Judge Woodruff said : " It is sufficient that, upon the testimony in conflict with his statement, we are constrained to say that it would be wholly unsafe and improper to rest any conclusion in this case upon what he testified." 2^' In a collision ease in admiralty. Judge Betts, who was pre-eminently " safe and sane " on all questions concerning the weight of evidence, decided in favor of eight witnesses as against two, and concluded his discussion of the situation as follows : " I perceive no reason to doubt that every man has sworn conscientiously according to his impressions, and where they are of like intelligence and probity, and there is no means supplied for reconciling discordant statements of facts by wit- nesses, I know of no other way for courts and juries to ascertain the truth than by reposing faith in the greater number. It becomes a point of presumption and probability, which on a naked asseveration of a fact inclines always (other considerations being equal) to the side of the majority of witnesses. When the matters testified are susceptible of being tested and determined independently of the asseve- 22B Graham v. State, 92 Ala. 55, 9 Div. 623, 45 N. Y. Supp. 761; The So. Rep. 530, per Coleman, J. See Dale, 46 Fed. Rep. 070. also Vaughan v. Parr, 20 Ark. 600, 220 Gribble v. Ford, (Tenn. Ch. 607; Katzenbach v. Holt, 43 N. J. Eq. 1898) 52 S. W. Rep. 1007, per Wilson, 530, 12 Atl. Rep. 383; Woarms v. J. Becker, 84 N. Y. App. Div. 491, 82 227 Russell, etc., Mfg. Co. v. Mallory, N. Y. Supp. 1086; Wilber v. New 10 Blatchf. (XT. S.) 140, 21 Fed. Cas. York Cent., etc., R. Co., 17 N. Y. App. No. 12,106 (at p. 83). § 64] DEGREE OF PROOF. 103 rations of the witnesses, tribunals of Justice are not to be governed by the consideration of mere numerical preponderance, but this is not that case." ''^' In a collision case where six witnesses testified to a change of course of a vessel and one testified to the contrary, Judge Woodruff of the federal Circuit Court said : " It is true that, in judg- ing of a conflict of evidence on such a subject, mere excess of the num- ber of witnesses is not controlling ; but it is entitled to large considera- tion, and should control, unless it very clearly appears that the one witness, for some special reason, is more entitled to credit." ^^^ But generally in admiralty cases — especially in collision cases — where the testimony comes chiefly from seafaring men, the judges are strongly disinclined to decide according to a preponderance in number of wit- nesses.^'" Even if the testimony of the witnesses who preponderate in number is not entirely satisfactory, their numerical superiority may influence the court in deciding that the opposite party having the burden of proof has not prevailed, where his witnesses are disingenuous and inconsistent.^'^ § 64. Instructions to Jury Concerning Numerical Preponderance. — United States District Judge Blodgett, instructing a jury in regard to the question of preponderance of testimony, said : " Mere numbers do not, as a rule, create such preponderance. That is, the jury are at liberty to believe one witness in opposition to several, if there is such coherence and such an air of veracity surrounding his testimony as to satisfy you that he has told you the truth, and that the others have not done so." '^^ While a preponderalnce in number of witnesses is not conclusive, and the jury may believe one witness as against any number of others — subject to the power of the court to grant a new trial — if con- vinced of his truthfulness, yet it is always the duty of the jury to consider the number of the witnesses as well as the quality of the evidence in determining where the truth lies, and an instruction that 228 Crawford v. The Buffalo, 6 Fed. Rep. 887 ; The North Star, 43 Fed. Cas. No. 3,365a. Rep. 807, 811. And see ante, § 8. 229 The Queen, 8 Blatchf. (U. S.) 231 The Brig Napoleon, 01c. Adm. 234, 20 Fed. Cas. No. 11,502 (at p. 208, 17 Fed. Cas. No. 10,015, per 128). Betts, D. J. 230 The Margaret B. Koper, 103 Fed. 232 Sibley v. St. Paul F. & M. Ins. 104 DEGREE OF PROOF. [§ 64 the number of witnesses has nothing to do with the ease would be erroneous."'' So it is entirely safe to instruct the jury that the number of witnesses testifying on the one side and the other is a proper element to be considered in determining where lies the preponderance of evi- dence.^'* In a Wisconsin case the trial court instructed the Jury that, " other things being equal," the greater number of witnesses would carry the greater weight. Holding that this instruction was not objectionable, the Supreme Court said : " By ' other things being equal ' we under- stand the court to mean, all things being equal in respect to each of such witnesses so testifying. This not only included the credibility of the respective witnesses, but their opportunities, capacities, atten- tion, memory, and every other fact and circumstance in any way going to make up the weight of their testimony. It may be difficult to see just how all such things could be equal as to each of several witnesses ; but what was said about giving the greater weight to the greater num- ber is predicated wholly upon such equality in all things, and whether it did or did not exist was, after all, left to the jury." "^^ In a Connecticut case the court instructed the jury that if four witnesses had equal opportunity for seeing, equal accuracy in observa- tion and memory, equal capacity and desire to tell the truth, the testi- mony of three must outweigh that of one. This was held not to be erroneous. The Supreme Court of Errors said : " Of course it is best, as a rule, that judicial comment to the jury upon the testimony should concern quality rather than quantity. But in the case supposed it is permissible, in the exercise of judicial discretion, to call the attention of jurors to quantity. If upon seeing, hearing, and weighing the witnesses, it should so happen that the jurors believe that in all Co., 9 Bias. (U. S.) 31, 22 Fed. Cas. v. Hutehins, 119 Ga. 504, 40 S. E. No. 12,830. See also post, § 142. Rep. 659; Gage v. Eddy, 179 111. 492, 233 Cupula V. Saginaw Valley Trao- 53 N. E. Kep. 1008. tion Co., 14G Mich. 151, 109 N. W. =35 Spensley v. Lancashire Ins. Co., Rep. 413. See also Gilmore v. Seattle, 62 Wis. 453, 22 N. W. Rep. 574. See etc., R. Co., 29 Wash. 150, 69 Pae. also Dowdell r. Neal, 10 Ga. 148; Rep. 743; Garske v. Ridgeville, 123 Indianapolis St. R. Co. v. Schmidt, Wis. 503, 102 N. W. Rep. 22. 163 Ind. 360, 71 N. E. Rop. 201; Will- 284 West Chicago St. R. Co. v. cox r. Hines, 100 Tenn. 524, 45 S. W. Lieserowitz, 197 111. 607, 64 N. E. Rep. 781; Northern Pac. R. Co. v. Rep. 718. See also West v. Wheatley, Holmes, 3 Wash. Ter. 543, 18 Pac. 69 Ga. 559; Georgia Northern R. Co. Rep. 70. § 64] DEGREE OF PROOF. 105 of the named qualities each witness is equal to each of the others, they must accept the agi'eeing testimony of three, rather than the contrary testimony of one. This rule controls the decisions of men in determin- ing questions of fact for their own purposes; no contrary rule can be laid down for the guidance of a jury. Before it can operate upon the mind of a juror, he must of necessity, under the instruction of the court, try each witness as in a crucible, and determine precisely what portion of his testimony is truth, to what degree he is credible, and must compare each with every other. This done, the juror has dis- charged his whole duty." ^^° But it is generally considered to be a difficult task to frame an in- struction which will be satisfactory to an appellate court, explaining to a jury the conditions under which it is their right or duty to decide according to the greater number of witnesses."" Thus it was held that the trial court properly refused to give the following instruction : "Where witnesses of equal candor, fairness, and intelligence testify, with equal knowledge, opportunity of knowledge, and memory, and their testimony is in all respects of equal weight and credibility, and there is nevertheless a conflict which you cannot reconcile, then num- bers of witnesses would constitute a preponderance, and your verdict should be according to and in harmony with the testimony of the greater number of witnesses." Conceding without deciding that the element " all other things being equal " would make the instruction good, the reviewing court held that the instruction was clearly errone- ous without that element. " The jury must not only pass upon the weight of the evidence, but also upon the credibility of the witnesses. The instruction takes from the consideration of the jury all corroborat- ing circumstances which if considered by the jury might convince them of the truthfulness of the testimony of one witness and of the falsity of another, although the two witnesses might be of equal candor, fairness, and intelligence. The jury must not only determine the credibility of each witness, but must also determine the weight that shall be given the testimony of each witness. The instruction as requested tended to give the jury to understand that the preponderance of evidence is to be determined by the number of witnesses testifying 238 Lillibridge v. Barber, 55 Conn. (Iowa 1907) 111 N. W. Rep. 57; In- 366, 11 Atl. Rep. 850, per Pardee, J. dianapolis St. R. Co. V. Schmidt, 163 237 See Madden v. Saylor Coal Co., Ind. 360, 71 N. E. Rep. 201. 106 DEGREE OF PROOF. [§ 65 on each side." '^^ The court should not, however, by its instructions unduly minimize the effect of a marked numerical preponderance of witnesses, nor suggest unreasonable grounds for discrediting any of them.''''* The Illinois Supreme Court held that the following instruction was not open to substantial objection : " After fairly and impartially con- sidering and weighing all the evidence in this case, . . . the jury are at liberty to decide that the preponderance of evidence is on the side which, in their judgment, is sustained by the more intelli- gent, the better informed, the more credible, and the more disinterested witnesses, whether these are the greater or the smaller number. But the jury have no right to disregard capriciously the testimony of the larger number of witnesses, nor to refuse to give whatever considera- tion, in their judgment, should attach naturally to the fact that the larger number testify one way. The element of numbers should be considered with all the other elements already herein suggested, for whatever in the judgment of the jury that element is worth, and the evidence of the smaller number cannot be taken by the jury in prefer- ence to that of the larger number unless the jury can say, on their oaths, that it is more reasonable, more truthful, more disinterested, and more credible." ^*'' § 65. Equality in Number of Witnesses. — In a case in the New York Supreme Court, where the judgment of the court below was reversed as not supported by the evidence, the court said: "Where the claim of the plaintiff rests upon his unsupported testimony, and is met by the positive denial of the defendant, so that the case presented is merely that of oath against oath, there is no preponderance, and the burden of the plaintiff is not sustained." ^*^ 238 Indianapolis, etc., R. Co. v. Ben- N. E. Eep. 1008. See .ilso Mead v. nett, (Ind. App. 1906) 79 N. E. Rep. Conroe, 113 Pa. St. 220, 8 Atl. Rep. 389, per Robinson, J. See also In- 374. dianapolis St. R. Co. v. .Tohnson, 163 2*i Marinelli r. Ferrand, (Supm. Ct Ind. 518, 72 N. E. Rpp. 571; Schmitt App. T.) 17 Misc. (N. Y.) 373, 40 V. Milwaukee St. R. Co., 89 Wis. 195, N. Y. Supp. 151, per Daly, P. J. To 61 N. W. Rep. 834. the same effect see Lummas v. Van 230Hodder v. Philadelphia Rapid Dyke, 17 N. Y. App. Div. 621, 45 N. Transit Co., (Pa. 1907) 66 Atl. Rep. Y. Supp. 489, 491. " Where one party, ^^^- who has the burden of proof, swears 2*0 Gage V. Eddy, 179 111. 492, 53 unqualifiedly and explicitly in sup- § 65] DEGREE OF PROOF. 107 In an action to recover money alleged to have been paid by plaintiff to defendant by mistake, upon a note, in excess of the amount due, the plaintiff testified to such payment, and produced a diary containing a memorandum made by him on the day of the transaction, which was in accordance with his testimony. The defendant testified positively to the contrary, and produced the note with indorsements made thereon at the time in accordance with his testimony. It was held that the plaintiff could not recover. The court said : " The parties stand before the court equally credible, and the statement of one is equally as reasonable and consistent as the statement of the other. Then the corroboration of the plaintiff's testimony by his memorandum book is certainly no more weighty or significant than is the corroboration of the defendant's testimony by the note and the indorsements thereupon. The former contains the plaintiff's written version of the transaction made at the time it occurred, and the latter contains the defendant's written version thereof made at the same time. How, then, can it be successfully claimed that there is a preponderance of the testimony in favor of the plaintiff? It seems very clear to us that the most that can justly be said in his favor is, that the testimony is balanced." '" port of his own contention, and the tion, Joseph v. Seward, 91 Ala. 597, other party as unqualifiedly and ex- 8 So. Rep. 682; Bonnell v. Wilder, 67 plicitly swears to a contrary state of 111. 327, 330; Cooper v. Skeel, 14- facts, and there is no evidence in the Iowa 578, 580; Adams v. Wells, 64 N. case corroborating the party who has J. Eq. 211, 53 Atl. Rep. 610; Griffiths the burden of proof, he fails to make v. Hardenbergh, 41 N. Y. 464; Mc- out his ease." Per Bookstaver, J., in Manus v. Davitt, 94 N. Y. App. Div. Campbell Printing Press, etc., Co. v. 481, 88 N. Y. Supp. 55; Losee v. Yorkston, (C. PI. Gon. T.) 11 Misc. Morey, 57 Barb. (N. Y.) 561; (N. Y.) 340, 32 N. Y. Supp. 263, 266, Schwarzwaelder v. Detroit, 77 Fed. reversing the judgment of the court Rep. 886, 889; The John Martin, 2 below and citing Stevens v. Trask, Abb. (TJ. S.) 172, 174, 13 Fed. Cas. (C. PI. Gen. T.) 18 N. Y. Supp. 117; No. 7,357 (at p. 695), where Long- Smith r. Gunn, ( Supm. Ct. Gen. year, D. J., said : " Neither is cor- T.) 12 N. Y. Supp. 808, and Syms roborated, and as both stand before V. Vyse, (Supm. Ct. Gen. T.) 2 the court on an equal footing as to N. Y. St. Rep. 106. See also for interest and credibility, the testimony cases where equality in number of of the one exactly balances that of the witnesses was considered, in the par- other." ticular case, as constituting an equi- 2^2 Sanborn v. Babcock, 33 Wis. 400, poise, so that the party having the per Lyon, J. burden of proof failed in his conten- 108 DEGREE OF PROOF. [§ 65 But the general rule undoubtedly is that a mere equality in number of witnesses does not constitute a balance of evidence ^*' any more than mere disparity in number discloses a preponderance/** which it some- times does."*^ " It cannot be held as a proposition of law that simply because an equal number of witnesses testify in opposition to each other upon a given question of fact, therefore the evidence is evenly bal- anced. . . . The intelligence and integrity of the witnesses, their means of information, as well as many other things, are to be considered in determining upon which side is the preponderance or greater weight of the evidence." ^^^ " The testimony of one witness may be more clear, consistent, and convincing than the testimony of another," ^" or " so inconsistent with the usual manner in which business men transact business that it looks incerdible." ^*' One witness's recollection of a transaction may be much more minute and circumstantial than that of the other and therefore more credible and convincing.^*^ " Facts may exist which will turn the scale on the one side — interest, motive, prejudice, manner of testifying. These or other kindred things are to be considered in determining which of the two witnesses ... is entitled to the greater credit." '"''' 213 Johnson v. People, UO 111. 350, 248 Proudfoot v. Wightman, 78 111. 29 N. E. Kep. 895 ; Fowler v. Peter- 553, 557, per Craig, J. And see gener- son, 25 111. App. 81, 82. ally as to improbabilities post, chap. 2*'' See supra, § 61. IV. 2^5 See supra, § 63. 249 Dinet v. Eeilly, 2 111. App. 316, 240 Per Mr. Justice Brown in Chi- 322. cago, etc., K. Co. v. Presbrey, 98 111. 200 Boylston v. Bain, 90 111. 283, 288, App. 303. per Craig, J. See also Swain v. Ed- 217 Howlett V. Dilta, 4 Ind. App. 23, rounds, 53 N. J. Eq. 142, 32 Atl. Rep. 30 N. E. Hep. 313, per New, J. 369. CHAPTEE III. UNCONTRADICTED TESTIMONY. Introduction. 66. Dr. Johnson's Apothegm. 67. Sententious Judicial Utterances. 68. Uncontradicted Testimony in Criminal Cases. Disinterested Witnesses. 69. Rule Stated in New York. 70. Eule Stated in California. 71. Rule Stated in Illinois, Indiana, and Iowa. 72. Rule Stated in Massachusetts. 73. Rule Stated in New Jersey. 74. Rule Stated in Pennsylvania. 75. Rule Stated in Federal Courts. 76. Rule in Various Other Jurisdictions. 77. Disinterested Testimony Not Conclusive in Missouri. Witnesses Interested or Otherwise Biased. 78. General Rule in New York. 79. Reason and Rigor of the New York General Rule. 80. Modified Rule in New York. 81. Rule Stated in Iowa. 82. Rule Stated in Michigan. 83. Rule Stated in Wisconsin. 84. Rule in the Federal Courts. 85. Rule in Other Jurisdictions. 86. Testimony by Officers of Corporations. 87. Servants Testifying in Exoneration of Themselves. 88. Servants' Self-exculpating Testimony Not Necessarily for the Jury. 89. Testimony of Party Called by His Adversary. 90. Witnesses Biased by Relationship, etc. 91. Testimony Not to Be Totally Ignored. Testimony Improbable — Contradiction by Ciroumstanoes. 92. Improbabilities in Testimony. 93. Abstract Improbabilities. 110 UNCONTRADICTED TESTIMONY. § 94. Illustrations of Improbability. 95. Improbability on the Score of Memory. 96. Improbability in Chinese Deportation Case. 97. Improbability — Evidence in Control of One Party. 98. Testimony Opposed by Presumptions or Inferences. 99. Testimony Contradicted by Physical Facta. Subject-matter of Testimony. 100. Testimony to Witness's Mental Processes. 101. Testimony to Legal Conclusion. 102. Testimony to Statements Made in Conversation. 103. Testimony to Declarations of Deceased Persons. 104. Testimony to Prior Use in Patent Cases. Expert and Opinion Evidence. 105. Expert Testimony in General. 106. When Uncontradicted Expert Testimony Is Conclusive. 107. Testimony of Medical Experts in General. 108. Testimony of Insanity Experts. 109. Opinion Evidence to Handwriting — In General. 110. Nonexpert Opinion Evidence to Handwriting. 111. Testimony of Experts in Collision Cases. 112. Expert Testimony in Patent Cases. 113. Opinions of Biased Witnesses. 114. Expert Testimony to Value of Services in General. 115. Expert Testimony to Value of Legal Services. 116. Expert Testimony to Value of Medical Services. 117. Expert Testimony to Value of Property or Damage to Property. 118. Party's Estimate of Value of His Property. 119. Party's Own Testimony to Amount of Damage Sustained. 120. Estimates of Time, Distance, Speed, etc. Sundry Topics. 121. Witness of Bad Character, or Testifying to Discreditable Transactions. 122. Suspicious Facts in the Case. 123. Failure to Produce Better Evidence or Corroboration. 124. Testimony Susceptible of Contradiction but Not Contradicted. 125. \\'itnes3 Discredited by His Maniior on the Stand. 126. Defective Memory or Intelligence of Witness — Judge Ray's Statement. 127. Testimony Open to DifTevent Constructions. 128. Inconsistency in Testimony or Conduct of Witness. 129. Contradiction of Ore of Sovpval Concurring Witnesses. 130. Instructions Overlooking Unanimity of Material Testimony. 131. Effect of Disbelieving a Witness. §§ 66, 67] UNCONTRADICTED TESTIMONY. Ill Introduction. § 66. Dr. Johnson's Apothegm. — Boswell quotes Dr. Johnson as saying that " he who tells nothing exceeding the bounds of probability has a right to demand that they should believe him who cannot con- tradict him." ^ § 67. Sententious Judicial TTtterances. — " If witnesses come un- impeached in point of general integrity," said Lord Stowell, " if they depose with charactiers of fairness in their particular narrations, the facts must be received, or there is an end of all judicial inquiry. Ilimian prudence has done its utmost, has done all that it is capa- ble of doing, in giving every security that can be afforded to in- dividuals." " Dr. Lushington laid it down as the " strict line of all judicial pro- ceeding, namely, to credit the evidence of respectable persons unless they are contradicted, or unless there is something in their testimony to excite a suspicion of the fidelity with which they have deposed." ' " The rights of the people would have no safeguard, and the courts of justice would afford no forum for the redress of wrongs, if the unimpeached and uncontradicted testimony of a witness can be over- thrown without reason," said Judge Gildersleeve of the New York Supreme Court,* and he was speaking of the testimony of one who was an interested party to the suit." It is a " well-settled principle of law, which is absolutely essential to the security of individual rights, that a witness who is unimpeached iBoswell's Life of Johnson, in loco. Erie R. Co., 49 Barb. (N. Y.) 583, 2 Elwea V. Elwea, 1 Hag. Cons. 269, 586, per E. Darwin Smith, J. 287. In common-law practice if the jury 3 Collett V. Collett, 1 Curt. Ecc. 678, renders a verdict against clear, ex- 690. plicit, and uncontradicted testimony, * Lewis V. New York City R. Co., and the court refuses to set it aside, (Supm. Ct. App. T.) 50 Misc. (N. Y.) it is the duty of a superior court to 535, 99 N. Y. Supp. 462. " If juries correct the error by mandamus. It are permitted to discredit or disre- is a matter in which the trial court gard such testimony there is no safety has no discretion, since " every ver- in the administration of justice, and diet must be supported by evidence." parties might just as well let the re- People v. Superior Court, 10 Wend, suit of a litigation abide the cast of a (N. Y.) 285, 290, per Savage, C. J. die or a game of chance." Seibert v. « See infra, §g 78-80. 112 UNCONTRADICTED TESTIMONY. [§68 and uncontradicted must be believed," said Judge Barculo of the New York Supreme Court." " The Jury might as well, in their arbitrary and sovereign pleasure, render a verdict without evidence as against evidence," said Judge Orton of the Wisconsin Supreme Court.' " That, when nothing appears to the contrary, the presumption is lO be fairly indulged that an unimpeached witness has testified truly, may be laid down as a principle derived from the experience and " knowledge of mankind," said Judge Boggs of the Illinois Supreme Court.' " Where the weight of credible testimony proves the existence of a fact, it must be accepted as a fact, . . nor can conjectures ° be allowed to displace proofs," said Judge Brawley of the federal Dis- trict Court.i" § 68. Uncontradicted Testimony in Criminal Cases. — In a crim- inal case it is not within the power of the court to direct a verdict of guilty or not guilty, or compel the jury to find such a verdict, however 6 Roberts v. Gee, 15 Barb. (N. Y.) 449, 452. ^ Engmann v. Immel, 59 Wis. 249, 252, 18 N. W. Rep. 182. See further quotation from this case infra, § 110. " The dictates of intellectual belief are as imperious as those of con- science," said Judge Liddell of Mon- tana. Kelley v. The Cable Co., 8 Mont. 440, 450, 20 Pac. Rep. 669, 672. And in a criminal case in Prince Ed- ward Island, where it appeared that some of the jurors had resolved not to join in a verdict of guilty unless they were assured by the court that the defendant would not be impris- oned, Judge Peters said : " A very erroneous idea of the obligation of a juror's oath seems to be entertained by some, perhaps by many persons. It is what is called a promissory oath. The juror, solemnly calling God to witness, promises that he will well and truly try and a true verdict give according to the evidence. Some seem to think that a juror, although clearly convinced by the evidence that a verdict one way should be given, cm. without violating his oath, refuse to find any verdict at all. But this is a mistake. He promised to give a ver- dict as well as to truly try, and when the evidence is such as must con- vince him of the defendant's guilt, lie as clearly violated the obligation of his oath by refusing to find any ver- dict, as he would do if he found a person guilty whom he conscien- tiously believed to be innocent." Queen i\ T.awson, 2 Has. & War. (P. E. Island) 398, 409. sHausiM- I'. People, 210 111. 253, 71 N. R. Rep. 416. » See antr, § 34. icTrnvolors- Ins. Co. v. Selden, (0. C. A.) 78 Fed. Rep. 285, 288. § 68] UNCONTRADICTED TESTIMONY. 113 clear and conclusive the evidence may be. Therefore the Jury may find a verdict of guilty or not guilty, arbitrarily or capriciously, and when the finding is " Not guilty " the verdict must stand. The court may, however, advise the jury to find a verdict of not guilty, and may reverse a conviction as against or unsupported by the evidence. There- fore the rule that reasonable, disinterested, credible, and uncontra- dicted evidence, having no element of inherent improbability, cannot be disregarded, does not in precise terms apply to a criminal case. 'CJie main reason for this is that in criminal trials the jury is the sole judge of the facts.^^ Still, in a criminal case a federal judge instructed the jury as fol- lows: "You have no right to disbelieve a witness upon mere prejudiced assumptions without there is something in the appearance of the witness or in his testimony in conflict with other testimony. You should deal fairly and justly with witnesses, and unless there is some good reason for you to disbelieve them you should believe their testimony." ^'' In another criminal case in the federal District Court the following instruction was given concerning the testimony of a witness for the government : " The witness is unimpeached and uncontradicted, and if you think his statement consistent and rational, he is entitled to credit. You have no right to reject what he says as untrue by assum- ing the existence of some unproved hypothesis, or upon any imaginary surmise that by possibility he may be mistaken or untruthful. You may criticise and weigh the testimony as carefully as possible; but when this duty is performed, if it would obtain your credence in the ordinary affairs of life, you have no right arbitrarily, and without reason, to say you will disregard it." ^^ "People V. Tuczkewitz, 149 N. Y. 1021; Com. v. Hyland, 155 Mass. 7, 240, 43 N. E. Rep. 548; U. S. v. Lee 28 N. E. Rep. 1055. Huen, 118 Fed. Rep. 442, 450. See 12 U. S. v. Stevens, 2 Hask. (U. S.) also People v. Barberi, 140 N. Y. 256, 164, 27 Fed. Cas. No. 16,392, per 269, 43 N. E. Rep. 635; U. S. v. Tay- Fox, D. J. See also the instructions lor, 3 McCrary (U. S.) 500. But by Benedict, D. J., in U. S. v. Devlin, compare Williams v. State, 47 Ala. 7 Int. Rev. Ree. 44, 25 Fed. Oas. No. 659, 666. 14,955. At least, the jury are not obliged 13 U. S. v. Harbison, 13 Int. Rev. to believe the defendant. Com. v. Rec. 118, 26 Fed. Cas. No. 15,300, per McNeese, 156 Mass. 231, 30 N. E. Rep. Emmons, C. J. PACTS — 8 114 UNCONTRADICTED TESTIMONY. [§ 69 So in a criminal case in Georgia, the court, referring to witnesses for the prosecution, said : " Witnesses must be believed unless they be impeached in some of the modes which the law declares sufficient to ihrow suspicion on their testimony. If their evidence be in no manner impeached, it is entitled to implicit belief, and the jury which dis- regards it incurs the guilt of wilful or reckless error." ^* In a criminal case in Iowa the trial court gave the following instruc- iion : " You are the judges of the credibility of the witnesses. You mu&t determine whether any of them have told the truth or not. If you think they have not told the truth, it is your right and duty to disregard their evidence in so far as you think it untrue ; and in regard to all of the witnesses you will give what they say just as much weight and force as you think it entitled to, considering the probability of its truth, its reasonableness, and whether corroborated or contradicted by the circumstances of the case, or other witnesses." Without determin- ing whether the giving of this instruction would, of itself, constitute a sufficient ground for the reversal of a judgment of conviction, the Supreme Court expressed the opinion that the first part of it placed belief in the evidence too absolutely within the mere will or discretion of the jury. " It is true that the jury must judge of the credibility of the witnesses," said the court, " but in doing so they must exercise judgment, aided by the rules for discovering truth, and not merely will." ^^ Disinterested Witnesses. § 69. Rule Stated in New York. — In a case in Cowen's New York reports, tried originally before a justice of the peace, two wit- nesses testified for the defendant, and their testimony, if believed, required a judgment in his favor. Nevertheless the justice gave judg- ment for the plaintiff, and certified in his return on certiorari that he disregarded the testimony of these two witnesses because he was satisfied, from the manajpr in which they testified, that they were biased in favor of the defendant. It will be observed that the justice did not certify that their manner was such as to create doubts of their veracity. The Supreme Court reversed the judgment, and laid down the following wholesome doctrine — the only doctrine, in the author's i< Jesse V. State, 20 Oa. 168, per MeDonnUl, ,T. "State r. Fowler, 52 Iowa JOS, 2 N, -W. Rop. 983, per Day, J. § 69] UNCONTRADICTED TESTIMONY. 115 opinion, consistent with the purposes of judicial inquiry : " The justice had no right entirely and arbitrarily to disregard the testimony of two uninipeached witnesses, on the ground ' that he was satisfied that they were biased in favor of the defendant.' There was no attempt to impeach their characters. The facts sworn to by them were not contradicted by any other witnesses, either directly or indirectly; nor was there any intrinsic improbability in the narration given by them. It is difficult to establish a rule which shall regulate and limit the dis- cretion of a court or jury, in the degree of credit to be given to the testimony of different witnesses. Much must depend on the particular circumstances of each case. But there is no difficulty in saying that where (as in this case) the witness is unimpeached, the facts sworn to by him uncontradicted either directly or indirectly by other witnesses, and there is no intrinsic improbability in the relation given by him, neither a court nor jury can, in the exercise of a sound discretion, dis- regard his testimony. It is no less the duty of a court than of a jury to decide according to evidence. But it is mockery to talk of evidence, if it is discretionary with the tribunal to which it is addressed to dis- regard it upon the vague suggestion, unsupported by proof, of the bias of the witness." ^* The Court of Appeals has declared it to be " undoubtedly a general rule that when a disinterested witness, who is in no way discredited, testifies to a fact within his own knowledge, which is not of itself improbable or in confiict with other evidence, the witness is to be believed, and the fact is to be taken as legally established, so that it cannot be disregarded by court or jury." " The same doctrine has been reiterated and enforced by the New York courts in a multitude of cases.^^ 10 Newton v. Pope, 1 Cow. (N. Y.) Galitzka, 114 N. Y. App. Div. 799, 109. 100 N. Y. Supp. 173; Mendoza v. "Kavanagh v. Wilson, 70 N. Y. Levy, 111 N. Y. App. Div. 449, 97 N. 177, 179. Y. Supp. 753; Mahon ■;;. Dime Sav. IS Johnson v. New York Cent., etc., Bank, 92 N. Y. App. Div. 506, 87 N. R. Co., 173 N. Y. 79, 65 N. E. Rep. Y. Supp. 258; Fox v. Manhattan R. 946; Plyer v. German- American Ins. Co., 67 N. Y. App. Div. 460, 73 N. Y. Co., 121 N. Y. 689, 24 N. E. Rep. Supp. 896; Kapiloflf v. Feist, (Supm. 929; New York, etc.. Ferry Co. v. Ct. App. T.) 91 N. Y. Supp. 27; Moore, 102 N. Y. 667, 1 N. Y. St. Cullinan v. Rorphuro, 93 N. Y. App. Rep. 374; Elwood v. Western Union Div. 200, 87 N. Y. Supp. 570; Gunn Tel. Co., 45 N. Y. 549, 553; Block v. v. Metropolitan St. R. Co., (Supm. 116 UNCONTRADICTED TESTIMONY. [§§ 70, 71 "But in applying this rule great care should be exercised," said Chief Justice Chureh.^^ § 70. Eule Stated in California. — A jury was instructed as fol- lows: "When facts are testified to by witnesses who are not im- peached, and there is no inherent improbability in the statement, the Jury are boimd to take that evidence as proving the particular fact; and the Jury have no right capriciously to disregard evidence where it is not controverted, and the character of the witnesses is good, and the story is probable." This instruction was held to be correct. " There ought to be no necessity for giving such an instruction to a Jury. A Juror who required to be so instructed would be utterly unfit for the position," said the court.^" § 71. Rule Stated in Illinois, Indiana, and Iowa. — In an early case in Illinois Chief Justice Caton said : " Can a Jury, from mere caprice, entirely disregard the testimony of a witness unimpeached in any way ? This they cannot lawfully do, although they are the Judges of the credibility of witnesses. They must Judge of that fact, as of any other in the case, from evidence. They cannot disregard the testi- mony of a witness without some cause. They must have some grounds for disbelieving him before they are authorized to do so. They must exercise their Judgment, and not their will, when passing upon the credibility of a witness." ^^ Ct. App. T.) 86 N. Y. Supp. 241; 24; Maekey v. N. Y. Cent. R. Co., 27 Gair v. Cohen, (Supm. Ct. App. T.) Barb. (N. Y.) 528, 540; Roberts r. 20 Misc. (N. Y.) 801, 56 N. Y. Supp. Gcc, 15 B.arb. (N. Y.) 449; Hyde v. 180; Weber v. Third Ave. R. Co., 12 Paige, 8 Barb. (N. Y.) 150; Jacks N. Y. App. Div. 512, 42 N. Y. Supp. v. Darrin, 3 E. D. Smith (N. Y.) 557. 789; Spring v. Millington, (County See also supra, § 07. Ct.) 44 Misc. (N. Y.) 624, 00 N. Y. is) Koehler v. Adler, 78 N. Y. 287, Supp. 152; Dwight v. Williams, 291. (Supm. Ct. Spec. T.) 25 Misc. (N. 20 Hayward v. Rogers, 62 Cal. 349, Y.) 667, 55 N. Y. Supp. 201; Decker 372, per Sharpstein, J. V. Sexton, (Supm. Ct. App. T.) 19 21 Robertson r. Dodge, 28 111. 161, Misc. (N. Y.) 59, 43 N. Y. Supp. 167; 163. Sec also supra. § 67; Smith v. In re Bull, 2 N. Y. Supp. 52 {obiter) ; Slocum, 02 111. 354, 300; Chicago, etc., Hun )'. Cary, (Supm. Ct. Gen. T.) R. Co. v. Stumps, 55 111. 367, 375; 59 How. Pr. (N. Y.) 426, 430; Bcatty Robinson v. M.igarity, 28 111. 423, V. Thilemann, 10 Daly (N. Y.) 20, 428; Kdlor v. Uohtmann, 10 111. App. § 71] UNCONTRADICTED TESTIMONY. 117 Again the Supreme Court said : " The proposition that the jury have the right to disbelieve such witnesses as, in their judgment, under all the circumstances of the case, are unworthy of belief, is not the law. The jury, although they are the judges of the credibility of the wit- nesses, have no right to arbitrarily disbelieve the testimony, unless where such witnesses have wilfully and knowingly sworn falsely to material facts in the case." ^^ And still again : " The jury are at liberty to disbelieve the evidence of a witness who has been impeached in any of the modes recognized by the law for impeaching witnesses, which may include not only direct contradictions and evidence of bad character, but also the inherent improbabilities of his statements, and his manner and appearance while testifying; but they cannot be allowed to go beyond this, and determine for themselves that other circumstances, not within legal contemplation, tending to impeach the witness, show that his evidence is impeaehod, and therefore entirely disregard it. The effect to be given to evidence, it is true, may depend in some degree on circum- stances other than those wliich are regarded as diiectly tending to impeaiih a witness, sucli as his opportunity for knowing tJiat to wliicli he testifies, the strengtli or \\'eakness of his memory, his interest in the question, and even his temperament; but here, also, the jury are limited, and can only consider those circumstances which, in human experience, are known to affect perception, memory, and judg- ment." ''^ In Indiana " to justify the rejection of evidence, it must be either contradietecl, or improbable in itself, or obnoxious according to some established legal mode of testing truth," said Judge Stuart in an early case." In Iowa " the jury must judge of the credibility of the witnesses, but in doing so they must exercise judgment, aided by the rules for discovering truth, and not merely will." ^° 488; Gibson v. Trontman, 9 111. App. Gray, 80 111. 28, 31, per Scholfield, J. 94; Chicago, etc., R. Co. v. Stumps, .55 See also Rankin v. Grow, 19 111. 626; 111. 307, 375. Ferkel v. People, 16 111. App. 310. 22 Evans v. George, 80 111. 51, 53, 24 Peter v. Wright, 6 Ind. 183, 193. per Scott, C. J., quoted with approval 25 State v. Fowler, 52 lovfa 103, 2 in Northern Pao. R. Co. w. Hayes, N. W. Rep. 983. See also Hall V. (C. C. A.) 87 Fed. Rep. 129, 132. Cardell, 111 Iowa 206, 82 N. W. Rep. 23 Hartford L., etc., Ins. Co. v. 503. 118 UNCONTRADICTED TESTIMONY. [§§ 72-74 § 72. Rule stated in Massachusetts. — " The general rule is, that when a fact is sworn to by a witness of fair fame, and who is uncon- tradicted by other testimony or any circumstances in which he may stand, the jury are not at liberty to disregard his testimony." ^^ § 73. Rule Stated in New Jersey. — " When the testimony is all one way, credible and unimpeached, the court and Jury must not dis- regard it, and if they do the judgment of the court in opposition thereto will be reversed," said Judge Scudder.^' " There is no practitioner who does not know that a large part of the value of the trial by jury is in the fact that their verdict is subject to review and correction," said Judge Van Dyke. "A juror is not at liberty to reject clear, certain, corroborated, uncontradicted, and unimpeached evidence, simply because he won't believe it, or because it is his right to reject it." "^ § 74. Rule Stated in Pennsylvania. — " When the testimony is not in itself improbable, is not at variance with any proved or admitted facts or with ordinary experience, and comes from witnesses whose candor there is no apparent ground for doubting, the jury is not at liberty to indulge in a capricious disbelief. If they do so, it is the duty of the court to set the verdict aside." ^^ But " they are not bound 26 Harding v. Brooks, 5 Pick. " the rule of evidence which requires (Mass.) 244, 248, per Parker, C. J. a jury to accept the testimony of » 27 Roeber v. Society, etc., 47 N. J. witness, unless it is inherently im- L. 237, 241. Equally emphatic was probable, or unless it is discredited the ruling of the court in Cooley v. by circumstances which appear in the Barcroft, 43 N. J. L. 363, quoting and case, or by evidence impeaching the following Newton v. Pope, 1 Cow. (N. veracity of the witness." Y. ) 109, which is quoted supra, § 09. =!> Lonzer v. Lehigh Valley R. Co., See also, as to the duty to believe 196 Pa. St. 610, 613, 46 Atl. Rep. such testimony, Lillis v. Gallagher, 937, per Mitchell, J. See also Hynd- 39 N. J. Eq. 93, 95; Gilford v. Lan- man v. Hogsett, 111 Pa. St. 643, 4 drine, 37 N. J. Eq. 127, 129, and Atl. Rep. 717; Grambs v. Lynch, 20 case cited infra, note C8; In re W. N. C. (Pa.) 376, per Paxson, J., Sparks's Will, 03 N. J. Eq. 242 ; Boy- quoted in Lehigh C. & N. Co. v. lan V. Meeker, 28 N. J. L. 274, 330. Evans, 176 Pa, St. 28, 32. But com- 28Boylan v. Meeker, 28 N. J. L. pare Reel v. Elder, 62 Pa. St. 308, 274, 330. 316; Snyder v. Bougher, 214 Pa. St. In Zabriskie v. State, 43 N. J. L. 453 ; Barnett v. Becker, 25 Pa. Super. 640, 645, Van Syckel, J., alluded to Ct. 22, 26; Dawson v. Shaw, 28 Pa. § 75] UNCONTRADICTED TESTIMONY. 119 to accept his statements because he is uniinpeached and uncontradicted by other witnesses. He may impeach and contradict himself on the witness stand, or the jury may believe that he is honestly mistaken. His manner,'" the motive or bias,^^ the inherent improbability of his story,^^ or the want of accurate recollection '' may discredit his testi- mony and justify a jury ia disregarding it altogether.'' , » 31 § 75. Eule Stated in Federal Courts, ^r District Judge Dyer in- structed a jury as follows : " You ought not, gentlemen, to adopt theories without proof ; nor is the jury at liberty to disregard positive, uncontradicted evidence of facts testified to by credible witnesses, and substitute therefor bare possibilities. In other words, the jury ought not to disregard, but on the contrary should believe, the testimony of credible witnesses as to facts coming to their personal knowledge, and which are not improbable nor in conflict with or uncontradicted by other evidence in the case, as against what may be bare possibility, on conjecture or theory." "^ Speaking to the same point. District Judge Ballard, instructing a jury, said : " You should not arbitrarily reject the testimony of any witness. If he had opportunity of knowing what he testifies, and he testifies to nothing which is irrational, improbable, or which taxes your credulity, if he has delivered his testimony in a credible manner, if his character is unimpeached, and his testimony not contradicted, both common sense and the law suggest that he should be credited." °^ The rule embodied in the foregoing instructions has been rqeognized in numerous other federal cases as binding alike upon courts and juries.'^ " Undoubtedly, as a general rule, positive testimony as to a Super. Ct. 563, 566; Colonial Trust 11 Int. Rev. Kec. 94, 25 Fed. Gas. No. Co. V. Gatz, 28 Pa. Super. Ct. 619, 15,091. 634. 3' The Conqueror, 166 U. S. 110, 30 See infra, § 125. 131; Parulo v. Philadelphia, etc., R. 81 See infra, §§ 78, 89, 90. Co., 145 Fed. Eep. 664, 676; U. S. v. 32 See infra, § 92 et seq. Leung Shue, 126 Fed. Rep. 423; The 33 See infra, § 126. Minnehaha, (C. C. A.) 124 Fed. Rep. 34 Lautner ». Kann, 184 Pa. St. 334, 210; U. S. v. Lee Huen, 118 Fed. 339, per Fell, J. Rep. 442, 457; U. S. v. Jue Wy, 103 35 McCarthy v. Travelers' Ins. Co., Fed. Rep. 795; Northern Pac. R. Co. 15 Fed. Cas. No. 8,682. v. Hayes, (C. C. A.) 87 Fed. Rep. 38 U. S. V. Fifty Barrels Whiskey, 129, 132; International Tooth-Crown 120 UNCONTRADICTED TESTIMONY. [§76 particular fact, uncontradicted by any one, should control the decision of the court," said Mr. Justice Field.^^ § 76. Rule in Various Other Jurisdictions. — The rule in regard to the weight of uncontradicted testimony of disinterested witnesses, BO emphatically laid down in the foregoing sectiops, is (except, it seems, in Missouri)^" universally recognized.^" Co. V. Bennett, 72 Fed. Rep. 169, 171; Union Paper-Bag Mach. Co. v. Water- bury, 58 Fed. Rep. 566; MeCall v. McDowell, Deady (U. 8.) 233, 1 Abb. (U. S.) 212, 15 Fed. Caa. No. 8,673; Smith V. Elliott, 9 Blatchf. (U. S.) 400, 22 Fed. Gas. No. 13,041; New England Screw Co. v. Sloan, 1 Mao- Arthur Pat. Cas. 210, 18 Fed. Cas. No. 10,158; Ex p. Shouse, Crabbe (U. S.) 482, 22 Fed. Cas. No. 12,815; U. S. V. Devlin, 7 Int. Rev. Rec. 44, 25 Fed. Cas. No. 14,955; U. S. r. Fifty Barrels Whiskey, 11 Int. Rev. Rec. 94, 25 Fed. Cas. No. 15,091; U. S. v. Harbison, 13 Int. Rev. Roe. 118, 26 Fed. Cas. No. 15,300; Western Ins. Co. V. Steamboat Goody Friends, 1 Bond (U. S.) 459, 29 Fed. Cas. No. 17,436; U. S. V. Stevens, 2 Hask. (U. S.) 164, 27 Fed. Cas. No. 16,392. See also Kelly v. Jackson, 6 Pet. (U. S.) 622, 632; Evans v. Hettick, 3 Wash. (U. S.l 408, 8 Fed. Cas. No. 4,562; U. S. v. Fifty-three Boxes Havana Sugar, 2 Bond (U. S.) 346, 25 Fed. Cas. No. 15,098. See also supra, §§ 67, 78, and infra, § 84. " The court will assume that the witness speaks the truth unless there be impeaching testimony, contradic- tory testimony, inherent improbabil- ities in the statements, or circum- stances surrounding the transaction testified to tending to throw discredit upon the statements made." Bradley V. Eccles, 138 Fed. Rep. 911, 915, per Ray, D. J. ssQuoek Ting v. U. S., 140 U. S. 417, 420. 30 See infra, § 77. As to some other jurisdictions see 6 EnCyc. of PI. and Pr. 695, note 3. •»o England. — Ricketts v. Turquand, 1 H. L. Cas. 472, 488. See also Newton v. Ricketts, 9 H. L. Cas. 262, 266. Canada. — Fish v. Fraser, 9 Nova Scotia 514, 515. See also case cited infra, note 68. Prince Edward Island. — See Cliiverie j\ Knight, 2 Has. & War. (P. E. Island) 108, 110. Alahnma. — See case cited infra, note 68. Colorado. — Colorado, etc., R. Co. V. Thomas, 33 Colo. 517, 81 Pac. Rep. 801; Moyle v. Hocking, 10 Colo. App. 446, 51 Pac. Rep. 533. District of Golumhia. — See case cited infra, note 68. Florida. — Lny v. Cox, 82 Fla. 546. Georgia. — Frazier v. Georgia R., etc., Co., 108 Ga. 807, 33 S. E. Rep. 996. Iowa. — See case cited infra, § 81. Kansas. — Chicago, etc., R. Cb. v. C roves, 56 Kan. 601, 44 Pac. Rep. 628, holding that an instruction that " the jury are not bound to take the testimony of any witness as abso- lutely true " ought to be qualified by § 77] UNCONTRADICTED TESTIMONY. 121 § 77. Disinterested Testimony Not Conclusive in Missouri. — In MissoTiri, after considerable contrariety of opinion in the earlier cases, it was decided by a majority of the Supreme Court that in no case whatsoever where oral testimony is given upon a question of fact can a verdict be ordered by mandatory instruction from the court; and that in all cases the jury have the absolute right to determine whether uncontradicted, unimpeached testimony convinces them, subject only to the corrective action of the trial court setting aside a finding of facts which in the opinion of that court is not warranted by the testi- mony. It was said that the constitutional right to a trial by jury required the court so to hold.*^ This case has not been overruled, although in a later case a single judge of the same court indignantly condemned it in the following language : " I maintain that the idea that the jury, ' without rhyme or reason,' may arbitrarily disregard evidence which is based on well-known probabilities and the daily experience of common life, and is not unreasonable in its nature nor impeached nor contradicted, is at war with every principle which lie^ at the foundation of the law's proper administration. If a chancellor, trained and bred to the law, with long experience on the bench, decides a case contrary to the evidence, even if there be some conflict therein, or decides that tliere is no evidence when we think there is, this court does not hesitate to reverse the decree, and will frequently enter in this court a decree for the unsuccessful party. ' On what meats has this our adding, "if there is reason to be- 50 Minn. 3, 52 N. W. Rep. 219; lieve it false or mistaken,'' or words Hawkins v. Sauby, 48 Minn. 69, 50 of similar import. N. W. Rep. 1015. Kentucky. — Barkley v. Bradford, Nebraska. — Dunbier v. Day, 12 100 Ky. 304, 38 S. W. Rep. 432. Neb. 596, 12 N. W. Rep. 109. Louisiana. — New Orleans v. Gauth- Oregon. — Cougbanour v. Hutchin- reaux, 32 La. Ann. 1126, 1130; Lussee son, 41 Oregon 419, 69 Pac. Rep. 68. V. Hays, 22 La. Ann. 307. Texas. — Barry v. Graciette, ( Tex. Maryland. — Baugher v. Gesell, Civ. App. 1902) 71 S. W. Rep. 309; (Md. 1906) 63 Atl. Rep. 1078. Clark v. MoGrath, (Tex. Civ. App. Massachusetts. — Harding v. 1893) 22 S. W. Rep. 527. Brooks, 5 Pick. (Mass.) 244. Wisconsin. — Engmann v. Immel, Michigan. — See case cited infra, 59 Wis. 249, 18 N. W. Rep. 182. See § 82. also infra, § 83; Bourda v. Jones, Minnesota. — Winona, Second Nat. 110 Wis. 52, 85 N. W. Rep. 671. Bank v. Donald, 56 Minn. 491, 58 N. *i Gannon v. Laclede Gas Light Co., W. Rep. 269; Anderson v. Liljengren, 145 Mo. 502, 46 S. W. Rep. 968, 47 122 UNCONTRADICTED TESTIMONY. [§ 78 jury fed that it has grown so great' that they may disregard the clearest and most indisputable and uncontradicted evidence, and their act pass unchallenged and without remedy ? And then the unsuccess- ful suitor, though justly entitled to a verdict, be blandly told, ' The jury had the right to disbelieve your witnesses, and they have done so.' If the utterance of such an edict does not a£Bx the bar sinister upon the escutcheon of public justice, I know not by what words to express the name and nature of the confiscatory outrage." " Witnesses Interested or Otherwise Biased. § 78. General Rule in New York. — In Elwood v. Western Union Tel. Co., 45 N. Y. 549, the leading case in this country. Judge Eapallo said the general rule awarding conclusiveness to the uncontradicted testimony of unimpeached witnesses *' was " laid down in the books at a time when interest absolutely disqualified a witness," and " neces- sarily assumed that the witnesses were disinterested.** That qualifica- tion must, in the present state of the law, be added." Accordingly in that case and in a long line of New York cases it has been held that the mere fact that the witness is interested in the result of the suit is sufficient to require the credibility of his testimony to be submitted to the jury as a question of fact, and that either a court or a jury is at liberty to disbelieve his testimony solely on the ground that he is interested.*' This is said to be still " the general rule " in New York, S. W. Kep. 907. See also Schroeder in Lomer v. Meeker, 25 N. Y. 361, V. Chicago, etc., R. Co., 108 Mo. 322, wherein it was held that the testi- 18 S. W. Kep. 1094. mony of a witness was conclusive, the But the general rule stated in the witness was an interested party to preceding sections is binding upon a the action, and at th.at time his coin- judge trying a case without u jury, mon-law disqualification had been re- Ulrey v. Ulrey, 80 Mo. App. 48, 50, moved by the New York statute, a divorce case. 45 Saranac, etc., R. Co. v. Arnold, 42 0glesby v. Missouri Pac. R. Co., 1G7 N. Y. 368, 60 N. E. Rep. 647; 150 Mo. 137, 228, 37 S. W. Rep. 829, Rage v. Krekey, 137 N. Y. 307, 33 61 S. W. Rep. 758, per Sherwood, J. N. E. Rep. 311; Volkmar v. Man- See also Lionberger v. Pohlman, 16 hattan R. Co., 134 N. Y. 418, 31 N. Mo. App. 392, 398, per Thompson, J. ; E. Rep. 870; Joy v. Diefendorf, 130 Boatmen's Sav. Bank v. Overall, 16 N. Y. 6, 9, 28 N. E. Rep. 602; Cana- Mo. App. 510. Joliarie Nat. Bank v. Diefendorf, 123 i3 Supra, § 69 et seq. N. Y. 191, 25 N. E. Rep. 402; Mc- ■•^Here the court was in error, for Quigan v. Delaware, etc., R. Co., 122 §78] UNCONTRADICTED TESTIMONY. 123 notwithstanding the several decisions, both early and late, of the Court N. Y. 618, 622, 26 N. E. Rep. 13; Wilson V. Metropolitan El. R. Co., 120 N. Y. 145, 24 N. E. Rep. 384; Munoz V. Wilson, 111 N. Y. 295, 300, 18 N. E. Rep. 855; Honegger v. Wett- Btein, 94 N. Y. 252, 261; Becht v. Corbin, 92 N. Y. 658; Kearney v. New York, 92 N. Y. 617, 621; Wohl- fahrt V. Beckert, 92 N. Y. 490; Gilder- sleeve V. Landon, 73 N. Y. 609; Irish V. Union Bag, etc., Co., 103 N. Y. App. Div. 51, 92 N. Y. Supp. 699; Kapiloff i;. Feist, (Supm. Ct. App. T.) 91 N. Y. Supp. 27; Tishman v. Kline, (Supm. Ct. App. T.) 84 N. Y. Supp. 452; Levy v. Abramsohn, (Supm. Ct. App. T.) 39 Misc. (N. Y.) 781, 81 N. Y. Supp. 344; Corotinsky v. Maimin, (Supm. Ct. App. T.) 37 Misc. (N. Y.) 777, 76 N. Y. Supp. 924; Burt v. Quackenbush, 72 N. Y. App. Div. 547, 75 N. Y. Supp. 1031; Garbarsky v. Simkin, (Supm. Ct. App. T.) 36 Misc. (N. Y.) 195, 73 N. Y. Supp. 199; Bloomingdale v. Southern Nat. Bank, 63 N. Y. App. Div. 72, 71 N. Y. Supp. 306; Albreeht v. New York Cent., etc., R. Co., 54 N. Y. App. Div. 636, 66 N. Y. Supp. 605; O'Flaherty V. Nassau Electric R. Co., 34 N. Y. App. Div. 74, 54 N. Y. Supp. 96; Hamilton v. Owego Water Works, 22 N. Y. App. Div. 573, 48 N. Y. Supp. 106; Douai v. Lutjens, 21 N. Y. App. Div. 254, 47 N. Y. Supp. 659; Berze- vizy V. Delaware, etc., R. Co., 19 N. Y. App. Div. 309, 46 N. Y. Supp. 27; New York Bank Note Co. v. McKeige, 17 N. Y. App. Div. 294, 45 N. Y. Supp. 197; Siefke v. Siefke, 6 N. Y. App. Div. 472, 39 N. Y. Supp. 601; Kingsland Land Co. v. Newman, 1 N. Y. App. Div. 1, 36 N. Y. Supp. 960; Wilcox V. Selleck, 92 Hun (N. Y.) 37, 36 N. Y. Supp. 633; Fisher v. Rankin, 78 Hun (N. Y.) 407, 29 N. Y. Supp. 143; Goldsmith v. Coverly, 75 Hun (N. Y.) 48, 27 N. Y. Supp. 116; Gowing V. Warner, (Supm. Ct. App. T.) 30 Misc. (N. Y.) 593, 62 N. Y. Supp. 797, affirming (N. Y. City Ct. Gen. T.) 29 Misc. (N. Y.) 593, 61 N. Y. Supp. 500; Carrere v. Dun, (Supm. Ct. App. T.) 26 Misc. (N. Y.) 717, 57 N. Y. Supp. 82; Gorman v. Williams, (Supm. Ct. App. T.) 26 Misc. (N. Y.) 776, 56 N. Y. Supp. 1031; Gair v. Cohen, (Supm. Ct. App. T.) 26 Misc. (N. Y.) 801, 56 N. Y. Supp. 180; Van Nostrand v. Hubbard, 35 N. Y. App. Div. 201, 54 N. Y. Supp. 739; Finn v. Peterson, (Supm. Ct. App. T.) 24 Misc. (N. Y.) 737, 53 N. Y. Supp. 787; Moran v. Abbott, 26 N. Y. App. Div. 570, 50 N. Y. Supp. 337; Mercantile Bank v. Anderson, 27 N. Y. App. Div. 94, 50 N. Y. Supp. 176; Halsey v. Hart, 85 Hun (N. Y.) 46, 32 N. Y. Supp. 665; Weber v. Third Ave. R. Co., 12 N. Y. App. Div. 512, 42 N. Y. Supp. 789; Kidder v. Jones, (C. PI. Gen. T.) 13 Misc. (N. Y.) 216, 34 N. Y. Supp. 231; O'Neill v. Third Ave. R. Co., 78 Hun (N. Y.) 183, 28 N. Y. Supp. 917; Olsen V. Ensign, (C. PI. Gen. T.) 7 Misc. (N. Y.) 682, 28 N. Y. Supp. 38; Reid v. New York, 68 Hun (N. Y.) 110, 22 N. Y. Supp. 623; Meeteer v. Manhattan R. Co., 63 Hun (N. Y.) 533, 18 N. Y. Supp. 561; A. B. Cleveland Co. v. A. C. Nellis Co., (C. PI. Gen. T.) 18 N. Y. Supp. 448; Leavitt v. Dodge, (Supm. Ct. Gen. T.) 16 N. Y. Supp. 309; Rumsey v. Boutwell, 61 Hun (N. Y.) 165, 15 N. Y. Supp. 765; Uransky v. Dry-Dock, etc., R. Co., (Supm. Ct. 124 UNCONTRADICTED TESTIMONY. [§ 79 of Appeals, and the many decisions of the Supreme Court, which are cited infra, § 80.*" Whenever it is held that testimony must go to a jury because it is given by an interested party, it makes no difference that the same facts were svrorn to by each of several joint parties.*' Of course it is v^ithin the province of the court or jury to give credit to the uncorroborated testimony of a party to the suit.** It may be entirely proper to direct a verdict on the testimony of a party where he is strongly, corroborated, and it may be erroneous not to do so.*° § 79. Reason aud Kigor of the New York General Rule. — The following extract from the opinion of Presiding Judge Barculo of the New York Supreme Court contains the boldest, most plausible, and most uncompromising defense of the New York general rule that has ever been offered in any reported case : " There is another question involved in this case, which is frequently presenting itself at the cir- cuit, and which, under our new system, is dignified with considerable importance. Is a court aud jury bound to believe a party swearing in his own behalf ? The code authorizes a party to call his adversary and examine him as a witness against himself (§ 390). A subseqiient Gen. T.) 13 N. Y. Supp. 670; Ract E. Rep. G57; Lamb v. Prudentinl Ins. V. Duviard-Dime, (Supra. Ct. Gen. Co., 22 N. Y. App. Div. 552, 48 N. Y. T.) 4 N. Y. Supp. 156; Merscliendorf Supp. 123; Goodwin r. Goldsmith, 49 V. Koeh, (Supm. Ct. App. T.) 22 N. V. Super. Ct. 101. Miac. (N. Y.) 356, 49 N. Y. Supp. lo Hull r. Littauer, 162 N. Y. 572, 285; Levy r. Yazbeek, {Supm. Ct. 57 N. E. Rep. 102; Saranac, etc., R. App. T.) 22 Misc. (N. Y.) 136, 49 Co. ■!'. Arnold, 167 N. Y. 3GS, 60 N. N. Y. Supp. 283; Anderson i'. Stand- E. Rep. 047; Mendoza r. Levy, 111 ard Gaa Light Co., (Supm. Ct. App. N. V. App. Div. 449, 97 N. Y. Supp. T.) 17 Misc. (N. Y.) 625, 40 N. Y. 753. Supp. 671 ; Metropolitan EL R. Co. 4t This was the case in Saranac, V. Manhattan El. R. Co., 11 Daly (N. etc., R. Co. v. Arnold, 167 N. Y. 368, Y.) 373, 526; Lesser v. Wunder, 9 GO N. E. Ecp. 647. Daly (N. Y.) 70; Nicholson v. Con- is Doherty v. Metropolitan St. R. ner, 8 Daly (N. Y.) 212; Iloage v. Co., (Supm. Ct. App. T.) 91 N. Y. Buffalo, (Buffalo Super. Ct. Gen. T.) Supp. 19; Rcid r. New York, 68 Hun 1 Abb. N. Cas. (N. Y.) 356; Roberts (N. Y.) 110, 22 N. Y. Supp. 623. u. Gee, 15 Barb. (N. Y.) 449 (a strong ■lo Decker v. Sexton, (Supm. Ct. case). See also Kavanagh v. Wilson, App. T.) 19 Misc. (N. Y.) 5*9, 43 N. 70 N. Y. 177; Sipple v. State, 99 N. Y. Supp. 167. Y. 284, 289, 1 N. B. Rep. 892, 3 N. § 79] UNCONTRADICTED TESTIMONY. 125 section permits a party so called by his adversary to be examined in his own behalf ' in respect to any matter pertinent to the issue ' (§ 395). Now, so far as regards the testimony given by a party against himself, there is a manifest propriety in compelling a jury to give it credit; but is this true when he swears to an independent matter, in his own favor? If a defendant on the witness stand admits his execution of the promissory note which is the foundation of the action, we may safely say that the jury are bound to find the fact accordingly; but if he goes further, and in his own behalf testifies to a set-off exceeding the amount of the note, are the jury required by any rule or principle of law to find a verdict in his favor ? I think not. The code does not furnish us with any guide on this subject. It merely opens the door and lets in parties and interested persons, and permits them to testify in behalf of their own interests, under the plausible pretense of elicit- ing truth, avoiding legal disputes as to the competency of witnesses, and expediting the trial of causes. Those whom experience at the circuit has made acquainted with the numerous questions now raised, touching the admissibility of assignees and of coplaintiffs or co- defendants ; who value the time often wasted in endeavoring to extract something to prop up a desperate case from an unwilling party turned into a reluctant witness ; and who consider the utter disregard which jurors, whose sound sense teaches them that reliable evidence can only be expected from pure and disinterested sources, do and always will manifest for testimony obtained by such new devices — may perhaps be as competent to judge how well founded these pretenses are, as those who substitute theory for practice, speculation for experience. Un- fortunately those whose opinions are worth most on such subjects are, ordinarily, least obtrusive and officious in urging them upon the ' powers that be.' The statute admits the witnesses, but is silent as to the effect of their testimony. It does not declare that they shall be believed, nor that their credit may be determined by the jury. In making everything so very plain and simple and harmonious, our law- makers seem, for a moment, to have been oblivious of the well-settled principle of law, which is absolutely essential to the security of in- dividual rights, that a witness who is unimpeached and uncontradicted must be believed. For surely they could not have designed to extend and apply this principle to the testimony of parties, interested persons, and felons, to whom also the privilege was proposed to be extended 126 UNCONTRADICTED TESTIMONY. [§ 79 (Eeport of Commissioners, § 352).''" Such a doctrine would be sub- versive of all certainty and' security in judicial proceedings." "^ So far as Judge Barculo's argument rests upon the propriety of the com- mon-law rule totally disqualifying interested witnesses, what dis- position does it make of the credibility of those interested parties whose testimony was admitted at common law on the ground of necessity, and as an exception to the general rule of incompetency ? ^^ The following view of the New York cases supporting the general rule was expressed by Mr. Justice Follett : " In some cases it is said that a jury is at liberty to disregard the testimony of a party to the action, or the testimony of an interested witness. This rule, expressed in this absolute form, is a survival of the theory of the common law, that persons interested in the event of an action, whether parties or not, were so likely to commit perjury that they could not be sworn as witnesses. In 1848 persons interested in the result of actions, and in 1857 parties to actions, were by the code of this state authorized to testify in such actions. The courts regarded this change with great disfavor, and the rule that the undisputed evidence of a party to an action, or of ' a person interested therein, might be disbelieved by a jury, was often charged, and is declared in several reported cases with- out qualification, and without much regard to whether there were or were not facts or circumstances which tended to discredit the witness. But when time and experience demonstrated the wisdom of the change, which had been made in England some years earlier (6 & 7 Vict., c. 85; 14 & 15 Vict., c. 99), the rule began to be qualified, and the tend- ency of the later cases seems to be that a jury is not authorized to disbelieve the uncontradicted evidence of a party, or of an interested witness, simply because he is a party or is interested therein. The rule, as first laid down, has been stated in some recent decisions; but an examination of the cases shows that there was, in those cases, more than the mere fact that the witness was a party or interested. There were facts and circumstances surroimding the cases which authorized the inference that the witness was or might be unreliable." "' 00 Convicts are now competent wit- more in his treatise on Evidence, § 576 nesses. N. Y. Code Civ. Pro., § 832. ct seq. 81 Roberts t). Gee, (1853) 15 Barb. r.a Grecnleaf on Evidence (16th ed.), (N. Y.) 449, 451. Compare opinion Appendix II., § 348. of Chief Justice Dixon in Daniels v. bs Denton v. Carroll, 4 N. Y. App. Foster, 26 Wis. 686, qiinted infra, Div. 532, 40 N. Y. Supp. 19. § 83, and comments of Professor Wig- § 80] UNCONTRADICTED TESTIMONY. 127 § 80. Modified Rule in New York. — In Lomer v. Meeker, de- cided in 1862, the defense of usury was set up in an action on a note, and one of the defendants testified to the usury. A motion to disiaiss the complaint was denied, and a verdict was rendered for the plaintifC. In reversing a judgment entered on the verdict the Court of Appeals said : " The witness was not impeached or contradicted. His testimony is positive and direct, and not incredible upon its face. It was the duty of the court and jury to give credit to his testimony. The positive testimony of an unimpeached, uncontradicted witness can- not be disregarded by court or jury arbitrarily or capriciously. They are bound to believe, for judicial purposes, such testimony, and it would, in an instance like this, be the clear duty of the court to set aside the verdict of a jury founded upon a disbelief of clear, uncon- tradicted, and undisputed evidence." "* In Kelly v. Burroughs, decided in 1886, the court said: " Concern- ing the facts there was no dispute, and consequently no occasion to present them to the jury. The mere fact that the plaintifE, who testi- fied to important particulars, was interested was unimportant in view of the fact that there was no conflict in the evidence, or any thing or circumstance from which an inference against the fact testified to by him could be drawn." ^^ In Hull V. Littauer, decided in 1900 : " Generally, the credibility of a witness who is a party to the action, and therefore interested in its result, is for the jury ; but this rule, being founded in reason, is not an absolute and inflexible one. If the evidence is possible of contradic- tion in the circumstances ; if its truthfulness or accuracy is open to a reasonable doubt upon the facts of the case, and the interest of the witness furnishes a proper ground for hesitating to accept his state- ments, it is a necessary and just rule that the jury should pass upon it. Where, however, the evidence of a party to the action is not con- tradicted by direct evidence nor by any legitimate inferences from the s* Lomer v. Meeker, 25 N. Y. 361, to be the general rule, namely, that the 363, per Smith, J. testimony of an interested party must 5= Kelly V. Burroughs, 102 N. Y. always go to the jury, by the state- 93, 95, 6 N. E. Rep. 109, per Dan- ment that " to some extent, at least, forth, J. This case was commented the plaintiff was corroborated. How upon in a, later case in the Supreme fully, the report of the case does not Court, where the court sought to inform us, but it appears from the reconcile it with what was supposed statement of the case that it was jn 128 UNCONTRADICTED TESTIMONY. [§80 evidence, and it is not opposed to the probabilities, nor in its nature surprising or suspicious, there is no reason for denying to it conclu- siveness." ^^ Comparing the foregoing cases with the cases cited in the last two * sections,**^ United States District Judge Eay came to the following con- clusion with regard to the present state of the law in New York: " There is some apparent conflict in the cases whether mere interest in the result is sufficient to justify the court or jury in finding against the evidence of the witness, when uncontradicted or otherwise unim- substantial respects." Goldsmith v. Coverly, (Supm. Ct. Gen. T.) 31 Abb. N. Cas. (N. y.) 149, 153. 66 Hull V. Littauer, 162 JsT. Y. 569, 572, 57 N. B. Eep. 102, per Gray, J. Cases following one or another of those cited in the text are, Johnson V. New York Cent., etc., R. Co., 173 N. Y. 79, 65 N. E. Rep. 946; Morgan- town Second Nat. Bank v. Weston, 172 N. y. 250, 64 N. E. Rep. 949; Lewis V. New York City R. Co., (Supm. Ct. App. T.) 50 Misc. (N. Y.) 535, 99 N. Y. Supp. 462; Kappes 17. New York City R. Co., (Supm. Ct. App. T.) 50 Misc. (N. Y.) 534, 99 N. Y. Supp. 322; Madden v. New York City R. Co., (Supm. Ct. App. T.) 50 Misc. (N. Y.) 555, 99 N. Y. Supp. 320; Electric Fireproofing Co. V. Smith, 113 N. Y. App. Div. 615, 99 N. Y. Supp. 37, 43; Wilson v. United Traction Co., 94 N. Y. App. Div. 539, 88 N. Y. Supp. 122; Fergu- son V. Harlem Sav. Bank, (Supm. Ct. App. T.) 43 Misc. (N. Y.) 10, 86 N. Y. Supp. 825; Tishman v. Kline, (Supm. Ct. App. T.) 84 N. Y. Supp. 452; Sergent v. Liverpool, etc., Ins. Co., 66 N. Y. App. Div. 46, 73 N. Y. Supp. 120, 96 N. Y. App. Div. 117, 89 N. Y. Supp. 35; Littlefield r. Law- rence, 83 N. Y. App. Div. 327, 82 N. y. Supp. 25; Schoohtor v. Watson, (Supm. Ct. App. T.) 35 Misc. (N. Y.) 43, 70 N. Y. Supp. 1; Money v. Fisher, 92 Hun (N. Y.) 347, 36 N. Y. Supp. 862; Strong v. Walton, 47 N. Y. App. Div. 114, 62 N. Y. Supp. 353; Van Nostrand v. Hubbard, 35 N. Y. App. Div. 201, 54 N. Y. Supp. 739; Denton v. Carroll, 4 N. Y. App. Div. 532, 40 N. Y. Supp. 19; Hun v. Gary, (Supm. Ct. Gen. T.) 59 How. Pr. (N. Y.) 426 [affirmed 82 N. Y. 65]; Gorman v. Williams, (Supm. Ct. App. T.) 26 Misc. (N. Y.) 776, 56 N. Y. Supp. 1031; Gardner v. Baer, (County Ct.) 26 Misc. (N. Y.) 181, 56 N. Y. Supp. 1096; Johnson v. Doll, (C. PI. Gen. T.) 11 Misc. (N. Y.) 345, 32 N. Y. Supp. 132, separate opinion of Giegerich, J.; Hunter v. Hook, 64 Barb. (N. Y.) 468, 475; Dougherty v. Gallagher, 3 E. D. Smith (N. Y.) 570. See also Munoz V. Wilson, HI N. Y. 295, 300, 18 N. E. Rep. 855; Slater v. Merritt, 75 N. Y. 268, 271; Beisiegel v. New York Cent. R. Co., 40 N. Y. 9, 20; Molloy V. Whitehall Portland Cement Co., 116 N. Y. App. Div. 839, 102 N. Y. Supp. 363; Stilwell r. Carpenter, (Ct. App.) 2 Abb. N. Cas. (N. Y.) 238, 256 (obilcr) ; Jonasson v. Eames, (Supm. Ct. Gen. T.) 21 N. Y. Supp. 714. t''' See svprn, §§ 78, 79. §§ 81-83] UNCONTRADICTED TESTIMONY. 129 peached and his testimony is clear, reasonable, and inherently prob- able." ^^ § 81. Rule Stated in Iowa. — " The jury should not arbitrarily reject the testimony of witnesses who are unimpeached and uncon- tradicted, and whose testimony does not lack probability, although they may be interested in the result of the suit." ^^ § 82. Rule Stated in Michigan. — In Michigan the testimony of an interested party " cannot be repudiated as falsehood without good § 83. Rule Stated in "Wisconsin. — In Wisconsin " the undisputed, reasonable evidence of one witness, though a party to the action, should have controlling weight in determining a question of fact," and a judg- ment rendered contrary to such testimony will be reversed."* In a ease wliere the defendants testified to facts which if true relieved them from liability in the case, there was no effort to impeach or show them unworthy of credit, and there was no improbability in their testimony. The trial court rendered judgment in their favor, and in affirming that judgment Chief Justice Dixon, after speaking of their pecuniary interest, continued : " It is hardly necessary for us to remark that no court or jury would set aside or wholly ignore their testimony on this ground. If they are competent to testify at all to the facts, the very law authorizing it implies that under such circumstances some faith and credit are to be given to their statements. No court or jury are authorized to say : ' These parties are interested, and therefore, with- out considering any other fact or circumstance, we will discredit them.' Formerly interest disqualified, but now that policy is changed, and with the change came the rule that the testimony of such persons must be weighed and considered notwithstanding their interest, that circum- stance being thrown into the balance against them, but not to overcome 08 U. S. V. Lee Huen, 118 Fed. Rep. 75 N. W. Rep. 304, per Marshall, J., 442, 462. in the syllabus by the court. See, 60 Woodward v. Squires, 39 Iowa however, Moore v. Ellis, 89 Wis. 108, 435, 438, per Day, J. Ill, 61 N. W. Rep. 291, where the 00 Darling v. Hurst, 39 Mich. 765, court seems to have overlooked its 769, per Graves, J. ruling in the case cited »n the follow- SI Burnham v. Norton, 100 Witi. 8, ing note. FACTS — 9 130 UNCONTRADICTED TESTIMONY. [§§ 84, 85 their statements, if, upon the whole, the fair and reasonable inclina- tion of the mind is in favor of their truth. If this were not so, it would be better that the former rule still prevailed; for then, if the party gained no advantage from his own examination, he, at all events, escaped the imputation and odium of having given false testimony." "' § 84. Eule in the Federal Courts. — The United States Supreme Court, in a case decided prior to the decision of the New York Court of Appeals in Hull v. Littauer,^^ declared in favor of the general rule in New York,** namely, that " the mere fact that the witness is inter- ested in the result of the suit is deemed sufficient to require the credibility of his testimony to be submitted to the jury as a question of fact." "^ In other federal cases it has also been held, as in New York,"" that the interest of the witness is sufficient to relieve the court or jury from any obligation to believe his uncontradicted testimony.*' § 85. Uule in Other Jurisdictions. — In jurisdictions other than those mentioned in the preceding sections the prevailing inclination is to give the uncontradicted testimony of an interested party full credit,*' in accordance with the modified rule in New York, herein- 62 Daniels v. Foster, 26 Wis. 686. § 80), has been in some degree lim- See also Wisconsin ease quoted infra, ited by the later New York cases. § 110. In Briggs v. Phelps, 70 Fed. Rep. 03 Supra, § 80. 29, 31, and Home Ins. Co. v. Nobles, 64 See supra, § 78. 63 Fed. Rep. 642, the modified rule 06 Sonnentheil v. Christian Moer- in New York {supra, § 80) seems lein Brewing Co., 172 U. S. 401, 408 to have been adopted, and the testl- ( decided in 1898), citing and follow- mony of an interested party was ac- ing numerous New York cases. cepted as conclusive. See also In re 66 See supra, § 78. Feldser, 134 Fed. Rep. 307. For an OT It was so ruled in U. S. )'. Sing interesting discussion of the question, Lee, 125 Fed. Rep. 628; In re Jew but without a definite solution, see Wong Loy, 91 Fed. Rep. 240, 241; U. S. v. Lee Huen, 118 Fed. Rep. 459, Grand Trunk R. Co. v. Cobleigh, (C. 462. C. A.) 78 Fed. Rep. 784, 786. See 68 Sanford v. Bowles, 9 Nova Scotia also Forty-Second St., etc., R. Co. v. 305; Keith v. Woodruff, 136 Ala. 443, Hannon, (C. C. A.) 85 Fed. Rep. 852. 34 So. Rep. 911; Brown v. Petersen, In the first three of these cases the 25 App. Cas. (D. C.) 359; Lange ». court cited Elwood v. Western Union Cullinan, 205 111. 365, 68 N. E. Rep. Tel. Co., 45 N. Y. 549 {supra, § 78), 934; Tracy v. Tracy, 62 N. J. Eq. which case, as we have seen {supra, 807, 48 Atl. Rep. 533; Muirheid v. §§ 86, 8Y] UNCONTRADICTED TESTIMONY. 131 before described/" subject only to the qualifications '" which justify disbelief in the uncontradicted testimony of disinterested witness^. § 86. Testimony by Officers of Corporations. — Officers of a cor- poration testifying in its behalf stand on the same footing as parties whose testimony must be submitted to the jury.'^ § 87. Servants Testifying in Exoneration of Themselves. — Where a servant to whose fault or negligence an iujury suffered is imputed, in an action by a third person against the master, seeks to exonerate him- self by his own testimony, he is an interested witness — interested at common law '" — and on a jury trial his credibility cannot be assumed by the court, but must be submitted to the jury ; and in any case there is no legal compulsion on court or jury to believe his statements.''^ Smith, 35 N. J. Eq. 303, 307. See also Marks v. New Orleans Cold Storage Co., 107 La. 172, 31 So. Rep. 671; The Charlotta, 2 Hag. Adm. 361. Contra, it seems, Moore v. Robinson, (Tex. Civ. App. 1903) 75 S. W. Rep. 890; Kireher v. Sprenger, 4 Pa. Super. Ct. 38. 89 See supra, § 80. " Infra, § 92 et seq. 'iDes Marets v. Leonard, (C. PI. Gen. T.) 12 Misc. (N. Y.) 81, 33 N. y. Supp. 92. See also Colonial Trust Co. V. Getz, 28 Pa. Super. Ct. 619, 633. But compare, of course, supra, §§ 80-85. The relation of the superintendent of an insurance company to the com- pany was such as to present the ques- tion of his credibility to the jury when he testified concerning his own acta in an action on a policy. Lamb V. Prudential Ins. Co., 22 N. Y. App, Div. 552, 48 N. Y. Supp. 123. '2 See post, § 1108. 73 Volkmar v. Manhattan E. Co., 134 N. Y. 418, 422, 31 N. E. Rep. 870; Canajoharie Nat. Bank v. Diefen- dorf, 123 N. Y. 191, 200, 25 N. E. Rep. 402; Becht v. Corbin, 92 N. Y. 658; Wohlfahrt v. Becker, 92 N. Y. 490; Elwood V. Western Union Tel. Co., 45 N. Y. 549, 554; Fox v. Man- hattan R. Co., 67 N. Y. App. Div. 460, 73 N. Y. Supp. 896; Blooming- dale V. Southern Nat. Bank, 63 N. Y. App. Div. 72, 71 N. Y. Supp. 306; Albrecht v. New York Cent., etc., R. Co., 54 N. Y. App. Div. 636, 66 N. Y. Supp. 605, affirmed 166 N. Y. 622, 59 N. E. Rep. 1118; Irish v. Union Bag, etc., Co., 103 N. Y. App. Div. 51, 92 N. Y. Supp. 699; Chapman v. New York Cent., etc., R. Co., 41 N. Y. App. Div. 618, 58 N. Y. Supp. 728; A. B. Cleveland Co. v. A. C. Nellis Co., (C. PI. G«n. T.) 18 N. Y. Supp. 448; O'Flaherty V. Nassau Electric R. Co., 34 N. Y. App. Div. T4, 54 N. Y. Supp. 96; Finn v. Peterson, (Supm. Ct. App. T.) 24 Misc. 5 Misc. (N. Y.) »' Jonasson v. Eames, (Supm. Ct. 586, 25 N. Y. Supp. 90. Gen. T.) 21 N. Y. Supp. 714; John- »6So in Kavanagh v. Wilson, 70 son v. Doll, (C. PI. Gen. T.) II Misc. N. Y. 177, 179, the court said "the (N. Y.) 345, 32 N. Y. Supp. 132. witness was not wholly disinterested; »» U. S. v. Lee Huen, 118 Fed. Rep. he was a son of the plaintiff, en- 442, 463. 136 UNCONTRADICTED TESTIMONY. [§ 92 testimony in the case is to be considered; and wliile the jury in de- termining the credibility to be given to a witness may consider his interest in the controversy, or in the decision of tlie question of fact submitted to the jury, to say that a jury has the liberty of disregarding the testimony of a witness if they considered such witness interested gives to a jury a discretion to refuse to consider evidence which is competent in the case, and which they are bound to consider in arriv- ing at their verdict. That the credibility of a witness is for the jury where the testimony given by such witness is contradicted, or where he is impeached, or so interested in the result that his interest may affect his testimony, is one thing; but to say that the jury are entitled to disregard competent evidence in the ease is quite another." ^^ Testimony Improhahle — Contradiction by Circumstances. § 92. Improbabilities in Testimony. — Testimony which is im- probable under all the circumstances of the case has no passport to implicit belief; and this includes the virtually equivalent proposition that testimony contradicted by circumstances in evidence is not con- clusive on court or jury.^"" It was in such a case that Lord Stowell ooBerzevizy v. Delaware, etc., R. App. 51; Highley r. American Exch. Co., 19 N. Y. App. Div. 309, 46 N. Y. Nat. Bank, 86 lU. App. 48, 56. Supp. 27, per Ingraham, J. See also Indiana. — Princeton Coal, etc., Co. Irwin V. Metropolitan St. R. Co., v. Roll, 102 Ind. 115, 66 N. E. Rep. (Supm. Ct. App. T.) 25 Misc. (N. 169. Y.) 187, 54 N. Y. Supp. 195. /owxi. — Babcock r. Chicago, etc., i»» California. — Sonoma County v. R. Co., 02 Iowa 593, 13 N. \V. Rep. Stoffen, 125 Cal. 32, 57 Pac. Rep. 681; 740, 17 N. W. Rep. 909. Prewett v. Dyer, 107 Cal. 154, 159, Kansas. — Missouri, etc., R. Co. r. 40 Pac. Rep. 105; Baker v. Fireman's Murphy, 59 Kan. 774, 52 Pac. Rep. Fund Ins. Co., 79 Cal. 34, 41, 21 i'ac. 803. Rep. 357; Blankman v. Vallejo, 15 Maryland. — Williams v. Hunting- Cal. 639, 646. ton, 68 Md. 590, 13 Atl. Rep. 336. District of Columbia.- — -Beals v. Minnesota. — Lang v. Ferrant, 55 Finkenbiner, 12 App. Cas. (D. C.) 23. Minn. 415, 57 N. W. Rep. 140; Georgia. — Macon Consol. St. R. Hawkins r. Sauby, 48 Minn. 69, 50 Co. V. Barnes, 113 Ga. 212, 38 S. E. N. W. Rep. 1015. ^^?- 756. Missouri. — ho\e\\ v. Davis, 52 Mo. Illinois. — C\i\ca.go Union Traction App. 342; Vojta r. Pelikan, 15 Mo. Co. V. O'Brien, 219 111. 303, 76 N. E. App. 471. Rep. 341; Hester v. Frary, 99 111. ffciy Jersey. — Levy v. Levy, (N. §92] UNCONTRADICTED TESTIMONY. 137 declared : " It is a wild conceit that any court of justice is bound by J. 1904) 57 Atl. Rep. 1011; Vreeland t;. Vreeland, 48 N. J. Eq. 56, 21 Atl. Rep. 627; Earle v. Norfolk, etc., Hosiery Co., 36 N. J. Eq. 188. ]Veto York. — Govin v. Miranda, 140 N. Y. 662, 35 N E. Rep. 628; New- York, etc., Ferry Co. v. Moore, 102 N. Y. 667, 1 N. Y. St. Rep. 374; Wohl- fahrt V. Beckert, 92 N. Y. 490; Koehler v. Adler, 78 N. Y. 287 ; Fore- man V. New York City E. Co., 104 N. Y. Supp. 932; Hartman v. Inter- urban St. R. Co., (Supm. Ct. App. T.) 88 N. Y. Supp. 352; Litzky v. Horowitz, (Supm. Ct. App. T.) 87 N. Y. Supp. 136; Becker v. Woarms, 72 N. Y. App. Div. 196, 76 N. Y. Supp. 438; Kennedy v. McAUaster, 31 N. Y. App. Div. 453, 52 N. Y. Supp. 714; Stilwell v. Carpenter, (Ct. App.) 2 Abb. N. Cas. (N. Y.) 238, 256; Bruce v. Kelly, 39 N. Y. Super. Ct. 27, 37; Newcombe v. Hyman, (Supm. Ct. App. T.) 16 Misc. (N. Y.) 25, 37 N. Y. Supp. 649; Hanlis v. Hanlts, 3 Edw. (K Y.) 469. North Carolina. — Noland v. M'Cracken, 1 Dev. & B. L. (18 N. Car.) 594. Pennsylvania. — Shultz v. Wall, 134 Pa. St. 262, 19 Atl. Rep. 744; Lamb v. Irwin, 69 Pa. St. 436; Grambs v. Lynch, 20 W. N. C. (Pa.) 376; Troxell v. Malin, 9 Pa. Super. Ct. 483, 491. Rhode Island. — Gorman v. Hand Brewing Co., (R. L 1907) 66 Atl. Rep. 209. South Dakota. — McGill v. Young, 16 S. Dak. 360, 92 N. W. Rep. 1066; Lighthouse v. Chicago, etc., R. Co., 3 S. Dak. 518, 54 N. W. Rep. 320. Texas. — Stitzle v. Evans, 74 Tex. 596, 600, 12 S. W. Rep. 326; Cheatham v. Riddle, 12 Tex. 112; El Paso F. & M. Co. V. De Guereque, (Tex. Civ. App. 1907) 101 S. W. Rep. 814; Missouri, etc., R. Co. v. Harris, (Tex. Civ. App. 1907) 101 S. W. Rep. 506; Galveston, etc., R. Co. V. Murray, (Tex. Civ. App. 1908) 99 S. W. Rep. 145, 148; Mercantile, etc., Co. V. Landa, (Tex. Civ. App. 1897) 40 S. W. Rep. 406. Washington. — Gosline v. Dryfoos, (Wash. 1907) 88 Pac. Rep. 634; Keene v. Behan, 40 Wash. 505; Coey V. Darknell, 25 Wash. 578. Wisconsin. — Zimmerman v. Ban- non, 101 Wis. 407, 77 N. W. Rep. 735; Moore v. Ellis, 89 Wis. 108, 111, 61 N. W. Rep. 291; Stuttgen V. Wisconsin Cent. Co., 80 Wis. 498, 502. United States. — Parulo v. Phila- delphia, etc., R. Co., 145 Fed. Rep. 664, 676; The Dauntless, 121 Fed. Rep. 420, 422; U. S. v. Lee Huen, 118 Fed. Rep. 442, 458; Lee Sing Far v. U. S., (C. C. A.) 94 Fed. Rep. 834; In re Jew Wong Loy, 91 Fed. Rep. 240; Grand Trunk R. Co. v. Cobleigh, (C. C. A.) 78 Fed. Rep. 784, 786; Wetzel V. Minnesota R. Transfer Co., (C. C. A.) 65 Fed. Rep. 23; Northern Pac. R. Co. V. Austin, (C. C. A.) 64 Fed. Rep. 211, 213; U. S. v. Borger, 7 Fed. Rep. 193, 199; The Helen R. Cooper, 7 Blatchf. (U. S.) 378, 11 Fed. Cas. No. 6,334. It is said that a question arising between the almost absolute improba- bility of the plaintiff's case from the defendant's point of view, and the somewhat like improbability of the defendant's case from the plaintiff's point of view, " is one to be solved by a, jury, and not by a judge pre- 138 UNCONTRADICTED TESTIMONY. [§ 92 mere swearing; it is the swearing credibly that is to conclude its judg- ment." i°i " I think it is impossible to give credit to testimony that would prove infinitely more than can be brought within the bounds of probability," said Lord Westbury.^"^ " We do not understand that the credulity of a court must necessarily correspond with the vigor and positiveness with which a witness swears," said Judge Baldwin of California. " A court may reject the most positive testimony, though the witness be not discredited by direct testimony impeaching him or contradicting his statements. The inherent improbability of a statement may deny to it all claims to belief." '»' Mr. Justice Livingston of the United States Supreme Court said: " It is certain that a story may be so very improbable that although attested to by more than one credible witness, no one would be bound to believe it." "^^ " There may be the best of reasons for discrediting witnesses. There may be circumstances in evidence which, in the opinion of the trier, ought to outweigh any amount of assertions." "° So while the testi- mony of a druggist's clerk that when he gave a customer some medi- cine in a vial he warned him that it was a poison would not be improb- able, the fact that the customer took the medicine as if he had received no notice that it was harmful, and died from the effects of it, might well give to the testimony a complexion af improbability."® The apparent maturity of a defendant who testifies to his infancy when he gave a note may render his testimony so improbable as to require its submission to the jury.^"" A jury may be convinced from a party's siding at a common-law trial, either i»5 Lewis v. Lewis, 76 Conn. 586, before or after verdict." Kelley v. 57 Atl. Rep. 735, per Prentice, J. Ounard Steamsliip Co., 120 Fed. Rep. "Admitted faets are sometimes just 536, 541, per Putnam, C. J. as potential to impeach a witness as 101 The Odin, 1 O. Rob. 248, 252, positive testimony." Zimmerman v. quoted in The Dolphin, 7 Fed. Cas. Bannon, 101 Wis. 407, 77 N. W. Rep. No. 3,975. 735, per Bardeen, J. See also Ei- i02]sreilson v. Betts, L. R. 5 Eng. wood v. Western Union TeJ. Co., 45 & It. App. cas. 1, 20. N. Y. 549, 554. 103 Blanfcman v. Vallejo, 15 Cal. los Wohlfahrt ». Beekert, 92 N. Y. 63», 646. 490. 104 The William Gray, 1 Paine (U. i<>' Waterman j>. Waterman, (Snpm. S.) 16, 29 Fed. Oas. No. 17,694 (at Ct. App. T.) 42 Misc. (N. Y.) 196, p. 1302). 85 N. Y. Supp. 377. § 93] UNCONTRADICTED TESTIMONY. 139 letters that he received the other" party's letters, despite his denial of their receipt.'"* Further discussion of the subject of improbabilities and incredibili- ties will be found in another chapter.^'''' § 93. Abstract Improbabilities. — It was said by the United States Supreme Court that " there may be such an inherent improbability in the statements of a witness as to induce the court or jury to disregard his evidence, even in the absence of any direct conflicting testi- mony." *'" And the phrase " inherent improbability " is frequently used by judges in characterizing testimony held to be inconclusive.*'* " This court is not bound to accept the statement of any witness simply because his testimony is uncontradicted, nor even when cor- roborated by other witnesses, if the story they all tell bears the ear- marks of inherent improbability and is unreasonable," declared the United States Circuit Court of Appeals.''^ It is doubtful whether any of the courts intend by this locution to sanction the rejection of testi- mony abstractly improbable. It would be a monstrous proposition that an improbable fact cannot be established in a court of justice."' " Express testimony cannot be rejected on the sole ground of its improbability," said Chancellor Green of New Jersey.'** In his view, for the purpose of discrediting a witness the whole force of the objec- tion to his testimony must consist in the position that it was impossible for it to be true.*'° The rule governing the subject has been stated as follows by the Minnesota Supreme Court ; " In all cases the positive testimony of an otherwise unimpeaehed witness can only be disregarded when its improbability or inconsistency furnishes a reasonable ground for doing so, and this improbability or inconsistency must appear from facts and circumstances disclosed by the evidence in the case. It cannot be arbitrarily disregarded by either court or jury, for reasons resting tosMair v. Ouly, 10 U. C. Q. B. 32]. "' See post, §§ 135, 136. too gee post, chap. IV. m Berokmans v. Berckmans, 16 N. 110 Quock Ting v. U. S., 140 U. S. J. Eq. 122, 127, quoted with approval 417, 420, per Field, J. in Coonrod v. Kelly, 113 Fed. Rc^. in It is used in many of the oases 378, 381, per Kirkpatrick, D. J. cited aupra, note 100. n^ Berckmans v. Berckmans, 16 N. WThe Dauntless, (C. C. A.) 129 J. Eq. 122, 127. Fed. Rep. 715, 721, per Hawley, D. J. 140 UNCONTRADICTED TESTIMONY. [§ 93 wholly in their own minds, and not based upon anything appearing on the trial." ^^° A more specific statement in the same line is found in the opinion of a judge of the Illinois Appellate Court. " It would hardly be a safe practice to ignore the testimony of unimpeached witnesses because what they say they did in a business transaction may not appear to be the wisest and safest thing to do, under the circum- stances. Eacts attested by the oath of credible witnesses must stand even in the face of a clear and forcible argument, that, Judging by the ordinary course of business affairs, the fact should have been diSerent from what it is sworn to be." "'' It has been said that " there is no limit to the eccentricities of men," and that testimony should not be disbelieved solely because it " borders on the incredible." ^^^ Certainly a jury is at liberty to believe facts wliich witnesses testify to, even if they would be considered highly improbable without such testimony. " That the improbable and unlooked-for do sometimes occur is com- mon experience." ^^' There must necessarily be a difference between an improbability that a given fact would occur and an improbability that it did occur. Improbability of the latter sort may arise out of incongruity in the several parts of a witness's own testimony, one part rendering another part improbable. It would be a solecism to say that facts and circum- stances which, if proved by other witnesses, would make his testimony unbelievable are less efficacious to that end simply because he admits their existence. When a witness makes an abstractly improbable state- ment every additional fact to which he testifies and which is inconsist- ent with that statement tends to create an improbability arising out of the testimony in the case. His testimony then becomes inconclu- 110 Winona Second Nat. Bank v. prove large and reckless ventures. Donald, 56 Minn. 491, 58 N. W. Rep. It takes but slight evidence to prove 269, per Mitchell, J. u. contract to do or not to do a given 117 Dunn V. Weir, 34 111. App. thing within the power of the con- G12, per Reeves, J. See also post, tracting parties where there is no § 175. conflicting or contrary evidence." " Courts can hardly establish a rule Dunlap v. Smith, 25 111. App. 288, which will authorize the rejection of per Moran, P. J. unimpeached evidence because its us Dolhonde v. Lemoinc, 32 La. direct tendency is to prove that men Ann. 251, 256, per Manning, C. J. engaged in speculation on the board ii» Berger r. Chicago, etc., R. Co., of trade contracted hastily and in a 97 Mo. App. 127, 71 S. W. Rep. 102. few words to engage in what might See also post, § 13G. § 94] UNCONTRADICTED TESTIMONY. 141 sive, and, taken as a whole, may not inaptly be called "inherently improbable." Some further discussion in the same line will be found in the following chapter.*'"' § 94. Illustrations of Improbability. — In a case in the New York Court of Appeals, where the action was by a real estate broker against the personal representatives of a deceased customer to recover an alleged agreed compensation for effecting a sale, and the only witness as to the contract was the son of the plaintiff, whose own compensa- tion depended upon the plaintiff's success, and the compensation alleged to have been agreed upon was more than double the usual com- pensation, it was held that the statement of the witness, under those circumstances, was not so entirely free from improbability as to justify a direction of the court to the Jury to find a verdict for the plaintiff, although there was no direct contradictory testimony presented. The court said : " It is undoubtedly a general rule that when a disinter- ested witness, who is in no way discredited, testifies to a fact within his own knowledge, which is not of itself improbable or in conflict with other evidence, the witness is to be believed, and the fact is to be taken as legally established, so that it cannot be disregarded by court or jury. . . . But this case is not fairly brought within this rule. Here the witness was not wholly disinterested. He was a son of the plaintiif, engaged in his business, and thus biased and interested in feeling. His compensation for drawing the contracts (and how large that was to be does not appear) depended, I infer from the evidence, upon his father's success in getting his compensation as the broker." The court tlien went on to observe that the story told by tlie witness was not entirely free from some improbability, and that it did not appear why the broker was promised more than double the usual price for the sale of country property, nor why the compensation was never spoken of before or after in the numerous conversations heard by the witness, nor what could have induced the promise of the large sum when the usual commission would seem to have been ample compensation for any ser- vice to be rendered, nor why the party made the unusual promise to pay the absolute sum in no way dependent upon the amount for which the property might be negotiated. These circumstances, the court thought, presented a sufficient case for the consideration of the jury, 120 See post, § 137. 142 UNCONTRADICTED TESTIMONY. [§ 95 and it held that the court below erred in refusing to submit it to them."^ A party's testimony to facts indicating that he was a bona fide holder of negotiable paper must go to the jury where the evidence shows that his conduct was unusual, imprudent, and inconsistent with the character which he seeks to maintain.*^^ Uncontradicted testimony of a witness that another person was guilty of conduct which, under the circumstances, was almost certain to produce instant death to him need not be credited by a court, for " self-preservation is said to be the first law of nature." ^^' Testimony of a party which shows that he did not take such care of his valuable account books as would ordi- narily be expected of a reasonably prudent man engaged in the same magnitude of business, should go to the Jury.'^^'' In a divorce suit by a wife on the ground of her husband's impotency, her testimony that during their cohabitation he made no offer to have sexual intercourse with her, even though it be uncontradicted, is marked by sufficient improbability to relieve the court from the absolute obligation to believe her.^^* § 95. Improbability on the Score of Memory. — Improbability in testimony justifying submission of the credit of a witness to a jury or disbelief of the testimony in a case tried by the court may consist in his professed want of recollection of matters which, according to the laws regulating the human memory,^^" he cannot rationally be supposed to have forgotten ; ^" or, conversely, in his asserted recollection of matters which, because of inattention, lapse of time, or other circum- stance, he would naturally have forgotten.^^* " The law is well settled that a witness may very seriously impair his credibility by swearing 121 Kavanagh v. Wilson, 70 N. Y. 126 Lorenz v. Lorenz, 93 111. 376, 177, 179. 378. 122 Canajoharie Nat. Bank v. i^« See posi, § 830. Diefendorf, 123 N. Y. 191, 200, 25 127 /» re Leslie, 119 Fed. Rep. 408, N. E. Rep. 402. 411. 123 The Dauntless, (C. C. A.) 129 12s See McNulty v. Hurd, 86 N. Y. Fed. Rep. 715, 720, per Hawley, D. J. 547, 553; Metropolitan El. R. Co. v. As to the presumption based on the Manhattan El. R. Co., 11 Daly (N. instinct of self-preservation, see post, Y.) 373, 52.'i; American Bell Tele- § 554 et seq. phone Co. r. People's Telephone Co., 124 Goldsmith v. Coverly, 75 Hun 22 Fed. Rep, 313, 336; Holmes v. (N. Y.) 48 (at p. 53), 27 N. Y. Supp. Connable, 111 Iowa 298, 82 N. W. 116 (at p. 119), Rep. 780, § 96] UNCONTRADICTED TESTIMONY. 14:3 positively and minutely to occurrences which were not of such a nature as to impress themselves forcibly upon his memory." ^^° Where the circumstances surrounding the whole matter leave a decided impression that a witness is mistaken in his recollection of a transaction,"" or where his testimony given at different times exhibits discrepancies indicating that his memory is unreliable,^^^' his testimony is not con- clusive. And it was so held where the only witness called to establish an oral contract failed to define its terms with clearness or accuracy.^^^ Great lapse of time may alone be sufficient to make it unsafe to rely upon the memory of a witness who testifies to a fact of ancient date.^'' In a divorce case a witness swore that he saw adultery committed fifteen years before, but admitted that when inquiry was first made of him he did not recollect the fact; that it had entirely faded from his memory, and that it was not until he had made an effort that his recollection of the fact returned. " Standing alone and uncontra- dicted," said the court, " I think it might well be doubted whether the measure of proof thus furnished would be sufficient to justify a judgment of divorce." "* But it was held that an interested witness's uncontradicted testimony that at a particulai time he had no recollection of a fact of which he had been casually informed more than a year before must be accepted by the jury as true where his failure to recollect is perfectly credible under all the circumstances.^^^ § 96. Improbability in Chinese Deportation Case. — In a case in the United States Supreme Court the facts were that the petitioner, who was also the appellant, was a member of the Chinese race, but 128 Lee Sing Far v. U. S., (C. C. rels Whiskey, 11 Int. Eev. Eec. 94, A.) 94 Fed. Rep. 834, per Hawley, 25 Fed. Cas. No. 15,091. D. J., citing Willett v. Fister, 18 132 Lautaer v. Kann, 184 Pa. St. Wall. (U. S.) 91, 97. See post, 334, 39 Atl. Rep. 55. § 731. 133 See Shipman v. Cook, 16 N. J. 130 Baker «>. Fireman's Fund Ins. Eq. 251, 253. And see, generally, Co., 79 Cal. 34, 41, 21 Pac. Rep. 357. post, § 750. See also Felton v. Newport, (C. C. A.) is* Cane v. Cane, 39 N. J. Eq. 148, 105 Fed. Rep. 332. 159. 131 Arnold v. Metropolitan L. Ins. 13= Sergent v. Liverpool, etc., Ins. Co., 22 Pa. Super. Ct. 575. See also Co., 66 N. Y. App. Div. 46, 73 N. Y. Breemersch v. Linn, 101 Mich. 64, 59 Supp. 120, 96 N. Y. App. Div. 117, N. W. Rep. 406; U. S, v. Fifty Bar- 89 N. Y. Supp. 35. 144 UNCONTRADICTED TESTIMONY. [§ 96 claimed to have been born within the United States, and consequently to have been a citizen thereof. He was sixteen years of age, and arrived at the port of San Francisco in the steamship City of New York, in February, 1888. The officers of customs refused to allow him to land, holding that he was a subject of the emperor of China, and within the restrictions of the Act of May 6, 1882, and the sup- plementary Act of 1884. He was accordingly detained on board by the captain of the steamship; and he applied, through a friend, to the Circuit Court of the United States for the northern district of Cali- fornia for a writ of habeas corpus to obtain his discharge from such detention, alleging that he was not within the restrictions of the Acts of Congress, but was a citizen of the United States, having been born thereia. The writ was issued and the petitioner brought before the court, when his testimony and that of his father were taken in support of his pretension. He testified as to his birth, as counsel observe, with sarprising particularity. His story was that he was sixteen years old; that he was born in San Francisco, " on Dupont street, upstairs," and remained in that city until he was ten years of age, when he went to China with his mother. He also mentioned the names of three persons on the ship whom he knew. When asked how he remembered their names, he answered, " When I got to China, my mother told me very often of those people and their names; she repeated them to me, and I remember them." When reminded that that was six years before, he responded, " My mother sometimes speaks those names to me very frequently." His mother was in China, and he knew nothing of the three men named. Although in the city, according to his statement, for ten years, he did not, upon his examination, show any Imowledge of any places or streets therein, or of the English language. The fol- lowing is a specimiin of his testimony : " Q. Can you count in English ? 4. I do not understand English. "(?. Can you count in English? A. I can count in Chinese, but not in English. " Q. Do you loiow the names of the days of the weelc in English ? 4. T am too small; T did not learn it. " Q. You do not know anything at all in English? A. No, sir; not a word." Not did he mention any circumstance, incident, or occurrence, except being born in Dupont street, upstairs, which would lead one to suppose that he had ever been in the city, His only memory seemed § 96] UNCONTRADICTED TESTIMONY. 145 to be of the names of the three men who accompanied him back to China, whom he had not seen since, and whose names he only knew from having heard his mother repeat them. The father, who was examined, stated that he worked on a sewing machine; that the peti- tioner was his boy, and that he was born " at 1030 Dupont street, upstairs," and went to China with his mother and one of the witness's friends, and that he wanted his boy to come back to learn English. He also produced what he called his " store book," in which he had entered the purchase of a ticket for tlie boy and his mother. He gave no particulars of his residence in San Francisco, of his having a family there, or of his being known among his neighbors or others as having any children. The court, after hearing these witnesses, held that the petitioner was not illegally restrained of his liberty, but was a Chinese person forbidden by law to land within the United States, and had no right to be or remain therein. It accordingly discharged the writ, and ordered that the petitioner be remanded to the marshal to be returned to the captain of the steamship. In affirming the judgment of the court below, Mr. Justice Field said : " The question presented is whether the evidence before the court below was sufficient to show that the petitioner was a citizen of the United States. The testimony given by himself amounted to very little; indeed, it was of no force or weight whatever. The particularity and positiveness with which he stated the place of his birth in San Fran- cisco was evidently the result of instruction for his examination on this proceeding, and not a statement of what he had learned from his parents in years past. And his failure to mention any particulars as to the city of San Francisco, which he certainly ought to have been able to do it he resided there during the first ten years of his life, was surprising. A boy of any intelligence, arriving at that age, would remember, even after the lapse of six years, some words of the language of the country, some names of streets or places or circumstances that would satisfy one that he had been in the city before. But there was nothing whatever of this kind shown. He gave the name of no person he had seen ; he described no locality or incident relating to his life in the city; nor did he repeat a single word of the language, which he must have heard during the greater part of several years, if he was there. The testimony of the father was also devoid of any incident or circumstance corroborative of his statement. The production of the FACTS — 10 146 UNCONTRADICTED TESTIMONY. [§ 96 so-called ' store book,' in which there was an entry of passage money paid for the boy and his mother, does not .strike us as at all conclusive. The accounts of a mere worker on a sewing machine wonld not be likely to occupy much space, and the alleged entry could as easily have been made as the manufacture of the story repeated. If we could not believe the £tory in the absence of the hook, we should hesitate to yifild credfiOiCe ±Q it upon the exhibition of the enfa-y. If the petitioner was really born in the United States, and had lived there during the first ten years of his life, the fact must have been known to some of the father's neigh- bors, and iucidents could readily have been given which would liave placed the statement of it beyond all question. It is incredible that a j!ather would allow the exclusion of his son from the country where he lived, when proof of his son's birth and residence there for years could have been easily shown, if such in truth had been the fact. Undoubt- edly, as a general rule, positive testimony as to a particular fact, uncontradicted by any one, should control the decision of the <30urt, but that rule admits of many exceptions. There may be such an inherent improbability in the statements of a witness as to induce the court or jury to disregard his evidence, even in the absence of any direct conflicting testimony. He may be contradicted by the facts he states as completely as by direct adverse testimony; and there may be so many omissions in his account of particular transactions, or of his own conduct, as to discredit his whole story. His manner, too, of testifying may give rise to doubts of his sincerity, and create the impression that he is giving a wrong coloring to material facts. All these things may properly be considered in determining the weight which sliould be given to his statements, although there be no advei-ge verbal testimony adduced," *^'' 13« Quoe)c Ting v. V. S., 140 U. S. and uncontradicted testimony. The 417. See also U. S. v. Lee Huen, 118 single question is one of fact, whetl»er Fed. Rep. 442, and several other the petitioner was born in tliis Chinese deportation cases cited supra, country or not. On the hearing he note 100. was represented by counsel; so was In the Quock Ting case, supra, Mr. the government. He testified that Justice Brewer (JiBgented in the fol- he was sixteen years old, was born lowing opinion : " I am unable to on Dupont stieot in San Francisco, agree with the conclusions reached and named the place on that street; by the court. They seem to nic to be that he lived there until he was ten In the face of positive, unimpeached, years of age; and that he then went 97] UNCONTRADICTED TESTIMONY. U7 § 97, Improbability — Evidence in Coatrol of Oa« Party. — In a case where the real controversy was whether the £acts were such as to bring the provisions of the Act of Congress called the Harter Act into operation for a vessel's benefit, iniich testimony was given on the part of the vessel to show that every precaution was taken and that every valve was closed before the vessel went to sea. " But all testimony given imder these conditions," said the eourt, " reqiiires close scrutiny, and it is not necessarily to he accepted unless found to be inherently worthy of belief. Where an acoount of circumstances leading to a loss is entirely within the control of one side of a controversy, there is more of a burden upon such party than where the matter has been open to the other side for an ascertainment of the facts." ^^' with his mother, on the steamer Eio de Janeiro, to China. With them on the steamer were three friends of the family, whose names he gave. His father, who was also a witness, testi- fied that the boy was born in San Francisco, at the place named, No. lOSO Dupont street; that he remained there until ie was ten years of age; and that at that time he sent the petitioner, with his mother, back to China. He gave the day and the year on which the boy sailed. He gave as a reason for sending his wife and son back to China, that his parents were old, and as he could not go himself, sent her to attend on than. He produced his store book on which ap- peared an entry of the purchase of the tickets for the boy and his mother, an entry of date the day before that on which the steamer named sailed. No witness was called to contradict this testimony. They were the only witnesses. The only thing which makes against the boy's testimony is the fact that he did not know a word of English. But is it strange that a boy born and brought up iji a Chinese family, and living until he was ten years old in that part of San Francisco whicTi is practically a Chinese town, and then taken back to China, should know only the Chinese language 1 It is true he did not give the details of his boyhood in San Francisco, but no question was asked of him in respect to them. If the government, through its counsel, wished to discredit his positive testi- mony, it was its province, on cross- examination, to question him as to his knowledge of various localities in San Francisco, and of events which happened during the time he claimed to have resided there. The books of the steamer, if accessible, were not produced to show that no such pas- sengers sailed on the trip named. No attempt was nsade to contradict either father or son, or impeach either, unless the ignorance of the English language is to be considered as impeachment. The government evidently rested on the assumption that because the -witnesses were Chinese persons they were not to be believed. I dfl not agree with this.'' Credibility of Chinesej see post, § 1023. 137 The Manitou, 116 Fed. Kep. 60, 63, per Adams, D. J. See also ante, § 45. 148 UNCONTRADICTED TESTIMONY. [§ 98 § 98. Testimony Opposed by Presumptions or Inferences. — It was remarked in one of the leading New York cases that "where un- impeached witnesses testify distinctly and positively to a fact, and are uncontradicted, their testimony should be credited and have the effect of overcoming a mere presumption." ^^^ By " mere presumption " the court probably meant to designate those presumptions which are employed only to locate the burden of proof and which have no intrinsic probative value. Thus, the quotation from the New York case just cited was used in three cases where the courts were speaking of the maxim res ipsa loquitur in actions against common carriers of pas- sengers, and pointing out that the presumption connoted by the maxim would be overcome by uncontradicted credible testimony to proper care on the part of the defendant.'^" Nevertheless, in one of those cases the uncontradicted testimony was held not to be controlling on the jury because it was accompanied by some circumstances of improb- ability ; ^*° and in another case because it was given by witnesses who would be guilty of a criminal fault unless they vindicated them- selves.''*^ The terms " presumption," " circumstantial evidence," and " in- ference " are often used interchangeably ; ^*^ and the two latter terms may describe evidence of notoriously great probative value — evidence so cogent as to make contrary direct testimony improbable, and there- fore to deprive the latter of conclusive effect under the rule we are discussing.^*^ For example, testimony of the addressee of a letter duly posted, that he did not receive it, raises a question of credibility for the jury,^** since there is a strong natural presumption, founded in common experience, that a letter thus posted reached its destination by usElwood V. Western Union Tel. New York Cent. R. Co., 9 Fed. Rep. Co., 45 N. Y. 549, 553, per Rapallo, .1. 877. Testimony of witnesses who are nn- "o Gorman v. H.and Brewing Co., contradicted and not even cross- (R. T. 1907) 66 Atl. Rep. 209. See examined will overcome a, statutory also supra, § 92. presumption of negligence. Mempliia, i" Robinson v. New York Cent., etc., R. Co. V. Shoecraft, 53 Ark. 96, etc, R. Co., 9 Fed. Rop. 877, 878. 13 S. W. Rep. 422. See also svprn. 5 87. 139 Murray v. Pawtuxet Valley St. us See Wigmore on Evidence, § R. Co., 25 R. I. 209, 55 Atl. Rep. 491; 2491. Gorman v. Hand Brewing Co., (R. I. n-' See sii/ira, 92. 1907) 66 Atl. Rep. 209; Robinson v. i'itNe\ibert r. Armstrong Water Co., 211 Pa. St. 582, 61 Atl. Rep. 123. §§ i)9, 100] UNCONTRADICTED TESTIMONY. 149 due course of mail.^*^ There is a strong presumption that the terms of a written instrument express the real intention of the parties.^*" This presumption is evidence, so that tlie testimony of a party seeking to have the instrument reformed, that the intention is not correctly ex- pressed in the instrument, cannot be regarded as uncontradicted testi- mony within the rule which requires such testimony to be believed.^*' It has been held that the presumption of jurisdiction in favor of the judgment of a Superior Courl. renders inconclusive the testimony of a party impeaching the judgment that his appearance in the original cause was entered without his authority.^''^ When it is proposed to contradict the direct testimony of uu- impeached witnesses by inferences from facts, this result cannot be reached unless the existence of these facts and the natural inferences from them cannot be reconciled with the conclusion that the direct evidence is true.^*' § 99. Testimony Contradicted by Physical Facts. — The testimony of a witness to that which is physically impossible must be rejected as not in accordance with the truth of the matter, even if not contradicted by the direct testimony of any other witness.'^^'' The physical appear- ance of witnesses testifying that they are minors may go far to dis- credit their testimony.^^' Subject-matter of Testimony. § 100. Testimony to Witness's Mental Processes. — A party's tes- timony as to his intent in performing an act is not conclusive, where the act was not in and of itself of so unequivocal a nature as to be con- clusive evidence of his intent."*^ So where the plaintiff was struck by a 1*5 See post, § 551. i*' American Freehold Land Mortg. "c See ante, § 49. Co. v. Whaley, 63 Fed. Rep. 743, 747, 1*7 Harter v. Christoph, 32 Wis. per Simonton, C. J. 245; Meiswinkel v. St. Paul F. & M. loo See post, § 149. Ins. Co., 75 Wis. 147, 43 N. W. Rep. isi Garbarslcy v. Simkin, (Supm. 669. See also Dean v. Metropolitan Ct. App. T.) 36 Misc. (N. Y.) 195, El. R. Co., 119 N. Y. 540, 550, 23 73 N. Y. Supp. 199. N. E. Rep. 1054. i''- Bank of British North America 1-18 Kahn v. Lesser, (C. PI. Gen. v. Delafleld, 126 N. Y. 410, 417, 27 T.) 28 Abb. N. Cas. (N. Y.) 77, 18 N. E. Rep. 797. See also Dickinson N. Y. Supp. 98. V. Dickinson, 167 Mass. 474; Com. v. 150 UNCONTRADICTED TESTIMONY. [§ l&l discarded carbon thrown away by the defendant's servant while remov- ing burnt carbons from street lamps, and the servant, testifying for the defendant, stated that he threw the carbon to attract the plaintiff's attention in order to speak to him, and not in promotion of any bnsiness of the defendant, it was held to be a fair qnestion for the jury whether the explanation given by the witness was ti'ue or not. " When the defendant's liability depends upon the purpose of an act that is merely neutral so far as outward manifestations are concerned," said the court, " it would be strange if the jury were not at liberty to disbelieve the testimony of one employed by the defendant, as to his mental pro- cesses. In that connection, it was proper for the jury to take into con- sideration the fact that not only was this witness at the time of the trial in the employ of the defendant, but also that he had been taken back into its employ only two weeks before the trial ; and the jury may have also believed that, from the terms in which his testimony was couched, it was evident that the witness had a particular knowledge of what the law required to exonerate the defendant from liability." ^'^ Where the question was one of fraudulent intunt and respected the purpose of the witness, and his statement of honesty and innocence was uncontradicted except by the logic of facts and circumstances and the force of natural inferences, his credibility was for the jury.^'* In a divorce case on the ground of desertion the statement of the defendant husband as to his mental conclusion may be confronted with the facts and circumstances of his conduct, his letters and declarations, so that the court is then at liberty to believe or to doubt and reject his testi- mony.^^'' § 101. Testimony to legal Conclusion. — Citizenship is a mixed question of law and fact. The testimony of a party, however honestly given, that his or her citizenship is in a given state, such testimony being not the statement of a simple I'act, but an ultimate conclusion, involving the construction and application of legal rules, is far from being conclusive on a jury.'"^" Kendall, 102 Mass. 221, 38 N. E. 1=4 Becker r. Koch, 104 N. Y. 39i4, Rep. 504; Stewart r. Outhwaite, 141 10 N. E. Rep. 701. Mo. 562, 44 S. W. Rep. 326. 105 Cross v. Cross, 108 N. Y. 629, 153 Hankinson v. Lynn Gas, etc., 15 N. E, Rep. 333. Co., 175 Mass. 271, 5B N. B. Rep. iso Allen v. Southern California R. 604, per Loriiig, J. Compare Wig- Co., 70 Fed. Rep. 370. more on Evidence, § 581. § 102] UNCONTRADICTED TESTIMONY. 151 § 102. Tesfimony to Statements Made in Gonversatton. — In one of the leading cases it was held that if the testimony relates to declara- tions or conversations happening some time before the witness is called? to testify, and the precise wotds are important to the point in isstter, and the witness, though confident, is not positive in his testimony, the j'Ury are at liberty to refuse snch entire credit as niay be necessary to satisfy them that the words in question are fully pTOVed.^^^ "We Shall elsewhere see that it is a competent way to establish the existence of a material fact in a legal controversy, to prove the adnii^sibne of a party of the fact sought to be established against him,'-^^ but tha^ testimony to oral admissions is always received' with great caution and scrutiny.'^^ It has been declared that as a general rule it is for a jury to say whether the admission, as made, establishes to their satisfaction the fact in issue. ^'"' Although oral admissions, like written admissioilB,- are strong evidence against a party when clearly proVed,^"^ it is quite' likely that the strict examination to which such evidence is always subjected will generally reveal enough to make the fact of their utter- ance or their effect if uttered a debatable question, and thus require their submission to the jury under any rule governing the weight of uncontradicted testimony. The faculty of memory is notoriously untrustworthy as to the exact words used in conversations ; *°- and, as we have already seen, where the memory of a witness- is manifestly imperfect as to the facts which he relates, his testimony must go to the jury.^*' At any rate, in a case where two witnesses having no personal knowledge of the facts to be establislied testified to oral admissions made to both of them by the defendant in the same interviews, in the course of somewhat extended conversations, the witnesses repeating what was &flid substantially alike, but not in the same words and' phrases, it was held that a verdict ought not to be directed on their uncontradicted and unimpeached testimony. " I'or the purpose oi determining the particular facts admitted by the defendant, by tba' body of evidence as given by these witnesses," said the court, " the same must be scanned, scrutinized, recondled, the meaning of words 157 Harding v. Brooks, 5 Pick. iso SfieKigan Carbon Works v. (MStsB.) 24tf: Sehad, 38 Hun (N. Y.) 71, 75. 158 See post, f 1170. loi See post, § 1170. «» See puMt, § 1148. 102 See post, § 873" e« seq. 163 See supra, § 9fS. 152 UNCONTRADICTED TESTIMONY. [§ 103 and phrases considered, and all the facts and circumstances under which the conversation took place must be weighed and reflected upon with a view of determining the particular fact or facts which the defendant did admit. This was the province of the jury and not of the court. It may be that the jury would be justified in finding the defendant was indebted in the sum for which judgment was ordered, and that the evidence would not leave the question in much doubt in the mind of any intelligent and impartial person; nevertheless, as a deduction was to be made from the particular facts stated by the defendant, the question was for the jury." ^"^ Especially is such testi- mony to be submitted to a jury where the witnesses are agents or attorneys of the party for whom they testify, and have charge of the very claim or matter concerning which the alleged admissions were made.^"^ It is well known that witnesses testifying under such circum- stances are peculiarly the victims of aberration of memory.^""* § 103. Testimony to Declarations of Deceased Persons. — Testi- mony to alleged declarations of deceased persons, especially if prejudi- cial to themselves, is generally pronounced the weakest and most unsatisfactory kind of evidence, as well as dangerous.^"^ Frequently where a plaintiff's case rests upon alleged oral admissions by a dece- dent, " there is no defense that can be made, save as it may be found in the improbability of the stories of the plaintiff's witnesses, when tested by comparison with other evidence in the case or by the ordinary rules of human conduct under similar circumstances." ^^^ It would be difficult if not impossible to find in tlie books any ease where the court could not discover the presence of circumstances authorizing it to submit such testimony to a jury to pass upon the credibility of the witness or the accuracy of his recollection of what was said.^''" It has been held in New York that the credibility of a witness in an action by another person against an executor in his official capacity, who is manifestly hostile to the latter, and who testifies to admissions made by the testator, which cannot be contradicted, should be submitted to 104 Michigan Carbon Works v. 1C7 gee post, §§ 877, 884. Schad, 38 Hun (N. Y.) 71. i«8 Holmes r. Connable, 111 Iowa 165 Michigan Carbon Works v. 298, 82 N. W. Rep. 780. Schad, 38 Hun (N. Y.) 71. loo gee Coats v. Elliott, 23 Tex. 606, 100 See post, § 824. 013. § 104] UNCONTRADICTED TESTIMONY. 153 the jury."'" However, a court is not justified in disregarding the testimony of disinterested witnesses because they might possibly have been contradicted by other witnesses who were cognizant of the facts but who had died.^'^ § 104. Testimony to Prior Use in Patent Cases. — We have else- where seen that, according to the great weight of authority in the federal courts, a patent cannot be defeated on the ground of prior use of the patented article, unless the fact of prior use is established beyond a reasonable doubt, a mere preponderance of evidence being insuffi- cient."^ In view of the high degree of proof required it has been held that although the witnesses whose testimony attacks the validity of the patent are uncontradicted and unimpeached, yet if their testimony is based upon their unaided recollection of articles seen by them a great many years before,^^^ the trier of facts may be justified in concluding that their statements are not sufficiently to be depended on for the purpose of overturning a patent.^'* But the patented contrivance may be so simple,'^'" or the facts so recent,^''" as to repel any inference that 11 le witness is mistaken. And generally the testimony to prior use should be believed if the court is unable to discern any rational ground for concluding that it is not trustworthy.^''' Uncontradicted testimony of witnesses that articles exhibited by them in court, which are identical with the patented article, were produced long before the patent was granted, must be believed, " according to the ordinary rules by which evidence is to be weighed," where there is nothing whatever to cast discredit upon it.^'^ ""Dudley u. Satterlee, (N. Y. City "« Lein v. Myers, 97 Fed. Rep. Ct. Gen. T.) 8 Misc. (N. Y.) 538, 28 G07. N. Y. Supp. 741. See also Munoz v. i?' Pennsylvania Steel Co. v. Petti- Wilson, 111 N. Y. 295, 300, 18 N. E. bone, (C. C. A.) 141 Fed. Rep. 95, Rep. 855. 100; Riley v. Jackson, (C. C. A.) 56 171 The Minnehaha, (C. C. A.) 124 Fed. Rep. 582, 586; Rochester Coach- Fed. Rep. 210. Lace Co. v. Schaefer, 46 Fed. Rep. "2 See ante, § 56. 190; American Tubing, etc., Co. v. i"See post, § 753. Nicliolls, 70 Fed. Rep. 1009. "4 Union Paper-Bag Mach. Co. v. its Smith v. Elliott, 9 Blatchf. (U. Wateibury, 58 Fed. Rep. 566; Zane S.) 400, 22 Fed. Cas. No. 13,041, per V. Peck, 9 Fed. Rep. 101, 104. Woodruff, C. J. See also Inter- ims Rochester Coach-Lace Co. v. national Tooth-Crown Co. v. Bennett, Schaefer, 46 Fed. Rep. 190. 72 Fed. Rep. 169, 171. 154 UNCONTRADICTED TESTIMONY. |§ 105- Expert and Opinion Evidence. § 105. Expert Testimony in General. — A court or jury is not generally bound to accept the opinions of expert witnesses as con- clusive. It considers the facts upon which the opinions are based, and determines from all the evidence in the case whether the conclusions given by the witnesses are sound and substantial."" " Juries are not bound to accept opinions unless they consider them well founded." ^*'' The triers of fact may deal with such testimony as they please, giving it credence or not as their own experience or general knowledge of the subject may dietate.^^^ There are some points on which men of fair understandings who have had good opportimities for observation, will not readily surrender their convictions, even to the opinions of men of higher reach of mind, and whose special pursuits may have made them more conversant with such subjects. A little method, it is said, is worth a great deal of money, and with equal truth it may perhaps be said that on some questions which lie confessedly within the range of professional skill and experience, a little common sense may be worth a great deal of science. On the other hand, expert testimony, like all other testimony, is admitted in evidence for the purpose of being considered in determin- ing disputed facts, and it cannot be capriciously disregarded as entitled to no weight whatever. " Jurors have the right, and- it is their duty, to weigh the evidence in any cause in the light of their experience and observation, as to questions of fact common to such experience and observation ; but it would be erroneous to instruct a jury that they were 170 Overweight Counterbalance Ele- Brehm v. Great Western E. Co., 34 vaitor Co. v. rmproved Order of Red Barb. (N. Y.) 256 (opinion of Men's Hall Assoc., (CCA.) 94 Fed. scientific witnesses as to the cause Rep. 155 (patent expertff>. of a railroad accident); Lawlor v. isoBeaubien v. Cicotte, 12 Mich. French, (C PI. Gen. T.) 14 Misc. 459, 507, per Campbell, J. (N. Y.) 497, 35 N. Y. Supp. 1077; 181 Price V. Connecticut Mut. L. Ins. Health Dept. t). McAdanj, 13 N. Y. Co., 48 Mo. App. 281, 295; Western Weekly Dig. 118 (expert opimon& as Union Tel. Co. v. Guernsey, etc., Elec- to whether or not a privy had become trie Light Co., 46 Mo. App. 121 (ex- a nuisance or so ofTensrve as to be pert testimony as to absence of danger d«ngerous or prejudicial to health) ; from use of electric-light wires in Fox r. Borkey, 126 Pa. St> 164-, 17 proximity to telegraph wires) ; J. F. Atl. Rep. 604; The Conqueror, 166 Pease Fornsice Co. v. Kflsler, 21 N. Y. U. S. MO, 131 (opinions as to value App. Div. 631, 47 N. Y. Supp, 473; of services^of a. vessel). § 106] UNCONTRADICTED TESTIMONY. 155 authorized to reject as untrue the statement of an expert siiUpfy because their observation and experience had not confirmed the state- ment." '»^ And the opinion of an expert, that an accident could not have occurred if the testimony of witnesses who professed to have personal knowledge of the facts was true, may create a conflict of evidence sufficient to sustain the verdict of a jury in accordance with the expert's opinion.^^* § 106. Whea XTncontradicted Expert Testimony Is Gonclusive. — ^ " In a case where the esvidence and the facts to be dedu:eed theiefnxm. are imdisputed, and the case concerns a matter of science or specialized art or other matter of which a layman can have no knowledge, the jury must base their conclusion upon the testimony of the experts." ^^* UpoB the qxiestion: whether there was any other system better or as- well known, and which, indisputably, was more suitable than the one used by the defendant railroad company for the arresting of spark-^ from its locomotives, expert witnesses testified that this particular system was in general use on many of the large railroads, and on some was almost exclusively employed, and that it, in fact, arrested sparks as well as any kind that was known. The plaintiff gave no evidence to the contrary, and these facts stood proved by the evidence of seem- ingly respectable, intelligent, and credible witnesses, and the proof was uncontradicted. It was held that this testimony was conclusive, and that it was error to submit to the jury the question of the defend- ant's negligence in the adoption of a proper system or kind of spark arrester.^*^ Sir James Hannen said in regard to the testimony of an expert as to the law in a foreign country that he was bound to assume, in the absence of evidence contradicting the witness, that his, evidence was correct.**" It was held by the New York Court of Appeals that the testimony of experts, and especially of underwriters, upon the question of 182 Louisville, etc., R. Co. v. Malone, C. J. See also Ewing v. Goode, 78 109 Ala. 509, 20 So. Rep. 33. Fed. Rep. 442, 444, cited infra, § 107. 183 KoBter V. Noonan, 8 Daly (N. iss Frace v. New York, etc., R. Co., Y.) 2ai. 143 N. Y. 182, 188, 38 N. E. Rep. isiMoratzky v. Wirth, 74 Minn. 102. 146, 76 N. W. Rep. 1032, per Start, ise The August, (1891) P. 328, 345. 156 UNCONTRADICTED TESTIMONY. [§ 106 materiality of circumstances affecting the risk on a marine insurance policy, is an exception to the general rule concerning the weight of expert testimony. " When evidence of this character is necessary, for the reason that the fact is not sufficiently obvious to enable the court to decide it without aid, the testimony is to be treated as testimony of credible witnesses upon any other fact, and if there is no conflict the fact of materiality or immateriality must be held as all the witnesses testify. If there is a difference of opinion it then becomes a question of fact for the jury." ^*' However, in a later case in the same court, where expert testimony for the defendant was received upon the ques- tion of increase of risk on a fire policy, arising from the premises being left vacant, and no evidence was introduced on the part of the plaintiff contradicting directly the testimony of the defendant's wit- nesses, but the plaintiff gave evidence showing the location and con- dition of the property and the character of the neighborhood, the court said : " It must depend somewhat upon the facts of each case whether the testimony of experts is necessary, and whether it should be controlling." And referring to the language we have above quoted fiom the earlier ease on a marine policy, the court said it " is not applicable where a state of facts is presented upon which the jury, after receiving all the light which can be obtained from experts in regard to the general principles governing similar cases, are still called upon to decide whether in the case before them the theories of the experts are not rendered inapplicable by special circumstances proved. Here, although it must be conceded that the uncontroverted evidence establishes that as a general rule unoccupied buildings are exjiosed to greater risk of fire than when occupied, yet the jury had before them the evidence of the character of the neighborhood, the season of the year, and the brief period during which the premises remained vacant ; and although the question is not free from difficulty, we are inclined to hold that it was within the province of the jury to determine whether there was in this case an increase of risk within the intent of the policy, especially in view of the circumstance that the policy did not contain the condition, which is quite usual in fire policies, tliat leaving the premises vacant should avoid the insurance." "^ 187 Leitch V. Atlantic Mut. Ins. Co., Uapallo, J. Soo also Taylor i'. Seeiir- 66 N. Y. 100, 108, per Allen, J. ity Mut. F. Ins. Co., 88 Minn. 231, i""* Cornish i\ Farm Buildings F. !12 N. \V. Rop. 952. Ins. Co., 74 N. Y. 2D5, 298, /icr §§ 107, 108] UNCONTRADICTED TESTIMONY. 157 § 107. Testimony of Medical Experts in General. — A medical expert's testimony to his opinion is not generally accepted as con- clusive, even if it is not opposed by other expert testimony. ^^^ " The testimony is to be considered in view of the general knowledge of the witness upon the subject as to which he is sworn, his knowledge of the particular case, his opportunity for examination as to the facts upon which he bases his opinion, and the sufficiency of the reasons which he gives for the opinion he has; and if it should appear that his opinion is formed without the aid of facts necessary to enable him to come to a conclusion, that opinion may be disregarded, however confidently it is testified to by the witness." "■°'' But where a case concerns a disease with respect to which a layman can have no knowledge at all, such as the highly specialized art of treating an eye for a cataract or for the mysterious and dread disease of glaucoma, the court and jury must be dependent on expert evidence. There can be no other guide. ^'^ In a libel in admiralty to recover for personal injuries, the libelant stated particularly his injuries and their effect upon him, and called physicians to support his theory that his injury would be permanent; that his spine was affected, and that the muscles of one hip wei-e shrinking away. " There being no evidence in contradiction of this theory," said the court, " I must assume it to be true, although from the general appearance of the man I should not have supposed his injuries were so serious or of so endurable a character." ^"^ § 108. Testimony of Insanity Experts. — The opinions of expert witnesses as to insanity are not conclusive upon the jury. They are isoMoratzky v. Wirth, 74 Minn. Rep. 644; U. S. v. McGlue, 1 Curt. 146, 76 N. W. Rep. 1032; Hoyberg v. {U. S.) 1, 26 Fed. Cas. No. 1.5,679. Henske, 153 Mo. 64, 55 S. W. Rep. See also People v. Barberi, (Supm. 83 (expert testimony as to whether Ct. Grim. T.) 47 N. Y. Supp. 168. or not the defendant surgeon exercised i9o Weber v. Third Ave. R. Co., ]2 such skill and care in treating the N. Y. App. Div. 512, 42 N. Y. Supp. plaintiff's broken arm as, under the 789, per Rumsey, J. law, he should have exercised) ; Klein isi Ewing v. Goode, 78 Fed. Rep. V. Second Ave. R. Co., 54 N. Y. Super. 442, 444, per Taft, 0. J. Ct. 169; J. F. Pease Furnace Co. v. 102 McCord v. The Steamboat Tiber, Kesler, 21 N. Y. App. Div. 631, 47 6 Biss. (U. S.) 409, 15 Fed. Cas. No. N. Y. Supp. 473; Baxter v. Chicago, 8,715. etc., R. Co., 104 Wis. 307, 80 N. W. 158 UNCONTRADICTED TESTIMONY. [§§ 109, 13i) to be weighad like other evidence. Such evidence ifi intended to aid the jury, and its value depends largely upon the intelligence, experience, honesty, and impartiality of the witnesses, and their opportunity of knov^ing the traits and habits of the person whose miad is under investigation. Its weight is solely a question for the jury. They may reject it all, though it is without conflict.^"' " As for myself, I would rely as implicitly upon the opinion of prac- tical men, who form their belief from their observation of the appear- ance, conduct, and conversation of a person," said Judge Lumpkin of Georgia, "as I would upon the opinions of physicians who testify from facts proven by others, or the opinions even of the keepers of insane hospitals." ^°* § 109. Opinion Evidence to Handwriting — In General. — It is the general rule that the weight of expert opinion evidence to hand- writing, though uncontradicted, cannot be absolutely prescribed.^"' § 110. Nonexpert Opinion Evidence to Handwriting. — In a case in ISTew Jersey the defendant produced a receipt purporting to have been signed by the plaintifE. A witness for the defendant testified: " I have often seen [plaintiff] write, and take the signature to that receipt to be genuine. If the signature to this receipt had come to me in the course of business, I would not have hesitated to take it, from the general appearance of it." Whereupon the court admitted the paper. This was all the evidence there was at the trial, upon the genuineness of the receipt. " If the Jury rejected tlifi receipt on the ground of its genuineness, their verdict is against the weight of evi- dence," said the court. " It was proved in the ordinary way. It was losparrish v. State, 139 Ala. 16, 36 Ort v. Fo-nier, 31 Kan. 486, 2 Pae. So. Eep. 1012, per Tyson, J. See Rep. 580; Hawkins v. Grimes, 13 B. also Wiliiams v. State, 50 Ark. 511, Mon. (Ky.) 257, 263; State v. Bar- 9 S. W. Rep. 5. row, 31 La. Ann. 692; Moye v. Hern- is* Choice V. State, 31 Ga. 424, don, 30 Miss. 110; Magee r. Osborn, 466. 32 N. Y. 678; Koons v. Slate, 36 165 Lyon V. Lyman, Conn. 55, 62; Oluo St. 199; U. S. v. Pendergast, 32 Forgey v. Cambridge City First Nat. Fed. Rep. 201; U. S. t'. Moiloy, 31 Bank, 66 Tnd. 125; Christian )'. Pear- Fed. Rep. 20. See also Watson l>. son, 100 Iowa 635, 09 N. W. Rep. Browster, 1 Vn. St. 384; In re Bur- 1055; Lay r. Wissman, 30 Iowa 306; bank, 104 N. Y. App. Diy. 312, 93 Hyde P. VVoolfolk, 1 Iowa 159, 161; N. Y. Supp. 866. § 110] UNCONTRADICTED TESTIMONY. 159 not necessary for the defendant to prove more until it was to soscae extent impeached. If the Jury rejected it ae a forgery, they must have acted on evidence not sworn to before than." "" In an action to establish a note as a claim against flie maker's estate, an attorney named Prisby testified thjit he was acquainted with the decedent in hie lifetime, had done business for him, and had seen him write his name to one or two affidavits, and that he believed and had no doubt that the signature to the note was his. On cross- examination he testified that the time he saw the deceased so write his name was ten years ago, about the time of the date of the note in suit, but that he could remember the appearance of his signature, and could swear that he believed the signature to the note to be genuine. This was all the testimony there was on the question, and none was offered to rebut it. The Jury was instructed as follows: "You have heard the testimony of Mr. Frisby about the note, as to the genuineness of the signature. His testimony is uncontradicted, and iimless there is something in the case which easts discredit on his testimony you are bound to accept it as true." On appeal the court said : " It is claimed by the learned counsel of the appellant that the above instruc- tion, in application to ithis testimony, that it was ' uncontradicted,' and that ' unless there was something in the case which casts discredit upon it the jury are bound to accept it as true,' was erroneous. This instruction would seem to be a self-evident proposition. It is the same as telling the jury that they must find according to the uncon- tradicted evidence, unless such evidence was discredited in some way. The instruction might have been made still stronger and it would have been strictly correct. They might properly have been instructed that there was nothing in the case which east any discredit upon Prisby's testimony, for there was not. It is said that the jury ought to have been told that they might judge of its credibility, because ten years had elapsed since the witness saw the deceased write his name, and that this cast discredit upon his testimony. He did not say that it was ten years since he had seen his signature. But there is nothing even improbable that the witness, an attorney at law, should remember the signature of his client, which he saw him make several times ten years ago. There is no law or respectable decision which would justify the judge in instructing the jury, in respect to such evidence as this, 198 Cook V. Smith, 30 N, J. L. 387, 390, per Vredenbur^, J. 160 UNCONTRADICTED TESTIMONY. [§ 110 that they might reject or disbelieve it at their pleasure. There is no question of credibility about it, and the jury must ' accept it as true.' The jury might as well, in their arbitrary and sovereign pleasure, render a verdict without evidence as against evidence. The cases cited by the learned counsel are applicable only to contradicted or dis- credited evidence, or where the jury have some good legal reason for disbelieving the testimony of a witness. This testimony was ample proof of the signature of this note, standing alone. It is only in relation to facts contested by the evidence upon which the jury are allowed to render a special verdict. This has often been decided by this court, and if the court had said to the jury in this case that this fact had been proved, it would have been correct. It would be extremely unsafe, as well as most unreasonable, to allow a jury to reject testimony which is uncontradicted, and from a witness unim- peached, and which is not liable to any question by any of the rules or tests of credibility known to the law ; and any instruction to the contrary would clothe the jury with a supreme, arbitrary, and irre- sponsible power. It is the indisputable duty of courts to set asido verdicts rendered against the evidence, as this unquestionably would have been if the jury had found that the execution of this note had not been proved by this testimony." '"' In view of the lapse of time since the witness had seen the decedent write; the al)senee of evidence that he had seen the decedent's signature recently; the fact tliat liis confident belief in the genuineness of the signature was based solely on his recollection of seeing the defendant sign one note and one affi- davit, for so his testimony, " one or two," must be construed ; "* the fact that the witness testified in very general terms and mentioned no characteristics of the decedent's handwriting; the notorious unreli- ability of opinion evidence to hnndwviting; ^^° the rule tliat with few exceptions opinion testimony is not conclusive and must be submitted 197 Engmann i\ Immel, .59 Wis. 249, pure statements of facts, beoause the 251, 18 N. W. Rep. 18'2, per Orton, J. impressions reeoivod are not nmcli i«8 See post, §§ 12.59-1201. open to ilill'eronce of opinion among 100 See post, §§ 615-(!17, 627. observers. It is not so. howovor, in Opinions on many subjects, for regard to handwriting, and e\ery eir- instance, the size or color of a cer- cumstanoe, such as lapse of time, tain object, whether the evoning was which lends to detract from tiio light or dark, clear or cloudy, etc., weiglit of the testimony ought to go are hardly to be distinguished from to the jury. § 110] UNCONTRADICTKD TESTIMONY. 161 to the jury, and that this would unquestionably be the case if the standards of comparison of handwriting were in evidence for inspec- tion ^"^ — the author is of opinion that this case should not be accepted as authority beyond the declaration it contains of the general rule respecting the weight of uncontradicted testimony; especially as a high degree of proof is required in order to establish a claim against a decedent's estate,^"^ and as has been seen in patent infringement suits,'''*'' where evidence of more than ordinary probative force is demanded, proverbial fickleness of memory after a considerable lapse of time '"^ may be a determining factor in a case. Opinion evidence to handwriting, the witness having in his mind an exemplar of the genuine handwriting, has sometimes been declared to be of the same nature as the identification of a person by a witness who recognizes him by comparison of his features with the mental image of one whom he has seen before.^"* But a nonexpert opinion as to handwriting would lose nothing in weight if it were pronounced upon a photograph of the disputed writing instead of the original. Handwriting has no characteristics visible to the naked eye of a nonexpert upon casual observation that would not be faithfully reproduced in a photograph. Hence, handwriting opinion evidence resembles more closely the testi- mony of a witness who essays to identify a person by a photograph. Now, it is quite certain that no Judge would decide a fact of any importance upon the uncontradicted testimony of a witness that a photograph exhibited to him was that of a person whom he had seen twice several years ago.^"' The testimony mentioned in the following report of an English case seems to have been uncontradicted, and yet it was not conclusive. "The plaintiff's son was recalled; he said that he believed the signature to be Horswell's handwriting, but had only seen him sign his name once. " Piatt. — I submit that this is not sufiieient. 2«o See supra, § 109, and post, § 637. quaintanee." Foster v. Jenkins, 30 2«i See ante, § 46. Ga. 476, per Stephens, J. See post, 202 See supra, § 104. § 601. 203 See post, §§ 728, 750. 205 See Rowe v. Rowe, (Supm. Ct. 204 "Proof of handwriting is, in its Spec. T.) 24 Misc. (N. Y.) 113, 52 nature, the identification of an ac- N. Y. Supp. 418, 420. FACTS — 11 162 UNCONTRADICTED TESTIMONY. [§§ 111, 112 "Alderson, B. — It is for the jury; they must say whether they are satisfied with the proof of the handwriting. It is slight, cer- tainly." ^"^ § 111. Testimony of Experts in Collision Cases. — In a collision case in admiralty, between the Iberia and the Umbria, where tl • dis- aster happened in a dense fog, two experts of character and intellgence were called in behalf of the Umbria, who testified that to put the Umbria at full speed, under the circumstances stated in the case, was a proper maneuver ; and because no expert was called to the contrary it was earnestly contended on behalf of the Umbria that it was an established fact in the cause that it was proper to put the Umbria at full speed, and that all there was for the court to do was to say so. But, said Judge Benedict, " this contention seems to render it neces- sary to repeat here that the opinions of experts, however intelligent and trustworthy, do not bind the conscience of the court." And further on he said : " I marvel to hear it contended that the law can be thus sworn away. No; the law still stands that a vessel called to answer for damages shown to have arisen from her going full speed in a fog must be held liable, unless facts be proved which show to the court the existence of at least an apparent necessity to go at full speed to avoid some immediate danger." ^'" § 112. Expert Testimony in Patent Cases. — In speaking of the testimony of an expert in a patent case, the court said: "Expert testimony is admissible to explain the several drawings, models, and machines that are exhibited upon the trial, their operation, purpose, and effect, and the differences which exist in the various devices involved in their construction. The opinion of an expert is, in certain cases, admissible in evidence, but it is not conclusive upon the courts. It is to be considered as the judgment and opinion of a person who has had extensive practice, education, and knowledge in relation to the particular subject upon which his testimony is given. If the reasons given by the expert witness arc deemed reasonable and satisfactory, =00 Willman v. Worrall, 8 C. & P. bility of locating the aouiid of a ves- 380, 34 E. C. L. 438. See poxt. § (11!?. sel's siffnala in -i fog or of detormining 207 The Iberia, 40 Fed. Rep. 893, licr course by the sound, see post, 897, As to the difficultj' or iroposaj- §§ 270, 277, §§ 113, 114] UNCONTRADICTED TESTIMONY. 163 the court may adopt them, but if they are unsatisfactory, the court will discard the testimony, and act upon its own knowledge and judg- ment." ^"^ § 113. Opinions of Biased Witnesses. — In a collision case the testimony upon which the court was asked to find that one of the vessels could not be " properly controlled " at a less rate of speed than that at which she was going came from her master, chief officer, and third officer, who naturally sought to find excuse for her great speed in a dense fog. " The statements of these witnesses upon this subject are mere unsupported opinions," said the court. " They were not eon- trolling, although not exactly contradicted. Little weight is to be given to such opinions." ^'" § 114. Expert Testimony to Value of Services in General. — In an action to recover compensation for personal services in effecting the sale of lands and in various legal proceedings concerning the title the following instruction concerning the weight of expert testimony was held to be correct : " You are not bound by the estimate which these witnesses have put upon these services. They are proper to be con- sidered by you, as part of the proof bearing upon the question of value, as the testimony of men experienced in such matters, and whose judg- ment may aid yours. But it is your duty, after all, to settle and deter- mine this question of value from all the testimony in the case, and to award to the plaintiffs such amount, by your verdict, as the proof satisfies you is a reasonable compensation for the services which, from the proof, you find plaintiff rendered." ^^° It is not a conclusive objec- tion to a verdict in an action to recover for personal services that it is 20S Norton v. Jensen, ( C. C. A. ) 49 ions on the value of personal services Fed. Rep. 864, per Hawley, D. J. are not generally conclusive, see Howe See further as to weight of expert v. Manning, 13 La. 412; Aldrich v. testimony in patent eases, post, § 1242. Grand Rapids Cycle Co., 61 Minn. 200 The Eagle Point, (CCA.) 120 531, 63 N. W. Rep. 1115 (broker's Fed. Rep. 449. That the officers were services) ; Hull v. St. Louis, 138 Mo. biased witnesses, see supra, § 87. 618, 40 S. W. Rep. 89; Hossler v. And that mere opinions of biased wit- Trump, 62 Ohio St. 139, 144, 56 N. nesses are always to be regarded with E. Rep. 656; Reves r. Hyde, 14 Daly suspicion, see post, § 1094. (N. Y.) 431, 433; Randall p. Packard, 210 Forsyth v. Doolittle, 120 U. S. (C PI. Gen. T.) 1 Misc. (N. Y.) 344, 73, To the point that expert opin- 20 N, Y. Supp. 716. 164 UNCONTRADICTED TESTIMONY. [§ 115 rendered for an amount less than the sum fixed by any of the experts testifying to the value of the plaintiff's serviees.^^^ § 115. Expert Testimony to Value of Legal Services. — The opin- ions of professional men who are conversant with the nature and value of legal services are entitled to great weight,^^^ but such opinions are not binding or conclusive. They should be considered in connection with all the other testimony and circumstances of the case.^^' The proper rule upon the subject is nowhere better stated than by Mr. Justice Field in a case where professional witnesses gave uncon- tradicted testimony to their opinions of the value of legal services of the plaintiff in the action : " It was the province of the jury to weigh the testimony of the attorneys as to the value of the services, by refer- ence to their nature, the time occupied in their performance, and other attending circumstances, and by applying to it their own experience and knowledge of the character of such services. To direct them to find the value of the services from the testimony of the experts alone was to say to them that the issue should be determined by the opinions of the attorneys, and not by the exercise of their own judgment of the facts on which those opinions were given. The evidence of experts as to the value of professional services does not differ in principle from such evidence as to the value of labor in other departments of business, or as to the value of property. So far from laying aside their own general knowledge and ideas, the jury should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinions expressed; and it was only in that way that they could arrive at a just conclusion. While they cannot act in any case upon particular facts material to its dis- 211 Stevens v. Minneapolis, 42 Minn. v. Gjertsen, 42 Minn. 407, 44 N. W. 136, 43 N. W. Rep. 842; Rose V. Rep. 306; Cosgrove !'. Leonard, 134 Spies, 44 Mo. 20. Mo. 419, 33 S. W. Rep. 777, 35 S. W. 2i2Bentley v. Brown, 37 Kan. 14, Rep. 1137; Rose v. Spies, 44 Mo. 20; 14 Pae. Rep. 434, per Johnston, J. Reves v. Hyde, 14 Daly (N. Y.) 431; See also TurnbuU v. Richardson, 69 Knapp v. Monell, 4 N. Y. L. Bvil. Mich. 400, 37 N. W. Rep. 499. 91; Moore p. Ellis, 89 Wis. 108, 111, aisArndt v. Hosford, 82 Iowa 499, 61 N. W. Rep. 291; Laflin v. Shackle- 48 N. W. Rep. 981; Anthony v. Stin- ford, (C. C. A.) 98 Fed. Rep. 372, son, 4 Kan. 211; Bentlcy )\ Brown, 374. 37 Kan. 14, 14 Pac. Rep. 434; Olaon §§ 116, 117} UNCONTRADICTED TESTIMONY. 166 position resting in their private knowledge, but should be governed by the evidence adduced, they may — and to act intelligently they must — judge of the weight of the force of that evidence by their own general knowledge of the subject of inquiry. . . . Other persons besides professional men have knowledge of the value of professional services ; and while great weight should always be given to the opinions of those familiar with the subject, they are not to be blindly received, but are to be intelligently examined by the jury in the light of their own general knowledge; they should control only as they are found to be reasonable." ^^* § 116. Expert Testimony to Value of Medical Services. — Where the value of medical services is in dispute the uncontradicted testimony of expert witnesses is not controlling.^^' However, it has been remarked that " there can be no safety to any one if juries are to use their unguided views on such matters," and that " where all the testi- mony in the case is in favor of the treatment pursued, and the question is one of medical skill which can only be tested by those familiar with such matters, it was error to let the jury draw adverse conclusions, which could only be based on their unprofessional notions of how such injuries should be treated." ^^* § 117. Expert Testimony to Value of Property or Damage to Property. — The testimony of experts as to the value of property or the amount of damage to it is not conclusive, though uncontradicted,^^' especially where the jury view the premises.^^* But where a witness testifies to the value of an article having a known and fixed market 214 Head v. Hargrave, 105 U. S. 45. sif Johnson v. Chicago, etc., R. Co., This is the leading case upon the 37 Minn. 519, 35 N. W. Rep. 438; St. weight of expert testimony to the Louis, etc., R. Co. v. Fowler, 142 Mo. value of personal services. 670, 44 S. W. Rep. 771; Kansas City 215 Matter of Smith, (Surrogate v. Butterfleld, 89 Mo. 646, 1 S. W. Ct.) 18 Misc. (N. Y.) 139, 41 N. Y. Rep. 831; Isear v. Burstein, (N. Y. Supp. 1093; Guyon v. Brooklyn Super. Ct. Spec. T.) 30 Abb. N. Cas. Heights R. Co., 97 N. Y. Supp. 1038. (N. Y.) 71, 24 N. Y. Supp. 918; 216 Wood V. Barker, 49 Mich. 295, MuIIer v. Ryan, (N. Y. City Ct. Gen. 13 N. W. Rep. 597, per Campbell, J. T.) 2 N. Y. Supp. 736. See also Heffley v. Poorbaugh, (Pa.) 218 Kansas City v. Street, 36 Mo. 10 Atl. Rep. 12. App. 666. 166 UNCONTRADICTED TESTIMONY. [§§ 118, 119 price, as is the case with grains, stocks, and many other articles, in the markets where such commodities are bought and sold, his testimony is really as to a fact, and not a mere matter of opinion, and should have the same weight as testimony to any other fact within the knowl- edge of a witness.^^" § 118. Party's Estimate of Value of His Property. — A party's uncontradicted testimony to the value of his property is not conclu- sive.^^" However, his apparently reasonable estimate would be likely to gain acceptance if the opposite party having the power to contradict it, if exorbitant, does not do so.^^^ And where a defendant testified to his opinion of the value of his property, and no efiort was made on cross-examination to ascertain the grounds of his opinion or in any respect to diminish its weight, and under the circumstances of the case it was very significant that no testimony was offered by the plaintiff in answer to it, the Court of Appeals of New York said : " There was nothing to detract from its force, and credit should therefore be given to it." "2 § 119. Party's Own Testimony to Amount of Damage Sustained. — The jury are not bound, even in the absence of all other evidence, by the testimony of a party as to the amount of damages sustained by him in consequence of the breach of a contract. " Especially in esti- mating damages, which necessarily involves the exercise of opinion and judgment, the jury are to be guided by their own skill and knowledge, as well as by testimony which is given by witnesses at the trial." "' While a jury would not be bound to find the exact amount of dam- ages pursuant to the uncontradicted testimony of an unimpeached party, they would have no right to find that he had sustained no dam- age at all."* 2i» Stevens v. Minneapolis, 42 Minn. 221 See Booth v. Moffatt, 11 Mani- 136, 43 N. W. Rep. 842 (ohiter) ; toba 25, 36. Johnson v. Chicago, etc., R. Co., 37 =22 Knickerbocker L. Ins. Co. v. Minn. 519, 35 N. W. Rep. 438. Nelson, 78 N. Y. 137, 145. 220 Foley V. Brocksmit, 119 Iowa 22s Bee Printing Co. v. Hichborn, 457, 93 N. W. Rep. 344; Hamilton v. 4 Allen (Mass.) 63, 65. Owego Waterworks, 22 N. Y. App. 224 Gardner v. Baer, (County Ct.) Div. 573, 48 N. Y. Supp. 106; Bourda 26 Misc. (N. Y.) 181, 56 N. Y. Supp. 17. Jones, 110 Wis. 52, 85 N. W. Rep. 1096. 671. §§ 120, 121] UNCONTRADICTED TESTIMONY. 167 § 120. Estimates of Time, Distance, Speed, etc. — A witness's estimate of time, distance, or speed is always regarded as necessarily inexact ; ^^^ so inconclusive that where witnesses testify positively to matters of fact their testimony is not deemed to be contradicted, nor their credibility affected, by the testimony of others who merely differ with them in their estimates of such matters upon which in the very nature of things opinions of witnesses are likely to be diverse.^"* A party's testimony that an electric car which collided with and threw him from a wagon was running at not "less than fifteen miles an hour," was held to be " a mere guess or conjecture " and insufficient to establish the fact.^^' Sundry Topics. § 121. Witness of Bad Character, or Testifying to Discreditable Transactions. — A court is not bound to believe witnesses of question- able character, lewd persons, or those who engage in unlawful prac- tices.^^* The examination may disclose that the witness was of bad character, a criminal and perjurer, and yet it may not be within the power of a party to contradict his testimony.^^" A witness who tes- tifies to an act on his part inconsistent with moral integrity may be regarded as discredited,^^" especially such an act as falls under the denomination of crimen falsi.^^^ It was held that abundant reason existed for the suspicion with which the trial court regarded the evi- dence of a party, so far as it tended to promote his own interests, who was engaged in a scheme to defraud his creditors.°'^ If the witness's own testimony shows that he perpetrated a fraud, the credulity of the court need not necessarily correspond with the vigor and positiveness of his statements. ^^^ Conduct of a witness in respect to the transac- 225 See Borneman v. Chicago, etc., 220 People v. Tuczkewitz, 149 N. Y. E. Co., (S. Dak. 1905) 104 N. W. 240, 251, 43 N. E. Rep. 548. Rep. 208, per Haney, J., and post, 230 McDaniel v. Walker, 29 Ga. 266. §§ 863, 397, 420. 231 McDaniel v. Walker, 29 6a. 226 Central of Georgia R. Co. v. 266. Waxelbaum, 111 Ga. 812, 35 S. E. 232 Munoz ». Wilson, 111 N. Y. 295, Rep. 645. 300, 18 N. E. Rep. 855. See also 227 Smith V. Holmesburg, etc., Elec- McGill v. Young, 16 S. Dak. 360, 92 trie R. Co., 187 Pa. St. 451, 41 Atl. N. W. Rep. 1066; Blount v. Medbery, Rep. 479, per McCollum, J. 16 S. Dak. 562, 94 N. W. Rep. 428. 228 Fuller V. Fuller, 41 N. J. Eq. 233 Blankman v. Vallejo, 15 Cal. 460, 5 Atl. Rep. 725. 639, 646. 1G8 UNCONTRADICTED TESTIMONY. [§ 122 tion concerning which he testifies, which is inconsistent not only with good business principles, but with honesty and fair dealing, removes him from the category of witnesses who must necessarily be be- lieved.23* § 122. Suspicious Facts in the Case. — Although "suspicion is not proof and cannot be allowed to take the place of proof," '^^^ and it is said that merely " suspicious facts " in a case do not warrant the submission of uncontradicted and unimpeached testimony to a jury when there is no countervailing testimony,^^' it is otherwise if there is any substantial ground for distrusting the truthfulness of the wit- ness.^^' " The character of a witness or a number of witnesses may be so impeached, or their story so shattered by cross-examination or rendered so doubtful by inherent improbabilities, that their testimony, standing unopposed by direct counter testimony, would be fairly sub- jected to suspicion. No court, upon review, could say, as a legal con- clusion, that under such circumstances a judgment which ignored such testimony was illegal." ^'^ " To justify a court in instructing a jury that a witness has told the truth, and in directing a verdict based upon the truthfulness of his evidence, there must be nothing in the circumstances or surroundings tending to impeach the witness or to throw discredit upon his statements." -^' Grave suspicion that a wit- ness testifies falsely when he states that he has lost a book in which he made an entry of the fact to which he testifies justifies rejection of his testimony.^*" Testimony of one who concededly withheld material and important testimony upon a former trial ought to be convincingly 23* Michigan Pipe Co. x\ Michigan French, (Supm. Ct. GJen. T.) 10 N. F. & M. Ins. Co., 92 Mich. 482, 480, 52 Y. Supp. 217. See also Bradley v. N. W. Rep. 1070. Corliani, 77 Conn. 211, 58 Atl. Rep. 236 Brown v. Petersen, 25 App. Cas. 098; Hull v. Littauer, 162 N. Y. 572, (D. C.) 359, 363, per Morris, J. See 57 N. E. Rop. 102. also anie, § 33. 23s Cooley v. Barcroft, 43 N. J. L. 23" Brown v. Petersen, 25 App. Cas. 368, per Reed, J. (D. C.) 359, 363. =3!> Michigan Pipe Co. v. Michigan 237 Michigan Pipe Co. v. Michigan F. & M. Ins. Co., 92 Mich. 482, 488, F. & M. Ins. Co., 92 Mich. 482, 52 52 N. W. Rep. 1070, per Grant, J., N. W. Rep. 1070; Mendoza v. Levy, citing Druse v. Wheeler, 26 Mich. Ill N. Y. App. Div. 449, 97 N. Y. 195. Supp. 753; Condit v. Sill, (C. PI. 2eady (U. S.) 17, 21 of Buoha.n, (Surrogate Ct.) 10 Misc. Fed, Gas. No. 12,044 (at p. 1042) j N. Y. 204, 38 N. Y. Supp. 1124, 1130; The Steam Ferry-boat Warren, 2 Ben. Rice's Estate, 173 Pa. St. 298, 33 Atl. (U. S.) 4«8, 29 Fed. Gas. No. 17,1&2; Rep. 1100. The Weijona, 8 Blatchf. (U. S.) 499, *o Thompson v. Pioneer- Press Ce„ 29 Fad,. Caa. No. 17,411; Walsh r. 37 Minn. 285, 33 N. W. Rep. 856. Rogers, 13 How. (U. S.) 283, 2SG; *'' New Jersey Ziuc, etc., Co. t). Mor- II 141, 1*12] INCREDIBILITIES AND IMPROBABILITIES. 189 In another ease, where a witness's testimony was inconsistent with probabilities and directly in conflict with the testimony of all the other witnesses on the same point, the court said : " I do not mean to disparage or speak -unkindly of the witness; his statements may be strictly true; bnt the circumstances are such that I cannot accept them." " § 141. Improbable Testimony Contradicted by Circumstances. — A witness may be contradicted by circumstances as effectually as by direct testimony; that is, in the sense that testimony thus opposed is not within the rule requiring that uncontradicted testimony shall be believed.'"' " The circumstances of a case may be such as to make it utterly incredible, although there are confident attestations in sup- port of it," said Lord Stowell.°° Probabilities derived from the entire evidence are always to be considered."^ In a case of conviction for murdering a woman by cutting her throat with a razor, the court said : " The theory that the killing was the result of an accident, occasioned by the defendant supposing that he was drawing the back of the razor across the throat of his victim, was so utterly preposterous that there could be no rational ejipectation that any jury of sensible men would give it the least consideration," said the Pennsylvania Supreme Court. '^^ " That a man from any cause, desirous of concealing himself from his relatives, should retain his family name and seek to effect that object by changing his Christian name only, we think is hardly credible," said Mr. Justice Hunt.''^ § 142. Numerical Equality or Preponderance of Witnesses Testi- fying to Improbabilities. — The following is an extract from instruc- tions given to a jury in a case in Pennsylvania : " Suppose that a small child should tell you that he saw a large wolf run away with an unusually small lamb. As against this, ten adults testified that lis Canal, etc., Co., (N. J. 1888) 15 so The Argo, 1 C. Eob. 158, 159. Atl. Rep. 227, 235. si Ante, §§ 29, 30. <8 Fleichman v. The Steamer John t>2 Com. v. Van Horn, 188 Pa. St. P. Best, 14 Phila. (Pa.) 527, 37 Leg. 143, 41 Atl. Rep. 469, per Green, J. Int. (Pa.) 18, 9 Fed. Gas. No. 4,861 ss Jlafdy v. Harbin, 154 U. S. 598, (at p. 261), per Butler, D. J. at p. 601, 14 U. S. Sup. Ct. Rep. i« See ante, § 92 et seq. .1172. 190 INCREDIBILITIES AND IMPROBABILITIES. [§ 143 this was not the case at all, but that the real fact was that this very small lamb was actually running away with the large wolf. It would not take a jury very long to determine where the truth lies, notwith- standing ten against one." '^^ An instruction that if the witnesses were of equal credibility and had equal means of knowing the facts, the preponderance of evidence would be determined by the greater number,'^ was pronounced erro- neous because it left out of view the reasonableness of the respective conflicting statements. " It is very plain that if an equal number of witnesses of equal credibility should testify in conflict," said the court, " their evidence would not be in equipoise if the statements of one side were more in accord with reason than those of the other.'* So, if two witnesses were to contradict three, all of equal credibility, we would be guided, in resting our faith, by reason, and would adopt the statement of the smaller number if it were more reasonable than the evidence of the others." '^ § 143. Improbable Stories May Require Corroboration. — "The story seems to me so improbable that it should require strong corrobo- ration to induce belief," said a federal judge in a case before him.^' Uncorroborated improbable statements of a complainant were held in- .^ufficient to justify the interference by injunction with another's rights."^ But those were chancery cases, and it would be imsafe to instruct a jury that the testimony of a single credible but uncorrobo- rated witness may be disbelieved solely because of its mei'e iniproba- bility.o" An improbable story coming from a witness of Imown bad character and uncorroborated is entitled to no weight ; "' or, at least, slight circumstances in the opposite scale may be sufficient to balance it.''^ It 154 Evans v. Philadelphia Bourse, oo Fowler ;'. Roe, 11 N. J. Eq. 367, 215 Pa. St. 052, 64 Atl. Rep. 463. 368, per ChaiicoUor Williamson. iss See ante, § 64. oo See ante, § 93, and Eiismann v. 5" See also Daggers v. Van Dyck, Immel, .'iO Wis. 240, 18 N. W. Rep. 37 N. J. Eq. 130, 132. 182. 67 Whitaker r. Parker, 42 Iowa «i Atherton r. British America 585, 588, per Beck, ,T. Assiir. Co., 91 Mo, 289, 39 Atl. Rep. OS Smith r. Davis, 34 Fed. Rop, 783, 1006, 784, per Blodgett, J. See also infra, 02 Boylan v. Meeker, 28 N. J. L. §§ 174, 179. 274, 333. § 144] INCREDIBILITIES AND IMPROBABILITIES. 191 is hardly possible for a witness to win credence for his uncorroborated improbable testimony when he belongs to a class whose unsupported statements are not usually acceptable, such as private detectives "^ or alleged paramours in divorce cases whom the evidence subjects to grave suspicion."* It was in a case where the personal character of the witness made him an object of extreme suspicion that Viee-Chancellor Van Fleet of New Jersey said: "A witness is not entitled to credit whose testimony is inconsistent with the common principles by which the conduct of mankind is naturally governed." "^ On the other hand, superior credibility of a witness may be insuffi- cient to give preponderance to his testimony to improbabilities. Thus, we find in an opinion of Judge Taft, speaking for the Circuit Court of Appeals : " As stated by the learned judge in the court below, when there is an issue of veracity between the two men, Carson's unsupported statement is entitled to the greater weight; but when we find inherent improbability in Carson's story, and every circum- stance supporting Ankeney's, we must believe Ankeney." "' § 144. Mr. Bok's Comments on Improbable Statement. — In 1906 a great deal of discussion was caused by a letter in the New York Sun wherein the writer charged that the readers on magazine staffs were incompetent and ignorant, and stated that he had copied a story by Tiudyard Kipling and sent it to half a dozen or more of the best magazines, all of which had returned it, but without detection of the imposture. Months afterwards, Mr. Edward Bok, editor of the Ladies' Home Journal, in an interview published in the Sun," said: " I remember that letter to the Sun about the Rudyard Kipling story. On the face of it, it appears most unlikely. I should like to see proof of the statements it contained. Of course no reader or set of readers can be specialists in the writings of every English author, but it seems improbable that so many of them could be deceived in the case of so recent and well-known an author as Kipling. Possibly some of those editors recognized the story and didn't think it worth while to offer 63 See post, §§ 10,3G, 1037. Co., 36 N. J. Eq. 188, 194. See also «-i See Steffens v. Stoffens, 16 Daly Cobb v. Battle, 34 Ga. 458, 481. (N. Y.) 363, 11 N. Y. Supp. 424, oo Bohl v. Carson, 63 Fed. Rep. 26, and index to this work, d. v. Adultery. 32, 22 U. S. App. 493, per Taft, C. J. on JSarle v. Norfolk, etc.. Hosiery «^ The Sun, Saturday, Jan. 26, 1907, 192 INCREDIBILITIES AND IMPROBABILITIES. [§§146,116 a rebuke." Mr. Bok's instinctive desire for corroborating evidence represents the mood of the judicial mind when improbable stories are related by witnesses in legal proceedings. § 145, Improbable Statement May Discredit Entire Testimony. — Statements of a witness may be so incredible as to cast discredit upon all his testimony "' in accordance with the maxim falsus in uno, falsus in omnibus.^^ In a case of a will contest, where the will was rejected because the testator was unduly influenced by his wife, she testified that the generous bequest to her was made on his own initiative. " I am unable to believe that it would have been possible for him, in his weak and dependent state," said Vice-Chancellor Van Fleet, "to have withheld all knowledge of it from his wife until he was ready to execute it, and the fact that she solemnly declares that he did, intro- duces a circumstance in support of her claim so unnatural and im- probable as to shock credulity and to cast deep distrust upon her whole case." " In some instances, however, experienced judges have come to the conclusion, under the circumstances of the particular case, that an admixture of improbability in the testimony of a witness positively enhanced his credit. These cases are set forth in another section.'^ § 146. Improbable Testimony to Be Submitted to Jury. — Even if the testimony of a witness is unreasonable and improbable, it does not follow, as matter of law, that it shall be disbelieved." " However improbable the testimony of a witness may appear, who testifies to a fact not in itself impossible in the ordinary course of events, the credibility, force, and effect of such testimony are for the jury." " 08 Horton V. Handvil, 41 N. J. Eq. ?= Rosa v. State, 74 Ala. 532, 537, 57, 3 Atl. Rep. 72, 75. See also The per Stone, J. Steamship Pereire, 8 Ben. (U. S.) '^ Hastings j). Brooklyn L. Ins. Co., 301, 306, 19 Fed. Cas. No. 10,979 (at 138 N. Y. 479, 34 N. E. Rep. 289, p. 226) ; Insurance Co. v. Nelson, 103 quoted Avith approval by Hardin, P. U. S. 544, 549. J., in Hudson v. Rome, etc., R. Co., 00 See post, § 1073 et aeq. 73 Hun (N. Y.) 467, 26 N. Y. Supp. 70Haydock v. Haydock, 33 N. J. 386, 390. See also Atlanta R., etc., Eq. 494, 499, affirmed 34 N. J. Eq. Co. v. Monk, 118 Ga. 449, 45 S. E. 670. Rep. 494; ITemmons v. Nelson, 138 71 See post, § 1061, N. Y. 517, 529, 34 N. E. Rep. 342. §§ 147, 148] INCREDIBILITIES AND IMPROBABILITIES. 193 Where the determination of an issue of fact depends upon the credibility of witnesses, and where a jury would be justified in coming to a conclusion either way as credence may be given to the witnesses upon the one side or the other, it is the duty of the court to submit such an issue to the jury, however firmly convinced the presiding judge may be that there is no doubt as to where the truth lies. And even where the surrounding circumstances merely make the story of a witness improbable, it is still the right of the litigant to have the issue thereby raised submitted to the tribunal created by the constitution and the laws for the determination of such questions.'* But this cannot be 60 when the undisputed circumstances show that the story told by a witness upon a material issue cannot by any possibility be true, or when the testimony of a witness, necessarily relied on, is inherently impossible.'" § 147. Instructions to Juries on Improbabilities. — Under the common-law practice, which obtains in the federal courts and many of the state courts, the judge may express his opinion as to the weight or effect of evidence or the credibility of witnesses.'" In those juris- dictions, if the testimony greatly taxes the credulity of the judge, he can say so, or, if he totally disbelieves it, he may announce that fact, leaving the jury free to believe it or not." § 148. Testimony Inconsistent with Admitted or Clearly Estab- lished Tacts. — Testimony which is irreconcilable with admitted or well-established facts in a case must be rejected as incredible, even though it does not categorically contradict the testimony to those facts.'^ For instance, in a collision case between vessels all testimony to courses, bearings, distances, speed, or other circumstances concern- ing the movements of the vessels, can have no weight whatever where it is demonstrably impossible that the collision could have occurred if the testimony were assumed to be true.'" "Blumenthal v. Boston, etc., R. "Post ». U. S., (C. C. A.) 135 Co., 97 Me. 255, 260, 54 Atl. Rep. Fed. Rep. 1, II. See further, as to 747, per Wiswell, C. J. instructions, supra, § 142. "i Blumenthal v. Boston, etc., R. 's Chamberlain v. Ward, 21 How. Co., 97 Me. 255, 54 Atl. Rep. 747, per (U. S.) 548, 561. See ante, § 7 e( Wiswell, C. J. seq. 70 11 Encyc. of PI. and Pr. 91 e* '» See ante, § 8. teq. FACTS — 18 194 INCREDIBILITIES AND IMPROBABILITIES. [§ U9 § 149. Testimony Contrary to Natural Laws — In General. — There are well-settled and accepted natural laws, a recognition of which is justified by the long experience of men, the knowledge of everyday life, as well as by the studies and experiments of ages. Of these the courts take cognizance — the laws of gravitation, cohesion, of optics, the phenomena of electricity, etc. Testimony which is directly contrary and in opposition to such laws should be ignored even without contradiction.^" It was claimed that a woman entering a street ear, and facing forward in the direction the car was about to proceed, was thrown violently forward onto her knees by the sudden starting of the car, and then thrown lachtuards onto her back by the sudden stopping of the car. The court was unable to see how she could fall twice " in apparent violation of well-known and established physical laws." *^ A verdict against a railroad company was set aside b}' the New York Appellate Division as against the weight of evidence partly because the jury must have believed that a man's body was moved several feet to the north on being struck by the locomotive of a train moving south. '^ Where a woman who was picked up from the fender of a trolley ear testified that she was pushed from a step of the car into the fender, " common knowledge of the construction of 80 U. S. V. Post, 128 Fed. Rep. 953, day of the winter,' ' with snow on the 954, per Locke. D. J. See also ground,' ' in a room without fire,' Waters-Pierce Oil Co. v. Knisel, where there has been only a, single (Ark. 1906) 96 S. W. Rep. 342; Fill- coitus, seated in the lap of her son «7. Maine Cent. R. Co., (Me. 1907) ravisher or seducer, with her back 67 Atl. Rep. 407. to him; we repeat, that while such " The English law anciently held an instance may be barely within the that pregnancy could not follow rape, bounds of possibility, it is exoeed- and that, therefore, its presence He- ingly improbable to say the least of stroyed the validity of the aocusa- it; certainly no such case is reported tion. But Hawkins, Hale, and East in the Causes C('ldl)res, or related by held that such is not the law, because any writer on medical jurisprudence." the opinion in which it was founded Per Lumpkin, J., in Smith v. State, was false in fact, and that impreg- 23 Ga. 297. nation may take place where there si Bollinger r. Interurban St. R. is great repugnancy on the part of Co., (Supm. Ct. App. T.) 50 Misc. the female, amounting even to a vir- (N. Y.) 293, 294, 98 N. Y. Supp. 641, tuous recoil or a sense of honor at 042. the time. . . . Still we apprehend 82 Meinrenken v. New York Cent., the case is rare where a virgin has etc., R. Co., 81 N. Y. App. Div. 132, been begotten with child, ' the coldest 80 N. Y. Supp. 1074. § 160] INCREDIBILITIES AND IMPROBABILITIES. 195 the ordinary trolley ear renders that assertion incredible," eaid the court.*' " It is in the face of reason to say that a hook that had held up from five thousand to seven thousand pounds, and had not been used einee, would give way under a weight of 4,300, and the uncorroborated cssertion of a witness to that effect might with propriety be rejected by a jury." ** It is clear that a fire which was observed in the grass at a specified place adjoining a railroad right of way could not have originated a quarter of a mile distant if the intervening space showed no traces whatever of fire.*° § 150. " Physical Facts " Rule Sparingly Applied. — " Science has not yet drawn, and probably never will draw, a continuous and permanent line between the possible and impossible, the knowable and unknowable. Such line may appear to be drawn in one decade, but it is removed in the next, and encroaches on what was the domain of the impossible and unknowable. Advance in the use of electricity, and experiments in telepathy, hypnotism, and clairvoyance, warn us against dogmatism." ^^ It was well said by Judge Johnson of the Missouri Court of Appeals : " So frequently do unlooked-for results attend the meeting of interacting forces, that courts, in such cases, should not indulge in arbitrary deductions from physical law and fact, except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other." *' In a Texas case the court said : " While it is true there is testimony in the record tending to show that it would have been physically impossible for the car, constructed as the witnesses testify 83 Hansen v. New Jersey St. R. Co., wind, to reach on toward the more in- (N. J. 1899) 43 Atl. Rep. 663. flammable material," and perhaps not 84 El Paso Foundry, etc., Co. v. consume everything in its path. De Guereque, (Tex. Civ. App. 1907) so Post v. U. S., (C. C. A.) 135 101 S. W. Rep. 814. Fed. Rep. 1, II, per Shelby, C. J. 85 Central Vermont R. Co. v. La s^ Lang v. Missouri Pac. R. Co., Cie. d' Assurance, etc., 2 Quebec Q. B. 115 Mo. App. 489, 497, 91 S. W. Rep. 450, 459. See also Swenson v. Erland- 1012, quoted in Rattan v. Central son, 86 Minn. 263, 90 N. W. Rep. 534, Electric R. Co., 120 Mo. App. 270, where, however, a dissenting opinion 278, 96 S. W. Rep. 735. See also suggests that " it would be most nat- Highfill v. Missouri Pae. R. Co., 93 ural for the fire, pushed on by the Mo. App. 219, 223, 196 INCREDIBILITIES AND IMPROBABILITIES. [§ 150 it was, to have swayed or oscillated over far enough to have struck the injured party if he was at the time outside of the limit to which the car would have extended in case the track was in good condition, still there is evidence tending to show that as a fact it actually did so, and that the injury was thus caused. This is an illustration of what we sometimes meet with in actual life, when the unaccountable occurs." ^^ An appellate court will not set aside a verdict based on the testimony of witnesses which can reasonably be reconciled with the physical facts, notwithstanding the court may believe the weight of the physical evidence opposes that given by the witnesses.^" A plaintiff testified that he was crossing the street and just leaving the track on which an electric car was running at the time it struck him. He was thrown into the fender, and the company contended that he must, therefore, have been near the centre of the track when he was struck. But it was held to be a question for the jury. " No accurate law of physics can be invoked to determine just how a body ought to fall or will fall when struck under such circumstances," said the court. " There is the action of the car, the life and movement of the person, and very strange results may and do flow from the operation of both forces. They are not to be accounted for upon any rule which might find application to an inanimate body." '"' A plaintiff's uncontradicted testimony that while walking on a side- walk he placed one foot on the farther side of a coal-hole cover, which tipped up the near side and tripped his other foot, whereby he fell on the cover itself and broke his kneecap, was not so improbable as to justify its rejection. "A person does not necessarily fall forward full length, and there was nothing inherently impossible in the plain- tiff's account," said the court."^ It is not impossible that a car striking a wagon crossing the track should throw the wagon to one side and a man standing on the back end of it to the other side."- " There is very little room for argument upon a proposition involving what may 88 Missouri, etc., R. Co. v. Brown, oo Hoyt v. Metropolitan St. R. Co., (Tex. Civ. App. 1907) 101 S. W. Rep. 73 N. Y. App. Div. 249, 251, 76 N. 464, per Eidson, J. Y. Supp. 832, per Hatch, J. 89 Stafford v. Adams, 113 Mo. App. fi Chicago v. Jarvis, 226 111. 614, 717, 88 S. W. Rep. 1130. See also 80 N. E. Rop. 1079. Illinois Cent. R. Co. «. Crockett, (Ky. "2 Lang v. Missouri Pac. R. Co., 1904) 79 S. W, Rep. 235, and infra, 115 Mo. App. 489, 91 S. W. Rep. § 152. 1012, § 151] INdREblBiLlTiES ANt) IMPROBABiLlTIES. ISt or may not have happened to the body of a man struck by the front of a rapidly moving locomotive, between the place where it was run against and the spot where it was subsequently foimd," said the court, in holding it to be entirely possible that the body might be carried a long way without falling ofE.°^ § 151. Course of Bullets Striking Human Body — Tact versus Theory. — The course of bullets striking the human body is frequently very erratic. " I entertain the most profound respect for the medical profession," said Judge Lumpkin of Georgia ; " and yet it must be admitted that theory and fact do not always harmonize as to gunshot wounds. ' Amicus Plato, amicus Socrates, sed magis arnica Veritas.' It is related by Dr. Hennen, as having occurred to a friend of his in the Mediterranean, that a ball which struck about the pomum adami traveled completely round the neck, and was found lying in the very orifice at which it had entered. The same author states that in one in- stance which occurred a soldier who, having his arm extended in the act of endeavoring to climb up a scaling ladder, had the centre of his slioulder pierced by a ball, which immediately passed along the limb and over the posterior part of the thorax, coursed along the abdominal muscles, dipped deep through the hypogastric artery, and presented itself on the fore part of the opposite thigh, about midway down. . . . In another case, a ball which struck the breast of a man standing erect in the ranks, lodged in the scrotum. The gallant and ever to be lamented Col. Craig was shot in the back at Cerro Gordo; the ball pursued a circuitous route around his body, on the outside of the skin, to the breast. But we forbear to multiply examples. We ;ne sustained by the highest medical authority in asserting that balls take very unusual courses, 'not at all to be accounted for by any preconceived theories drawn from the doctrine of projectiles, nor to be explained by any diagrams formed upon mathematical rules.' "* ' These considerations,' continue the learned authors, ' ought to render the surgeon very cautious how he delivers his opinion as to the direction the shot was fired.' " °° 03 Baltimore, etc., R. Co. v. Stanley, cians, and Q. S. M. Fonblanque, Esq., 54 111. App. 215, 219. barrister at law, vol. 2, p. 126. 04 Citing Med. Jur., by J. H. Paris, os Hart v. Powell, 18 Ga. 635, 642. Fellow of the Royal College of Phyai- See also supra, §§ 135, 136. 198 INCREDIBILITIES AND IMPROBABILITIES. [§§ 152, 153 § 152. TTnaooountable Freaks of Electricity. — In a New York caae it appeared that a guy or stay wire, one end of which was attached to the top of a pole and the other end to the defendant railway com- pany's main trolley wire, broke in two, and the free end of that part which was attached to the pole fell and struck the plaintiff. He testified that he received an electric shock which seriously affected his heart and nervous system, and to some extent his testimony was cor- roborated. The trial court nonsuited him on the ground that the facts to which he and his witnesses testified were utterly incredible, and, in fact, scientifically and physically impossible; that a wire one end of which was detached from the trolley, and the other end attached to a pole, could not possibly have communicated a current of electricity to his body. The Court of Appeals held that the nonsuit was erroneous. " We are not able to understand how such an occurrence could have happened, but this court is not the judge of the credibility of testi- mony," said Judge O'Brien. "We have frequently had occasion in cases of accidents upon electric railways to try and fathom some of the unaccountable freaks of electricity. We know that there are many things concerning its action that are imperfectly understood. What it does or may do under a given state of circumstances is per- haps not yet accurately known. ... It often happens that science and common knowledge may be invoked for the purpose of demon- strating that a particular statement in regard to some particular accident must be absolutely false ; in such cases the question is for the court; but in cases of doubt we think it is wiser and better to remit such controversies to the proper tribunal for settling facts and ascer- taining where the truth lies, rather than assume the power to deter- mine thq facts ourselves." '" § 153. Mathematical Impossibilities. — A verdict cannot be sus- tained if it involves a finding tliat a part is equal to the whole; for example, where the jury evidently believed testimony that it would cost as much to clear a tract of land after the trees were felled and the logs removed as it would when the trees were standing." Testi- e« Walters v. Syracuse Rapid Tran- 07 Nelson v. Big Blaekfoot Milling Bit R. Co., 178 N. Y. 50, 52, 70 N. Co., 17 Mont. 553, 44 Pac. 81, where E. Rep. 98, 99, reversing 84 N. Y. the court quoted from Blankman v. App. Div. 64, 82 N. Y. Supp. 82. Vallejo, 15 Cal. 645. § 154] INCREDIBILITIES AND IMPROBABILITIES. 199 mony of a so-called expert that while an ordinary man can lift two hundred pounds, it would take sixteen section hands to lift a six- hundred-pound rail, was properly stricken out by the court as mani- festly absurd. "^ In a collision case in admiralty, the court said: " There was every reason for the steamer porting, rather than crossing the bow of the schooner. But the absurd contention remains that the steamer did cross the schooner's bow, and went about within the limit of a few hundred feet, so as to strike the starboard bow of the schooner at about a right angle. This contention must be rejected as im- possible." °° § 154. Physical Facts in Case of Collision with Street Car. — In an action against a street-railway company the plaintiff and his wit- nesses testified that he was driving a horse and wagon along the track, not across it, when a car overtook him and struck the wagon in the rear as it was running along the rails. His witnesses adhered tenaciously to this story, and the specific allegations in the plaintiff's pleading precluded him from recovering for an injury caused in any other manner, or deriving any advantage from the testimony of witnesses for the defendant, who stated that the horse and wagon were crossing the track and that the car struck the side of the wagon. The undisputed " physical fact " was that the horse and wagon were thrown on their sides with both of them heading in the direction from which the ear came. The plaintiff obtained a verdict, and on appeal the court said : " The verdict must stand or fall on the testimony of the plaintiff's witnesses, and this question confronts us: What influence ought their testimony to carry, in view of the conceded fact that the horse and wagon were turned half-way round by the force of the car? According to those witnesses, the vehicle was moving on the rails of the north track, and the horse in the centre of the space between the rails. Freakish effects are sometimes caused by violent impacts of moving bodies, and we are perhaps not warranted to pronounce that «8Haviland v. Kansas City, etc., Laura v. Rose, 28 Fed. Rep. 104; R. Co., 172 Mo. 106, 72 S. W. Rep. The Portia, 55 Fed. Rep. 1017; The 615. Alene, 74 Fed. Rep. 268, 79 Fed. Rep. ooThe Senator Sullivan, 117 Fed. 976, 51 U. S. App. 128, 168 U. S. 710, Rep. 17fi, 178, per Thomas, D. J., 18 U. S. Sup. Ct. Rep. 942." Compare " following similar holdings in The post, § 540. 200 INCREDIBILITIES AND IMPROBABILITIES. [§ 155 the horse and wagon could not have been turned end for end by a straight blow from behind. But after revolving the problem a great deal, we will say that we are unable to conceive how such a conse- quence could happen. Its extreme improbability, whether tested by experience or by the accepted laws of motion and mechanics, com- bined with the testimony of disinterested men that the car struck the wagon a side blow, instead of a rear one, and thereby naturally knocked the wagon and horse about, have produced the conviction that a mis- carriage of justice occurred at the trial. The manner of the collision, as described by defendant's witnesses, consists perfectly with the result that would almost certainly follow a side collision; while the oppo- site version is nearly or quite incredible, so incompatible is it with the undenied position of the property immediately subsequent to the accident. Verdicts resting on evidence which looks contrary to the ordinary course of nature are not infrequently set aside, and retrials directed by appellate courts, as a proper precaution against an unjust outcome of litigation. . . . This prerogative of courts of error is sparingly employed ; but that it exists, as an emergency expedient, for the correction of verdicts palpably wrong, is certain. The appropriate use of it does not require a court to be convinced that the jury found an event to have occurred that was physically impossible or miracu- lous. It is enough if the event found was so improbable, according to the ordinary operation of physical forces, or was so overwhelm- ingly disproved by credible witnesses, as to compel the conviction that the jury either failed to weigh the evidence carefully, or drew unwarranted inferences, or yielded to a partisan bias." ^'"' In a New York case, a plaintiff's contention that his cart was trav- eling down an electric railway track when it was struck squarely in the rear by a car was deemed very improbable in view of the fact that after the collision the front wheels of the cart and one of the horses were under the front of the car.^"^ § 155. Physical Facts in Case of Collision Between Vessels.— Given the position of a slowly moving schooner on the starboard of a steamer ; given the facts that a lialf-laden steamer, readily and quickly 100 Spiro V. St. Louis Transit Co., loi American Tec Co. v. New York 102 Mo. App. 250, 262, 76 S. W. Rep. City R. Co., (Supm. Ct. App. T.) 50 884, 688, per Goode, J. Misc. (N. Y.) 183. § 156] INCREUIBILITIES AND IMPROBABILITIES. 201 obedient to her wheel, moving ten miles an hour, puts her helm hard down, and coming around strikes the schooner with her port side — on these premises the conclusion was held to be irresistible that this steamer was in very close proximity to the schooner when she put her helm hard down; and this stubborn physical fact cannot be overcome by testimony on the part of the vessel that she put her helm hard a-port several minutes before the collision.^"" § 156. Stories of Violent Collision Without Physical Evidence Thereof. — The court thought it to be inconceivable how an iron, two inches wide and an inch thick, which was attached to a train running twenty-five to thirty miles an hour, should have struck a crowbar in the hands of a track repairer, throwing it against his neck and jaw with such force as to break his jawbones and arm, and yet leave no mark whatever upon the crowbar.^"^ It is " simply incredible, against all common human experience, against all physical facts, that the end of a shaft attached to a buggy, drawn by a horse going at a full brisk trot, should strike a woman in the left side with force sufficient to throw her on a granite-paved street, and with force sufficient . . . to cause her death, and yet not leave on the body the slight- est sign of violence. Such testimony should be disregarded by both courts and juries, and no probative force should be given to it." ^°* In a case where an electric car, going several miles per hour on a down grade, collided with a wagon, and the car stopped substantially at the point of the collision without the persons on the car being mate- rially disturbed or the car showing any evidence of the occurrence other than a few scratches in the paint, and without the wagon being thrown forward upon the track or broken or marred at the place of contact, the court said that " such circumstances so outweigh any amount of testimony, from the lips of witnesses, that the car was going many miles per hour at or about the instant of the collision, as to leave no room for such testimony to be true." ^"^ 102 The Lepanto, 50 Fed. Eep. 234, S. W. Eep. 1045, 1049, per Tittman, 238, 8 U. S. App. 1, per Hughes, J. Special Judge. 103 Wheelan v. Chicago, etc., R. Co., loe Stafford v. Chippewa Valley 85 Iowa 167, 52 N. W. Eep. 119. Electric R. Co., 110 Wis. 331, 349, 104 De Maet v. Fidelity Storage, 85 N. W. Rep. 1036, 1041, per Mar- etc, Co., 121 Mo. App. 92, 104, 96 shall, J. See also post, §§ 448, 449. 202 INCREDIBILITIES AND IMPROBABILITIES. [§§ 157, 158 § 157. Incredible Human Stature. — History affords no authenti- cated instance of men attaining the height of nine feet. Buffon, ia his Natural History, records instances of men attaining extraordinary heights, but modern writers do not accept his statements. Pliny tells of an Arabian nine feet high, but the story is not authenticated. In the article upon " Giants," in the Encyclopaedia Britannica, it is stated that the tallest man whose stature has been authentically re- corded was Frederick the Great's Scottish giant, who was eight feet three inches tall. In the College of Surgeons, in London, there is a skeleton of an Irishman who was named Charles Bieme, which measures eight feet. Such heights are of rare occurrence, and the height of nine feet has probably never been attained by man. In an action against a railroad company for personal injury by a brakeman who had struck his head against something while sitting on a box ear, going through a tunnel, the negligence charged was the omission to giye plaintiff notice of a brick arch in the tunnel, which reduced its height to four feet seven inches above the top of the ear. The New York Court of Appeals took judicial notice that a man could not strike his head against an obstruction that distance above where he was sitting, unless he was nine feet high, and that no man was ever known to be nine feet high. The fact that the plaintiff was a man of that extraordinary height did not appear on the record and could not be assumed.^''^ So, it was beyond the court's comprehension how a man of ordinary stature, walking between two ordinary freight cars, could have the fleshy portion of his leg, from his thigh down, eight or nine inches, crushed by the bumpers or drawheads.'''" § 158. Incredible Testimony to Defect in Machine. — A verdict obtained by a servant against a master for injuries suffered in operat- ing a machine was sustainable, if at all, only by a finding that the machine was run in an unsteady manner. The plaintiff testified that the machine commenced to go wrong about one hour before the acci- 100 Hunter v. New York, etc., R. 11. "We regard this statement, as Co., 116 N. Y. 615, 23 N. E. Rep. 9, appears in this record, so eontra- per Brown, J. dietory to general knowledge that 107 Gurley v. Missouri Pac. R. Co., no court is bound to accept it." Per 104 Mo. 211, 233, 16 S. W. Rep. Gantt, P. J. § 159] INCREDIBILITIES AND IMPROBABILITIES. 203 dent and that this difficulty was what caused the injury. But accord- ing to the undisputed evidence, there was no discoverable defect in tlie machine, it ran evenly ever before and ever after the time in question, and the connections between the machine and the motor from which the power was received were such that any unsteady motion as claimed was practically impossible. Under these circumstances, the court said: "When physical situations or matters of common knowledge point so certainly to the truth as to leave no room for a contrary determination, based on reason and common sense, such physical situation and reasonable probabilities are not affected by sworn testimony which, in mere words, conflicts therewith. The fact established by the situation itself and matters of common knowledge, so clearly that no one can reasonably dispute it notwithstanding evidence to the contrary, must stand uncontroverted and uncontro- vertible, condemning as false such contrary evidence, either upon the groimd of mistake or something worse." ^°* In a similar case, where the machine was exhibited to the court and ]ury,^"° and it was demon- strated that an alleged automatic action was not permitted by its mechanical construction and principle of operation, statements of witnesses that such action did occur were disregarded. " Otherwise, oral statements must be held to have more force than the certain action of immutable laws," said the court.^^" § 159. Physical Facts Proved by Demonstrative Evidence. — " The best and highest proof of which any fact is susceptible is the evidence of his own senses. This is the ultimate test of truth, and is therefore the first principle in the philosophy of evidence. He who denies or doubts the evidence of his own proper senses will, of course, deny or doubt the existence of matter, and be an universal sceptic; and to such a mind there can be no such thing as proof; for if he distrust his own senses, he will be much more distrustful of the testimony of others as to the evidence of their senses. Hence autopsy, or the evidence of one's own senses, furnishes the strongest proba- bility and, indeed, the only perfect and indubitable certainty of the losGroth V. Thomann, 110 Wis. Mfg. Co., 96 Wis. 277, 71 N. W. Eep. 488, 496, 80 N. W. Rep. 178, 181, 434. per Marshall, J. See also Chicago los See infra, § 159. Hardware Co. v. Matthews, 124 111. n" Irvine v. F. H. Palmer Mfg. Co., App. 89, 92; Vorbrioh v. Gender, etc., 2 N. Y. App. Div. 69, 71, 37 N. Y. 204 INCREDIBILITIES AND IMfROBABlLItlES. [§ 160 existence of any sensible fact." ^'^^ So, in a case where the plaintiff's hand was cut off while working a device called a " slat saw," and on appeal from a verdict in his favor the appellate court had before it for inspection the machine itself, a new trial was granted because it was obvious to the senses that a space through which the plaintiff had testiiied that his hand had passed was far too small to admit his hand.i" § 160. Assertion of Looking and Listening at Railroad Crossing. — Courts are not so deaf to the voice of nature, or so blind to the law of physics, that every utterance of a witness in derogation of those laws will be treated as testimony of probative value simply because of its utterance. A court will treat that as unsaid by a witness which, in the very nature of things, could not be as said.^^^ " When one says he looked and did not see an object, which, if he had looked, he, in the nature of things, must have seen, he cannot be credited if he says he did not see the object." ^^* Hence, testimony of a person possessing normal faculties of sight and hearing that he looked and listened for an approaching train at a railroad crossing and did not see or hear a train rushing toward him in plain view ^^" is " incredible as matter of law," ^^^ " against the mathematics of his environ- ment," ^" and " must be rejected as not in accordance witli the truth of the matter, even though uncontradicted by the direct testimony of any other witness." "' " When to look is to see, the mere utterance Supp. 322, 324, reargumeiit denied 3 (Md. 1906) 64 Atl. Rep. 304, 307, N. Y. App. Div. 385, 39 N. Y. Supp. per MoSherry, C. J. 245. iiB A few of the cases cited in note 111 Gentry v. McMinnia, 3 Dana 118, infra, were cases of electric street (Ky.) 382, 386, 387, per Robertson, cars. C. J. 110 Keller v. Erie R. Co., 183 N. ii2Musbach v. Wisconsin Chair Co., Y. 67, 75 N. E. Rep. 965, per Gray, 108 Wis. 57, 84 N. W. Rep. 36; Beyers- J.; Dolfini i\ Erie R. Co., 178 N. Y. dort v. Cream City Sash, etc., Co., 1, 70 N. E. Rep. 68. See also post, 109 Wis. 456, 84 N. W. Rep. 860. § 221. See also Ferris v. Hernsheim, 51 La. ii7 Fellenz v. St. Louis, etc., R. Co., Ann. 178, 183, 24 So. Rep. 771, and 106 Mo. App. 154, 80 S. W. Rep. 49, supra, § 158. per Bland, P. J. 113 Hook V. Missouri Pac. R. Co., us Chicago, etc., R: Co. v. Kirby, 162 Mo. 569, 63 S. W. Rep. 366, per 86 HI. App. 57, 59, per Adams, J. See Robinson, J. also the following cases: 114 Baltimore, etc., R. Co. v. State, United States. — Gipaon v. South- §160] INCREDIBILITIES AND IMPROBABILITIES. 205 that one did look and could not see will be disregarded as testimony by the court; and no additional value is to be given to the utterance because of the fact that a jury, under the direction of the trial court, ern R. Co., 140 Fed. Rep. 410; Chi- cago, etc., R. Co. V. Pounds, 82 Fed. Rep. 219, 49 U. S. App. 476. See also The Starlight, I Hask. (U. S.) 517, 22 Fed. Cas. No. 13,310 (at p. 1096). Canada. — Wabash R. Co. v. Mise- ner, 38 Can. Sup. Ct. 94, 99. Alabama. — Peters v. Southern R. Co., 135 Ala. 533, 33 So. Rep. 332. Arkansas. — Waters-Pierce Oil Co. V. Knisel, 79 Ark. 608, 96 S. W. Rep. 342, 348. Illinois. — Chicago, etc., R. Co. v. Vremeister, 112 111. App. 346, 351; Chicago, etc., R. Co. v. T>e Freitas, 109 111. App. 106. Indiana. — Lake Erie, etc., R. Co. V. Stick, 143 Ind. 449, 41 N. E. Rep. 365. Iowa. — Bloomfield v. Burlington, etc., R. Co., 74 Iowa 607, 38 N. W. Rep. 431; Payne v. Chicago, etc., R. Co., 39 Iowa 523. Kansas. — Bressler v. Chicago, etc., R. Co., (Kan. 1906) 86 Pao. Rep. 472; Metropolitan St. R. Co. v. Ag- new, 65 Kan. 478, 70 Pac. Rep. 345. Maine. — Blumenthal v. Boston, etc., R. Co., 97 Me.. 255, 54 Atl. Rep. 747. Missouri. — Lane v. Missouri Pac. R. Co., 132 Mo. 4, 33 S. W. Rep. 645, 1128; Payne v. Chicago, etc., R. Co., 136 Mo. 562, 38 S. W. Rep. 308; Kelsay v. Missouri Pac. R. Co., 129 Mo. 362, 30 S. W. Rep. 339. New Jersey. — Diete v. Erie R. Co., 70 N. J. L. 138, 56 Atl. Rep. 156; Green v. Erie R. Co., 65 N. J. L. 301, 47 Atl. Rep. 418; Pennsylvania R. Co. V. Righter, 42 N. J. L, 180, New York. — McKinley v. Metro- politan St. R. Co., 91 N. Y. App. Div. 153, 86 N. Y. Supp. 461; Fiddler v. New York Cent., etc., R. Co., 64 N. Y. App. Div. 95, 71 N. Y. Supp. 721. Pennsylvania. — Canfield v. Balti- more, etc., R. Co., 208 Pa. St. 372, 57 Atl. Rep. 763; Holden v. Pennsyl- vania R. Co., 169 Pa. St. 1, 32 Atl. Rep. 103 ; Urias v. Pennsylvania R. Co., 152 Pa. St. 326, 25 Atl. Rep. 566; Myers v. Baltimore, etc., R. Co., 150 Pa. St. 386, 24 Atl. Rep. 747; Hauser v. Central R. Co., 147 Pa. St. 440, 23 Atl. Rep. 766; Blight V. Cam- den, etc., R. Co., 143 Pa. St. 10, 21 Atl. Rep. 995 ; Pennsylvania R. Co. V. Mooney, 126 Pa. St. 244, 17 Atl. Rep. 590; Marland v. Pittsburgh, etc., R. Co., 123 Pa. St. 487, 16 Atl. Rep. 624; Carroll v. Pennsylvania R. Co., 12 W. N. C. (Pa.) 348. Wisconsin. — White v. Chicago, etc., R. Co., 102 Wis. 489, 78 N. W. Rep. 585; Cawley v. La Crosse City R. Co., 101 Wis. 145, 77 N. W. Rep. 179. See also cases cited post, §§ 191, 221, 280, 331, 335. But the rule stated in the text is applicable only to clear cases. Boggs V. Pittsburg, etc., R. Co., 216 Pa. St. 314, 65 Atl. Rep. 535. See also Cal- lahan V. Philadelphia Traction Co., 184 Pa. St. 425, 39 Atl. Rep. 222; McCusker v. Pennsylvania R. Co., 198 Pa. St. 540, 48 Atl. Rep. 491; Breunniger v. Pennsylvania R. Co., 9 Pa. Super. Ct. 461, 464. And as to matters which may prevent sight or hearing of approaching trains, see post, chaps, v., VI, 206 INCREDIBILITIES AND IMPROBABILITIES. [§ 161 lias predicated a finding thereon. As the law does not permit a witness to blind his eyes to the sight of an approaching train in full view of a crossing he is to pass, neither will the eye of the law ))ecome blinded to the true situation of the case merely because of the absurd statement of a witness or witnesses, ' I looked and could not see,' or the jury's indorsement of it by a finding predicated thereon, when to look was to see." ^^° The more positive and definite the testimony, the stronger the indication that it is wilfully false; at any rate, " regardless of the amount of evidence from the mouths of witnesses, there is no conflict to be solved by a jury, because no just verdict can ever be rendered contrary to all reasonable proba- bilities." "» § 161. Travels of a Toddling Infant. — The plaintiff in an action against a railroad company was about seventeen months old, and had been able to walk for only about two months, when he was si ruck by an engine on the track. His mother, testifying in exculpa- tion of herself from the charge of negligently taking care of him, stated that he was playing in the yard in front of the house, and she took him up and held him in her lap, sitting on t"he front-door steps of the house. Finding that he was sleepy, she went into the house, and, sitting in a rocking chair, nursed him. Seeing that he was inclined to sleep, she laid him dovni upon the floor and saw that he was still, and she then put a chair across the open doorway while she went into another room to fix his cradle. " She was gone eight or ten minutes, and when she came back ho was gone. The chair across the doorway was undisturbed, so that he must have crawled over the chair, or through it in some way, and passed down the steps to the front gate, wliicli was f nstened ; under the gate there was a space of about six inches through which he must have crawled, and then he must have passed into the street, eighty feet to the railroad, where he was hit by the engine and injured. All this transpired during the eight or ten minutes she was in the adjoining room. AVhen she came out of that room and commenced looking for him she saw him on the railroa'3 Zzi saw the train coming. He had 110 Hook V. Missouri Pac. R. Co., i2o Marshall i'. Green Bay, etc., R. 162 Mo. 569, 581, 63 S. W. Rep. 360, Co., 125 Wis. 96, 100, 103 N. W. Rep. 382, per Robinson, J. 249, 250, per Marshall, J. §§ 162, 163] INCREDIBILITIES AND IMPROBABILITIES. 207 never gone to that place before, and was never known before to crawl under the gate." The New York Court of Appeals said : " The counsel for the defendant contends that this story that this child, just able to walk, after being put to sleep sound as comes to a tired, well-fed infant, woke up, got through or over the chair, down the steps, under the gate, and down to the railroad track, all within eight or ten minutes, is so incredible, unnatural, and contrary to human experience, that the jury could not rely on it as sufficient to show such care of the child on the part of his mother as the law exacts. While this evidence is liable to much of the criticism in which the defendant's counsel indulges, we cannot say that the story, in its essential features, is so impossible or improbable that, as matter of law, the jury could not believe it and rely upon it." ^^^ § 162. Statement of Impossible Privation. — Testimony of a pas- senger on a vessel that for a period of three weeks no water or other fluid whatever was given to the passengers was declared to be " too strong for human belief," since the witness survived to tell the tale.'^' § 163. Incredible Statement of Time Occupied in Work. — Ap- praisers of a decedent's estate filed a claim for their services, and testified that they were actually occupied fifty days in doing the work charged for; but the amount of work being conceded, and it being within common experience and knowledge that such work could all have been done in a day or two, their testimony that such work took fifty days was held to be no evidence, and not sufficient upon which to base a finding of facts. " Should a person affirm that black was white or white was black, or, being in the full possession of his faculties, and having the unrestricted use of his limbs, shouH testify that he actually and necessarily occupied a year in walking a mile, his statements would be so in conflict with recognized possibilities as to be entitled to no credit or character as evidence." ^'^ If the court's illustration had referred to the recognized possibilities of eyes instead of legs, it would have exactly fitted the cases we have already described.^^* 121 Chrystal V. Troy, etc., R. Co., New England, Newb. Adm. 481, 14 105 JSr. Y. 164, 168, 11 N. E. Rep. Fed. Oas. No. 7,030. .380, per Earl, J. 128 Matter of Harriot, 145 N. Y. 122 It was " beyond the pale of 540, 40 N. E. Rep. 246, per Haight, J, credibility." Kramme v. The Ship i24 See supra, § 160. 208 INCREDIBILITIES AND IMPROBABILITIES. [§§ 164-, 165 § 164. Incredibly ftuick Comprehension of Long Document. — In a case of a will contest, the court declared it to be " palpably absurd . . . that a special testamentary instrument, sixteen folios in length, creating trusts, powers, future estates, contingent limitations, and executory devises, drawn ' in haste ' necessarily, and necessarily read with ' much rapidity,' and never submitted or discussed before, in draft or otherwise, was on the instant ' perfectly understood ' by a dying man after a single reading, and that without pause, observa- tion, or explanation." ^^^ § 165. Incredible Coincidences. — Eational belief is subjected to an enormous strain when required to indorse a story in its entirety which exhibits a coincidence of numerous occurrences, each of which is highly improbable,^^" " a bewildering snarl of improbabilities." '^" " It seems quite impossible to believe " that if a person had accumu- lated $3,500, the result of moneys received from time to time in many different payments from as many different persons, in ordinary trade, it would all have been in just even $100 bills.^-* It is hardly credible that with only slight provocation a master and a mate should commit an assault with weapons upon a sailor wilh whom neither of them had ever before had the least difficulty, and pour out upon him a tirade of vulgarity and profanity, each of them using the same disgraceful epithets.^^^ In a divorce suit by a husband on the ground of adultery it ap- I)eared that when his suspicions were aroused as to the corespondent's relations with his wife he employed a detective, who discovered, on the very day he began to watch, a guilty assignation between the parties. The corespondent testified that this was the first time they had committed adultery. The court reminded the jury, however, of the " extraordinary coincidence " that it was also the first occasion of watching. 130 12B Alston V. Jones, 17 Barb. (N. i27 Mack v. Spencer Optical Mfg. Y.) 276, 297, per Morris, J. Co., 52 Fed. Rep. 819, 821. 126 Matter of Gaines, 84 Hun (N. lasKinmonth r. White, (N. J. Y.) 520, 32 N. Y. Supp. 398, 402. 1900) 47 Atl. Rep. 1. See also Matter of Nokarda, 114 N. 12a Murray v. White, 9 Fed. Rop. Y. App. Div. 370, 100 N. Y. Supp. 562, 564. 42, and, for an example of wonderful iso Evans v. Evans, (1899) P, P. coincidence, infra^ § 167. 195, 201, § 165] INCREDIBILITIES AND IMPROBABILITIES. 209 A will offered for probate contained as technical a form of words as could possibly be used, not only in the formal, introductory, and concluding parts, but in the disposition itself; it was written quite fair, without a single omission, erasure, or amending, except in the spelling of one word. A calico-glazer testified that he wrote the will under the instructions of the testatrix, who was a sick woman and herself an illiterate person; that he never drew a will before in his life; that this will was written off at once upon a sheet of paper with- out any draft or previous note or memorandum, or any other docu- ment as a model, and that it was immediately read over and imme- diately signed. And yet the introductory and concluding parts of this will were the same verbatim as in a will executed by the testatrix a few years before. Sir John Nicholl said it would be difficult to believe in itself that persons of this description should be able uno contestu to draw up a will in such formal and technical terms, and " that so precise a coincidence of wording should have taken place without being copied, and in a paper not drawn by a professional person, is almost beyond belief." ^^^ In suits for infringement of copyright, the fact that the same mistakes and omissions occur in two compilations or compositions may create a cogent presumption that both are not original produc- tions, and that one has been copied from the other.^^- When a genuine signature of a person, held up to a window pane and superposed over another alleged signature of the same person, is such a facsimile that the one is a perfect match to the other in every respect, it would be absurd to contend that both signatures are genuine. The probabilities against such a coincidence in genuine signatures mathematically computed are represented by a number which is scarcely coneeivable.^^^ But marvelous coincidences sometimes occur. Several instances are mentioned in a chapter of Eichard A. Proctor's " Light Science for Leisure Hours." Anderson v. Monroe, reported in 55 Fed. Eep., at page 398, was reversed on appeal in a case reported in 58 Fed. Rep., at the same page number, 398. Obviously the antecedent prob- ability that these numbers would thus coincide was exceedingly small. 131 Moss V. Brander, 1 Phill. Ecc. 131 Fed. Rep. 564, 566, and cases 254. cited. 1S2 George T. Bisel Co. v. Welsh, iss See post, § 605, FACTS — 14 210 INCREDIBILITIES AND IMPROBABILITIES. [§ 166 Improbable coincidences are susceptible of proof "* no lesB than other improbabilities.^^'' § 166, Incredible Minuteness of Observation."' — It cannot rationally be expected that a truthful witness will give a minute statement of facts which were not calculated to engage the extraordi- nary degree of attention requisite to faithful observation of them. If an attesting witness to a will should testify that he saw the testator sign his name, and should then be asked if he was sure he saw the testator make the very letters which form his name, would not the usual answer be, " I saw him write letters on the will, and then I attested it"? This was Dr. Lushington's opinion, "Lastly," said that eminent judge, " put this question — were you not at the foot of the bed when the testator signed, and will you swear that, as the letters of the name would necessarily be backward to you as you stood, you are sure you saw the letters of the name formed? Where is the honest witness who would dare to give a positive affirmative answer to that question; especially, too, after the lapsOj as in the present case, of more than two years? It would be ridiculous in the court to expect it; more especially, too, as it very seldom happens that witnesses follow the precise movement of a pen in the hand of a writer." ^^^ In sustaining a verdict in an Illinois case where, according to the testimony of four witnesses stationed at different places in the three ears of a street-railway train (two of them being closed), they had their four faces simultaneously turned in the direction of a woman approaching the train, and each of them noticed her on the street and her movements to the car, and at the same moment of time singled her out, without knowing or being acquainted with her, from among the multitude of other people walking to 'and fro at the most crowded crossing in Chicago ^ — the court said it was "a coincidence"* that the jury may perhaps have deemed a too severe strain on their credulity." "' 134 Buser v. Novelty Tutting Maoh. isr Thomson r. Hall, 2 Rob. Ecc. Co., (CCA.) 151 Fed. Rep. 478,491. 426, 435. 185 See supra, §§ 135, 136. iss Incredible coincidences, see sMpro, 100 Aa to opportunity and capacity § 165. for observation, and as to accuracy lao West Chicago St. R. Co. v. of observation, see post, chap. XIV. Brown, 112 111. App. 351, 359. §§ 167-169] INCREDIBILITIES AND IMPROBABILITIES. 211 § 167, Concurrence of Remarkable Memories. — That one man, even if deeply Interested, without his memory being refreshed, could remember the terms of a written agreement for iive or six years, so as to be able fairly to repeat them all, ''wonld, I think, be something quite remarkable," '*° said Judge Rose of Ontario ; " but that six or seven persons, most of them haying little or no interest in the matter, should so remember, is to my own mind quite incredible.'" He intimated an opinion that such witneBses "had been tutored before going into the witness box.'' ^** § 168. Incredible Lapse of Memory. — In another chapter some remarkable but authentic instances of lapse of memory are given.^*'' But a man's assertion that he did not remfimber having had sexual intercourse with a particular woman with whom he was intimately acquainted was pronounced incredible."' § 169, Incredible Ignorance, — Testimony of a youth of average intelligence that he did not know that if he got his fingers into the rolls of a straw cutter they would be caught thereby, and did not know that, if they were caught, he would be injured, was held not to amount even to a scintilla of evidence tending to establish that such were the facts, for the testimony was overcome by common experience in life.i" Said Judge Deady of the federal District Court: "To my mind it is absurd to suppose that within the limited area of this vessel, carrying a crew of only six men, the mate could, in open daylight, and without any substantial cause, severely beat one of the men, fracture his arm, and boot him from fore to aft, without the master being aware of it at the time or soon after." ^*° In a husband's suit to annul his marriage it appeared that the wife was undoubtedly about five months advanced in pregnancy at the time of the marriage. He declared that the first intimation he had that she was with child was when she informed him of the fact about "0 See post, § 891. lis Mott v. Mott, 3 N. Y. App. Div. "1 Ross V. Williamson, 14 Ont. 184, 532, 38 N. Y. Supp. 261. 186. As to credibility of tutored wit- "* Roth v. S. E. Barrett Mfg. Co., nesses, see the chapter on credibility 96 Wis. 615, 71 N. W. Rep. 1034. of witnesses, post, § 990. us Hanson v. Fowle, 1 Sawy. (U. l«See post, § 830. S.) 539, 11 Fed. Cas. No. 6,042. 212 INCREDIBILITIES AND IMPROBABILITIES. [§ 170 a month after their marriage. On that point her testimony contra- dicted his, and her story as to their illicit relations before marriage was accepted by Vice-Chancellor Van Fleet of New Jersey, largely because it was " a thing incredible " that he could have occupied the same bed night after night with her, and have sexual intercourse with her repeatedly, and not discover or suspect that she was pregnant.^*" However, where the husband was " an honest, simple fellow of about twenty-eight years old, but little used to female society," and he and his wife lived together for about three weeks after marriage without his suspicions being awakened, so he said, until the wife was taken in labor pains, and presented her wondering spouse a full-grown child before the expiration of the honeymoon. Judge Wright of Ohio gave him relief by annulling the marriage.'^'" § 170. Astonishing Credulity. — In an action for fraud, the alleged fraudulent statements of the defendant may appear so im- probable as to make it almost unbelievable that an ordinarily reason- able and intelligent man would be deceived by them. And yet it would be an extraordinary ease where an appellate court would set aside a verdict for the plaintiff based upon positive testimony that the statements were relied upon. "We are all apt to be wise after the event." ^*^ It was an aphorism of Mr. Justice Brewer : " Wisdom born after the event is the cheapest of all wisdom. Anybody could have discovered America after 1498." ^** Cases are by no means rare where astute men of business have been induced to do what afterwards seemed to be very foolish things, and to believe very extravagant statements, by a confidence inspired by the good reputa- tion and standing of the men who were all the time defrauding them.i'^'' On the other hand, a party's asserted belief that a woman was convalescent when he procured an order for the sale of her life estate, knowing that her health had been for some time declining, and having "15 Seilheimer v. Seilheimer, 40 N. "» U. S. v. American Bell Tele- J. Eq. 412, 2 Atl. Rep. 376. phone Co., 167 U. S. 261, 17 U. S. 1*7 Morris v. Morris, Wright (Ohio) Sup. Ct. Rep. 809, quoted in 2 Obiter 630. But there waa no claim of il- Digest U. S. Supreme Court Reports, licit relations before marriage. tit. " Wisdom.'' "sNova Scotia Bank v. Fish, 32 isoNova Scotia Bank v. Pish, 32 N. Bruns. 434, 447, per Barker, J. N. Bruns. 434, 447, per Barker, J. § 171] INCREDIBILITIES AND IMPROBABILITIES. 213 been assured by her physician only a short time before that her recovery was hopeless and that she could not live, at best, beyond a few days, was pronounced " too transparent to gain credence," and character- ized as a credulity " incredible upon any supposition short of utter imbecility or aberration of mind." ^^^ In a seizure case under the internal revenue laws, Judge Blatch- f ord, instructing a jury, said : " An important piece of evidence upon the question of whether a man believes that the tax has been paid upon spirits which he buys is the price that he pays for the spirits, because no man can pay one dollar and twenty-five cents or one dollar and thirty cents a gallon for spirits upon which there is a tax of two dollars a gallon, and honestly believe that the tax on those spirits has been paid. That is an utter impossibility. He may receive all the barrels in the world branded ' tax paid,' and yet the very fact that he receives the spirits contained in them at the price for which he purchases such spirits in the market must, in the absence of all circumstances to show why the spirits were sold for a less price than the tax itself, be convincing evidence to any honest mind that the tax has never been paid on the spirits." ^^' § 171. Acts Opposed to Common Sense — In General. — It would bo a very unsatisfactory conclusion which would convict highly intel- ligent business men of " unparalleled stupidity " in employing slow and expensive methods in manufacturing, with full knowledge and opportunity to choose a method speedy and cheap.^^^ A woman's testimony that she traveled from Brooklyn to Trenton with $5,000 in bills in the bosom of her dress "is calculated at least to excite surprise." ^^■' In a case where a defendant testified to an agreement with plaintiff wliich exhibited remarkable confidence and generosity on the part of the latter, the Pennsylvania Supreme Court said that while the transaction seemed to be " contrary to common experience, we are Instance General Grant's faith in No. 11,494 (at p. 112). See also Ferdinand Ward's account of his busi- Kaufmann v. U. S.,. (C. C. A.) 113 ness transactions. Fed. Rep. 919, 922. i-ii Clark t'. Underwood, 17 Barb. i53 Simmons v. Standard Oil Co., (N. Y.) 202, 219, per Johnson, J. 62 Fed. Rep. 928, 932. 162 Quantity of Distilled Spirits, lo* Levy v. Levy, (N. J. 1904) 57 etc., 3 Ben. (U. S.) 70, 20 Fed. Cas. Atl. Rep. 1011, per Reed, V. C. 214 INCREDIBILITIES AND IMPROBABILITIES. [§ 172 meeting instances of lack of good judgment, lack of common sense, departures from common experience, in court every day. If men all acted sensibly and did what good Judgment and common sense dic- tated, there would not be so many lawsuits," And so, while defend- ant's story " would seem improbable on its face," continued the court, " it is merely improbable, not necessarily untrue ; its unusualaess does not stamp it as false." "° § 172. Improbable Stories of Acquisition and Hoarding of Money. — In suits to set aside fraudulent conveyances, it sometimes happens that the defendants attempt to prove the pajrment of a large amount of currency as consideration for a sal© or mortgage of the debtor's property, and the evidence consists of testimony that the party paying the money had not only acquired or accumulated it in a singular manner, but had kept it, perhaps several thousand dollars, for years in a trunk or a box or a cupboard, etc. Occasionally in various other cases, the same sort of a tale is told to account for the possession oi a large sum of cash. It is often impossible directly to contradict the testimony. In the following pages are given a few cases showing how the courts demonstrate that these stories on their face, and especially with the aid of a few extraneous circumstances, subject rational belief to greater strain than it can bear. In a case in Maine, where a judgment creditor sued to set aside as fraudulent a conveyance of real estate by th« debtor to his wife, the defendants alleged that the deed, executed in 1881, was for $3,000 consideration, paid at the time. The wife claimed to have had $1,000 in a stocking bag that she began to accumulate soon after their mar- riage in 1860, and that it was in old state bills; $1,000 more in a calico bag, greeuliar-ks and national bank bills; and another $1,000 in a pillow ease. She claimed to have accumulated this by wages at two dollars and fifty ecmts a wpp1^ that her husband had paid her, and from $G0O that alio had wlten married. She said that the $600 was put into the stocldng, and savings added until $1,000 had been accumu- lated, and then she began her deposit in the second bag; that the money in the stocking bag was in old state bills. When tlie deed was given the husband was owing considerable money. He had no other IBB Heist V. Blaisdell, 198 Pa. St. 377, 48 Atl. Rep. 259, 2«2, per ew. See also supra, §§ 135, 136, and ante, § 93. § 172] INCREDIBILITIES AND IMPROBABILITIES. 215 real estate. The court refused to believe the wife's testimony. " If she had, in 1881, $1,000 in old state bills," said the court, " certainly they could not have been negotiated vi^ithout remark and without pioof of the fact now in existence. The defense relies upon the payment of the $3,000 taken from the three bags as a consideration for the deed to her. We cannot rely upon testimony so incredible to substantiate a consideration that would change the conveyance from a voluntary cue into a bona fide sale." ^°° In a New York case, the plaintifE sued to recover from the defendant more than $20,000, which it was claimed he had em- bezzled while in the service of the plaintiff as ferry master and in other capacities, from 1861' to 1883. The defendant had on deposit in various banks about $30,000, and considerable invested beside^. His account of this great accumulation of property was that a large part of it was given to him by his mother, and her story was as follows : She and bet husband came to this country from Ireland in 1836, bringing with them five hundred guineas. It did not appear what was done with this money, and it was not claimed that it was ever deposited in bank or invested. She kept boarders for about thirteen years, and during a portion of the same time a retail liquor store. Her husband for several years bought and sold cattle and hogs, and butchered them, and in these kinds of business they made money, which was kept by her. All these kinds of busitiess terminated before 1853. After that her husband, who sometimes indulged in too much drink, worked until his death, in 1856, in a distillery, as a day laborer for twelve dollars per *eek. What her children earned was brought to her and saved, although prior to 1856 it was certain from their ages that they could have earned but very littlG. In 1856, when her husband died, she had accumulated in this way $15,000^ $10,000 or $13,000 of which was in bank bills, and the balance in gold. This money was all accumulated prior to 1854, and, as it was accu- mulated, was put and kept in a wooden chest under or behind hex' bed. It did not appear that any member of her family knew that slie had this money, and no other witness was produced who ever saw it or heard of it, She ]rept this large sum of money in that chest, unknown to any one, until 1870. During all that time she lived in poverty, and she continued to do washing for other p&ople until thfee years 166 Miller v. Ililtoii, 88 Me. 429, 34 Atl. Rep. 266y per Haskellj J. '21G INCREDIBILITIES AND IMPROBABILITIES. [§ 172 before the trial of the action, when she was seventy-six years old. She did not deposit the money in savings banks for fear she might lose it, although she lived near the Williamsburgh Savings Bank, and knew it was a very strong bank, with an immense surplus. Although she was afraid to deposit the money in banks, she kept the bank bills — most of them for more than twenty years — in a frail wooden box, through the financial crisis of 1857, and until long after such bills had gone out of circulation and been supplanted by the national currency, and the state banks had ceased to do business. She kept the gold notwithstanding the enormous premiums which it had ■reached, until the premium had been mostly swept away. While she distrusted the banks for her own money, she was careful to deposit the money earned by her son before he entered the employment of the plaintifE, from time to time as he earned it, in a savings banlc. Although she kept this money so long — some of it certainly thirty years — in 1870 she began to dole it out to her son, at first in small sums, and then in larger sums, until she had given all of it to him. She suddenly, in 1870, acquired confidence in banks and in her son, and began to dispose of the hoarding of many years, and still took in washing to earn money. It was also a singular coiucidence that she began to swell her son's bank account at the same time when the complaint charged that he began to embezzle the moneys of the plaintifE. In affirming a judgment for the plaintifE, the court said : " Such is her story, uncorroborated in a single essential par- ticular. It is against common experience and observation. It is possible that it is true, but it is highly improbable. It is extraordinary and incredible, and certainly the trial court was not bound to believe it. "While a court is bound to believe a disinterested, unimpeached, uncontradicted witness who gives evidence not in any way discredited, or in itself improbable or incredible,^''' it is not bound to give credit to a witness who is interested in the result of the action, and whose evidence is improbable and discredited by circumstances, or is against common experience and observation." ^'^ In a case decided by Vice-Chancellor Eeed of Few Jersey, a bank- rupt who kept a store in Trenton, N. J., claimed that his niece in 157 See ante, §§ 67, 69 et seq. ion. The quotation appears in the 168 New York, etc.. Ferry Co. v. full report, 6 N. E. Kpp. 293. See Moore, 102 N. Y. 667, without opin- also ante, §§ 78 et seq., 92 et seq. § 172] INCREDIBILITIES AND IMPROBABILITIES. 217 Brooklyn lent him $5,000 in cash and that he gave her several mort- gages on his property to secure it. She brought a foreclosure suit, making the trustee in bankruptcy a defendant, and the trustee disputed the validity of the mortgages, chiefly on the inherent improb- ability of the testimony of the bankrupt and his niece. She said she carried the money to him in Trenton from Brooklyn in the bosom of her dress. " It is not usual for ladies to carry thousands of dollars in this way," remarked the court. And the query suggested itself, why should she bring, rather than her uncle go for, this money ? lie had visited her frequently before and after this transaction, and so had had opportunities to receive all or part of the money. " Why put upon her the risk of transporting this money to a city which she had never visited, to be delivered to one who had not even been apprised of the time of her coming, and whose place of residence was unknown to her ? " Obviously her trip was not for the purpose of inspecting the property to be mortgaged, or to see that the mortgages were correctly executed; for she said she was no business woman, and it was quite clear that she did not see the property. All the details of the visit seem to have made the slightest impression upon her. She could not tell whether she ate in the house, whether she went into her uncle's living apartments attached to the store part of the building, whether she intended to stay all night or to return the same day. " Now, it is strange that the details of this single trip, made under such unusual circumstances, should have made upon her mind so faint an impression," said the court. Whence did she get the money? She said that part of the money was the proceeds of a tenement house standing in the name of herself and her husband, of which the rentals had accrued for some time, and the balance was contributed by her husband. The accrued rents could not have amounted to more than $2,000, so that her husband took $3,000 of his own money to make the amount loaned. Her husband was a business man, and yet he delivered the $5,000 to her in bills instead of making a draft or a check, and permitted her to make the trip tc Trenton alone with the money. Business man as he was, he also knew that she proposed to invest the money in second mortgages on property he had never seen and of which he knew nothing but what the borrower had told his wife. Did her husband have $3,000 at the time? He kept a bank account. Did he draw the money out on a check? Very significant was the fact that he did not testify in the 818 INCREDIBILITIES AND IMPROBABILITIES. [§ 178 case. His wife said he kept the rent money, thousands of dollars, in his safe; he, a business man, with a bank account. What did her iinck do with the $5,000? He testified that he kept it in his pocket for some time, until on a visit to New York he met some person up on Third avenue, near Sixtieth or Sixty-second street, who pretended to know him, and invited him into a place where there was a game in progress. He took part in the game, he said, and lost all the money. His ostensible errand in New York was to buy goods for his store, but it did not appear that he visited any place where goods were sold. He admitted that he was not at the place where he met the confidence man for the purpose of buying goods. He said : " I don't know why I went there, imless to look around and see the sights." He made no complaint to the police, and did not inform his wife of his loss when he got home on the return ticket he had purchased when he left home. Altogether the court thought it was too great a tax on credulity to be required to believe the testimony in the case.^^' In replevin against a sheriff for a stock of goods upon which he had levied an attachment, the plaintiff claimed to be a bona fide purchaser of the property from the debtor who had absconded. He testified to the payment in cash of the purchase money, $3,600. Of this he said he found $3,300 when he was a soldier in the Philip- pines, earned $300, and borrowed $1,000 from his mother. His father and mother were unable to give a satisfactory account of where they obtained the money. They were inclined to think it was left out of the proceeds of property sold ten or fifteen years before, though the mother said it was not the identical money, and that it had been her custom to keep about $1,500 in a bureau drawer ready for use. But while this was on hand — about three years — she had borrowed l&rge sums, and executed mortgages agaiast her property, which were still unpaid. The plaintiff told an amazing yarn about his discovery of buried Spanish silver dollars in the Philippines, which he con- verted, little by little, into gold. He said he kept the identical gold for nearly three years in a chest in his father's house; and but for the attachment debtor's search for some one to whom he might sell his stock of goods in order to cheat his creditors, said tlie court, it might have been there still. " Bureaus and chests as depositories for 1*6 Levy V. Levy, (N. J. 1904) 5? Atl. Rep. lOll. §172] INCREDIBILITIES AND IMPkOBABILITlES* 219 fli6ney/' continued the coUrt, " have this advantage over banlts : they keep no records." The plaintiff had made some incoasiSteat §tat8' itietits. Sis entire tale had the earmarks of a fflaaufactiifed story and was rejected as unworthy of belief.^*" A daim wag presented against a decsdent'e estate for $900 loaned to the decedent, a well-to-do fafffler, by th^ claimant, a fafffi labof&r, who said he had saved the m&&ey and kept it in a trUSk in his fOom. No interest had been paid ot demanded from the time it was loaned, and no note 6r memorandum of any kind was given for the indgbt^ ednees. He had made contradictory statetfl^ntSj and a Witness Gotf§ho- rating him was impeached. The evidenee Wag hdd too doubtful to sustain a claim against the estate of a dead fflan<**^ Other cases where testimony presenting various featureg of iSijJfOb- ability in respect of possession of cOnSidefable sUtta ef niofiey was disbelieved are cited in the note.'** 100 Jordan v. Crickeit, 123 Iowa 579, 99 N. W. Rep. 163. 101 Dougall V. Dougall, 61 N. Y. App. Div. 282, 70 N. Y. Supp. 336. As to the degree of proof required in order to establish a claim against a decedent's estate^ see ante, § 46. 102 Mills V. Mills, 57 Fed. Rep. 873, 876) Alexander v. Todd, 1 Bond (U. S.) 175, 1 Fed. Cas. No. 175, (at p. 386) ; Main v. Glen, 7 fiiSs. (U. S.) 86, 16 Fed. Oas. No. S,973; In re Peltasohn, 4 Dill. (U. S.) 107, 19 Fed. Cas. No. 10,912; U. 8. ik Hod- son, 26 Fed. Cas. No. 15,376 (at p. 340); Pinney v. Jones, 64 Conn. 545, 30 Atl. Rep. 762; Gaar v. Stolte, 115 loWa 1.S9, 98 N. W. Rep. 334; Klein V. Gibson, (Ky. IS86) 2 S. W. Rep. 116; State r. Terrio, 98 Me. 17, 56 Atl. Rep. 217; Stdcfcskgef v. Me- chanies' Loan, etc., Institiite, 87 Md. 232, 39 Atl. itep. 742; Oaitieroft V. CulkiJis, 44 Mich. 531, 7 N. W. Rep. IS7; Miller v. Sauerbief, 30 N. J. Eq. 71; Gibbons If. Fetter, 30 N. J. Eq. 204; Jersey City Second Nat. Bank v. (yRonrke, 40 N. J; Eq. 92} Long Branch Banking Go. Vi Dennis, 56 N. J. Eq. 549, 39 Atl. Rep. 689 j Withrow V. Warner, 56 N. J. Sq. t95, as Atl. Rep. 1037, 40 Atl. Rep. 721; Sayre v. Ooyiie, (N. j. 1895) 83 Atl. Rep. 300) Flemining «, Law' less, (N. J. 1897) 36 Atl. Rep. 603) Union Square Nat. Bank v. Sim- mons, (N. J. 1899) 42 Atl. Rep. 489; National State Sank v. McCormick, (N. J. 1899) 44 Atl. Rep. 706; Kiil- month V. White, (N, J. 1900) 47 Atl. Rep. 1; Knorr v. Lloyd, (N, J, 1900) 47 Atl. Rep. 53; Ruppert v. Hurley, (N. J. 1900) 47 Atl. Rep. 280; Levy v. Rust, (N. J. 1893) 49 Atl. Rep. 1017; Harrison v. fatter- son, (W. J. 1901) 60 Atl. mp. 113; Val-ick V. Hitt, (N. J. lS03) 53 Atl. Rep. 139; Bfaiitingham v. Huff, 67 N. Y. App. Civ. 621, 73 N. Y. Supp. 643; Matter of Albinger, (Suri'ogate Ct.) 30 Misc. (N. Y.) 187, 63 N. Y. Supp. 74S; Finn v. Duffy, (C. 1*1. Gen. T.) 15 Misc. (N. Y.) 126, 36 N, Y. Sapp. 480; Todd V. gykes, S? 220 INCREDIBILITIES AND IMPROBABILITIES. [§ 173 § 173. Acquisition and Hoarding of Money — Improbable Stories Believed. — On the other side, it has been well said : " If evidence is to be always disbelieved because the story told seems remarkable or impossible, then a party whose rights depend on the pi oof of some fact out of the usual course of events will always be denied justice simply because his story is improbable. Such is not the rule. A remarkable and exceptional state of facts may be satis- factorily proven, and if so proven, a court cannot refuse belief simply because it is out of the usual course of events." ^"^ In the case cited a wife claimed that the money with which her husband bought prop- erty which his creditors were seeking to subject to payment of their debts was advanced by her, and that it was her separate estate. Her story was substantially as follows: She came from France in 1868 with her father, mother, brothers, and sisters, when she was twenty- five years old. Her father had taught school and had land in France, and brought to this country 30,000 or 35,000 francs in gold, which was sewed up in the clothes of her father and mother and herself. About 1,400 francs of this was her own, having been willed to her by her godmother and given to her father to take care of. Upon arrival here, the money was changed into paper. The family went to Manitoba, where the father bought a house and lot and paid for it. Afterward they moved to Wisconsin, and her father bought some land for $1,600, started a store, and taught school in the winter. This $1,600 was loaned to the father by his brother or brother-in-law, although the father still had the money he brought from France, uninvested. The wife married a railroad brakeman, moved to an- other place, and began to buy lots with money given to her by her father in sums running from $100 to $350 for about four years. The father sold out and then lived with her for a dozen years until his Va. 143, 33 S. E. Rep. 517; White 771, 67 Atl. Rep. 1029, 64 Atl. Rep. V. Perry, 14 W. Va. 66, 85; Burt v. 1133; Epstein v. State Ins. Co., 21 Tiramons, 29 W. Va. 441, 2 S. E. Rep. Oregon 179, 27 Pae. Rep. 1045; Reed 780; Vandervort v. Fouse, 52 W. Va. r. Klaus, 165 Pa. St. 443, 30 Atl. Rep. 214, 43 S. E. Rep. 112. See also 1005; Portsmouth Gas Co. v. Sanford, Fish V. Carnegie, 7 Grant Ch. (U. 0.) 97 Va. 124, 33 S. E. Rep. 516. 479; Conlin v. Elmer, 16 Grant Ch. ics j>cr Winslow, J., in Marston v. (U. C.) 541; Ripstein ?\ British Cana- Dresen, 85 Wis. 530, 540, 55 N. W. dian Loan, etc., Co., 7 Manitoba Rep. 896. See also supra, §§ 135, 119; Carton v. Booze, 68 N. J. Eq. 136. § 174] INCREDIBILITIES AND IMPROBABILITIES. 221 death. He gave her various sums which she invested in real estate or mortgages taken in the name of her husband vfith the under- standing that the property was to be transferred to her when she so desired, and as to this her husband corroborated her. Her husband went into partnership with another man, the partnership was dis- solved, the wife demanded the transfer to her of the property her money had bought, and the transfer was made. It was conceded that at this time her husband and the partnership were solvent. " Now, this story is in many respects remarkable," said the court, " but we certainly are not prepared to say that it is incredible. More remark- able instances of the secretion of money come to light every day than the one which is here detailed. It frequently happens that people in the class of life to which these people evidently belonged have an abnormal distrust of banks, and of investments of all kinds, and keep their money uninvested, as the father is alleged to have done in this case." '" As was suggested in another case, there should be reasonable charity for the primitive habits of life and simple methods in business peculiar to unlettered people and those in the humbler walks of life.^''^ In a Louisiana case where the court confessed that the fact in dispute was not free from doubt, a woman's testimony to her accumula- tion from gifts of money made to her by her husband when he was prosperous, and how she had put it away and saved it in a wooden box in the house, until it amounted to $4,100, was accepted as true, but her story was corroborated in some important particulars.^"" And in a New Jersey case testimony of a witness was believed, though " it may, and does, seem strange," said the court, that a farmer coming to market " carried $800 in bills in his pocket, with no definite object in view." "' § 174. Improbability of Improvident Business Transactions — In General. — " Evidence is generally considered improbable when it imputes to the parties to a transaction, occurring in the ordinary course of business, conduct inconsistent with the principles by which 16* Case cited supra, in the preced- Ann. 1627, 22 So. Rep. 833. See also ing note. Barrett's Succession, 43 La. Ann. 61, 105 State V. Terrio, 98 Me. 17, 56 8 So. Rep. 438. Atl. Rep. 217. 107 Merchants Nat. Bank v. North- lon Baptiste v. Fourchy, 49 La. rup, 22 N. J. Eq. 58. 222 INCREDIBILITIES \ND IMPROBABILITIES. [§ 174 men, similarly situated, are usually governed," aaid Vice-Chancellor Van Fleet of New Jersey.^"^ In another New Jersey ease Vice- Chancellor Reed said: "While the testimony of an unimpeached witness is not to be arbitrarily disregarded,^"" it must be measured by the standard of common experience and business usage. The state- ifient that a man under certain circumstances did something which we know from experience not one in a thousand would do under the same circumstances is discredited by the inherent improbabilitj' of the state- luent. It is more rational to believe that the testimony is intentionally or mistakenly untrue than it is to believe that the marvelous occurred." *'"' His testimony to his own acts may, for the same reason, shock the credulity of any mind of ordinary discrimination, as well as when his testimony refers to the doings of others.^'^ " While the unreasonableness or absurdity of a line of conduct, or of acts claimed, is not suflBcient to overcome positive evidence that the line of conduct was pursued, or that the acts were done,^'^ never- theless, if the evidence be so imperfect or so conflicting that the truth cannot be clearly perceived, the unreasonableness or absurdity of what is claimed to have been the conduct or acts of parties may be of con- trolling importance; for those who are allowed to act for themselves are presumed to conduct themselves and act with ordinary prudence and sagacity — in other words, with such prudence and sagacity as characterize the acts of mankind, under like conditions, in general. The rule is approved by the experience and applied in the practice of all." "' In an Iowa case Judge Cole said : " The claim of the plaintiffs is based upon a course of conduct very unnatural and most unusual, and 108 Daggers v. Van Dyck, 37 N. J. v. County Line Creamery Co., 14 S. Eq. 130, 133. For instances of trans- Dak. 312, 85 N. \V. Rep. 588, 589. actions deemed improbable because loo See ante, § 91. contrary to ordinary business pru- "» Whelen v. Osgoodby, 62 N. J. dence, and not satisfactorily proved, Eq. 571, 50 Atl. Rep. 692. see In re Shaw, 112 Fed. Rep. 947, m See the very instructive ease of 948; The Ship Invincible, 3 Sa^vy. Vroeland i\ Vreeland, 48 N. J. Eq. (U. S.) 176, 13 Fed. Caa. No. 7,056 66, 21 Atl. Rep. 627. (at p. 83) ; Scott V. Brunton, 9 Nova 172 See snpra, §§ 135, 136. Scotia 405, 409; Weatherby v. Slack, i" Knowles v. Knowles, 86 III. I, 16 N. J. Eq. 491, 49G; Hartley's Ap- at p. S, opinion by Chief Justice peal, 103 Pa, St. 23, 26; Littlejohn Scbolfield, § 174] INCREDIBILITIES AND IMPROBABILITIES. 223 hence improbable; while the claim, as made by defendants, ia based upon a course of conduct of frequent occurrence, as shown by reportg of cases in this court, and quite natural and reasonable. Testimony offered in support of alleged transactione, in accordance with the ordinary course of business, may be entirely gatisfactory, while the same character of testimony in support of alleged facts, at variance with the experience of men, and wanting in any probable motive, would be rejected as unsatisfactory, if not unworthy of credit." "* Where one party testified that the other party, without any epecial motive therefor, agreed to give him $1,500 cash for his $900 mort' gage, " this evidence is incredible," said the court.*'^ " When a party asserts that it was agreed that interest upon a mortgage debt to run for five years should not be paid until the end of the whole term, his assertion is so contrary to usage and common experience that it should be fortified by convincing evidence before it becomes credible." "* Nothing but the most unequivocal testimony could persuade a court that a vendor, before parting with his title, or receiving any part of the consideration, and while in the actual occupancy of the major part of the premises, had delivered legal possession to the purchaser, and held only as tenant at sufferance under him."^ Where a defendant undertook the burden of proving that an old woman for a period of over twenty years, fully understanding what she was doing, annually consented to accept mere paper promises in satisfaction of her mortgage, though none of them were ever fulfilled, and though, when she accepted the last, the aggregate amount of those previously accepted exceeded the penalty of the bond, Vice-Chancellor Van Fleet said : " It is difficult to believe that any person possessing ordinary selfishness would, for so long a period, pursue a course of such great improvidence; but when it is added that the person who acted thus was a penurious old woman . . . the story approaches the incredible." "^ An argument based on the supposed improbability of a transaction, 174 Gardner v. Weston, 18 Iowa Chancellor Heed. See also supra, § 633, 535. 189. 176 Clarke V. Joselin, 16 Ont. 68, "' Brewer v. Wilson, 17 N. J, Bq. 79. 180, 184. 178 Whelen v. Oagoodby, 62 N. J. "8 Wildrick v. Swain, 34 N. J. Bq. Eq. 571, 60 Atl. Rep. 692, per Vice- 167, 171. 224 INCREDIBILITIES AND IMPROBABILITIES. [§§ 175, 176 from a business point of view, is not of much importance in the face of clear written evidence of the transaction.^'" § 175. Improvident Business Transactions Provable. — " However improbable the testimony of a witness may appear who testifies to a fact not in itself impossible in the ordinary course of events, the credibility, force, and effect of such testimony is for the jury," said the New York Court of Appeals in a case where a witness testified that he heard the secretary of a life insurance company assure a policy- holder that the company would carry him and give him credit for premiums past due and to become due, which was conceded to be somewhat improbable.^^" " It does not necessarily follow that wit- nesses are unworthy of credit merely because their testimony tends to establish unreasonable or foolish contracts. The motives which prompt such transactions cannot always be discovered." "^ § 176. Important Contracts Made Without Written Evidence Improbable. — In a case where it was contended that an agreement of partnership existed, there was not a single scrap of paper in the cause alluding to the partnership; and although, according to the contention, large operations in the purchase and sale of lands were contemplated, and large advances might from time to time be required to meet the expenses of such a business, and entire confidence must have existed between the parties, not a single letter was produced which alluded to any negotiations or speculations or advances. " The absence of all such documents, in a case of this sort, during the whole period of the supposed operations of the partnership, is certainly an awakening circumstance," said Mr. Justice Story, " difficult to account for in a satisfactory manner, if the agreement be real; but of easy and natural explanation, if it be a mere figment or an unexecuted proposal." '-''- It is inherently improbable that a man of afi'airs should malce an agreement involving large interests and necessitating negotiations which occupied considerable time, and be content to rely entirely upon "0 Suydam v. Hotchkiss, Hill & D. isi Burke's Appeal, 99 Pa. St. 350, Supp. (N. Y.) 96, 102. ,S61. See .tIso .9H,),n, §§ 135, 136, .ind i«o Hastings v. Brooklyn L. Ins. ante, § 93. Co., 138 N. Y. 473, 34 N. E. Rep. 289. isa Smith v. Burnham, 3 Sumn. (U, See nlso supra, §§ 135, 136. S.) 435, 22 Fed. Cas. No. 13,019, § 177] INCREDIBILITIES AND IMPROBABILITIES. 22.5 a verbal understanding. Hence where he and his clerk testified that there was such an oral contract, and they were contradicted by the other party, the absence of any writing pointing to a subsisting agree- ment made it impossible to hold that there were two credible witnesses against one so as to require a finding in favor of the former ^^' under the rule sometimes adopted in ascertaining where the preponderance of evidence rests.^** " It is in the last degree improbable " that a bond and mortgage for a subsisting debt would be surrendered upon a parol promise by a third party to assume such indebtedness.^*'^ § 177. Important Oral Contracts Proved. — In a case where the defendant set up an oral contract with the .plaintiff. Judge Dean of Pennsylvania said: " We all know important contracts, very often, either from pure neglect, indifference, the subject of them, or a relation of confidence between the parties, are not reduced to writing, and that about half the lawsuits we try have their source in this very neglect. If we were conscious, from a common knowledge of men's business habits, that all important contracts were reduced to writing, it would be probable, from the absence of a writing, this particular contract had no existence. But our knowledge being just the contrary, there is neither a presumption of law nor fact raised in plaintiff's favor by the failure to put the contract in writing." ^^^ In a mortgage foreclosure case where a defendant claimed that the plaintiff's testator in consideration of the mortgage orally agreed to leare ithe mortgage to the defendant's wife upon the testator's death it was urged that the defendant's story was improbable — that it was improbable he would trust such an important matter to a man's verbal promise, and that if any such agreement had been in fact made, it would have been embodied in the mortgage itself, or some other written memorandum made of it. " Undoubtedly it was a loose and improvi- dent method of doing business," said the court. " But a large portion of the business that comes before our courts arises out of the loose and careless methods in which contracts are made, and while it calls 183 Farley v. Hill, 150 U. S. 572, "c Philadelphia Trust, etc., Co. v. 676, 14 U. S. Sup. Ct. Rep. 186. Philadelphia, etc., R. Co., 177 Pa. St. 184 See ante, § 63. 38, 49, 35 Atl. Rep. 688. See also, 1^ Auble 17. Trimmer, 17 N. J. Eq. as to important agreements in parol, 242, 246. The Oscoda, 70 Fed. Rep. 111. PACTS — 15 226 INCREDIBILITIES AND IMPROBABILITIES. [§§ 178, 179 upon the courts to scrutinize carefully the evidence by which they are sought to be established, and to require that such evidence shall establish a certain and definite contract, and not leave it to the court to spell out or patch up a contract that it thinks the parties ought to have made under the circumstances, yet, when the evidence amply and clearly establishes a clear and definite contract, the court will not dis- regard such evidence because it seems improbable that a person would make a contract in such an improvident manner. And any presump- tion arising from the supposed improbability of such a method of doing business will not be permitted to outweigh clear and ample evidence that a contract was in fact made in such a manner." ^" § 178. Improvident Lending and Borrowing. — " It is not within the line of ordinary experience that a man having money to loan for interest is willing to loan it without a fixed rate of interest, and to be repaid at the mere pleasure of the borrower. . . . Nor is it within the line of ordinary experience that a person should borrow money upon which to pay interest, and secure it by a mortgage on all the real estate owned, . . . without a present actual use to which to apply the money ; and still less that any part of such money should be kept on hand, unproductive, for years, leaving the mortgage, with its accumulating interest, unsatisfied — assuming, of course, that an ultimate redemption was intended." ^^' That a person in the habit of exacting usurious rates of interest should have made a loan without interest or security to a man whom he had been cautioned not to trust, was thought to be highly improb- able.i«» § 179. Loan of Money Without Written Evidence Thereof. — In a case in Manitoba on a creditor's bill to set aside as fraudulent a judgment obtained by the defendant against the debtors, the defend- ant testified that his judgment to the extent of $2,000 was made of several loans, of which no record, no entry, no memorandum whatever, was produced or claimed to exist. There were suspicious facts in the case, and his testimony was absolutely uncorroborated. Judge Dubuc i87Boviton V. Welch, 48 N. Y. App. iss Knowlos v. Knowlea. 86 111. 1, 9, Dlv. .378, 03 N. Y. Supp. 80, pn- per Scholfield, C. .T. Herrick, J, See also supra, §§ 135, iso Jackson v, Hnrt, U Wend, (N, 136, y.) 343, 361. §§ 180, 181] INCREDIBILITIES AND IMPROBABILITIES. 227 said : " Men may have different modes of managing their affairs. But there are certain elementary principles of so universal applica- tion that no sane person engaged in business would think of dispensing with them in the ordinary course of his transactions. Such is, for a business man, the general practice of keeping at least some kind of books, of making entries of ordinary business or financial transactions which are not concluded, and of retaining the vouchers concerning the same. Farmers, workingmen, and other persons not engaged in busi- ness may lend a few dollars to each other without entering the items in regularly kept books. No fault would be found for their omission to do so. But the lending by a business man of numerous and com- paratively large sums of money, without any entry made in any book or any memorandum kept of the same, must be considered as extra- ordinary and unlikely. The fact in itself does not, of course, consti- tute evidence of fraud. It is such, however, that if asserted by the bare testimony of one man, it would in most instances require to be substantially established by corroborating evidence,^"" or at least by clear proof of accurately straight dealings in the whole transac- tion." 1" § 180. Payments Without Taking Receipt. — " The average man would not pay $500 and take no receipt or memorandum to insure himself against loss in case of the death of the other party, or his forgetfulness, or something even worse." "^ No person of ordinary prudence, making payments of principal from time to time on a bond and mortgage, would omit to take receipts, if the papers were not at hand so that the payments could be entered thereon.^"' § 181. Promise to Pay Money Without Consideration. — The plaintiff, an attorney, claimed that the defendant, also an attorney, had personally agreed to pay the former for certain services in pro- curing a witness to testify in behalf of the defendant's client before 180 See supra, § 143. los McKinney v. Slack, 19 N. J. Eq. 101 Gowans v. Chevrier, 7 Manitoba 164. In Griawold v. Lambert, 89 Me. 62, 64. See also Martin t\ Campbell, 534, 36 Atl. Rep. 1046, payment of a II Rich. Eq. (S. Car.) 205, 214. note for $100 was aatiafactorily i»2 Barnett v. Nally, (Md. 1886) 6 proved, notwithstanding the note was Atl. Rep. 535. See also Alexander not produced nor a receipt taken, and V. Todd, 1 Bond (U. S.) 175, I Fed, despite the argument of improbabil- C«s. No. 175 (at p. 386), ity. And see 9upra, § 136, '228 INCREDIBILITIES AND IMPROBABILITIES. [§ 182 a referee, and for being present at the examination. " For this ser- vice," said the court, " plaintiff would have us believe, the defendant agreed to pay him $100, and also made himself liable for its payment, although he vf^as only acting as attorney for another in a case in which he apparently had no other interest than as attorney, and although his client, as far as appears, was perfectly solvent, and there was no necessity for a personal liability. It is possible that an over-sanguine attorney might make such a contract, but the evidence to support it should be very strong and satisfactory." The defendant's version of the agreement was not only probable, but consistent with all the facts of the ease. He said he promised to pay the plaintiff $100 out of the proceeds of the action if it was successful, and his statement was corroborated. There were, also, some suspicious features in the plain- tiff's testimony; for instance, he had made an entry of his services on his register, with " I am to receive $100 " written in an ink a little lighter than the other words ; " and such an entry in a register is unusual, to say the least," remarked the court. A judgment in favor of the plaintiff was reversed as against the evidence.^'* § 182. Improvident Release. — In a suit to reform a release erecuted by the plaintiff, whereby the defendant railroad company, in consideration of $1,100, was discharged from all liability for property destroyed by fire caused by locomotive sparks, the plaintiff, who was an illiterate person, testified that the release as read to him was limited to the uninsured property destroyed. But the total loss for which the defendant was liable amounted to $3,300, and the plaintiff knew this; and the court thought it " inconceivable that he would, with a knowl- edge of its contents, execute the release in question, which \,oaui deprive him of his right to recover two-thirds of his loss " against a perfectly solvent company.^*""' An allegation Qiat a chattel mortgage was given to secure a debt with the understanding that, when less than one-third of the debt was paid, the mortgage as to more than one-half of the property was to be released, "was the statement of a very unusual transaction from a business standpoint and would require strong proof to sustain." "° isiFixman v. Brown, 14 Daly (N. Atl. Rep. 560, opinion by Mr. Justice Y.) 110. Mestrezat. 180 Highlands v. Philadelphia, etc., loo Fry v. Piersol, 106 Mo. 429, 86 R. Co., 209 Pa. St. 286, at p. 297, 58 S. W. Rep. 171. §§ 183-185] INCREDIBILITIES ANt) IMPROBABILITIES, 229 § 183. Improbable Carelessness in Executing Attested Document. — It is very improbable that a well-educated man in executing a docu- ment which requires a subscribing witness would allow the witness to sign first, and afBx his own signature afterward, and a court will be unlikely to believe it on the testimony of -a person whose recollection of other circumstances attending the transaction is shown to be erroneous.'^'^ § 184. Improbable Abandonment of Invention. — Never has a useful invention been patented, that witnesses could not be found to swear that they had seen it in use many years before, either in this country or in England; and yet, strange to tell, the invention, though most valuable, has been left to drop into obscurity, both by the in- ventor and the public, burnt up, or had some other accident, so that neither the public nor the inventor received any advantage from it. Such testimony ought to be received with suspicion, as it carries im- probability on its face.^°' § 185. Incredible Tale of Common-law Marriage. — In a Few York case where a woman brought a suit to establish a common-law marriage, and a verdict for the plaintiff was vacated on motion, the court said that the case was unique in two respects : first, that there eould have been gotten together, by chance, in the worldly-wise city of New York, twelve men apparently as innocent and as credulous as the men who composed the jury ; and, second,, that the plaintiff, with a story so improbable, so inconsistent, and so unconvincing, with the affirmative evidence against her contention so overwhelming in its character, could have succeeded, by her attractive personality and rare dramatic ability, in inducing any twelve men to render a verdict that she had ever been married to the defendant. " The story of the common-law marriage on the rear seat of a one-horse, two-seated vehi- cle, driven by a hackman, at Port Lee, N. J., which was not observed by the alert driver on the front seat, the ceremonial marriage before a bogus justice of the peace in a summer house in the rear of a saloon, without a witness, and the marriage certificate then received, but IS' Cooper v. Boekett, 4 Moo. P. C. los Per Mr. Justice Grier, chargiBg 419, 439. See also, as to the effeet of a jury in Sloat v. Spring, 22 Fed. mistake, infra, §§ 813, 1082 et seq. Cas. No. 12,948o (at p. 331). 230 INCREDIBILltlES AND IMPROBABILITIES. [§§ 186-18^ Bubsequently lost, and to the existence of which no other person testi- fied, might well form an appropriate plot for a comic opera, but it has no place in the realm of reality." "" § 186. Incredible Calmness in Peril. — It would be scarcely credible that the captain of a ship should, at the very moment when his craft was foul of another in collision, turn aside and look at the clock to fix the precise time.'"" § 187. Incredible Conspiracy to Defraud. — It " challenges the utmost credulity " to believe that men of wealth and business capacity, having made heavy investments in a great enterprise requiriag skil- ful management, and promising, under judicious and united coun- sels, large returns, should combine to oppress and defraud one of their associates and thereby defeat their enterprise or seriously impair its succesa.""^ § 188. Incredible Taciturnity of Master Mariners. — Where two master mariners and another person met in the pilot house of a steamer just before a collision, and one of them who said they held no con- versation probably underestimated the length of time, Mr. Justice Clifford said : " Master mariners, as well as other seafaring men, are very apt to converse when they meet on the theatre of their favorite pursuit; and the statement that they remained together in the pilot- house, even for two minutes, without speaking, needs confirma- tion." =°2 § 189. Servant's Disobedience of Master's Orders. — A chauffeur's testimony that he took out his employer's automobile in disobedience of his express instruction, on the occasion when the plaintiff was run over by the machine, was pronounced not improbable under all the circumstances.^"' i»» Herrmann J). Herrmann, (Supm. N. J. Eq. 480, 490, per Chancellor Ct. Spec. T.) 98 N. Y. Supp. 654, per Green. Smith, J. 20= Chamberlain v. Ward, 21 How. 200 The Lepanto, 21 Fed. Rep. 651, (U. S.) 548, 569. 663. 205 Stewart r. Baruch, 103 N. Y. 201 Bentley v. Long Dock Co., 14 App. Div. 577, 93 N. Y. Supp. 161. CHAPTEE V. SOUND AND HEARING. 190. Introduction. 191. Sounds Plainly Audible Presumed to Have Been Heard. 192. Presumption that a Person Heard What Others Heard. 193. When Presumption Just Mentioned Does Not Operate. 194. Presumption that a Person Did Not Hear What Others Did Not Hear. 195. Positive and Negative Testimony to Sounds. 196. Familiar Sounds Unnoticed — Locomotive Signals. 197. Are Sounds More Audible in Nighttime? 198. Identification of Animate or Inanimate Objects by Sounds They Make. 199. Identification of Concurring Sounds. 200. Distinguishing Kind of Firearms by Report. 201. Hearing Affected by Attention and " Expectant Attention." 202. Church Bells — WayTvardness of Sound — Sensitiveness of Hearers. 203. Sound of Footsteps on Stairs or Floor — How Many Persons? 204. Identification of Person by Sound of Footsteps. 205. Judgment as to Direction of Sound. 206. Sounds Attributed to Sexual Intercourse. 207. Sound of Human Voice — Hearing of Words Uttered. 208. Conversation in Adjoining Room. 209. Sound of Warning Shouts. 210. Positive and Negative Testimony to Warning Shouts. 211. Audibility of Commands Given in Battle. 212. Positive and Negative Testimony to Words Spoken. 213. Sounds Conveyed by Phonograph or Telephone. 214. Noise of Wagon on Street Pavement. 215. Crepitation of Injured Bones. 216. Noise of Railroad Trains in General. 217. Noise of Train on Bridge or Frozen Ground. 218. Snow on Rails Diminishing Noise of Train. 219. Noise of Trains in Country at Night. 220. How Far Can Trains Be Heard 1 — Statement by New York Court of Appeals. 221. Presumption that Train Was Heard. 222. Sound of Cars with Favorable or Unfavorable Wind. 223. Noise of Hand Car. 224. Noise of Engine Suddenly Reversing. 232 SOUND AND HEARING. § 225. Noise of Engines or Detached Cars or of Backing Train. 226. Noise of Detached Car Moving Up Grade. 227. Noise of Trains, Engines, or Cars " Coasting " Down Grade. 228. Noise of "Drifting" Train. 229. Noise of Vehicle Preventing Driver from Hearing Train. 230. Passing Train Smothering Sound of Approaching Train. 231. Noise of Train Drowned by Noise of Steam from Standing Engine. 232. Storm Preventing Hearing Train. 233. Singing and Shouting Preventing Hearing Train. 234. Humiming Telegraph Wires Preventing Hearing Train. 235. Sundry Other Noises Deadening Sound of Approaching Train. 236. Train Not Heard by Person with Ears Muffled. 237. Noise of Locomotive Signals. 238. Impression of Pitch or Loudness of Whistle. 239. Locomotive Signals with Favorable or Unfavorable Wind. 240. Noise of Vehicle Preventing Hearing Locomotive Signals. 241. Noise of Sleigh Bells Preventing Hearing Locomotive Signals. 242. Noise of Passing Train Preventing Hearing Locomotive Signals. 243. Rain or Wind Storm Preventing Hearing Locomotive Signals. 244. Sundry Other Noises Preventing Hearing Locomotive Signals. 245. Locomotive Signals Not Heard by One with Ears Muffled. 246. Noise of Electric Cars in General. 247. Noise of Electric Car on Up Grade. 248. Noise of Electric Car on Down Grade. 249. Noise of Electric Car Running Slowly. 250. Noise of Electric Cars at Night. 251. Noise of Vehicle Preventing Hearing Electric Car. 252. Noise of One Electric Car Preventing Hearing Another. 253. Wind or Rain Storm Preventing Hearing Electric Car. 254. Sound of Gong of Electric Car. 255. Noise of Steamer Rushing Through Water. 256. Vessel's Signals — Eligible Place for Lookout. 257. Whistle Moie Penetrating than Fog Horn. 258. Fog Horn Superior to Bell. 259. Superiority of Mechanical Fog Horn. 260. Noise of Rowlocks Not Equal to Fog Horn. 261. Steam Fog Horn Resembling Steam ^^'histle. 262. Sound of Fog Horn Suppressed by Loud Whistle. 263. Continuous Blowing of Fog Horn Imprudent. 264. Vessel's Signals — Single or Dovible Blast? 265. Which of Two Vessels Initiated Signals? 266. Simultaneous Signals between Vessels. 267. Signal by Third Vessel Mistaken by Other Two as Theirs. 268. Vessel's Signals in Unfavorable or Favorable Wind. 269. Excited Officers May Not Notice Sound of Fog Horn. 270. Signals Not Heard because of Diversion of Attention. § 190] SOUND AND HEARING. 233 S 271. Water as a Comimunicator of Sound.. 272. Aberration of Sound in Clear Weather. 273. Aberration of Sound in Fog — Leading American Case, 274. Aberration of Sound in Fog — Other Cases. 275. Vagaries of Sound of Fog Horn. 276. Locating Sound in Fog. 277. Determining Course of Vessel by Her Fog Signals. 278. Sound of Signal Deflected by Wind. § 190. Introduction. — In any case where it is contended that certain sounds would or would not probably have been heard by a person reasonably attentive, or that such sounds would or would not probably have prevented him from hearing other sounds, or wherever any other contention is made concerning phenomena of sound and hearing, it is incumbent upon the party having the burden of proof to persuade the trier of facts that his contention is correct. But after judgment or verdict in his favor, and on motion for a new trial, and more especially on review of the evidence by an appellate court, the judgment or verdict will be allowed to stand if the court is satisfied that his contention was reasonably arguahle. In other words, speak- ing of a jury trial, we may say the party finds that at the outset he must make an argument that will obtain the concurrent assent of twelve minds; whereas after verdict in his favor the extent of his burden is to convince the court that among twelve reasonable men there would be a difference of opinion as to the validity of his conten- tion. Hence the author's justification for setting forth the views of judges concerning these physical phenomena is complete; for inspec- tion of the multitude of cases cited in the following sections will show that the courts rarely disagree, that they persevere in opinions ex- pressed by them in preceding cases, and that frequently, even com- monly, the fate of a verdict has depended upon the question whether the court was or was not willing to concede that there might be a difference of opinion among reasonable men concerning the phenom- ena of sound and hearing in the circumstances of the particular case.^ In determining whether a person injured at a railroad crossing was in tlie exercise of ordinary care, the conditions at the time in respect of light or darkness, noise, confusion of noises, or absence of noise, iSee, for example, infra, §§ 229, 232. 234 SOUND AND HEARING. [§ 191 may be decisive factors in the inquiry. "They appeal to different minds with a varying degree of force and cogency," said the New York Appellate Division in one such case, " and, however we might feel disposed to vote upon the question as jurymen, were the con- troversy presented to us in that capacity, it is clearly alien to the province of the court to determine the contention." " And, said the New York Court of Appeals, "when, from the circumstances shown, inferences are to be drawn which are not certain and incontrovertible, and may be differently made by different minds, it is for the jury to make them ; that is to say, when the process is to be had at a trial of ascertaining whether one fact had being from the existence of another fact, it is for the jury to go through with that process." ' These principles relating to appellate review are familiar; and the cases in support of them are so multitudinous that the author does not deem that the scope of this treatise requires their citation. § 191. Sounds Plainly Audible Presumed to Have Been Heard. — We have stated elsewhere that objects plainly visible are presumed to have been seen.* A parallel presumption exists in respect to sounds. Common experience, said the New York Appellate Division, requires an affirmative answer to the following query : " If there had been an explosion of dynamite close to the highway upon which the deceased was traveling, and it appeared that his hearing was good, would a jury be justified in finding, in the absence of any other facts, that he heard it ? " '^ A great volume of gas issuing from a gas well makes so much noise that a person walking near it will necessarily be advised of its presence." A conclusive presumption that a sound was sWoodworth v. New York Cent., "The explosion of such a body as etc., K. Co., 55 N. Y. App. Div. 23, u ship of war would be heard to a 66 N. Y. Supp. 1072. stupendous distance. It is a well- 3 Hart V. Hudson River Bridge Co., known fact that in the famous battle 80 N. Y. 622. in the Downs, the explosion was heard * See post, §§ 280, 331. in St. James's Park, and was made Browne v. New York Cent., etc., the foundation of u mathematical R. Co., 87 N. Y. App. Div. 206, 83 calculation by Sir William Petty with N. Y. Supp. 1028. respect to the velocity of the progress "McClafferty v. Fisher, (Pa. 1885) of sound." The Island of Trinidad, 5 2 Atl. Rep. 60. C. Rob. 85, 88, per Sir William Scott. § 192] SOUND AND HEARING. 236 heard by a person is quite often applied in the case of persons at or near a railroad crossing with a train thundering down on them.' § 192. Presumption that a Person Heard What Others Heard. — It is elsewhere stated that courts freely presume that what was seen by one person was seen, or could have been seen, by another with equal opportunity for seeing it.' So " where a sound is heard by one per- son, the inference would be that all other persons of good hearing, and having equal opportunity to hear, heard the sound also; and if they should testify that they did not, we think that it would be a question for the jury to determine whether the direct evidence was not rebutted by the circumstantial." ° The presumption is fre- quently employed to support a finding that railroad trains, locomotive signals, or vessels' signals, were or ought to have been heard.^" The fact that a steamer's signals were heard by several other steamers as far away as the steamer with which she collided is conclusive evidence that they were given, and strong evidence that they ought to have been heard on the other steamer if her lookout was vigilant.^^ A person driving toward a crossing was so absorbed in conversation that, while others heard a train approaching and endeavored as best they could to warn him of his danger and arrest his attention, they could not do so.^^ " This, to our minds," said the court, " conclusively shows that his ears were not open to hear an approaching train. The fact that others heard the train and saw an accident impending is also quite significant." ^' 7 See infra, § 221, and ante, § 160. 343, 347, 90 N. Y. Supp. 239, 2-11; 8 See post, § 281. Wood v. Pennsylvania R. Co., 177 Pa. »Ford V. Central Iowa E. Co., 69 St. 306, 35 Atl. Rep. 699; Chicago, Iowa 627, 21 N. W. Rep. 587, 29 N. etc., R. Co. v. Andrews, (C. C. A.) 130 W. Rep. 755, per Adams, J. Fed. Rep. 65, 70; Chicago, etc., R. 10 Smith V. Maine Cent. R. Co., 87 Co. v. Rossow, (C. C. A.) 117 Fed. Me. 339, 32 Atl. Rep. 967; Hendrick- Rep. 491, 494; The A. P. Skidmore, son V. Great Northern R. Co., 49 108 Fed. Rep. 972; The City of Minn. 245, 51 N. W. Rep. 1044; Augusta, 102 Fed. Rep. 991, 996; The Payne v. Chicago, etc., R. Co., 136 Illinois, (C. C. A.) 87 Fed. Rep. 574, Mo. 562, 38 S. W. Rep. 309; Sulder 576. See also infra, § 230. V. Pennsylvania R. Co., 70 N. J. n The Illinois, 65 Fed. Rep. 123, L. 196, 56 Atl. Rep. 124; Wendell v. 124. New York Cent., etc., R. Co., 91 N. 12 Conversation distracting atten- Y. 420, 428; Waddell v. New York tion, see post, §§ 694, 775. Cent., etc., R. Co., 98 N. Y. App. Div. is Golinvaux v. Burlington, etc., R. 236 SOUND AND HEARING. [§ 193 § 193. When Presumption Just Mentioned Does Not Operate." — Before drawing the inference mentioned in the last sectian, the trier of facts should be satisfied that the position of the person to be affected by it was equally favorable for observation with that of the witnesses, not only in respect to physical adjuncts, but also in regard to any other circumstances that might differentiate his situa- tion from theirs. Thus, in a case in Minnesota a man driving, a horse and wagon and approaching a railroad crossing was unacquainted with the railroad and the surrounding country, and did not hear a train when it left a station two miles below, nor while it was com- ing toward the crossing where he was struck and killed. Nearly all of the plaintiff's witnesses, residents of that immediate locality, testified that although no signals were sounded for the crossing they heard the train coming from the time it left the station below, and from this it was argued on behalf of the defendant company that had the deceased listened, as was his duty, when he approached the crossing, he too would have heard it coming, and would have been warned in ample time to prevent his driving on to the crossing. But the court replied that in this contention the counsel overlooked two conditions both present, which might have a bearing on the matter: first, that the deceased was in an empty lumber wagon which made more or less noise ; ^^ and second, and of more moment, that all of these witnesses were well acquainted with the movements of this particular train, and knew when it might be expected at the station below, as well as at the crossing, while some of them were pay- ing special attention tO' its coming on that occasion. A stranger to the neighborhood, and to the movements of this train, continued the court, would not be expected to know that a train was approachiag the crossing, because it whistled and blew off steam at the station, or because its approach was apparent to those who knew all about its- .junning time and movements.^" It may very well be true that various witnesses near a crossing heard the approach of a train, while a person driving, for instance, an empty lumber wagon, " which must have made more or less noise as it was driven along," " did not Co-., 125 Iowa 652, lOI N. W. Rep. i" Hendrickson r. Great Northern 465, per Deemer, C. J. R. Co., 49 Minn. 245, 51 N. W. Rep. »* For parallel cases as to light and 1044, per Collins, J. sight, see post, § 282. it As to noise of vehicles, see supra, 15 See infra, §§ 214, 229, 251. § 214, and infra, § 229. § 194] SOUND AND HEARING. 237 hear the train.^* The atmospheric conditions affecting the trans- mission of sound in a fog are so imperfectly understood ^' that fault should not be imputed to a vessel for failure of those aboard her to hear another's signals in a fog, even if they were heard by others at an equal distance.^" § 194. Presumption that a Person Did Not Hear What Others Did Not Hear. — It is shown in another place that a person may be presumed not to have seen what others in an equally favorable situa- tion did not see.^^ A like presumption obtains in regard to sound and hearing; it may be inferred that a person did not hear what was not heard by others having an equally favorable opportunity to hear.^^ This inference tends only to negative the fact of hearing; there may have been a sound which was not heard because of inattention or for various other reasons mentioned in this chapter.^^ Thus, upon the question whether locomotive signals were given, a negative finding might be totally unsupported by testimony of witnesses that they did not hear them/* while a finding which negatived contribu- tory negligence might be abundantly supported by such testimony. The following quotation from an opinion illustrates the possible difference between the issues : " The place was crowded with people, the wind hlowing a hurricane, his hat blown off, and in the con- fusion he, endeavoring to catch it, struck against the engine. Whether or not under these circumstances he was guilty of negligence, would depend upon what notice he had of the approach of the engine. A witness, who was near him at the time, testifies that he did not hear the bell ring; and if a person standing there could not hear it, it is not unreasonable to suppose the deceased did not. No man, 18 Hendrickaon v. Great Northern 71 S. W. Rep. 127; Colvin v. Vensel, R. Co., 49 Minn. 245, 51 N. W. Rep. 194 Pa. St. 83, 44 Atl. Rep. 1072. 1044. See also the point to which See also Little v. Grand Rapids St. this case is again cited supra, § R. Co., 78 Mich. 205, 44 N. W. Rep. 192, 137; Mackay v. N. Y. Cent. R. Co., 19 See infra, § 272 et seq. 35 TST. Y. 75, 77. 20 The Newport News, 83 Fed. Rep. 23 See infra, §§ 196, 239, 245, 251- 522, 526. 2^53, 268-270, 278. 21 See post, § 283. 2* Positive and negative testimony 22 State V. Crabtree, 170 Mo. 642, to signals, see post, "§ 1196 et seq. 238 SOUND AND HEARING. [§§ 195, 196 unless for the purpose of self-destruction, will voluntarily place him- self where his life may be taken away." ^° § 195. Positive and Negative Testimony to Sounds. — This topic is treated in some other sections of this chapter.^" The relative weight of positive and negative testimony in general, and especially with reference to the question whether locomotive signals were given, is discussed in another chapter.^' § 196. Familiar Sounds Unnoticed — Locomotive Signals. — Dr. James says : " We do not notice the ticking of the clock, the noise of the city streets, or the roaring of the brook near the house; and even the din of a foundry or factory will not mingle with the thoughts of its workers, if they have been there long enough." ^* Speaking of the inferior weight of negative testimony of factory workmen in a suit to enjoin a nuisance consisting of noises and vibrations pro- duced by the factory. Judge Peters of Prince Edward Island said: " It is well known that persons constantly engaged among the racket of machinery become so accustomed to it that a noise or vibration that would be very annoying to an ordinary person would scarcely be perceived, or if perceived would not at all annoy them." ^' It is a matter of common observation that persons who are habitu- ally in a situation to hear the passing of railroad trains fail to notice zB Bernhardt v. Rensselaer, etc., R. duee the idea of sound be made in the Co., 32 Barb. (N. Y.) 165, 168, per ear, yet no sound is heard. Want of Ingraham, J. As to the weight of sensation, in this case, is not through the presumption arising from the in- any defect in the organ, or that the stinet of self-preservation, see post, man's ears are less affected than at § 554 et seq. other times, when he does hear; but 20 See infra, §§ 201, 202, 210, 212. that which uses to produce the idea, 27 See generally, and especially as to though conveyed in by the usual positive and negative testimony to organ, not being taken notice of in locomotive signals, " Positive and the understanding, and so imprinting Negative Testimony," post, chap, no idea on the mind, there follows no XXIII. sensation." Locke, Essay Concern- as James, Principles of Psychology, ing the Human Understanding, Book vol. 1, p. 455. "A sufficient impulse II., chap. IX. there may be on the organ, but it not -" AUpy v. Duchemin, 2 Has. & War. reaching the observation of the mind, (P.' E. Island) 300, 370, a suit to there foUowa no perception; and enjoin a nuisance, though the motion that uses to pro< § 196] SOUND AND HEARING. 239 the noises whicli accompany them "" or the locomotive signals of whistle or bell.^^ " People sit for hours in their own quiet homes without hearing the clock strike. Few of the dwellers in the larger cities hear the alarm from the fire department stations, or the whis- tling of tugs in the harbors. But the clock strikes every hour or oftener, the alarms are sounded frequently, and the tugs blow their blasts almost constantly. There is no class of occurrences which people are less likely to notice or remember than those with which from frequent repetition they are familiar, or those which, happening at stated intervals, or in connection with familiar happenings, are expected." '^ In a Pennsylvania case of a collision at a railroad crossing, several of the witnesses who were called on behalf of the plaintiff testified that they did not hear the customary locomotive warning for the station immediately ahead, but that they distinctly heard the short shrill signal of the danger whistle. " I have no doubt that they were entirely truthful in what they said," said Chief Justice Paxson. '•' The reason they heard the one and not the other is easily recon- cilable with common experience. The long whistle, which is used in approaching a station, is so common upon a leading railroad line that persons living in the vicinity, and especially near a crossing, may hear it many times during the course of the day. It is so fre- quent that they may not notice it. It conveys no meaning, beyond the fact that a train is approaching a station or a crossing. But when the shrill warning signal is given by two or more sharp blasts, it is likely to attract the attention of persons in the vicinity.^' It is known to mean immediate danger to some one. Thus, we 'learn from plaintiff's testimony that the danger signal, given just before the accident, attracted the immediate attention of those who did not hear the whistle or the bell at the warning post. They rushed 30 See the following notes, and tnfro, (Neb.) 97 N. W. Rep. 750, per g 216. Ames, C. 31 Sanborn v. Detroit, etc., R. Co., as Would there be no room for 99 Mich. 1, 57 N. W. Rep. 1047; retroactive attention to operate in the Wilds i;. Hudson River R. Co., 29 N. case stated in the text so as to bring y. 315, 329; Corcoran v. Pennsylvania to mind the fact that a signal was or R, Co., (Pa. 1902) 63 Atl. Rep. was not given a few moments before? 240. See as to retroactive attention, post, '< Kielbeok v. Chioago, etc. R. Co., § 776 et leq. 24:0 SOUND AND HEARING. [§ 197 immediately to the windows or other points of observation to see what it meant." ** § 199. Are Sounds More Audible in Nighttime? — We are not aware of any authority for the statement of a certain law writer that " the air of night is more favorable than that of the day for the transmission of soimd." Describing a visit to Keswick, the poet Gray says in his journal : '"' In the evening I walked down to the lake by the side of Cro-park, after sunset. . . At a distance were heard the murmurs of many waterfalls, not audible in the daytime." But it is the silence of night, when beasts and birds as well as men are mostly at rest, that makes the sounds more noticeable. The moon among the clouds rode high. And all the city hum was by. Upon the street, TvTlere late before Did din of war and warriors roar, You might have heard a pebble fall, A beetle hum, a cricket sing, An owlet flap his boding wing On Giles's steeple tall. Marmion, Canto Fifth, XX. In Wall street, New York City, on Sunday, except for the noise of Broadway or elevated cars all sounds are heard about as distinctly as in any Northport street at night. Then, again, it is familiar knowledge that diminution of one sense is followed by increased attention to the indications of other senses.*' Hermia. Dark night, that from the eye his function takes. The ear more quick of apprehension makes; Wherein it doth impair the seeing sense. It pays tlie hearing double recompense. Midsummer Night's Dream, Act III., so. 2. But it was a blind man who gave us the simile, " Still as night or summer's noontide air." '"' 34 Urias v. Penn. R. Co., 152 Pa. St. court was compelled to let the verdict 326, 329, 23 Atl. Rep. 506, 567. But on that remain undisturbed, the jury having found that the warn- 3i> gpe post, § 396. ing post signal was not given, the s" Paradise Lost, Book II., 30a, .309. §§ 198, 199] SOUND AND HEARING. 241 Stillness of uight is always a material circumstance in estimating the audibility of sounds.^' § 198. Identification of Animate or Inanimate Objects by Sounds They Make. — Identification of human beings by their voices, of a dog by his bark, and of things by the noise they make, is considered in another part of this work.^^ § 199. Identification of Concurring Soundsi — In the inquiry of the United States Senate Committee on Military Affairs into the Brownsville raid, in 1907, the testimony of one of the members of the discharged negro battalion caused the members of the committee much amusement, said the New York Sun. He was a young negro, very black, with a hoarse voice, and stuttered. He was a patient in the hospital, and he told of hearing shots fired north and east of the hospital. They continued, as those firing moved west, until they reached a point opposite the barracks. Those doing the firing were on horseback, he said, and he heard the sound of the horses' hoofs. Witness, together with the white hospital corps men, was on the porch of the hospital. Bullets went over the hospital^ and the sergeant ordered them to stand behind the brick pillars to keep from getting hit. The firing lasted about five minutes after the call to arms was sounded. Senator Warner sought to cross-examine the witness and was ask- ing him about the sound of galloping horses which he said he heard, when the witness, whose answers had previously caused laughter, suddenly interrupted the senator: "Jes' yo' wait right there one minute, senator," said the darkey; " let me ask yo' a question, will yo' ? " "Well, go ahead then, I'll submit," said Senator Warner good- naturedly. " NoWj jes' yo' s'posin' a case," the witness went on ; " s'posin' youse hear a man choppin' wood 'bout three or fo' blocks from yo', an' right 87 See infra, §§ 205, 219, 250. In veyed more easily and perfectly, and Atlantic Coast Line R. Co. v. Miller, when any one abotit there could and (Fla. 1907) 44 So. Rep. 247, Taylor, did hear not only the whistle sounded, J,, speaking of locomotive sign^l^ by but the ruitlbling noise," etc. whistle and bell, said : " It was early 38 See post, chap. XXV., " Identifi- in the morhing, when sotind iS con- cation of Persons and Things." FACTS — 16 242 SOUND AND HEARING. [§ 200 ober here like youse hears a dawg a-barkin', don't yo' s'pose yo' can tell de difference 'tween de man a-choppin' wood an' dat dawg a-barkin'?" The dignity of the committee was upset, and the senators shouted. Senator Warner admitted his ability to distinguish between such sounds, but the cross-examination after that did not amount to much. The committee was in no mood to be serious.^" § 200. Distinguishing Kind of Firearms by Eeport. — A witness familiar with the report of firearms is competent to testify to his opinion that a report heard by him was the discharge of a pistol and not of a rifle or shotgun.*" When the Brownsville investigation by the Military Committee of the United States Senate, in 1907, was in progress, the Washington correspondent of the New York Sun wrote as follows: "As yet the investigation has proved nothing. No new facts of special importance have been brought out, although some useful in- formation has been obtained. The witnesses have made generally a good impression. Their various stories have supported one another, yet there has been a sufficient difference in matters of detail to leave little ground for charges of previous agreement to tell a certain story and stick to it."* Probably the most important testimony yet de- veloped has to do with what might be called the ' tone ' of the guns with which the shooting was done. The tone of a Krag, a Mauser, or a Lee-Metford rifle is easily distinguishable by men familiar with the different weapons. All gunfire may sound alike to a layman, but to those acquainted with firearms the difference in gun tone is as clear as would be to a layman the smashing of a window pane and the smashing of a door panel. The note of revolvers or of such guns as the citizens of that neighborhood would be likely to possess is quite different from that of the army rifle, and should be easily recognized by soldiers. It will be interesting to know what the white officers of the battalion have to say on that point. If they say that the fire was mixed, say that of Winchesters, shotguns, and revolvers, the entire matter would seem to be definitely settled. So would a 3» The Sun, Feb. 19, 1907. " An observation eminently sound, "State V. Graham, 116 La. 779, 41 and supported by numerous cases. See So. Eep. 90. po^t, §§ 724 ct seq., 839 et se^. § 201] SOUND AND HEARING. 243 part of the matter seem settled if the testimony showed a uniformity of gun tone, and the tone that of army rifles." *^ On the subsequent court-martial trial of the major in command of the negro soldiers he testified that nearly all the shots he heard on the night of the raid came from high-power rifles, a point in- ferentially against the soldiers.*' § 201. Hearing Affected by Attention and "Expectant Atten- tion." — "A faint sound or light is rendered louder or brighter as we attend to it." ** And a person has a more or less vague impression of soimds according to the degree in which his attention may have been directed to other matters at the time.*° Dr. Tuke, treating of the influence of the mind upon the sense of hearing, says that " the thought uppermost in the mind, the predominant idea or expecta- tion, makes a real sensation from without assume a different char- acter."*' A happy use of this passage was made in an English ease where it was sought to enjoin an alleged nuisance consisting of noises and vibrations produced by the machinery in a silk factory. Lord Chancellor Selborne said : " I am far from saying that there may not be a case in which the owner of a house very near a mill in a manufacturing town may be entitled to protection against noises resulting from the introduction into the mill of new machinery, or of new modes and processes of working. But in every case of this kind it ought to be clearly made out that the mill-owner has exceeded his rights. When there has been no introduction of new machinery, and nothing new in the manner of working — when everything within the mill has gone on without change in the usual and accustomed course of the manufacturer's business — a plaintiff undertaking to prove that at and after a definite time the noise from the mill, ad- mitted to have been previously lawful and harmless, became excessive and noxious imposes upon himself (to say the least) an arduous task. And how have the plaintiffs acquitted themselves of this burden? I see no reason to doubt that they, and their servants and friends, who are witnesses in this case (several of whom have not been cross- Flanagan v. New York Cent., 170 See Zwaek v. New York, etc., etc., R. Co., 70 N. Y. App. Div. 505, R. Co., 160 N. Y. 362, 54 N. E. Rep. 75 N. Y. Supp. 225. 785. IT'' Cawley v. La Croase City R. Co., 171 Smith V. New York Cent., etc., 106 Wis. 239, 82 N. W. Rep. 197, per R. Co., 41 N. Y. App. Div. 614, 58 Dodge, J. See also infra, § 245, and N. Y. Supp. 63. HoiTard v. Illinois Cent. R. Co., (Iowa i'2Klotz V. Winona, etc., R. Co., 1907) 110 N. W. Rep. 446, 449; 68 Minn. 341, 71 N. W. Rep. 257. Swanger v. Chicago, etc., R. Co., (Iowa See also Pennsylvania Co. v. Horton, 1906) 109 N. W. Rep. 308; Rodrian 132 Ind. 189, 31 N. E. Rep. 45 (saw- v. New York, etc., R. Co., 125 N. Y. mill) ; Mackay v. N. Y. Cent. R. Co., 526, 530, 26 N. E. Rep. 741; McQuade 35 N. Y. 75, 78 (considerable noise v. Metropolitan St. R. Co., (Supm. from a. steam sawing machine). Ct. App. T.) 17 Misc. (N. Y.) 154, 39 173 Elliott V. Chicago, etc., R. Co., N. Y. Supp. 335 ; Siegel v. Milwaukee, 105 Mo. App. 523, 80 S. W. Rep. 270. etc., R. Co., 79 Wis. 404, 48 N. W. 17* Northern Pae. R. Co. v. Jones, Rep. 488; Phillips v. Milwaukee, etc., (C. C. A.) 144 Fed. Rep. 47, 50, per R. Co., 77 Wis. 349, 46 N. W. Kep. 268 SOtJNt) ANt) HEARING. t§ 23^ about half an hour before sunrise on a foggy morning, and he was wearing a heavy ulster overcoat with the collar turned up about his neck and ears, " but the air was still, and the rumble of the coming train was distinctly heard by others," he was guilty of contributory negligence.^'^ However, it seems that a jury is at liberty to find that earlaps did not seriously obstruct the wearer's sense of hearing.^''" Thus, a jury may infer that a person wearing a heavy coat with the collar turned up would have heard the bell on an approaching locomo- tive if it had been rung.'*"* And although a person's ears were some- what muffled, if it appeared that he heard ordinary conversation a moment before he was struck by a train, it may be inferred that his sense of hearing was acute enough to have enabled him to hear the train under ordinary circumstances.^*^ § 237. Noise of Locoinotive Signals. — As to the efficiency of a locomotive whistle in producing noise, it has been said in its favor: " It is shrill and piercing ; can be heard for a great distance, and can be mistaken for nothing else. . . . Where it is necessary to warn crossings or bridges at a distance in advance of the train, no sufficient substitute has yet been found for the whistle. It can be heard in any condition of wind ^^^ and weather." ^^' " Invariable human experience," said the Pennsylvania Supreme Court, " proves that the steam whistle of this coming train, in the open country, could be heard from a quarter to a half mile from where it was sounded." ^** 543 ; Shatto i;. Erie R. Co., (CCA.) "s Scott v. Pennsylvania R. Co., 121 Fed. Rep. 678 (riding in a cur- 130 N. Y. 679, 29 N. E. Rep. 289. tained carriage with " tabs " on his i^o Salter v. Utica, etc., R. Co., 59 ears) ; Reynolds v. Great Northern N. Y. 631. R. Co., (C C. A.) 69 Fed. Rep. 808, iso Cotton r. Willmar, etc., R. Co., 811; Lake Shore, etc., R. Co. v. (Minn. 1906) 109 N. W. Rep. 835. Blanchard, 15 111. App. 582 ; Chicago, isi Perkins v. Buflfalo, etc., R. Co., etc., R. Co. V. Barber, 15 111. App. (Supm. Ct. Gen. T.) 10 N. Y. Supp. 630, 642. 356. " He sat in the bottom of his sleigh. iS2 But see infra, § 239. ITe was bundled up with a shawl, or iss Philadelphia, etc., R. Co. v. something else, about his face, which Stinger, 78 Pa. St. 219, 226, per very probably affected his hearing." Paxson, J. Ernst V. Hudson River R. Co., 32 i84 Newhard v. Pennsylvania R. Co., Barb. (N. Y.) 159, 162, per Hoge- 153 Pa. St. 417, 423, 26 Atl. Rep. 105, boom, J. per Dean, J. §§ 238, 239] SOUND AND HEARING. 269 "The sounding of a locomotive whistle and the ringing of a locomo- tive bell are events of such striking character as to naturally attract attention, and are readily heard and seen by persons of good hearing and sight who are near by and are giving attention." ^'° Can the bell of a locomotive drawing a train at fifty miles an hour, in the open country, be heard far enough so as to be a proper method of warning for persons at a railroad crossing? The Supreme Court of Pennsylvania declined to decide the question, and held that the finding of a jury in the negative was conclusive.^^" But where a train is passing slowly through the built-up portions of towns and cities, the ringing of a bell sufficiently answers the purpose of an alarm.^*'' In a city where the view of a railroad track from cross streets is obstructed by lines of buildings close to the track, while the sound of a locomotive whistle and bell can be heard, it is difficult to deter- mine their locality, or to tell whether they come from an approaching or a receding train. ^'^ Circumstances affecting the value of positive and of negative testi- mony as to whether locomotive signals were given on a particular occasion are discussed elsewhere in this work.^'" § 238. Impression of Pitch or Loudness of Whistle. — In a case where a locomotive whistle was sounded four times to call in a flagman, and a horse took fright and ran away, the plaintiff contended that the whistle was an unusually sharp and loud one, and some of his wit- nesses testified that it was shrill. " But no one testifies that the whistle was sharper than they had ever heard before," said the court. " The usual whistle does not attract attention, but four distinct blasts would, and, by way of contrast, naturally convey the impression of sharpness." ^'"' § 239. Locomotive Signals with Favorable or Unfavorable Wind. — The effect of a favorable wind in making the sound of an approach- 186 Haun V. Rio Grande Western E. iss Newhard v. Pennsylvania R. Co., Co., 22 Utah 346, 353, 62 Pae. Rep. 153 Pa. St. 417, at p. 423, 26 Atl. Rep. 908, per Baskln, J. 105. 186 Childa V. Pennsylvania R. Co., isa See post, chap. XXIII., and see 150 Pa. St. 73, 24 Atl. Rep. 341. the General Index, s. v. Locomotive 187 Philadelphia, etc., R. Co. v. Signals. Stinger, 78 Pa. St. 219, 226, i»o Berry v. Boston, etc., R. Co., 2T'0 SOUND AND HEARING. [|§ 2«)-212 img train more aaidible has been noticed iu a psreeeding section."' Ability to hear the signals which ordinarily give notice of an approach- ing train may he impaired by an adYerse wind."" § 240. SToise of Vehicle Preventing Hearing locomotive Signals. — Noise of a traveler's wagon might explain wky he did not hear a locomotive whistle at a considerable distanca^"' The statutes usually require three or more blasts from a locomotive whistle when a train approaches a crossing, so that " if the traveler is occupied, and does not hear the first or the second, he may hear the third, or if hie conveyance makes such noises that he does not catch the first sound he may have further opportunity, and if he happens to lose all the whistle blasts he may have an opportunity, while the train is running eighty rods, to hear the belL" ^"^ § 241. Noise of Sleigh Bells Preventing Hearing Locomotive Si^ials. — Locomotive signals may mot have been heard by persons approaching a crossing in a sleigh, because of the bells on the horses, especially if the whistle was blown while the horses were trotting,'"' § 242. Noise of Passing Train Preventing Hearing Locomotive Signals. — The noise of a passing train may neutraliM the sound of locomotive signals.'"" (Me. 1906) 66 Atl. Rep. 386, per i" Pittsburgh, etc., R. Co. v. Bur- ar, J. ton, 139 Ind. 357, 376, per Haekney, J. 101 See supra, § 222. And as to i« 5 Smith v. New York Cent., etc., eflfect of wind adverse to Tessel's R. Co., 41 N. Y. App. Div. 614, 58 signals, see infra, §§ 268, 278. N. Y. Snpp. 63. 192 Crane v. Michigan Cent. R. Co., iso Wilmurth v. IlliooiB Cent B. 107 Mich. 511, 65 N. W. Rep. 527; Co., (Ky. 1903) 76 S. W. Rep. 193; Oathcart v. Hannibal, etc., R. Co., 19 Crowley v. Louisville, etc., R. Co., Mo. App. 113; Smith v. New York (Ky. 1900) 55 S. W. Rep. 434, 435; Cent., etc., R. Co., 41 N. Y. App. Div. Michigan Cent. R. Co. r. Campau, 35 614, 58 N. Y. Supp. 63; Steves v. Mich. 468, 471 (bell signal); Ger- Oswego, etc., R. Co., 18 N. Y. 422; rnamis v. Lehigh Valley R. Co., «9 See also supra, § 235. Pa. St. 503, 37 Atl. Rep. 96, per 200 Buckley v. New York, «te., R. McCollmnij J. (locomotive bell here; Co., 148 Fed. Rep. 460, 463. whistle was not blown). See also 2m Finjayson v. Chicago, «tc., R. supra, § 232, and infra, § 253. Co., 1 Dill. (U. 8.) 579, 9 Fed. Cas. 108 Winstanley c. Chicago, etc., R. No. 4,793. Co., 72 Wis. 375, 384, 39 N. W. Rep. 202 Harris v. The King, 9 Canada 856. See also Faber t>. St. Paul, etc., Exoh. 206, 214. R. Co., 29 Minn. 465, 13 N. W. Rep. 203 Texas, etc., R. Co. v. Bryant, (a 902. C. A.) 56 Fed. Rep. 799, 803, per 272 SOUND AND HEARING. [§§ 247-249 increasing in intensity with the speed of the car." ^"^ In one case where the plaintiff was run over by an electric car in a city street the court remarked that " the noise made by the ordinary operation of the car " could have been heard by him if he had listened for it at least three hundred feet.^°° However, where a man traveling on a straight, level, sparsely settled country highway in a dark night, and with no other vehicles in the vicinity to interfere with his hearing, turned his horse and wagon on to a trolley track and found a car was coming within nine or ten feet of him, which had given no warning, the Supreme Judicial Court of Massachusetts was unable to declare that he must have heard the " swish " of the trolley wire, if nothing else, and so have known that a car was approaching.""* § 247. Noise of Electric Car on Tip Grade. — An electric street car "makes a loud whir or noise ordinarily on an up grade," and Bhould be heard in a quiet locality by one about to cross the track.""' § 248. Noise of Electric Car on Down Grade. — An electric ear running down grade with the current shut off makes comparatively little noise.""* § 249. Noise of Electric Car Running Slowly. — A trolley ear going slowly will for that reason make less noise and thus give less warning of its approach.""" McCormick, C. J. See also Steves v. Co., 32 Ind. App. 297, 66 N. E. Rep. Oswego, etc., R. Co., 18 N. Y. 422; 66, 67 N. E. Rep. 953, per Comstock, J. and see supra, § 236. s"' Shea v. Lexington, etc., St. E. 204 Quinn v. Brooklyn City R. Co., Co., 188 Mass. 425, 74 N. E. Rep. 931 40 N. Y. App. Div. 608, 57 N. Y. Supp. (verdict in his favor sustained). See 544, 546, per Goodrich, P. J. See also Kelly v. Wakefield, etc., St. R. also Butler v. Rockland, etc., St. R. Co., 175 Mass. 331, 56 N. E. Rep. Co., 99 Me. 149, 58 Atl. Rep. 776 285, 179 Mass. 542, 61 N. E. Rep. ("the buzz of the electricity must 139. have been audible at some distance to 207 Beerman v. Union R. Co., 24 an attentive ear," per Savage, J. ) ; R. I. 275, 52 Atl. Rep. 1090, per Mapes V. Union R. Co., 56 N. Y. App. Rogers, J. Div. 508, 67 N. Y. Supp. 358, 360 aosTri-City R. Co. v. Banker, 100 ("creates a noticeable whir") ; Gil- 111. App. 6, 8. See also supra, § 227. liland v. Middlesex, etc.. Traction Co., 200 Ford v. Metropolitan R. Co., 4 67 N. J. L. 542, 52 Atl. Rep. 693. Ont. L. Rep. 29, 34, per Osier, J. A. 206 Robards v. Indianapolis St. R. See also supra, § 228. §§ 250-252] SOUND AND HEARING. 273 § 250. Noise of Electric Cars at Night. — In a case where the plaintiff's driver testified that his hearing was good, but that never- theless he did not hear a car until his wagon was actually struck by it, " there is no inference to be drawn from this circumstance," said the court, "that he was on the alert and listening for it, but rather, in view of the well-known fact that trolley cars cannot be run at a high rate of speed in the silence of the night without making some noise, that the reason he did not hear was because he was not listening. At all events, the burden of proving affirmatively that the driver did exercise his senses rests upon the plaintiff." ^^" § 251. Noise of Vehicle Preventing Hearing Electric Car.''" — In a case against a street railway, the court advises us that "the gravel was loose, and the wheels of the buggy made a grinding noise, which may have prevented the noise of the approaching car from being heard," although the horse was proceeding at a slow walk.^^^ Where a sprinkling wagon was in motion on a street close to the track, a motorman should have known that the motion of the wagon wheels in the gravel and the escaping water would make some noise and tend to prevent a person standing on the track from hearing an approach- ing car.^^^ § 252. Noise of One Electric Car Preventing Hearing Another. — Where the noise of an approaching unlighted street car and the sound of its gong were not heard by a pedestrian about to cross the track, " a sufficient reason to excuse him from hearing the sound," said the court, was the fact that another car was approaching from the opposite direction and close at hand, and he supposed that all tlie noise he heard emanated from this car.^^* A passenger who had just stepped from an electric car which continued on its course, and proceeded to cross another track, ought to have known that with the noise of his own car, his sense of hearing could not be safely or exclusively relied 210 Belford v. Brooklyn Heights R. "^ Howard v. Indianapolis St. R. Co., 86 N. Y. App. Div. 388, 83 N. Y. Co., 29 Ind. App. 514, 517, 64 N. Jfi. Supp. 836, per Hirschberg, J. See Rep. 890. See also supra, § 229. also supra, § 197. ^^^ Kramm v. Stockton Elec. R. Co., 211 See also, as to noise of vehicle, (Cal. App.) 86 Pao. Rep. 738, 740. supra, §§ 193, 214, 229, 235, 240, and 21* Indianapolis St. R. Co. v. Taylor, infra, § 254. (Ind. App. 1907) 80 N. E. Rep. 436. FACTS — 18 274 SOUND AND HEARING. [§§ 253-255 upon to advise him of the approach of another car which was almost upon him.^^° § 253. Wind or Rain Storm Preventing Hearing Electric Car. — A strong wind making a great noise in the trees may stifle the sound of an electric car.^^° A person driving a horse and buggy, with a heavy rain falling, a rapidly driven buggy in front of him, and a wagon behind, may thus have been prevented from hearing an ap- proaching electric car.^^^ § 254. Sound of Gong of Electric Car. — Passengers in a trolley car may have heard the motorman ring his signal bell, while a man ahead might not have heard it because he was sitting in a covered wagon.^^' Whether the noise of a horse and vehicle would prevent the driver from hearing the gong of an approaching electric car may be satisfactorily proved by experiments.^^* § 255. Noise of Steamer Rnshing Through Water. — Where a steamship is moving rapidly in a strong wind, and a considerable sea throwing water on her deck, the noise and commotion attendant on the navigation furnish abundant reason why a schooner's fog-signals might not have been heard, without any resort to possible abnormal conditions of the atmosphere.^^" It has been accepted as a valid argument why a steamer should slacken speed in a fog, that her look- out might thereby be enabled to hear a fog horn sooner, because the noise at the steamer's bow would be less.^^^ Where witnesses testified See also supra, § 230; Houston, etc., Co., 106 La. 236, 30 So. Rep. 747. R. Co. V. Kauffman, (Tex. Civ. App. As to noise of vehicle, see supra, §§ 1907) 101 S. W. Rep. 817. 229, 240, 251. 216 Montreal St. R. Co. v. Deslong- 220 The Fulda, 52 Fed. Rep. 400, champs, 14 Quebec Off. Law Rep. 355, 402. See also infra, §§ 260, 271 ; 359. The Oregon, 27 Fed. Rep. 751, 753; 2mDooley v. Greenfield, etc., St. R. The Steamship Aleppo, 5 Ben. (U. S.) Co., 184 Mass. 204, 68 N. E. Rep. 203. 554, 1 Fed. Cas. No. 157; The Kenil- See also supra, §§ 232, 243. worth, 64 Fed. Rep. 890; The Cam- 2" Stanley t). Cedar Rapids, etc., R. pania, (1901) P. 289, 292; Roberts Co., 119 Iowa 526, 93 N. W. Rep. v. The Ship Pawnee, 7 Canada Exch. 489. 390, 400. 218 Davis «. Media, etc., Electric R. 221 The Blackstone, 1 Lowell (U. Co., 25 Pa. Super. Ct. 444, 447. S.) 485, 3 Fed. Cas. No. 1,473, per 210 Cowden v. Shreveport Belt R. Lowell, D. J, § 256] SOUND AND HEARING. 27& that a horn cannot be heard over a mile and a half, at farthest, " if so," said Mr. Justice Nelson, " it certainly could not be heard any- thing like that distance, if at all, on board a steamboat in motion." ^^^ A steamer going in a fog at the rate of ten knots an hour against a fresh breeze and a head sea, attentive and vigilant in listening, may not have heard the fog horn of an approaching bark, solely because of the noise made by the wind and aea and her machinery, although a screw steamer, and her masts, spars, rigging, and other appurtenances ; and the bark at the same time, with equally vigilant lookouts, may not have heard the steamer's whistle, because of the adverse wind, and the noise of the sea and wind.^^^ And the fact that after a collision, with her speed diminished, various signals in different quarters were heard on the steamer although none had been heard before, is a strong indication that the previous failure to hear signals was due to the cause just mentioned."^* The noise of a steamer's engines and propeller may cause her officers to believe that a fog signal is far off when in fact it may be quite near ; and so " if you stop your engines," said Bucknill, J., " you lessen the danger, and give yourself better informa- tion than if you go on with engines moving." '^'^ It is said that the sound of a fog horn on a large side-wheel steamer under way is almost entirely overcome by the noise of the steamer moving through the water.^^" In passing upon the legal sufficiency of a fog bell which was practically nothing more than a good-sized hand bell, the court said that " to strike the bell quickly and hard was possible, but the labor of doing it could not be long continued, and, when the diminished effort came, the bell would not be heard upon a side-wheel steamer by reason of its own noise." "^'^ § 256. Vessel's Signals — Eligible Place for Lookout.' — A look- out high up on the foremast of a steamer, a hundred feet from the stem, is not in the best location to hear fog signals of small sailing vessels; a man forward in the very bow would be in a better posi- tion.^^* 222 The Bay State, 2 Fed. Cas. No. 220 MeCready v. Goldsmith, 18 How. 1,150 (at p. 1096). (XJ. 8.) 89, 92, by the witnesses, the 223 The Steamer Hansa, 5 Ben. (U. court apparently assenting. S.) 501, 11 Fed. Cas. No. 6,037. 227 The Annex No. 5, 117 Fed. Rep. 224 The Fulda, 52 Fed. Rep. 400, 754, 756, per Thomas, D. J. 402. 228 The Vedamore, 131 Fed. Rep. 225 The Koning Willem I., (1903) 154, 156, per Morris, D. J. See also P. 114, 122. post, § 370. 276 SOUND AND HEARING. [§§ 257-259 § 257. Whistle More Penetrating than Fog Horn. — A schooner's fog horn would naturally be heard on a steamer later than the steamer's whistles would be heard on the schooner, both because it is not so powerful as the steam whistle, and also because the blasts of a fog horn, unlike those of a steam whistle, are more specially operative along a particular axis, which much diminishes their penetration out- side of the limited arc towards which the horn happens to be directed. When, therefore, a steamer's whistle was not distinctly heard until about one minute before she was seen, the failure to hear any signal from the schooner until about the time she was seen was naturally explained, in the judgment of the court, without finding any derelic- tion in the schooner as to the manner or frequency of soimding her horn or in the attention given by the lookout and officers on the steamer.^^" § 258. Fog Horn Superior to Bell. — Congress has expressed its belief that a fog horn can be heard at a greater distance than a bell."'" It seems that a bell — at least an unusually large bell — rigged upon the forestay of a ship, and rung by a lanyard from its clapper, is regarded by admiralty judges as a more effective fog signal than a horn.-'^ In one federal case it was proved that on the Newfoundland Grand Banks a bell does not sound as far to the windward as a horn."'" In a case of collision in the Straits of Fuca, about twenty- five or thirty miles from Victoria, the assessors informed the court that even with a small fog horn it is quite usual to convey orders, by signal, a distance of a mile or even a mile and a half."'' § 259. Superiority of Mechanical Fog Horn. — A mechanical fog horn gives a louder and more penetrating blast than can be given by a horn blown by the mouth."'* 220 The Patria, 92 Fed. Rep. 411, ass The Zambesi, 3 Canada Exch. 413, per Brown, D. J. 67, 70. 230 The Pennsylvania, 19 Wall. (U. 234 The Hercules, (C. C. A.) 80 Fed. S.) 125, 137. Rep. 998, 1002; The Louisburg, (C. 231 The Steamer Pennsylvania, 4 C. A.) 75 Fed. Rep. 424; The Trave, Ben. (U. S.) 257, 19 Fed. Cas. No. 55 Fed. Rep. 117, 119; The Energy, 10,947. 42 Fed. Rep. 301, 303. See also The 232Guibert v. British Ship Georp;^ Nin.c;ara, (C. C. A.) 84 Fed. Rep. 902, Bell, 3 Hughes (U. S.) 408, 11 Fed. 003. Cas. No. 5,856. §§ 260-263] SOUND AND HEARING. 277 § 260. Noise of Eowlocks Not Equal to Fog Horn. — The noise made in rowing with patent rowlocks is in no wise an equivalent signal to that prescribed by the laws of navigation and pilot rules for craft moving in a fog. " The noise made by the patent rowlocks is quite different from the sound made by fog horns, and cannot well be heard over the rumbling of machinery of a steamer "''^ or distinguished from sounds on shore. From its nature, it is more likely to be swallowed up or confused in other sounds than the blast of a fog horn. Besides, the force of the sound waves the rowlocks put in motion is not as great as the disturbance in the atmosphere produced by the blowing of a fog horn, and certainly cannot be heard at as great a distance." ^^° § 261. Steam Fog Horn Kesembling Steam Whistle. — A schooner's fog signals were made by a huge copper horn blown by steam supplied by a steam boiler on board, as she had no atmospheric horn. The sound produced closely resembled that of some varieties of whistles used on steam vessels, so that all the men on an approach- ing steamship were completely deceived, and none of them, from master to passengers, had the least suspicion that the sounds heard were not the fog signal of a steamer. The steamship acted on this belief as to the fact, and was held blameless for the subsequent col- lision."'' § 262. Sound of Fog Horn Suppressed by Loud Whistle. — In one case, the court held that a schooner's fog horn diligently blown was drowned by an approaching steamer's own exceptionally loud whistle, and the steamer was pronounced responsible for the subsequent col- lision.^'* § 263. Continuous Blowing of Fog Horn Imprudent. — When a fog horn is used on a ship to warn other craft, continuous blowing, if it be required, can only be required when called for in answer to a warning sound. Listening is as necessary as blowing. A second lookout can hear nothing from another vessel by listening, while the first lookout is blowing close to his ears. A single lookout can listen, 230 See also supra, § 255, and infra, 287 The Parthian, 48 Fed. Rep. § 271. 175. 230Quinette 1). Bisso, (C. C. A.) 136 238 The Michigan, (C. C. A.) 83 Fed. Rep. 825, 838, per Jones, D. J. Fed. Rep. 280, 285. 278 SOUND AND HEARING. [§ 264 if charged with that duty, during the intervals of blowing, as well as a second lookout can do so."^' § 264. Vessel's Signals — Single or Double Blast? — In a col- lision case the court was convinced that one of the steamers gave a signal of two short blasts. The other steamer's witnesses testified that it was only a single blast. The court said ; " Being persuaded that the first signal was a double blast, we are put upon the inquiry why only a single blast was heard. We cannot explain the difiiculty upon any theory of the uncertain and irregular transmission of sound.^*" These witnesses, without any material change of position or situation, accurately heard all the other signals. They even, according to their own statement, heard some of the first signal ; whether the first or the last blast, cannot be known. But the interval betvreen the blasts of a double-blast whistle is very brief; merely enough to articulate and separate the sounds. They are not far enough apart in time to allow a change from a place where they are audible to one where they are inaudible. Moreover, no attentive witness has been produced who heard the first signal as a single blast of the whistle. The only ex- planation is that there was a lack of attention and vigilance on the part of the steamer averring that the blast was single." ^*'^ The Actor Eule, elsewhere noticed,^*^ would ordinarily require that in a conflict of testimony decisive weight should be given to the testimony of the witness who declares that he himself gave the signals.^'^ Two whistles within a second of each other are so close together as to be equivalent to one, as respects a hearer at a distance in a fog.^** It is said that in certain conditions of the atmosphere -^^ two blasts sound as one, and that sometimes, because of water in the whistles, such confusion occurs.^*^ A double blast on a fog horn may be given so hastily and 239 The Steamer Hansa, 5 Ben. (U. folloucd in Tho Georgian Bay Nav. S.) 501, 11 Fed. Cas. No. 6,037. Co. v. The Ships Shenandoah and 240 The weather was fair. As to Crete, 8 Canada Exeh. 1, 39. vagaries of sound in a, fog, see infra, 2*4 The Ebor, 11 P. D. 25, 28, per § 27S ct S€q. Lord Eslier, M. R. 241 The Ottoman, ( C. C. A. ) 74 Fed. 245 Abovrations of sovmd in a, fog Rep. 316, 320, per Webb, D. J. aro discussed at congidt-rable ieBgth 242 See post, §§ 705, 707, 783. infra. §§ 273, 274. 243 See Tdie Milwaukee, Brown Adm. 240 See The Newport News, 83 Eed. (U. S.) 513, 17 Fed. Cas. No. -9,626, Rep. 522, 523. §§ 265, 266] SOUND AND HEARING. 279 clumsily as to seem single at a very short distance. ^■''^ Whether a vessel's signal was one or two blasts may be satisfactorily determined by the consistency of her subsequent conduct with one or the other/** for " it is an entirely proper assumption that the navigator who blew a signal operated his wheel in conformity thereto." ^*^ " It is shown by the trials of collision cases to be very much the habit of large steamers, in dealing with small tugs, to determine on a course and announce it by whistling, and then persist in it, whether an acquiescent response is obtained or not." """ § 265. Which of Two Vessels Initiated Signals ? — Which of two vessels exchanging signals initiated a particular signal? The court decided the question upon consideration of the number and quality of the persons on strict duty on one of them, which was a government vessel; the probable individual intelligence of the witnesses; the unaccountable folly of its initiation by the one, and a motive as- cribable to the other for doing it."^^ In deciding which of two steamers approaching each other gave the first signal of two blasts, the court was confident that the signal did not begin with the steamer which was under a port wheel at the time, as this " would indicate a degree of recklessness inconsistent with good sense." ^^^ Upon the question which of two vessels gave the first signal, one of them being at rest in the course of the other, those on board the latter would naturally be more observant and their testimony more trustworthy."^' § 266. Simultaneous Signals between Vessels. — Where both ves- sels in a collision assert that they gave signals, but neither heard those of the other, it may possibly be accounted for on the suppo- sition that they v/ere given at the same instant of time."^* Cases 247 The Columbian, 91 Fed. Rep. 25i Brooklyn Ferry Co. v. U. S., 122 801, 803. Fed. Rep. 696, 698. 248 The British Queen, 89 Fed. Rep. 2=2 The North Star, 43 Fed. Rep. 1003, 1006. 807, 814, ■per Brown, J. 249 The Islander, (C. C. A.) 152 253 The Bristol, 11 Fed. Rep. 156, Fed. Rep. 385, 388. 158. 260 The Newport, 5 Ben. (U. S.) 254 Cannon «. The Steamer Potomac, 231, 18 Fed. Cas. No. 10,185. It 3 Woods (U. S.) 158, 5 Fed. Cas. Np. was so stated in that case by Blatch- 2,386. See also The Nereus, 23 Fed. ford, D. J. Eep- 448, 452. 260 SOUND AND HEARING. [§§ 267, 268 have occurred where the court was convinced that a signal given by a vessel was not heard on another vessel because the latter gave a signal herself at the same moment that the sound of the other reached her.'"*^ "In the daytime pilots watch the vessels they are signaling. By the accompanying puffs of steam, they see the whistles as well as hear them. They rely upon sight, also, to identify the whistle heard with the vessel that gives it. In the case of contemporaneous whistles they perceive and know, by means of sight, the whole signal given, whether fully heard or not. Thus sight, in the daytime, may possibly be relied on to correct with certainty any imperfections of hearing. But in the nighttime there are no such means of correcting any imperfect hearing of contemporaneous whistles." ^''° § 267. Signal by Third Vessel Mistaken by Other Two as Theirs. — Sometimes it has appeared with reasonable certainty that each of two vessels attributed to the other a single signal which was in fact given by another vessel.^" § 268. Vessel's Signals in Unfavorable or Favorable Wind. — The tendency of a wind blowing from a hearer towards a fog horn or whistle would be to make the sound more difficult to be heard.""* Thus, where a breeze was blowing from a steamer towards a schooner in a fog, it is to be considered that the steamer's whistle, probably more powerful than a horn on the schooner, may have been heard by the schooner without the horn being heard on the steamer.^°° But a light breeze blowing over the stern of a steamer would not, the court thought, prevent hearing an ordinary fog signal of a steamer at least a mile ahead.""" It is not surprising that a vessel's whistle 256 7n re Central K. Co., 92 Fed. (1907) P. 28, 33. See also supra, Rep. 1010, 1012. §§ 222, 239, and infra, § 278. 256 The Nereus, 23 Fed. Rep. 448, 259 Dunton v. Allan Steamship Co., 454, per Brown, D. J. (C. C. A.) 119 Fed. Rep. 590, 592. 257 See The City of Springfield, 29 See also The Leo, 11 Blatchf. (U. S.) Fed. Rep. 923, 924 (a collision not 225, 15 Fed. Cas. No. 8,254; The "1 fog)- Bristol, 10 Blatchf. (U. S.) 537, 4 258 The Oregon, 27 Fed. Rep. 751, Fed. Cas. No. 1,892; The W. H. Grat- 753; The Leland, 19 Fed. Rep. 771, wick, 81 Fed. Rep. 590, 591. 778; The Bristol, 10 Blatchf. (U. S.) 200 The North Star, 43 Fed. Rep. 637, 4 Fed. Cas. No. 1,892; The Aras, 807, 813, per Brown, D. J. §§ 269, 270] SOUND AND HEARING. 281 clogged with water was not heard on another vessel when the wind was blowing the sound directly away.^^^ The sound of a fog signal would be favored by a wind blowing from it toward a listener.^°^ § 269. Excited Officers May Not Notice Sound of Fog Horn. — II has been remarked that oiBcers of a vessel in a fog coming out of the cabin just before a collision, only to find another vessel almost upon them, would perhaps in their excitement not notice that a fog horn was blown at that time on the approaching vessel.^"' § 270. Signals Not Heard because of Diversion of Attention. — Diversion of a lookout's attention may account for his failure to observe another vessel's lights.^"* So, among the difEerent causes that might prevent a schooner's fog bell from being heard or noticed on a steamer, " partial preoccupation of the mind by other duties is certainly not to be excluded," said the court, where it appeared that the steamer's crew were about to anchor and were making prepara- tions therefor.^"'* In the case of a collision between a steamer and a schooner in tow of a tug, signals given by the latter were not heard on the former, and the court suggested that " those on the sleamer may have then been especially attending to the schooner, and to their movements to pass her safely. Or it may be that, seeing the tug safely, as they thought, on their port hand, and having no reason to expect any other movement on her part except to keep her course, they expected no signal and anticipated no trouble from her, and so their attention was remitted." -"" The fact that officers on a vessel were listening intently for a fog bell on shore by which they were to direct their course, and had their attention strained in that direction, was regarded as a probable explanation of their 201 The Livingstone, 87 Fed. Rep. 264 See post, § 367. 769, 773. 266 The Buffalo, 50 Fed. Rep. 630, 262 The Michigan, 63 Fed. Rep. 295, 631, per Brown, D. J. See also The 297; Lovitt v. The Ship Calvin Martello, 34 Fed. Rep. 74, 75; The Austin, 9 Canada Exch. 160, 176; The Baltic, 41 Fed. Rep. 603; The Mars, Aras, (1907) P. 28, 33. See also 116 Fed. Rep. 204, 206; and post, supra, §§ 222, 239. §§ 693 et seq., 774, 775. 263 The Steamship Westphalia, 4 see Dougherty v. The Steamer Fran- Ben. (U. S.) 404, 29 Fed. Cas. No. conia, 3 Fed. Rep. 397, 402, per 17,460 (at p. 830). Choate, D. J. 282 SOUND AND HEARING. [§§ 271, 272 failure to hear the fog bell on another vessel.^" A lookout in the cnow's nest of an ocean freighter carrying a large number of sheep on deck may have been distracted by the noises from the animals, which were immediately under him, so that he failed to hear the fog signal of an approaching vessel."** In the case of a collision between a steamship and a tug off the Battery at New York, in a dense fog, it was concluded that the reason why the officers of the steamship did not hear the several signals from the tug was that none of them at the time seemed to call for attention and they were therefore immediately forgotten; it appearing that the bell on Gov- ernor's Island, the bells at various ferries, and the whistles of divers other vessels were heard by numerous persons in the vicinity of the collision.""* § 271. Water as a Communicator of Sound. — In a case where a, schooner did not blow her horn in a fog before colliding with a steamer, and it became incumbent upon her to establish affirmatively that the horn, if blown, could have produced no effect, Mr. Justice Hunt said : " Water is a ready communicator of sound. A hail, a shout, or a horn can be heard much farther upon the water than upon the land. On smooth water, and with a favorable breeze, the sound can be heard much farther than upon a rough sea or against a head wind." On the occasion in question the night was bois- terous, the sea was high, " and the machinery of the steamer may be assumed to have made the rattling and the noise usual in a large vessel of that character." "" It was concluded that the schooner's horn should have been blown. In the same case, the court suggested that the alarm and confusion incident to the collision, and the a:d- verse wind after the schooner left the steamer, might well explain the inability of the men on board the steamer to hear shouts and cries coming from the schooner."'^ § 272. Aberration of Sound in Clear Weather. — In an English case decided in 1903 "'" a paragraph in article 18 of the Channel Pilot, 207 The City of Dundee, (G. C. A.) s'o gee supra, § 255. 108 Fed. Rep. 679, 683. 2" The Leo, 11 Blatchf. (U. S.) 208 The VedaiBore, 131 Fed. Rep. 225 (at p. 233), 15 Fed. Cas. No. 154, 156. 8,254 (at p. 330). 200 The James Berwjnd, 44 Fed. 2x2 The Koning Willem I., (1903) Rep. 693, 695. P. 114, 121. § 273] SOUND AND HEARING. 283 Part I. (9th ed.), is quoted as follows : " Sound is conveyed in a very capricious way through the atmosphere. Apart from the wind, large areas of silence have been found in different directions and at differ- ent distances from the origin of a sound, even in clear weather." "^ § 273. Aberration of Sound in Fog — Leading American Case. ^- The most elaborate discussion of the effect of fog upon the trans- mission of sound is in The Lepanto,''* where United States District Judge Brown said : " Erroneously locating a vessel by the sound of her whistle in a fog is not, however, necessarily a fault. Sound, like light, is liable to be deflected from its original course by reflec- tion, refraction, or diffraction. When this happens, though the hearer locate correctly the direction of the sound as it comes to hie ear, the source of the sound will be in a different quarter. Elaborate experiments on fog signals in this country and in England have established, beyond question, apparent anomalies and contradictions in the transmission of sound through the atmosphere, and a conse- quent liability to error as to the quarter in which the sound origi- nates. Although opinions differ as to the comparative importance of the different agencies that produce these anomalies, all the ob- servers agree substantially upon the fact of great aberrations in the course of sound and in the audibility of fog signals. It is now well settled that these aberrations are not due to fog, snow, rain, or hail, which produce little if any sensible effect on the transmission of sound. So far as Imown, these anomalies arise from the effects of winds, air currents, and a non-homogeneous atmosphere. See Appendix to Eeports of American Lighthouse Board for 1874, 1875, 1877, by Prof. Henry; Appendix to Lighthouse Eeport of 1879, by Prof. Morton; Henry on Sound; Tyndall on Sound (3d ed.), pp. 9, 310, 351, 432; Prof. Taylor's ^ Eecent Eesearches in Sound,' Amer. Jour, of Sci. and Arts, January and February, 1876; Prof. Eeynolds 'On Eefraction of Sound by the Atmosphere,' L. B. D. Phil. Mag., July, 1875 ; Appletons' Ann. Cyc. for 1883, article ' Sound Signals,' by A. B. Johnson, chief clerk of the Lighthouse Board. While the experiments, above referred to relate chiefly to the penetration of sounds and to variations in audibility, to aerial echoes, and to the 273 See also supra, § 202, imfra, § 273 et seq. "i 21 Ked. Eep. £5i6. 284 SOUND AND HEARING. [§ 273 observed alternate areas of sound and silence, they also embrace the deflection of sounds by reflection or refraction, as one of the modes in which the observed aberrations arise. It is now well established that areas of inaudibility may exist distant a quarter of a mile only in front of the blasts of the most powerful steam siren; while farther off in the same direction the sound may again become audible and loud, and remain so for miles beyond. Prof. Henry in his Eeport of 1877 (p. 71) shows that this may arise from an opposing wind, which refracts the sound waves upwards over the head of the listener, till they meet a different current, or strata of less velocity, when they may be deflected to the earth again ; or it ' may be considered as due to a sound shadow produced by refraction, which is gradually closed in at a distance by the lateral spread of the sound wave near the earth; or by the probable circumstance of the lower sheet of sound beams being actually refracted into a serpentine or undulating course. Such a serpentine course would result from successive layers of un- equal velocity in an opposing wind.' Appletons' Ann. Cyc. (1883), p. 725. These phenomena, he adds, are observed especially in fog when the wind is ahead (p. 65). Such, as it will subsequently appear, was the situation of the Edam in respect to the Lepanto's whistles. As the steam whistle has no definite axis, such as the trumpet of the siren has, its lateral sound waves would naturally ' close in ' around areas of silence much nearer than those of the siren would do; and its aerial echoes, also, would come from a wider are of the horizon. ' In the experiments at South Foreland,' says Prof. Tyndall (Sound, p. 318), 'not only was it proved that the acoustic clouds stopped the (direct transmission of) sound, but in a proper position the sounds which had been refused transmission were received by reflection.' Gen. Duane says that ' a difficulty is sometimes experienced in determining the position of the signal by the direction from which the sound appears to proceed, the apparent and true direction being entirely different.' Eeport of 1874, p. 104. He ascribes this result 'to the refraction of sound passing through media of different density.' Prof. Henry and Prof. Taylor find a more efficient cause in unequal velocities of the wind, which produce a deflection in the sound waves, and thereby change the direction of their progress. Mr. Johnson writes that ' he has frequently been more than five points out of the way when trying to locate the direction of the sound made by a given fog signal.' § 274] SOUND AND HEARING. 285 ' I have even heard/ he says, ' apparently the sound overhead, when it was from five to seven miles away. It has been my habit to correct the observation of audition by looking at the compass, and to utterly distrust the ear as a means of determining the exact or even general direction of sound on the water.' . . . Where the sound comes apparently from a precise direction, to steer away from it furnishes, as a rule, the most probable means of escape. Great mistake by the deflection of the sound, though occasional, is com- paratively infrequent; and steering away from the sound ordinarily gives, at least, the longest path and the most time in which to stop before reachiag the other vessel. . . . From the scientific point of view, according to the experiments above referred to, an error in locating sound is more likely to arise when the sound is moving against the wind, i. e., when those hearing it are to windward." ^'^ § 274. Aberration of Sound in Fog — Other Cases. — In the case of a collision in a fog, where one of the vessels seemed not to have heard all the whistles given by the other. Sir Gorell Barnes said: " It must not be overlooked that sound, as is quite notorious, is a very difficult thing to be accounted for in a fog." "" United States District Judge Blodgett also spoke at considerable length concerning the alleged acoustic peculiarities of fog : " In reference to the point that these fog signals were unavailing on account of the peculiar condition of the atmosphere, I can only say that the researches and experiments of scientists, as detailed in later works on acoustics, as well as the common experience of the unlearned, seem to show that the capacity of the atmosphere to transmit sounds is not only much less at some times than others, but at times there is a condition of nearly or quite ' acoustic opacity.' Tyndall, Sound, preface to third edition, also chapter seven of same edition. But unfortunately we seem to have as yet no test, except actual experiment at the time, to show or prove when such conditions exist. The ' aeous- 275 See also the cases cited in the C. A.) 58 Fed. Rep. 427, 430; McCahe next four sections, and The Columbia, v. Old Dominion Steam-Ship Co., 31 104 Fed. Rep. 109; The Niagara, 77 Fed. Rep. 234, 238; The Steamship Fed. Rep. 329, 330; The W. H. Grat- Westphalia, 4 Ben. (U. S.) 404, 29 wick, 81 Fed. Rep. 590, 591; The Fed. Cas. No. 17,460; The Koning Grenadier v. The August Korff, 74 Willem I., (1903) P. 114, 121. Fed. Rep. 974; La Normandie, (C. 2'6 The Aras, (1907) P. 28, 33. 286 SOUND AND HEARING. [§ 274 tic cloud,' as it is called, is not visible to the eye or palpable to the touch. It, as observation would seem to show, may exist only momen- tarily, and even some sounds may be transmitted and others not. It can hardly be safe, therefore, to accept this assumed scientific theory as a defense upon the mere proof that sound signals were not heard, at least until the party invoking this defense shows that he has fully complied with all the requirements and conditions of the law in regard to the giving of his signals and the appliances by which they are to be made. It will not do to accept the defense that the atmosphere was acoustically opaque, without something more than the proof in this case. The effect of accepting such a defense on such proof would be to hold that in all cases where signals are not heard in a fog, it was attributable to the atmosphere and not to the negligence of the parties charged by the law with the duty of giving such signals by means of certain instrumentalities and at certain intervals. I do not find anything in the record in this case which would justify me in presuming that this condition of the atmosphere existed on the night in question. It was a foggy night; the fog was thick and dense ; no high wind was blowing, and nothing unusual or out of the ordinary appearance of foggy nights was noticed or observed by any of the witnesses in the case. The mere fact, standing by itself, that the crew on one of these vessels did not hear the signals upon the other before the vessels sighted each other, is not, I think, sufficient to sustain the assumed scientific theory in- voked by respondents. We must remember these vessels were ap- proaching a common point where their courses intersected at a very oblique angle, and at the rate of at least twelve miles an hour. Assuming, as I think we are justified in doing, from the evidence, that the whistle was not Sounded oftener than once in three minutes, the two vessels might have been two thousand one hundred feet, or two-fifths of a mile, apart at the time the last blast was given from the whistle of the steamer prior to the collision; and from the proof in regard to the distance at which it could be heard on the night in ques- tion, it is extremely doubtful whether the sound from the whistle would have penetrated this dense fog, in face of whatever breeze was blowing, to a distance of one-third of a mile on the night in question, without assuming that a phenomenal atmospheric condition prevailing at the time pi-evented these signals from being heard." '" 2" The Leland, 19 Fed. Rep. 771, 777. § 274] SOUND AND HEARING. 287 A steamer's fog whistle twenty-five or thirty feet higher than the deck of a bark may not have been heard on the latter, because the sound was reflected upwards by the denser medium of the fog below her whistle.^'' In one case where a schooner and a steamer were approaching each other perhaps two thousand feet apart in a low and rather dense fog, and the schooner sounded three blasts of her horn as for a sailing vessel with the wind abaft the beam, the court said the testimony left no doubt that this was heard aboard the steamer as a single blast, as for a sailing vessel on the starboard tack.^'° In another case it was entirely certain that a schooner's fog horns were not heard at all on a ferry boat whose men were carefully listening for fog signals.^*" " Proof that a fog horn was blown, yet was not heard at a distance it might be expected to be heard, cannot be accepted as proof that there was negligence on the part of those who did not hear it." ^^'^ It has been said that " apparently inconsistent testimony can some- times be disposed of on the conclusion that the evidence from both vessels may be true, in that, while proper signals were made by one, they were not transmitted correctly to the other." "^^ However, the court will not resort to a problematical explanation of that sort if the case can be decided on other reasonable grounds.^*' In a case of collision between two steamers, where none of the signals given by either, when about a half or a third of a mile apart, were heard by the other, and no answer was obtained by either, the court did not feel justified ia ascribing the double failure to hear to abnormal atmos- pheric conditions in apparently clear weather, when the vessels were so near to each other, and both vessels were adjudged to be in fault.^" Where two sailing vessels were approaching each other in a fog, at very slow speed with a light wind, and in a noiseless sea and a 278 The Niagara, (C. C. A.) 84 Fed. 283 The Columbian, (C. C. A.) 100 Rep. 902, 903. Fed. Rep. 991, 996. 2T8 The Chattahoochee, 74 Fed. Rep. " Sound will travel as well in a, fog 899, 901. as in a clear atmosphere, and, as ia 280 The Whitehall, 68 Fed. Rep. well known, is often intensified by it." 1022. The Colorado, Brown Adm. (U. S.) 281 The Zadok, 9 P. D. 114, 118, per 393, 405, 6 Fed. Cas. No. 3,028 (at Sir J. Hannen. p. 157), per Longyear, D. J. 282 The Columbian, (C. C. A.) 100 2S4 The Saginaw, 84 Fed. Rep. 705, Fed. Rep. 991, 996, per Putnam, C. J. 711. 288 SOUND AND HEARING. [§§ 275, 276 universal quiet that should have permitted their fog signals to be heard a mile away, and they were not heard one-quarter of that distance, the court said that "if certain extraordinary conditions of fog might possibly account for the failure to hear on the one side,''*^ it cannot explain the failure on both sides. The only reason- able conclusion is that there was lack of a proper watch and of proper sounding of the fog horns on both vessels." ^^^ § 275, Vagaries of Sound of Fog Horn. — In regard to signals by horn, " it is not unusual for the same sound to be heard faintly, if at all, for a short distance in one direction, and with more or less force for a longer distance in another direction. Practical tests have proved that fog horns are not infrequently unreliable signals, and that they cannot be depended on in every condition of wind and atmosphere." '" § 276. Locating Sonnd in Fog. — In thick fog it is impossible accurately to locate a vessel by the sound of her fog signals. ^^^ " The reflections of the waves of sound amid banks of fog are such as to render the seeming direction of sounds in a fog wholly unrelia- ble." ^*° The sound is " likely to be obstructed or deflected, and calculated to mislead." ^''° In a collision case Sir Gorell Barnes said : " It is so well known — so absolutely well known — that it is im- possible to rely upon the direction of whistles in a fog, that I do not think any man is justified in relying with certainty upon what lie hears when the whistle is fine on the bows, like this was undoubt- edly, and is not justified in thinking it is broadening unless he can ■ -isn Citing The Lepanto, 21 Fed. 350, 351; The George W. Koby, (C. Rep. 651, 656. See this case, supia, C. A.) Ill Fed. Rep. 601, 008; The § 273. Oregon, 27 Fed. Rep, 751, 757; The 280 The Kenilworth, 64 Fed. Rep. City of Atlanta. 26 Fed. Rep, 456, 890, 892, per Brown, D. J. 461, See also The City of Reading, 287 McCabe v. Old Dominion Steam- 103 Fed, Rep, 696, 697 ; The Koning Ship Co,, 31 Fed. Rep. 234, 2,38, per Willem I„ (1903) P, 114, 121; Wales, D, J. See also The Pennsyl- Roberts v. The Ship Tawnee, 7 Canada vania, 19 Wall. (U. S.) 125, 138, per Exch. 390, 400, Strong, J., .and supra, §§ 273, 274, 289 The City of Now York, 15 Fed. 288 The M.irtello, 153 U. S. 64, 71; Rep. 624, 634, per Brown, D, J, The City of New York, 147 U, S. 72, 200 The Grenadier v. The August 85; The Arthur Orr, 69 Fed. Rep. Korff, 74 Fed. Rep. 974, § 277] SOUND AND HEARING. 289 make sure of it. That is the view I entertain very strongly, because if it is well established that the direction is an uncertainty, it is no use trying to rely upon it as a certainty by saying you looked at the compass." ^"^ Where a barge was in tow of a tug on a hawser eleven hundred feet long, in a dense fog at night, and the only guide to the barge in steering was the direction in which the hawser led aad the sound of the tug's whistles, " the latter," observed the court, was " a most uncertain reliance." ^"^ It is because of uncertainties as to the source of sounds in a fog that no change of course should be made by a steamer without reversing, where her speed is as much as two-thirds her full speed, and voices are heard nearly ahead, in a dense fog, before the other vessel or her lights can be seen.^°' Where a vessel is proceeding with fog horns sounding on nearly all sides of her, it requires close scrutiny, of course, to distinguish any one of them from the others.^"* But where a vessel is on the open sea in a fog, and a whistle on another vessel is heard. Lord Esher, M. E., declared, "it is absurd to say that the distance at which it is oflE cannot to some extent be told." "' § 277. Determining Course of Vessel by Her Fog Signals. — The mere sound of a steamer's whistle in a fog would not enable another vessel to determine her course, any more " than if two carts were approaching each other on an ordinary highway and the sole method of judgment were the sound of the cart wheels." ^'° In a collision case District Judge Brown refrained from expressing a decided opinion upon the trustworthiness of the expert testimony that a practiced ear can determine within a point the bearing of a vessel in a fog, but he said the facts of the case demonstrated that this is a very 281 See also The Aras, (1907) P. P. D. 6, 9; The Britannic, 39 Fed. 28, 35. Rep. 395, 399; The Vindomora, 14 292 The Harold, 84 Fed. Rep. &98, P. D. 172]. See also The City of 703, per Brown, D. J. New York, 35 Fed. Rep. 604, 609 ; The 293 The Wyanoke, 40 Fed. Rep. 702, Martello, 34 Fed. Rep. 71, 74. 704, per Brown, D. J. [citing The 294 The Colorado, Brown Adm. (U. Lepanto, 21 Fed. Rep. 651, 659; The S.) 393, 404, 6 Fed. Cas. No. 3,028 Pottsville, 24 Fed. Rep. 655; Steam- (at p. 157), per Longyear, D. J. ship Frankland v. Steamship Kestrel, 295 The Ebor, 11 P. D. 25, 27. L. R. 4 P. C. 529; The Dordogne, 10 296 Steamship Lebanon v. Steamship FACTS — 19 290 SOUND AND HEARING. [§ 278 imcertain method of ascertaining the course of an approaching vessel, when the hearer is himself upon another vessel moving rapidly in a different direction.""^ When a dull whistle from a vessel is heard in a fog, and later a second whistle plainer and clearer, it indicates that the vessel is approaching.^"* " It appears to me impossible," said Brett, M. E., " that a whistle sounded a mile and a half off can sound the same as a whistle heard at the distance of one hundred yards. ... I have no doubt that where you have two ships in fact closing on each other, and where you have a succession of whistles, each whistle must show you that the other whistle is coming nearer." ^'"* And as long as a steamer's repeated signals in a fog are heard on the port bow, for instance, of an approaching steamer, and the sound does not close in or pass to the port bow of the latter, it should be inferred that the former is not changing her course.'"" § 278. Sound of Signal Deflected by Wind. — The course of the wind may deflect the sound of a whistle so as to mislead a hearer as to the precise direction whence it comes,'"^ or the wind may carry the sound away altogether.^"'' Ceto, 14 App. Gas. 670, 674, per Lord See alao The Koning Willem I., (1903) Halabury, L. C. See also The Kirby P. 114, 122. Hall, 8 P. D. 71, 78. soo The North Star, 43 Fed. Rep. 287 The Alberta, 23 Fed. Rep. 807, 807, 812, per Brown, J. 810. See also The Iberia, 40 Fed. 30i The Oregon, 27 Fed. Rep. 751, Rep. 893, 895. 753. 298 The Ebor, 11 P. D. 25, 30, per 302 See The Zadok, 9 P. D. 114, 118, Lindley, L. J. and further as to unfavorable wind 289 The Dordogne, 10 P. D. 6, 11. supra, §§ 222, 239, 268. CHAPTER VI. LIGHT AND SIGHT. § 279. Introduction. 280. Presumption that Objects Plainly Visible Were Seen. 281. Presumption that a Person Could See What Others Saw. 282. When Presumption Just Mentioned Does Not Operate. 283. Presumption that a Person Did Not See What Others Did Not See. 284. Presumption of Reciprocal Observation. 285. Presumption of Reciprocal Nonobservation. 286. Prepossession or Bias of Observer. 287. Perception of Objects by Lateral Glance Not Presumed. 288. Concentrated Gaze Inconsistent with Lateral Observation. 289. Persons Passing from Light into Darkness. 290. Moisture Condensed on Eyeglasses Obscuring Vision. 291. Observations in Nighttime in General. 292. Stepping Blindly in Darkness or Dim Light. 293. Stepping Blindly in Daylight. 294. Perception of Defects in Highway in Nighttime. 295. Perception of Slipperiness of ley Surfaces. 296. Objects of Uniform Appearance in Juxtaposition. 297. Differently Colored Objects in Juxtaposition. 298. Colors of Objects Indistinguishable in Darkness. 299. Dark Objects on White Background. 300. White Objects on Dark Background. SOL Objects in Darkness beyond a Glare of Light. 302. Legibility of Printed Words in Dim Light. 303. Optical Illusion. 304. Lateral Refraction of Light. 305. Objects Seen in Lightning Flash. 306. Objects Seen in Moonlight. 307. Objects Reflecting Sunlight. 308. Sun Shining in Observer's Face. 309. Person Dazzled by Lights Shining in His Face. 310. Pilots Dazzled by Brooklyn Bridge Lights. 311. Person Dazzled by Electric Hea'dlights. 312. Lights Dimmed by Daylight. 313. Lights Dimmed by Moonlight. 314. Visibility of Lights Affected by Other Lights. 315. Reflection of Flashlights Visible When Fixed Lights Obscured, 316. Lights Intensified by Surrounding Darkness. 292 LIGHT AND SIGHT. 5 317. Electric Street Light Outshining Locomotive Headlight, 318. Color of Lights Affecting Their Visibility. 319. Perception of Colored Lights at Night. 320. White Lights More Intense than Green or Red. 321. Street Lights and Shadows. 322. Objects Obscured by Shadows Cast in Moonlight. 323. Lights and Shadows on Station Platforms. 324. Light of Street Lamps. 325. Darkness at Dawn. 326. Controlling Testimony to Degree of Light Near Dawn. 327. Influences Affecting Witnesses' Estimates of Degree of Darkness. 328. Testimony of Biased Witnesses to Amount of Light. 329. Circumstantial Evidence as to Amount of Light. 330. Visibility of a Body of Smoke. 331. Visibility of Approaching Train. 332. Visibility of Approaching Train on Dark Day. 333. Experiments Showing Visibility of Railroad Train. 334. Visibility of Train on Snow-covered Ground. 335. Visibility of Approaching Hand Car. 336. Visibility of Dark Cars or Engines in Nighttime. 337. Obscuration of Train or Locomotive by Smoke or Steam. 338. Snow, Rain, or Fog Obstructing View of Trains or Locomotives. 339. View of Train Obstructed by Trees in Leaf. 340. Visibility of Locomotive Headlights. 341. Locomotive Headlight on Dark, Windy, Dusty Night. 342. Locomotive Headlight Obscured by Snow. 343. Locomotive Headlight Obscured by Fog. 344. Locomotive Headlight Obscured by Smoke. 345. Locomotive Headlight Obscured by Steam. 346. Visibility of Objects in Front of Locomotive Headlight. 347. Objects Observed from Rapidly Moving Locomotive. 348. Observation from Backing Locomotive. 349. Visibility of Electric Street Cars in Daytime. 350. Visibility of Electric Street Car Headlights. 351. Cloud of Dust Obscuring Street Car Headlight. 352. Detection of Motion of Headlights. 353. Detection of Motion of Locomotive in Daytime. 354. Detection of Motion of Hand Car in Daytime. 355. Detection of Motion of Locomotive at Dawn. 356. Detection of Motion of Dark Car or Engine at Night. 357. Detection of Motion of Vessel's Lights. 358. How Far Can Coston Lights Be Seen? 359. Visibility of Day Signals in Prize Cases. 360. Visibility of Low, Dark Craft on Water. 361. Visibility of Vessels in Fog. 362. Visibility of Vessel's Lights in Fog. §§ 279, 280] LIGHT AND SIGHT. 293 § 363. View of Vessel's Lights at Night. 364. Vessel's Lights Hidden by Sails. 365. Vessel's Lights in Driving Rainstorm. 366. Observation of Vessel's Lights in Excitement of Collision. 367. Lights Not Observed Because of Diversion of Attention. 368. Lookout's Vigilance Affected by Intense Cold. 369. Lookout Embarrassed by Lights Placed in Front of Him. 370. Proper Place for Vessel's Lookout. 371. Moral Considerations Affecting Vigilance of Vessel's Lookout. 372. Visibility of Vessel's Torchlight. 373. View of Unlighted Vessel's Sails at Night. 374. View of Vessels in Night Carrying No Lights. 375. View of Vessel at Dusk. 376. View of Unlighted Sailing Vessel on Hazy or Misty Night. 377. Positive and Negative Testimony. § 279. Introduction. — In the introductory section to the chapter on Sound and Hearing we explained the importance of ascertaining the views of the courts concerning such phenomena.^ We refer the reader to what was there said upon the subject, as it is applicable to the contents of this chapter and need not be repeated here. § 280. Presumption that Objects Plainly Visible Were Seen.^ — It being within the experience and common knowledge of men that a person with good eyesight, when his attention is called to a par- ticular object, must see it if he looks, " when to look is to see, the mere utterance that one did look and could not see will be disregarded as testimony by the court, and no additional value is to be given to the utterance because of the fact that a jury, under the direction of the trial court, has predicated a finding thereon." ^ "A blind man may say, ' I looked and did not see,' and it may be said of an idiot that he looked and no impression was made upon his mind; but not so with a person who has good eyes and a sound intellect." * " Suppose the fact is conceded that the sun was shining bright and clear at a specified time, and a witness having good eyes should 1 See ante, § 190. 162 Mo. 569, 63 S. W. Rep. 360, per 2 Sounds clearly audible presumed Robinson, J. to have been heard, see ante, § 191. * Swart v. New York Cent., etc., 3 See also Albrecht v. Chicago, etc., R. Co., 81 N. Y. App. Div. 402, R. Co., 108 Wis. 530, 84 N. W. Rep. 80 N. Y. Supp. 906, per Mr. Justice 882; Hook v. Missouri Pac. R. Co., McLennan. 294 LIGHT AND SIGHT. [§ 280 testify that at the time he looked and did not see it shine; could this testimony be true? The witness may have been told that it was necessary to prove in the ease that he did look, and did not see the sun shine. He may have thought of it with a desire that it should have been so. He may have made himself first believe it was so, and this belief may have ripened into a conviction of its verity; and possibly he even may testify to it in the self-consciousness of integrity."^ But after all, in the very nature of things, it cannot be true, and hence cannot, in the law, form any basis for a conflict upon which to rest a verdict. A man may possibly think he sees an object, which has no existence in fact, but which it may be diffi- cult, if not impossible, to prove did not exist or was not seen. But an object and power of sight being conceded, the one may not negative the other." » The New York Appellate Division propounded the following query and said that common experience compelled an affirmative answer: " If a house had been burning and enveloped in flames upon the side of the street on which the deceased was passing, with nothing to obstruct his view, would a jury, even in the absence of direct proof, be justified in concluding that he saw it ? " ' " If a train of cars should be negligently left standing entirely acs-oss a highway, and a pedestrian, with perfect eyesight, in broad daylight, with nothing to distract his attention, should walk against it and bump his head, would the question of his contributory negli- gence be one of fact for the jury, in case he should testify that he expected the train was there, that he had it in mind, and that he looked for it, but did not see it, without in any manner explaining why he failed to discover it ? " ° In several cases courts have decided that a witness who subscribed a will when the testator's signature was in plain view must be held to have seen it, whatever he testifies in regard to the fact." In one 6 For kindred psychological phe- ' Browne v. New York Cent., etc., nomena, see post, §§ 818, 820. R. Co., 87 N. Y. App. Div. 206, 83 «Artz V. Chicago, etc., R. Co., 34 N. Y. Supp. 1028. Iowa 164, 159, per Cole, J., quoted s Fiddler v. New York Cent., etc., in Peters v. Southern R. Co., 135 Ala. R. Co., 64 N. Y. App. Div. 95, 71 N. 633, 33 So. Rep. 332. See also cases Y. Supp. 721, per McLennan, J. Cited ante, §§ 160, 191, 221; infra, » Matter of Carll, (Surrogate Ct.) 38 §§ 331, 335; and post, § 556. Misc. (N. Y. ) 471, 77 N. Y. Supp. 1036. § 280] LIGHT AND SIGHT. 295 such case a female witness subscribed directly under and less than one inch from the testator's signature on the paper spread out before her. She had left her glasses at home, and, for the purpose of signing her name, she borrowed the glasses of a doctor then present. She said : " I could not see very well with the doctor's glasses, and did not see the signature to the will when I signed it — did not see it with those glasses." And yet she saw sufiBciently well to write her own name, in unusually small characters, and very carefully, on the line which was pointed out for her signature. " The doctor's glasses, therefore," said the court, " if not precisely fitted to her eyes, did not have the effect of intercepting her sight, and the signa- ture of the testator was within the field of her vision. As a propo- sition in optics, then, it may be said that she saw the signature. To see is to receive a visual impression of an object upon the retina of the eye. That impression must have been made upon the eye of the witness; because there was the object, and the eye, and the rays of light passing unobstructed from the one to the other." ^^ When a vessel, with her anchor down, was driven by ice on the shoals and run over by it, "what if a hundred witnesses swore that they could see no ice? Surely the fact that the vessel was driven on shore by it is proof the most positive and unanswerable that those witnesses were either not in a position to observe correctly, or that they were mistaken," said Judge Peters of the Supreme Court of Prince Edward Island.^* In a case where a libel was filed by a passenger against a steamer for property stolen from his stateroom, he admitted that he did not notice the bolt on his door and therefore made no use of it. The court said : " It was in plain sight, of brass on a white ground, and to a person whose attention was given to the matter of properly securing his door against intruders it could not well escape his notice, the room being well lighted." ^^ However, " it is the experience of mankind that objects at times pass near us within plain view that we are not conscious of seeing, and noises are sounded in our ears that we are not conscious of hearing," 10 Matter of Look, 4 Silv. Sup. (N. nRyndman v. Montreal Ins. Co., 2 Y.) 233, 7 N. Y. Supp. 298, per Prince Edward Island 132, 140. Dwight, J. For a parallel supposed 12 The John Brooks, I Hask. (U.S.) case, see ante, § 191. 439, 13 Fed. Cas. No. 7,335. 296 LIGHT AND SIGHT. [§281 said Judge Bland of the Missouri Court of Appeals." " There are millions of people in this country who did not see the last partial eclipse of the sun, although it was visible from all parts of the United States, and the sky was clear over nearly the whole terri- tory." ^* So, " a man can sometimes say, with absolute certainty, that he is not seen by another. How liable he is to be mistaken will depend, in each case, on the circumstances in which the persons are placed." ^° A person may be in close proximity to another, and within the range of his vision, and yet not be consciously observed by him. In a Kentucky case an indictment for perjury alleged that the defendant swore falsely that he did not see a certain person one night at church, that he knew the testimony to be false, that the said person was at said time and place, " in the presence and sight of " the defendant. It was held that this was insufficient, and that the indictment must aver that the defendant then and there actually saw the person. He could have been in the presence of the accused, said the court, and still not have been seen by him. " He could have been in his sight — that is to say, at a point where accused could have seen him had his eyes been cast in that direction — and still not have been seen by him." ^^ When it was not dark, but " was getting dusk," a motorman of an electric car should have seen a horse and wagon standing across the track for a sufficient distance to enable him to prevent a collision," but it was held differently in a case where a similar accident happened " near eight o'clock on a dark night in April." ^* § 281. Presumption that a Person Could See What Others Saw. — There is a natural presumption that a person with good eyesight saw or could have seen what others in no more favorable position for observation unquestionably saw.^" Thus, if it is proved that a person 13 Baxter v. St. Louis Transit Co., i' Fenner v. Wilkes-Barre, etc., 103 Mo. App. 597, 78 S. W. Rep. 70. Traction Co., 202 Pa. St. 365, 51 Atl. !■• Kielbeok v. Chicago, etc., R. Co., Rep. 1034. (Neb.) 97 N. W. Rep. 750, per is Winter v. Federal St., etc., Pass. Ames, C. R. Co., 153 Pa. St. 26, 25 Atl. Rep. 15 Beckwith v. New York Cent. R. 1028, expressly distinguished in the Co., 64 Barb. (N. Y.) 299, 308, per case cited in the preceding note. Mullin, J. 10 Chicago, etc., R. Co. v. Weir, 91 "Com. V. Porter, (Ky. 1895) 32 III. App. 422, 425; Mutual Wheel Co. S. W. Rep. 138. V. Mosher, 89 III. App. 106, 108; §282] LIGHT AND SIGHT. 297 on a street railroad track plainly saw a wagon stalled on the track a considerable distance ahead, it is a safe conclusion that the motorman of a car, aided by its headlight, should have seen the wagon from the same spot.^" So, where a man was run over and killed by a switch engine, and it was asserted that there was no evidence that the rail- road employees failed to look out, the court said : " Surely, if other persons at the scene of the accident, not specially charged with the duty of watching the track before the engine which struck intestate, saw him before he was struck, the employees operating the engine, it could well be inferred, did not look out. If they had been watching the track they would have seen him." ^^ § 282. When Presumption Just Mentioned Does Not Operate. — Before presuming that a person saw or could have seen what others saw, the trier of facts should be satisfied that his situation was not less favorable than theirs.^- Then, too, " it is a matter of common knowl- edge that there is a difference in the ability of persons to see at a distance." ^^ Said the court in one case : " It is true that quite a Murphy v. St. Louis Transit Co., 189 Mo. 42, 87 S. W. Rep. 945; Wood v. Pennsylvania R. Co., 177 Pa. St. 306, 35 Atl. Rep. 699; Schaub v. St. Louis Transit Co., 112 Mo. App. 529, 87 S. W. Rep. 85; Asphalt, etc., Constr. Co. V. St. Louis Transit Co., 102 Mo. App. 469, 80 S. W. Rep. 741; Smith V. Lehigh Valley R. Co., 170 N. Y. 394, 63 N. E. Rep. 338; Daniels v. Staten Island Rapid Transit Co., 125 N. Y. 407, 410, 26 N. E. Rep. 466 (lighted train) ; Tucker v. New York Cent., etc., R. Co., 124 N. Y. 308, 315, 26 N. E. Rep. 916 (locomotive) ; O'Reilly v. Brooklyn Heights R. Co., 82 N. Y. App. Div. 492, 81 N. Y. Supp. 572; Davis v. Media, etc., Elec- tric R. Co., 25 Pa. Super. Ct. 444, 450; The Pilot-Boat Blossom, 01c. Adm. 188, 3 Fed. Cas. No. 1,564 (schooner might have been seen at a distance far enough to avoid her, because others saw her at such a distance). See also ante, § 192. " His companion saw the car. They were together, and if one could see the car there is no reason why the other could not." Johnson v. Third Ave. R. Co., 69 N. Y. App. Div. 247, 74 N. Y. Supp. 599 (pedestrians). See also Peiroe v. Ray, 24 Ind. App. 302, 56 N. E. Rep. 776. 20 Schaub v. St. Louis Transit Co., 112 Mo. App. 529, 87 S. W. Rep. 85. 21 McMarshall v. Chicago, etc., R. Co., 80 Iowa 757, 45 S. W. Rep. 1065. See also Lake Shore, etc., R. Co. v. Bodemer, 139 111. 596, 29 N. E. Rep. 692, and infra, § 346. 22 See the parallel case in respect of sound and hearing, ante, § 193. 23 Lortz V. New York Cent., etc., R. Co., 83 Hun (N. Y.) 271, 31 N. Y. Supp. 1033, per Lewis, J. See also infra, § 286. 298 LIGHT AND SIGHT. [§ 283 number of other witnesses, both for the appellant and appellee, testi- fied that they were able to see the ear some distance away, but all of these witnesses saw the car at different places and under different circumstances from those surrounding the appellee. . . . They did not see through appellee's eyes, nor hear through his ears." ^* A cloud of smoke falling on the track on a dark lowering day may quite likely render a train invisible for a few moments to one standiag close to the track, although it may be visible to persons standing else- where.''^ A lookout on a steamer was pronounced free from negli- gence in failing to discover an unlighted barge at anchor in time to avoid collision, although other persons discerned the barge at a much greater distance; because these persons were watchmen who knew the barge was there, had been watching it, and accustomed their eyes to locating it, and therefore had superior opportunity, and at last saw dimly its outline.''* § 283. Presumption that a Person Did Not See What Others Did Not See.''' — The converse of the proposition that a person may be presumed to have seen what others saw '^ is equally sound. Thus, it was held that the jury had a right to infer that the driver of a wagon backed at right angles to a curbstone with the front part on a street railway track did not see an approaching car, so as to be apprised of peril, if they were satisfied that a witness testified truly when he stated that he was passing along the sidewalk at the time, and did not see the car, notwithstanding he was going in the direction from which the car came that struck and killed the driver.^" Where a witness claimed to be exceptionally far-sighted the court doubted whether he saw, as he stated, locomotive sparks three hundred yards off which another witness could not see as near as ten yards."* 24 Indianapolis St. R. Co. v. Taylor, 28 Supra, § 281. (Ind. App. 1907) 80 N. E. Rep. 20 Fenner v. Wilkes-Barre, etc., 436. Traction Co., 202 Pa. St. 365, 51 Atl. 26 Chicago, etc., R. Co. v. Andrews, Rep. 1034. See also Chicago City R. (C. C. A.) 130 Fed. Rep. 65, 75, per Co. v. Tuohy, 196 III. 410, 63 N. E. Thayer, C. J., dissenting. Rep. 997; Rowe v. New York, etc., 20 The Kennebec, 103 Fed. Rep. 681, Telephone Co., 66 N. J. L. 19, 48 Atl. 684. Rep. 523. And see ante, § 194. 27 For parallel presumption as to "o Mnsselwhite v. Receivers, 4 sound and hearing, see ante, § 194. Hughes (U. S.) 166. § 284] LIGHT AND SIGHT. 299 § 284. Presumption of Reciprocal Observation. — If the motor- man on a car can see a man riding in a wagon about to cross the track, he has a right to infer that the man can see the car if he looks toward it."^ " It is not unreasonable to conclude that the motorman might have seen the wagon, if he had been properly alert, as soon as the plaintiff and the driver saw the car." ^^ Conversely, a person ought to have seen an approaching electric car if the motorman saw him.'^ And where an approaching trolley car was lighted by elec- tricity, and had a headlight, the court said a man on a wagon ahead without a light could see the car much more easily and distinctly than the motorman of the car could see him.^* If a person about to cross a railroad track is seen by those in charge of a train, evidently he could have seen the train.'^ " Sitting in his wagon he could have seen the train for three car lengths or more, for those on the train saw him," said the court in one case.^" So, if men holding lamps on the end of a car could see a team before they collided with it on a crossing, the driver had a still better opportunity to see the car.^' " When the watch on a vessel at anchor sees another vessel ap- proaching at a distance of about three-quarters of a mile, and sees all her lights clearly and distinctly, he has the right to assume that the lookout on the approaching vessel sees his lights, and will in due time adopt the proper maneuver to pass clear of him." ^* siHafner v. St. Louis Transit Co., Co., 186 Mo. 350, 85 S. W. Rep. 351; (Mo. 1906) 94 S. W. Rep. 291. Petty v. St. Louis, etc., R. Co., 179 32 Andres v. Brooklyn Heights R. Mo. 666, 78 S. W. Rep. 1003; Light- Co., 84 N. y. App. Div. 596, 82 N. Y. foot v. Winnebago Traction Co., 123 Supp. 729. " And the plaintiff had a Wis. 479, 102 N. W. Rep. 30. right to act on the presumption that 34 Petty v. St. Louis, etc., R. Co., the speed of the car would be regu- 179 Mo. 666, 78 S. W. Rep. 1003. lated accordingly," continued Wood- See also Goldkranz v. Metropolitan ward, J. St. R. Co., 89 N. Y. App. Div. 590, 85 " If the defendant's motorman was N. Y. Supp. 667. negligent in not seeing the plaintiff in ss Telfer v. Northern R. Co., 30 N. time to avoid the collision, then the J. L. 188, 196. plaintiff was equally guilty of negli- 36 Detroit Southern R. Co. v. Lam- gence in not seeing the car " before he bert, (C. C. A.) 150 Fed. Rep. 555, stepped on the track. Kappus v, 559. Metropolitan St. R. Co., 82 N. Y. App. 37 Chicago, etc., R. Co. v. Condon, Div. 13, 81 N. Y. Supp. 442, per Mc- 108 HI. App. 639, 641. Laughlin, J. ss The Avon, 22 Fed. Rep. 905, 911, asMarkowitz v. Metropolitan St. R. per Blodgett, D. J. 300 LIGHT AND SIGHT. [§§ 285-287 § 285, Presumption of Reciprocal Nonobservation. — An in- ference converse to that noticed in the preceding section is also justified. Thus, if the engineer and fireman and others on a train did not observe a person on the track because of the smoke and steam emitted by a passing locomotive, it may be presumed that for the same reason he did not observe the train.'" § 286. Prepossession or Bias of Observer. — The effect of pre- possession upon the accuracy of a person's observation has been noticed in another part of this work.*" " jSTo doubt the eyes of some witnesses are livelier than those of others, and the sense of sight may be quickened or diminished by the interest or bias of him who possesses it," said Judge Danforth of the New York Court of Appeals.*' "Men are prone to see what they want to see," said Judge Brawley of the federal District Court.*^ § 287. Perception of Objects by Lateral Glance Not Presumed. — When a person is about to cross a railroad track, it is incumbent upon him, under ordinary circumstances, to look in both directions from ■which trains may be approaching, and if a train was in plain view it is presumed that he saw it, or else that he did not look or was inatten- tive.*' But suppose a person is under no obligation to observe what may have been seen only by turning his head or eyes from the front ; can it be presumed in a judicial inquiry that he did do so? In a case in Maine, a man was driving a team on a street about four hun- dred feet from, and parallel with, a railroad track, and in plain view of it. Presently he turned down a street which crossed the track, and he was instantly killed at the crossing by a passing train. He was familiar with the crossing and the surroundings and the customary movements of the rolling stock. Before he turned down the street crossing the track, a hand car passed along, and if he saw it he was justified — such was the contention — in assuming that no train would pass until the hand car had reached a switch a thousand feet distant, 88 Serano v. N. Y. Cent., etc., R. Co., See generally, as to bias of witnesses, (N. Y. Ct. App. 1907) 80 N. E. Rep. post, cliap. XX. 1025. See also infra, § 337. 42 Ideal Stopper Co. v. Crown Cork 40 See post, §§ 699, 700, 816. & Seal Co., (C. C. A.) 113 Fed. Rep. 41 O'Neill V. New York, etc., R. Co., 244, 255. 115 N. Y. 579, 683, 22 N. E. Rep. 217. " See supi-a, § 280, and ante, § 160. §§ 288, 289] LIGHT AND SIGHT. 301 and in proceeding upon that assurance of safety. There was no evi- dence that he noticed the hand car, and although it was within his range of vision he probably did not see it if he faced as he was driving when it passed. The court was asked to presume that he saw it. Judge Emery said : " Of course, it is possible that he noticed the hand car. Indeed, it may be quantitatively probable that he did. Quantitative probability, however, is only the greater chance. It is not proof, nor even probative evidence, of the proposition to be proved. That in one throw of dice there is a quantitative probability, or greater chance, that a less number of spots than sixes will fall uppermost, is no evidence whatever that in a given throw such was the actual result. Without something more, the actual result of the throw would still be utterly unknown. The slightest real evidence that sixes did in fact fall uppermost would outweigh all the probability otherwise. Grant- ing, therefore, the chances to be more numerous that the plaintiff's intestate did notice the hand ear than that he did not, we still have only the doctrine of chances. We are still without evidence tending to actual proof. However confidently one in his own affairs may base his judgment on mere probability as to a past event, when he assumes the burden of establishing such event as a proposition of fact as a basis for a judgment of a court he must adduce evidence other than a majority of chances." ** § 288. Concentrated Gaze Inconsistent with Lateral Observation. — A witness's statement that on a particular occasion he kept his eyes steadily upon a person is inconsistent with his statement that, at the same time he was constantly keeping in view two others who were not in the same range of vision.*^ § 289. Persons Passing^ from Light into Darkness. — One who has just come from a brightly lighted room into darkness might well fail to see an approaching car having no light or a dim headlight.*" Where an automobile sped from a well-lighted street into a dimly- lighted cul-de-sac, "the traveler's ability to see surrounding objects << Day V. Boston, etc., R. Co., 96 4= Laidlaw v. Sage, 2 N. Y. App. Me. 207, 52 Atl. Rep. 771. See also Div. 374, 37 N. Y. Supp. 770. ante, § 34 et seq., and the same prln- ■>« North Chicago St. R. Co. v. Nel- ciple applied post, § 555. son, 79 111. App. 229, 230. 302 LIGHT AND SIGHT. [§ 290 plainly was considerably decreased," remarked the court.*' It is reasonable to suppose that a person coming from sunlight out of doors into the comparative darkness of a hallway could not see at all at first, although when he fell down a flight of stairs a person within the building who went to his relief had no difficulty in seeing him and his surroundings.*' In a collision case between a steamer and a schooner the testimony of a passenger, the engineer, and the store- keeper of the steamer that the night was very thick with fog, was regarded by Judge Blatchford " as of very little weight," for the following reasons : " They came out suddenly into the darkness, under circumstances which made it impossible for them to judge as to how far a vessel could be seen. The evidence of the pilot, as to how far off he did in fact see the vessel, is much more reliable. He had been out in the night, and his eyes were gauged to its condition. . . . That the night was not a foggy one is shown also, negatively, by the fact that the steamer was not using her steam whistle." *° Persons looking from a brilliantly lighted trolley car out into the night, even though the car is stationary, do not have the very best of opportunities to notice the headlight of a passing trolley car or the lights in the car itself, so as to make their testimony to the absence of a headlight and of lights as trustworthy as the contrary testi- mony of persons operating the passing car or of passengers therein.^" In darkness, a person who is watching an object and has accustomed his eyes to locating it may discern its dim outline at a much greater distance than another person who has not that advantage."^ § 290. Moisture Condensed on Eyeglasses Obscuring Vision. — Where a person wearing glasses passes from a cold atmosphere into a warm room, moisture may condense upon his glasses °^ and obscure his vision of defects in the floor which might otherwise have been clearly seen.''' 47 Corcoran v. New York, (N. Y. =» Doyle r. Albany R. Co., .S2 N. Y. 1907) 80 N. E. Rep. 660. App. Div. 87, 52 N. Y. Supp. 602, 603. isBrugher v. Buchtenkirch, 167 N. ci The Kennebec, 103 Fed. Rep. 681, Y. 153, 60 N. E. Rep. 420. See also 684. See also infia. § 377. Fisher u. Cook, 23 111. App. 621, 627. ^2 The writer has been told by •!» The Steamer Western Metropolis, wearers of glasses that this phe- 2 Ben. (U. S.) 399, 29 Fed, Gas. No. nomenon is extremely common. 17 439^ 68 This was suggested by the plain' § 291] LIGHT AND SIGHT. 303 § 291. Observations in Nighttime in General. — " Every one knows how diiBcult it is in walking in utter darkness to correctly cal- culate courses and distances, even in very familiar localities." ^* Oil or grease spread upon a cement floor, and seen in the nighttime, to an interested observer might look very like oil or grease that he later saw in a tank or can, and still not have been from the same source of supply nor of the same kind.°° A witness testified that she observed at night, in the unlighted rear of a store where the lights were also extinguished, and at a distance of twenty or twenty-five feet from her, a man with a woman who was not his wife, and she asserted that the man's trousers were not fastened up, his necktie was undone, and his waistcoat unbuttoned with the exception of three buttons. A judg- ment granting a divorce on the ground of the man's adultery, based largely upon this testimony, was reversed as unsupported by credible evidence.^" Where a roundsman testified that in the nighttime he saw a policeman sitting on a barrel, who jumped off when the witness approached, the court said that " the opportunity for mistake, under such circumstances, was great;" the policeman denying that he was actually sitting, and stating that he was leaning in a doorway next to the barrel.^' And in other cases courts have advised caution in accepting testimony to minute observations of events in the night- time, especially where the light is deficient."*^ The tender of an engine backing in the night would necessarily obstruct the view of the engineer to some extent, especially of a lantern on the ground or hanging in a man's hand."" A person looking into a lighted room from the darkness outside can hardly fail to observe the fact of illu- tiff in Hoard v. Blackstone Mfg. Co., Supp. 849. Minute observations in 177 Mass. 69, 58 N. E. Rep. 180. daytime, see ante, § 166. 54 Bennett v. New York, etc., R. 07 Matter of Koch, 91 N. Y. App. Co., 57 Conn. 422, 18 Atl. Rep. 668, Div. 194, 86 N. Y. Supp. 459, 460. per Carpenter, J. Hence one should "s Sealy v. State, 1 Ga. 213, 220 use the utmost care under such cir- Bourgeois v. Chauvin, 39 La. Ann cumstances. 216, 1 So. Rep. 679; Ehrhard v. Met- »B Barnes v. New York Cent., etc., ropolitan St. R. Co., 58 N. Y. App, R. Co., (Supm. Ct. Tr. T.) 42 Misc. Div. 613, 68 N. Y. Supp. 457; Doug- (N. Y.) 622, 87 N. Y. Supp. 608, lass v. Northern Cent. R. Co., 59 N, 610. Y. App. Div. 470, 69 N. Y. Supp. 370 so Fanning «. Fanning, (C. PI. Gen. "» Baltimore, etc., R. Co. v. State, T.) 2 Misc. (N, y.) 90, 20 N, Y. 101 Md. 359, 61 Atl, Rep. 189. 304 LIGHT AND SIGHT. [§§ 292, 293 mination.®" Observations of distances on the water m the nighttime are proverbially unreliable."^ It may be that a pedestrian who was struck by a street car running without a headlight in a dark night and on an unlighted street could have made out its dim outlines at a distance sufficient to have enabled him to avoid it, if he had stood still and gazed intently for a few seconds through the gloom in the direction from which it was coming, and at the same time he may not have been guilty of negligence in failing to discern it at a glance and not stopping and straining his gaze to discover its approach.®^ § 292. Stepping Blindly in Darkness or Dim Light. — In the Valley of the Shadow of Death, Bunyan's Pilgrim found " the path way was here so dark that ofttimes when he lift up his foot, he knew not where or upon what he should set it next." So, too, " the way of the wicked is as darkness ; they know not at what they stumble." "' A near-sighted person, and possibly a person of good sight, alighting from a train in a dark tunnel, might suppose he was stepping onto a platform and not perceive that he was alighting on a heap of rub- bish.°* A jury would be at liberty to infer that a stranger riding in an elevator ear not brightly lighted was not guilty of negligence for failing to observe a space eighteen inches wide between the elevator floor and the wall before stepping backward and falling into it.*" § 293. Stepping Blindly in Daylight. — A woman wearing a sun- bonnet may step sideways into a hole because her view in that direc- tion is obstructed.'*'' In broad daylight a woman carrying one end of a lounge, looking straight ahead and unable to see underneath it, stumbled over an iron water box in the centre of the sidewalk. She failed in her action against the city for the injuries she sustained. " She might as well have put a bandage over her eyes and then charged 80 Sorenson v. Menasha Paper, etc., »* Bridges r. North London E. Co., Co., 56 Wis. 338, 14 N. W. Rep. L. R. 7 Eiig. & Ir. App. Cas. 223, 227 44g (station hnd been .innounced, passen- <^i See post, § 404. gei" not necessarily negligent). 8= Indianapolis St. R. Co. v. Taylor, "-"i Gray v. Siegel-Cooper Co., (N. (Ind. App. 1907) 80 N. E. Rep. 436. Y. Ct. App. 1907) 80 N. E. Rep. 201. See also intra, end of § 309. «» Iseminger v. York Haven W. * 03 Prov. iv. 19. P- Co., 206 Pa. St. 591, §§ 294, 295] LIGHT ANB SIGHT. 305 the city with the results of her failure to see the obstruction over which she fell," said the court."' § 294. Perception of Defects in Highway in Nighttime. — A night may be so dark that the keenest and clearest vision will not detect obstacles and defects in a public highway. " In such a case every man traveling upon it is practically a blind man," '^^ and may presume that the negligence of responsible authorities has not made it unsafe.^" § 295. Perception of Slipperiness of Icy Surfaces. — " Common experience tells us that the degree of slipperiness of ice is not always determinable from an ocular inspection of it," and where a person who was descending steps knew that they were icy and that there was some danger in passing over them, but knew also that their condition in regard to slipperiness was constantly changing in different states of the weather, it colild not be declared absolutely that the extent of the danger was obvious upon observation of the surface of the steps.'" And where the steps were covered with a light layer of snow which had been trodden dovni and frozen over, the court said: "In the present case the plaintiff may well have misapprehended the extent of the difficulty and danger which he would encounter in descending the steps ; for instance, he might easily be deceived as to the condition of the snow. I know quite enough about ice and snow to know how easy it is to make such a mistake, and it is one that has cost many a man his life." '^ A person blind in one eye would be all the more likely not to observe closely such conditions under his feet.'^ In a New York ease it was intimated that a pedestrian might be without fault in supposing that a ridge upon the sidewalk was made by com- pacted snow and not by ice.'^ 8' Lautenbacher v. Philadelphia, ^o Fitzgerald v. Connecticut Eiver (Pa. 1907) 66 Atl. Rep. 549. Paper Co., 155 Mass. 155, 29 N. E. 08 Harris v. Uebelhoer, 75 N. Y. Rep. 464, per Knowlton, J. 175, per Folger, C. .!., quoted in Cor- fi Osborne v. London, etc., R. Co., coran v. New York, (N. Y. 1907) 80 21 Q. B. D. 220, 224, per Wills, J. N. E. Rep. 660. '^2 See Gilbert v. Boston, 139 Mass. 69 Chisholm v. State, 141 N. Y. 246, 313, 31 N. E. Rep. 734. 36 N. E. Rep. 184. See also Goff 73 Weston v. Troy, 139 N. Y. 281, V. Philadelphia, 214 Pa. St. 172, 176. 34 N. E. Rep. 780. PACTS — 30 306 LIGHT AND SIGHT. [§§ 296-298 § 396. Objects of TJniform Appearance in Juxtaposition.'* — On a cloudy day with snow falling and a wind blowing in the face of a pedestrian on a sidewalk, he would not be very likely to notice boards about an inch thick lying on the walk and not differing greatly in color from the walk, even though he was keeping a lookout in the direction of the course he was pursuing.'^ Where a pedestrian stumbled over a wooden stub two inches square which projected about two inches above a plank walk, the court observed that " the evidence shows that the stub was of the same color as the plank and that it was not such as to readily attract attention." '° In the rain a live electric wire and a sidewalk flagging upon which it was lying would scarcely differ in color, and the dusk of the evening would render discernment of the wire more improbable.'' Even on a moonlight night seamen may find it very difficult to distinguish ice from the water in many places.'* § 297. Differently Colored Objects in Juxtaposition. — Upon the question whether an engineer was negligent in not observing a little girl crossing the track, the fact that the child was dressed in white with red ribbons on her dress has an obvious bearing.'" The difference between scarlet and pink when the colors are placed in juxtaposition i? quite noticeable ; ballots of the one color, side by side with those of the other, should be readily distinguishable by official counters of votes.'" § 298. Colors of Objects Indistinguishable in Darkness. '* — In his essay on " Unity in Eeligion," Lord Bacon says : " There be also two false peaces or unities ; the one, when the peace is grounded upon an implicit ignorance; for all colors will agree in the darh." In the 7* Dark vessel against dark horizon, phone Co., 66 N. J. L. 19, per Dixon, see infra, end of § 363, § 364. J., 48 Atl. Rep. 523. Vessel with white hull in fog, see 's Williams v. The Vim, 29 Fed. infra, § 361. Gas. No. 17,744o (p. 1416). Schooner's sails against gray hori- '» Dennis v. New Orleans, etc., R. zon, see twfra, § 373. Co., (Miss. 1902) 32 So. Rep. 914. 76 Ryan V. Foster, (Iowa 1906) 109 See also infra, §§ 299, 300. N. W. Rep. 1108, per Ladd, J. '"fle Sinclair and Town of Owen '0 Taylorville v. Stafford, 99 111. Sound, 12 Ontario Law Rep. 488, 504. App. 419. '^ Color of coat in moonlight, see 77 Rowe V. New York, etc., Tele- infra, § 306. § 298J LIGHT AND SIGHT. 307 course of a university commenceineiit address in 1907, Senator Foraker characterized much of the testimony taken by the United States Senate committee in the Brownsville, Texas, raid investiga- tion as worthless. Continuing, he said : " Various people said they heard the shooting, went to their windows, looked out into a night of unusual darkness, and at a distance ranging all the way from twenty-five feet up to one hundred and fifty feet saw the men who were doing the firing and recognized them as negroes wearing the uniform of United States soldiers. All the officers of the battalion, in addition to everything else that they said in favor of their men, testified that the night was so dark that it was impossible to tell a colored man from a white man without the aid of artificial light at a distance of ten to twelve feet. Major Penrose testified that he could not tell his oflBcers, who were white, from his enlisted men, who were colored, ten feet away from him, and that he could not tell at that distance from him any- thing about clothing. The testimony of every other officer was to the same efliect. These officers are all intelligent, honorable, high-minded men." °^ " How couldst thou know these men in Kendal green, when it was BO dark thou couldst not see thy hand ? " was the query that con- founded Falstaff.8' It was observed in a New York murder case that the defendant immediately upon entering a dimly lighted inside room used as a morgue could not have identified the features of a corpse therein and especially not the color of an overcoat on the body; so that his ex- clamation professing to identify the coat as that of the deceased was highly suspicious.** But in a ease where an automobile was driven in the night through a top rail and a picket fence at the end of a dimly lighted cul-de-sac, the court observed that the rail and fence " were so weather-beaten and dark in color that they were less visible in the night than painted structufes would have been." "^ Dr. Miinsterberg, speaking of the testimony of a witness that he saw in late twilight a woman in a red gown or one in a blue gown, says : 82 New York Sun, June 21, 1907. erally as to observations in darkness, 83 Henry IV., Pt. I., Act II., sc. 4. sjtpra, § 291. 84 People v. Ciardi, (N. Y. Ct. App. sr, Corcoran v. New York, (N. Y. 1907) 80 N. E. Rep. 925. See gen- 1907) 80 N. E. Eep. 660. 308 LIGHT AND SIGHT. [§§ !^99-301 " Such a faint light woilld still allow the blue color sensation to come in, while the red color sensation would have disappeared." *" § 299. Dark Objects on White Background." — Snow on the ground would make an approaching train more noticeable.'' On a clear night with snow on the ground a person standing at a distance of eight feet directly in front of another should easily be seen by the latter.''' Upon the question whether the engineer of a railroad train was negligent in not observing a person walking on the track on a clear moonlight night, the circumstance that the ground was covered with snow and that the pedestrian was a tall woman dressed in black was not overlooked by the appellate court when holding that the trial court erred in withdrawing the case from the Jury on the assumption that there was no negligence.^" If there was snow on the ground, and the motorman of an electric car had an uninterrupted view for a long distance ahead of him, a team would stand out by contrast and aiford him a good chance of noticing if he was attentive to his duty.'^ § 300. White Objects on Dark Background.'^ — The circum- stance that horses drawing a wagon which was struck by an electric car in the nighttime were large white or gray horses was noticed as tending to support a finding that the motorman of the car ought to have seen them by the aid of the headlight in time to avoid the collision."^ § 301. Objects in Darkness beyond a Glare of Light. — An elec- tric arc light casting its rays across a street railway track would make it difficult for a motorman on a car to see a wagon on the track in 80 " Nothing But the Truth," Mc- Martin i\ Chicago, etc., R. Co., 194 Chire's Magazine, September, 1907, at 111. 138, 62 N. E. Rep. 590. p 53g 01 Bell V. Cape Breton Electric Co., 87 See also supra, § 297. Ltd., 37 Nova Scotia 298, 306. 88 See infra, §§ .S34, 330. "2 See also supra, § 297, and infra, 80 Gilmore v. Fuller, 99 111. App. § 363. 272 "•'' Mertens v. St. Louis Transit Co., on p.rown )\ Boston, etc., R. Co., (N. (Mo. App. 1907) 99 S. W. Rep. H. 1906) 64 Atl, Rep. 194. See also 512. §§ 3Q2, 303] LIGHT AND SICfHT. 309 the darkness beyond the glare of the light.'* " Stand back in the shadow; no one can see beyond the light of a fire," said Eudyard Kipling's Kim to the lama.'^ § 302. Legibility of Printed Words in Dim Light. — In a case of unfair and fraudulent .competition where an injunction was granted against the sale of plug tobacco, the only means of distinguishing the two brands was the word inscribed on the tag ■ — • " Traveller " on one, and " Schnapps " on the other. The court said : " By placing plugs of the Schnapps and Traveller brands of tobacco alongside each other in a storeroom with such light as stores usually haye, at a dis- tance of six or eight feet (the distance usually intervening between the place where tobacco is placed on the shelves, and the position occupied by customers) and without a magnifying glass, it would be a physical impossibility fox an expert reader to distinguish the one from the other." ^^ § 303. Optical Illusion. — A passenger entering a vestibuled car iu the nighiiiine, through the vestibule, was precipitated out of an open side door of the vestibule because he mistook the dim light which slione through the car window to the outside for the car light sliining into the aisle between the vestibule and car. His optical illusion was held reasonable and did not defeat his recovery of damages from the railroad company."' At the first glimpse of a sailing vessel, through a fog, it is not at all improbable that something in the trim or appear- ance of her sails may give an erroneous impression of her course. " It is too common an optical illusion to excite either remark or sur- prise, that when the eye catches some object in an imperfect light, or indistinctly through a fog, tlie JmajiT' conforms itself more or less in detail to what it seems to be as suggested by some one feature which the observer, for the instant, thinks he makes out." Upon these con- siderations testimony of observers on a steamer that the course of a bark when first made out in the fog was southward, and shortly after- ward changed, was reconciled with positive testimony of those on the »■* Abbott V. Kansas City El. E,. Allen Bros. Tobacco Co., 151 Fed. Co., (Mo. App. 1906) 97 S. W. Rep. Rep. 819, 833, per Pritehard, C. J. 108, per Ellison, J. «' Bronson v. Oakes, (C. C. A.) 76 »'■ Kim, chap. V. Fed. Rep. 734. 80 R. J. Reynolds Tobacco Co. v. 310 LIGHT AND SIGHT. [§ 304 bark that she kept her course. " It is to be expected," continued the court, " that if there was something which gave the impression of the bark's standing to the southward, it should also seem to those observ- ing her that they made out the port bow, or saw along her port side, as they testify, with more or less positiveness, although this impression as to details may indeed merely be a trick of the memory, or the imagination working in aid of the impression they had at the time "' that the bark was standing across their course to the southward. li is the nature of such an optical illusion, that it vanishes suddenly and the object, mistaken before, is suddenly seen as it really is. And that was so in this case. Suddenly they observed that she had fallen off to the northward. They attributed this to her having starboarded. This is exactly what they would seem to see as they came nearer, if they had mistaken her course at first, and they represent it as a sudden and a marked change, from pointing to the southward of them to pointing to the leeward or northward of their course; from seeing her port bow and side to seeing her starboard bow and side.'"" '■' When all the witnesses in a case swear to having seen the same object," said Chief Justice Hagarty of Ontario, "I hardly think it should be left to a jury to say whether it might not have been an optical delusion." ^"^ § 304. lateral Refraction of light. — The lookout on a steamer approaching a barge two hundred feet long, at anchor in the nighttime with a light at each end, testified that he saw the lights, but that they seemed a quarter of a mile apart, and it was argued that those in charge of the steamer were misled because they thought the lights were upon two different vessels, and steered between them. The idea that if there were two lights on the barge, they would appear, under any circumstances, to have been farther apart than they actually were, was pronounced absurd. " Rays of light do not bend laterally," said Judge Blodgett, doubtless with a twinkle in his eye ; " if they did so, you could see around a hill, and it would be impossible to run a straight line witli a compass or transit. It is true that light, in pass- ing through media of difl'erent densities, is refracted vertically in a 1)8 See post, § 81 n. looNeill v. Traveller's Ins. Co., 7 on Bunp;o r. The Steamship Utopia, Out. App. 570, 574, affirming 31 U. C. 1 Fed. Rep. 892, 903, per Choate, D. J. C. P. by equally divided court. §§ 305-307] LIGHT AND SIGHT. 311 slight degree; but the apparent position of an object in a lateral direc- tion is subject to no change from this cause. If it were otherwise, you could not steer in a straight line to a light at all." ^"^ § 305. Objects Seen in lightning Flash. — A flash of lightning may give such a perfect view of a person as to enable another who has previously seen him to recognize him on the instant.^'"' § 306. Objects Seen in Moonlight."' — It is possible that the glare of moonlight upon a man's coat may be mistaken by witnesses for color and lead them to believe that the man's dark coat was a light one."* Any testimony at all upon the question of identity coming from people who have merely a glimpse of a man running in the moonlight, under the exciting circumstances attending a pursuit, is to be looked at cautiously and subjected to the most careful scrutiny.'^'"' However, Scott says: " To the squire's hand the rein he threw. And spoke no word as he withdrew; But yet the moonlight did betray, The falcon-crest was soiled with clay; And plainly might Fitz-Eustace see. By stains upon the charger's knee. And his left side, that on the moor He had not kept his footing sure." lo* § 307. Objects Reflecting Sunlight. — When Christian and Hope- ful were in the country of Beulah and addressed themselves to go up to the Celestial City, "the reflection of the sun upon the city (for the city was pure gold) was so e^emely glorious, that they could not as yet with open face behold it, but through an instrument made for that purpose." "" " A fetterlock and shacklebolt azure," said Ivanhoe : " I know not who may bear the device, but well I ween it might now be mine own. Canst thou not see the motto ? " 101 The Avon, 22 Fed. Rep. 905, 910. loiJefferds v. People, 5 Park. N. 102 See Ackerson v. People, 124 111. Y. Crim. 539. 663, 568, 16 N. E. Rep. 847. los JeflFerds v. People, 5 Park. N. 103 Visibility of unlighted vessel in Y. Crim. 538, 539, per Recorder HoflF- moonlight, see infra, § 374. man, instructing a, jury. Objects obscured by shadows cast i»8 Marmion, Canto Third, xxxi. in moonlight, see infra, § 322. i"' Bunyan's Pilgrim's Progress. 312 LIGHT AND SIGHT. [§§ 308, 309 " Scarce the device itself at this distance," replied Eebecca, " but when the sun glances fair upon his shield, it shows as I tell you." ^"^ § 308. Sun Shining in Observer's Face. — Whether a person at a railroad crossing looking up a straight track in the sunshine could distinctly see a train approaching at a distance of a mile or more, might possibly depend upon the position of the sun.^"' At the famous battle of Crecy the afternoon sun shone so brightly in the eyes of the French crossbowmen as they advanced toward the English that they could not take accurate aim.^^° § 309. Person Dazzled by Lights Shining in His Face."^ — Pos- sibly an electric light at a street crossing would dazzle the eyes of a person looking in that direction so that he would not observe a trolley car without a headlight approaching between him and the street light.^^^ A brilliantly lighted steamship in her slip will doubtless irradiate the whole slip to a considerable extent. How much of this help to seeing an article like a hawser stretched across the end of the slip would be neutralized by the blinding effect of such lights on a pilot's sight when approaching them on the water, the court did not undertake to say; but witnesses testified that such lights make adjacent objects less easily seen by blinding the eyes of an observer.^^^ In the nighttime a person would be less likely to perceive where he was stepping if a li^ht shone directly in his eyes but cast no rays on his path."* An electric light under an awning might so dazzle the eves of a traveler walking toward it that he could not see clearly in front of him and e-]ieciaUy eonW not see an excavation in the pave- ment; and this inference would not neio>?:irily be overcome by his testimony that after he fell in and got up he could see the excavation by looking at it carefully. " Tliis is the identical experience of the most careful man who has met with such an accident. In the exercise of ordinary care he does not see a peril, otherwise he would loslvanhoe, chap. XXIX. Slifer, 35 Ind. App. 700, 74 N. E. 100 See Stowell r. Erie R. Co., (C. Rep. 19. C. A.) 98 Fed. Rep. 520, 523. us The Fulda, 31 Fed. Rep. 351, 110 Montgomery, English History, § 353. 290. "* Scanlan r. Tenney, 72 Fed. Rep. 111 See .nlso infra, S 369. Sa."") (light on wharf, and person pass- 112 See Indianapolis St. R. Co. v. ing off steamer gangway ) . §§ 310, 311] LIGHT AND SIGHT. 318 avoid it; he falls into an excavation, crawls out, and, by looking care- fully, with all his senses quickened by the mishap, he sees and realizes the cause. By the exercise of extraordinary care before the accident he might have discovered that which wag not ordinarily observ- able." "= § 310. Pilots Dazzled by Brooklyn Bridge Idghts."" — In a case arising out of a collision in the East Elver near the Brooklyn Bridge, United States District Judge Brown made the following observations ; " The dazzling effect of the electric lights upon the bridge is such a? to add to the difficulties of navigation in the nighttime by vessels passing each other in that vicinity. Pilots, when near the' bridge, cannot properly distinguish ordinary lights Just beyond the bridge. Common prudence would therefore seem to require of all vessels approaching the bridge a material diminution of speed. For a dis- tance of several hundred feet above and below, the effect of the bril- liant lights of the bridge is to prevent the ordinary lights of vessels in the river from being recognized. In goifl.g through this space, boats are in no better position, as respects seeing lights, than in navigating through a fog ; and there is the same reason for moderating speed in the one ease as in the other. The evidence shows that the practice of moderating speed in nearing the bridge has been already, to some extent, adopted by prudent pilots." ^" In another case where a steamer proceeding up the Jlast River in the night overtook and collided with a tow, a short distance above the bridge, the same judge was inclined to think that the glare of the bridge electric lights had something to do with the nonobservance of the lights of the tug and tow; especially as a contrary conclusion in the particular case ?night require the court to believe that three out of four white lights on the tug and tow had gone out between the Battery and the bridge, which was " in the highest degree improbable." "^ § 311. Person Dazzled by Electric Headlights. — The driver of an automobile met a suburban electric car running on the same high- iisBrueh v. Philadelphia, 181 Pa. i" The A. Demerest, 25 Fed. Rep. St. 588, 591, per Dean, J. See also 921, 923. supr